C.M.R. 10, 144, ch. 2, att. 144-2-A - Procurement

A. General Procurement Goals and Objectives

1. The community action agency must ensure that all procurement of materials, property or equipment with CSBG funds are conducted in a manner to provide open and free competition and to avoid any appearance of impropriety.

2. The CAA must maintain a written code of conduct to govern the performance of its officers, employees or agents engaged in the award of contracts and the administration of CSBG funds. The code shall Include at a minimum the following provisions:

a. No CAA employee, officer or agent shall participate in the selection, award or administration of a contract in which CSBG funds are to be used where to his or her knowledge any of the following persons or entities may possibly benefit from the selection, award or administration of such contract.

(i) The employee, officer or agent;

(ii) A member of the immediate family of the employee, officer or agent;

(iii) A partner of the employee, officer or agent;

(iv) An organization in which any person described in subsections (I) through (III) above has a financial interest or with whom said person is negotiating or has any arrangement concerning prospective employment.

b. No CAA employee, officer or agent shall solicit or accept gratuities, favors or anything of monetary value from a contractor or potential contractor;

c. The CAA agrees not to employ any person while he or she, or a member of his or her immediate family, Is an officer or agent of the sub-grantee or exercises supervisory authority over that person; and

d. Disciplinary actions to be applied for violations of the code.

3. Proposed procurement actions shall follow a procedure to assure the avoidance of purchasing unnecessary or duplicative items. Where appropriate, an analysis shall be made of lease and purchase alternatives to determine which would be the most economical and practical procurement.

4. Solicitations for goods and services shall be based upon a clear and accurate description of the technical requirements for the material, product or service to be procured.

5. The CAA shall make positive efforts to utilize small and minority owned businesses as a source of supplies and services. Such efforts shall allow these sources the maximum feasible opportunity to compete for contracts which utilize CSBG funds.

6. Any information concerning contract requirements which CAA's personnel share with one prospective contractor must be shared with all prospective contractors to whom the CAA has sent bid materials. ..

7. Some form of price or cost analysis shall be made in connection with every procurement action.

8. Awards shall be made to the bidder whose bid is responsive to the requirements set out in the Invitation to Bid or Request for Proposals and is most advantageous to the recipient, price and other factors considered. Bid awards shall be In writing with all bidders notified of the successful bidder. All bid documents shall become public information subject to disclosure upon request after the bids are opened.

9. Contracts shall be made only with responsible contractors who possess the potential ability to perform successfully under the terms and conditions of a proposed procurement. Consideration shall be given to such matters as contractor integrity, record of past performance, financial and technical resources or accessibility to other necessary resources.

10. The following provisions must appear in all contracts where procurement is, In whole or in part, CSBG funded:

a. Contracts other than small purchases shall contain provisions or conditions which will allow for administrative, contractual, or legal remedies in instances where contractors violate or breach contract terms, and provide for such sanctions and penalties as may be appropriate.

b. All contracts In excess of $10,000 shall contain suitable provisions for termination by the CAA including the manner by which it will be effected and the basis for settlement. In addition, such contracts shall describe conditions under which the contract may be terminated because of circumstances beyond the control of the contractor.

c. All contracts awarded in excess of $10,000 by community action agencies and their contractors shall contain a provision requiring compliance with Executive Order 11246, entitled "Equal Employment Opportunity", as amended by Executive Order 11375, and as supplemented in Department of Labor regulations ( 41 CFR Part 60).

d. All contracts and subgrants for construction or repair shall include a provision for compliance with the Copeland 'Anti-Kickback' Act ( 18 USC 874) as supplemented in Department of Labor regulations ( 29 CFR, Part 3). This Act provides that each contractor or agency shall be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he is otherwise entitled. The community action agency shall report all suspected or reported violations to the grantor agency.

e. Where applicable, all contracts awarded by community action agencies in excess of $2,000 for construction contracts and In excess of $2,500 for other contracts which involve the employment of mechanics or laborers for work financed in whole or in part by CSBG funds shall include a provision for compliance with sections 103 and 107 of the Contract Work Hours and Safety Standards Act ( 40 USC 327 - 330 ) as supplemented by Department of Labor regulations ( 29 CFR, Part 5). These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence.

f. All contracts (except those awarded by the small purchases procedures of Section B.1) awarded by community action agencies shall include a provision to the effect that (1) the Division of Community Services, the Federal grantor agency, the Comptroller General of the United States, or any of their duly authorized representatives, shall have access to any books, documents, papers, and records of the contractor which are directly pertinent to that specific contract; and. (2.) the contractor must place the same provision as stated in subsection (1) In any subcontract which would have had to have the provision were It awarded directly by the community action agency.

g. Community action agencies shall require contractors to maintain all required records for three years after final payments have been made and all other pending matters are closed. If an audit litigation or other action involving the records is started before the end of the 3 year period, the records must be retained until all issues arising out of the action are resolved or until the end of the 3 year period whichever Is later.

h. Contracts and subcontracts of amounts in excess of $100,000 shall contain a provision which requires compliance with all applicable standards, orders, or requirements issued under Section 306 of the Clean Air Act ( 42 USC 1857(h)), Section 508 of the Clean Water Act ( 33 USC 1368 ). Executive Order 11738, and Environmental Protection Agency regulations ( 40 CFR Part 15). The provision shall require a reporting of violations to the grantor agency and to the U.S.E.P.A. Assistant Administrator for Enforcement (ENM-329).

11. The community action agency shall request and obtain written approval from the Division for any agency procurement contract, agreement or bid proposal prior to its award when:

a. The procurement is for furnishing any of the work or services provided for in a sub-grant agreement with a community action agency;

b. The procurement, at least a portion of which is CSBG funded, is expected to exceed $10,000; or

c. The proposed procurement is a sole source procurement including when only one bid or proposal is received, in which the aggregated expenditure is expected to exceed $5,000, at least a portion of which is CSBG funded.

d. The community action agency fails to comply with its own procurement procedures, with the requirements of this Attachment, the rules or with OMB Circular A-110, Attachment 0.

12. A system for contract administration shall be maintained to ensure contractor conformance with terms, conditions and specifications of the contract and to ensure adequate and timely follow-up of all purchases.

13. Procurement records and files for purchases in excess of $300 shall include:

a. Basis for contractor selection;

b. Justification for lack of competition when competitive bids or offers are not obtained;

c. Basis for award cost or price; and.

d. Executed contract if one is required

14. The CAA shall be bound by, and the Division shall use in Its review, general federal procurement principles set out in Attachment 0 to OMB Circular A-110. Reference to the "Federal sponsoring agency" shall be interpreted to read "Division of Community Services".

B. Procurement Procedures

1. In the case of individual purchases of $300 or less, at least a portion of which Is CSBG funded, the CAA may purchase items or services from the most convenient supplier provided the price is reasonable.

2. In the case of individual purchases between $300 and $2,500, the CAA shall:

a. Perform a price survey for the required Items or services;

b. Receive price quotations or bids from at least three reputable vendors and document them on a survey sheet; and

c. Purchase the items or services from the vendor whose bid or proposal will be the most advantageous to the CAA, price and other relevant factors considered.

3. Competitive sealed bids with advertising and executed contracts are required for all other procurements, except as provided in Section B(4) below.

a. The CAA must prepare an Invitation to Bid or a Request for Proposals, which:

(i) Identifies all requirements which prospective bidders must fulfill;

(ii) Identifies all factors which the CAA will consider in evaluating bids;

(iii) Establishes relative weights of all factors, including cost, by means of which the CAA will rank bids; and

(iv) Establishes the maximum amount of the contract, its duration, and Its geographical scope and states that failure to execute the contract will result in bid disqualification.

b. The Invitation to Bid or Request for Proposals shall include the following provisions:

(i) The contract award is subject to prior approval by the Division upon review by its Attorney;

(ii) Any and all bids may be rejected when it is in the interests of the CAA to do so;

(iii) All bids constitute firm offers which may not be withdrawn for a specified period of time from the bid opening;

(iv) The submission of a bid constitutes acceptance of the terms and conditions of the Invitation to Bid or Request for Proposals; and

(v) All bids must be sealed and received by the specified CAA contact person prior to a specified time for a bid opening at a specified time and location.

c. The CAA must publish a newspaper advertisement in, at a minimum, the newspaper with the greatest circulation in the CAA's service area.

d. This newspaper advertisement shall specify and provide at least the following:

(i) A concise description of the materials, supplies or services to be procured;

(ii) The CAA's contact person from whom prospective bidders may obtain bid materials;

(iii) The deadline for delivery of sealed bids, including time of day and the time and place for the bid opening;

(iv) A statement that the advertisement is subject In all respects to the terms and conditions of the Invitation to Bid or Request for Proposals.

e. The newspaper advertisement shall be published with enough time prior to the bid opening to permit prospective bidders to obtain, prepare and submit bids.

f. The Invitation to Bid or Request for Proposals must be mailed or delivered to no less than three prospective contractors who may reasonably be expected to submit a bid.

4. Sole source procurement may be used when procurement is infeasible under the methods set forth in Section B(l)(2) or (3).

a. Sole source procurement may be used only when:

(i) Public exigency or emergency will not permit a delay necessary for competitive solicitation, or

(ii) A specific item or service Is available from only one source;

b. A written statement justifying the use of sole source procurement shall be included in the CAA procurement file.

5. The Division will not reimburse the CAA for procurements which are not made and documented in accordance with this part, Including:

a. Documentation of the basis of contractor selection, including the method by which multiple price quotations from varying contractors were compared and evaluated: and

b. Documentation of the basis for the contract award amount, including the estimate for materials or services which the CAA expects to procure by means of the subcontractor.

6. The Division may permit procurement by methods other than as provided in these rules upon the written request with justification from a CAA.

C. Division Responsibilities Regarding Procurements

1. The Division will provide prompt and timely review of all proposed sole source procurements requiring approval and will answer any such request In writing within a time frame which meets the needs which have prompted the request. If the Division denies a request for proposed sole source procurement, it will provide written reasons for this denial and technical assistance in finding alternative means of meeting the procurement need which necessitated the request.

2. Division staff will provide technical assistance for CAA's compliance with these requirements.

3. The Division may require that all bid materials be submitted to the Division for its prior written approval.

4. In any case where a CAA receives no responsive bid to an Invitation to Bid or Request for Proposal, or decides for any reason to award no bid, it shall immediately notify the Division's Attorney. 4 decision to reject all bids for proposals shall be supported by a well-documented rationale.

5. Neither the Division nor the State of Maine assumes any liability in the event of protests, disputes, or breaches of contract.

Notes

C.M.R. 10, 144, ch. 2, att. 144-2-A