PROCUREMENT: I GIVE UP! STEPHANIE BRUCE, DIRECTOR NUTRITION SERVICES, PALM SPRINGS USD GUISELLE CARREON, COMMERCIAL WARRANTS & ACCOUNTS PAYABLE, SAN DIEGO COE KELLY M. REM, ATTORNEY, LOZANO SMITH The views and opinions expressed in this presentation are those of the authors and do not necessarily reflect those of CASBO.
Disclaimer The information in this presentation is based on available information at the time. Information provided for bid documents are suggestions. Terminology may be different than what you use in your district. Check with your local county office and/or legal counsel of education for county specific rules/regulations.
Open and Free Competition All procurement transactions, regardless of whether by sealed bids or by negotiation and without regard to dollar value shall be conducted in a manner that provides maximum open and free competition 2 CFR 200.319
2 CFR 200.319 - Competition All procurement transactions must be conducted in a manner providing full and open competition consistent with the standards of this section. 1. Placing unreasonable requirements on firms in order for them to qualify to do business; 2. Requiring unnecessary experience and excessive bonding; 3. Noncompetitive pricing practices between firms or between affiliated companies; 4. Noncompetitive contracts to consultants that are on retainer contracts 5. Organizational Conflicts of Interest 6. Specifying only a brand name product instead of allowing an equal product 7. Any arbitrary action in the procurement process
Additional Prohibited Practices Incorrect application of Geographic Preference Avoiding Formal Threshold by splitting bids to ensure a certain vendor wins a bid. Exception may be for perishable items where a vendor may not be able to commit to a solid price, you Getting a cost quote from only one vendor Allowing a vendor to write specifications Conflict of interest (Employee or Vendor)
Code of Conduct Governs the performance, behavior and actions of the employees engaged in any aspect of procurement. 1. Conflicts of Interest 2. Prohibits award to a family member 3. Prohibits solicitation of gifts or donations. (Incentive language can be included as part of the competitive procurement and must benefit the school meal program) Discounts/Rebates 4. Gifts/Donations 5. Gift Exclusions 6. Non-Compliance 7. Staff should be familiar with the Code of Conduct
Written Procurement Procedures Develop and maintain written procurement procedures designed to avoid the acquisition of unnecessary or duplicative items. Written procedures should match district s board policies and administrative regulations. Written procedures should include guidelines for: Micro purchases Small purchases Formal Bidding Written procedures should be kept up-to-date. Staff should be familiar with written procedures.
Bid Limits Federal bid limit is $150,000 California State bid limit is $88,300* Applies only to Public schools and County offices of Education. Districts may have more restrictive limits. * CA Bid Limit 2017 * PCC 20111
Informal Procurement Any purchase that is under the statutory bid limit (Federal = $150,000/CA $88,300*) Micro Purchases Small Purchases * CA State Bid Limit 2017
Micro Purchase $3,500 Not to be used for regularly purchased items. Does not require multiple quotes if the pricing is deemed reasonable. Must be distributed equally among qualified suppliers. Prices must be reasonable. Requires retention of documentation if quotes were obtained. District may require quotes at less than the micro purchase threshold
Small Purchase $88,300 (statutory bid limit for 2017) Written specifications/scope of work Price quotes from an adequate number of qualified sources. Federal requires you source a minimum of 3 vendors. Evaluate bidders responses to your specifications. Determine most responsive and responsible bidder at lowest price and award contract. County and/or District s may have more restrictive limits. Managing the contract is a requirement.
Request for Proposal (RFP) Used for both informal (small purchase threshold) and formal bidding when procurement is above the statutory bid limit. For contracts awarded to the lowest responsive and responsible bidder meeting specific criteria. Must provide a scoring criteria. Once it is determined which bidders meet all required criteria based on scoring threshold Price will be the determining factor.
Formal Procurement > $88,300 (CA bid limit 2017) Requires an Invitation to Bid (IFB) process and is a competitive sealed bid Advertising is required once a week for two weeks in a periodical with general circulation. (PCC20112) Bids must be sealed Bids must be evaluated for responsiveness Bidder must be responsible May be awarded by line item, lot, or split lots. Price is the only factor.
Bidding Requirements Final addendum must be issued 72 hours prior to bid opening. (PCC 4104.5) Substitution of specified brand should be prior to bid opening. Termination for cause > $10,000 (2 CFR 200 Appendix 2)
BID&RFP Required Documents/Certifications -Contractors Certification regarding Alcohol Beverages and Tobacco Free Workplace (District Policy) -Contractors Certification regarding Drug Free Workplace (Government Code Section 8350) -Suspension and Debarment (> $25,000) (MB 98-113 July 1998 & 7 CFR 3017.510) Contracts in excess of $30,000 the district must have a process to check debarment status. -Lobbying Activity Certification (> $100,000) (MB 98-113 July 1998 & 7 CFR 3018) -Non Collusion Declaration (PCC 7106) -Equal Opportunity Employment Declaration (41 CFR 60-1.4(a), 60-300.5(a), 60-741.5(a)) -Contractors Certification regarding Worker Compensation (Labor Code 3700)
BID&RFP Required Documents/Certifications (cont d) Iran Contracting Act (> $1,000,000) PCC 2202-2208 Clean Air and Water Certification (>$100,000) Section 114 of the Clean Air Act Section 308 of the Federal Water Pollution Control Act EPA Regulations (40 CFR Part 15) Energy Policy and Conservation Act Contract Work Hours and Safety Standards Act Compliance Food Defense Food Safety Modernization Act Small Business and Minority, Woman, and Disabled Veteran Business Enterprise
Responsive vs. Responsible Bidder Responsive: A bidder has met all the conditions of the bid as explained in the instructions to bidders. A district may waive an irregularity in a bid, such as the failure to sign, as long as the error is not material (does not change the cost of the bid or give a material advantage to the bidder). 48 CFR 14.405 Responsible: Responsibility goes to trustworthiness, quality, fitness, capacity and experience to satisfactorily perform the contract. Responsibility is about the bidder and not the bid.
PROCUREMENT: PAIN IN THE @$&!! STEPHANIE BRUCE, DIRECTOR NUTRITION SERVICES, PSUSD GUISELLE CARREON, COMMERCIAL WARRANTS & ACCOUNTS PAYABLE, SAN DIEGO COE KELLY M. REM, ATTORNEY, LOZANO SMITH The views and opinions expressed in this presentation are those of the authors and do not necessarily reflect those of CASBO.
Prequalification Prior to Bidding
Prequalification Process Bidders who submit a qualification packet and are deemed eligible, may submit a formal seal bid. Develop questionnaire (criteria for qualifying to bid) Develop taste test procedure for Ready to Serve foods Develop scoring criteria Develop appeals process Notify applicants of qualification results Publish list of eligible bidders
Qualified/Responsible Bidder Prequalification Criteria Examples: Food Defense Must be registered with the Food and Drug Administration and meet the requirements of the Food Safety Modernization Act. Safety and Sanitation Certificates HAACP Program Warehouse Inspection References What is your procedure for substitutions. What is your procedure for Product Recalls. Years in business Have you backed out of a distribution contract or been deemed non responsive. Fingerprinting
Bidding Exceptions
Noncompetitive Bid - (2CFR 200.320(f)) Public need is urgent or an emergency exists. Recommend communication with CDE Very restrictive Maintain documentation Pre-approval from CDE (if received). Contracts/bid solicitations
Co-op/JPA/Consortium Group Purchasing Must be formed properly* (USDA Policy memo SP 05-2017) Create officers and governing structure Establish by-laws Alternative: Joint procurement (multi-district bid) Piggyback bid with each district names as authorized user *Resource: http://sgf.senate.ca.gov/sites/sgf.senate.ca.gov/files/gwtfinalversion2.pdf
Piggyback (USDA Policy Memo SP 35-2012) A piggyback procurement is when one entity is jumping on an existing contract under the SAME terms to procure goods. No material changes are permitted. New/additional items but be formally or informally procured. Not allowed to piggyback services (PCC 20118) Contract must have language to allow piggyback Encourage you to speak with your legal counsel.
Geographic Preference Institutions receiving funds through the Child Nutrition Programs may apply an optional geographic preference in the procurement of ONLY unprocessed locally grown or locally raised agriculture products.
Small Business and Minority, Woman, and Disabled Veteran Business Enterprise (MWDVBE) In an effort to encourage minority, women and disabled veteran owned business enterprises to participate and submit proposals based upon their capacity to perform and be successful, this project may be awarded to more than one Proposer if it is in the best interest of the District to do so. 2 CFR 200.321
Buy American Provision - (USDA SP 24-2016) Bidder will comply with the Buy American requirement, which dictates that school participating in the federal school lunch programs are required to purchase domestic commodities and products for school meals to the maximum extent possible. 7CFR 210.21 (d) Awarded distributor will provide information on products origin.
Helpful Links Suspension and Debarment: https://www.gsa.gov/portal/content/192903 http://www.cde.ca.gov/ls/nu/sn/mb98113.asp Geographic Preference: https://www.fns.usda.gov/sites/default/files/f2s_geo_pref.pdf http://www.cde.ca.gov/ls/nu/sn/mbusdasnp132009.asp Food Defense: http://www.fda.gov/food/guidanceregulation/fsma/default.htm Energy Policy and Conservation Act: http://legcousel.house.gov/comps/epca.pdf Contract Work Hours and Safety Standards Act Compliance: http://www.dol.gov/compliance/laws/comp-cwhssa.htm
Questions??