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City of Missoula, Montana Item to be Referred to City Council Committee Committee: Conservation Committee Item: Resolution to Adopt MCA Title 18, Chapter 4, Part 3 allowing the City to use the additional processes for procurements Date: February 5, 2010 Prepared by: Kathy Mehring Initiated by: Donna Gaukler Action Required: Adoption of Resolution MCA 18-4 Part 3 and accompanying rules to allow the City to use the competitive sealed proposals process for procurement of supplies and services, Recommended Motion: I move the City Council adopt Resolution - A RESOLUTION OF THE MISSOULA CITY COUNCIL ADOPTING MONTANA CODE ANNOTATED (MCA) TITLE 18 - PUBLIC CONTRACTS, CHAPTER 4 - MONTANA PROCUREMENT ACT, PART 3 - PROCUREMENT PROCEDURES AND THE ACCOMPANYING ADMINISTRATIVE RULES OF MONTANA (ARM) AS AN ALTERNATIVE PURCHASE PROCUREMENT PROCEDURE. Timeline: Referral to committee: February 5, 2010 Committee discussion: February 17, 2010 Council acts to set hearing: February 22, 2010 Background and Alternatives Explored: Adoption of this resolution allows the City to use MCA Title 18, Chapter 4, Part 3 and Accompanying Rules of Montana ARM, including MCA18-4-304 and ARM 2.5.602, which provides for use of a Competitive Sealed Proposals (CSP) process for procurement of certain supplies and services. The CSP in certain procurements will allow the City to use the most equitable process to compare various supplies (equipment and product) and installations of those supplies. The City has spent the last several months exploring procurement options for playgrounds. Some procurement options explored included sealed bids, purchase groups, prequalification followed by sealed bids, and design-build. After several communications with the MT Department of Commerce, other Cities, playground companies, Washington State Dept of Commerce, legal advisors, procurement advisors, purchasing partners and others, the adoption of MCA 18.4. Part 3 became the obvious best option. It is important to note that adoption of MCA 18.4 Part 3 and accompanying ARM, allowing use of a CSP process for procurement of certain supplies and services, will not replace traditional and prior adopted procurement methods for typical procurements such as RFQ/RFP for professional architectural and engineering services, sealed bidding, and others. ---PAGE BREAK--- The Resolution has been reviewed by the City Attorney. Financial Implications: The adoption of the Resolutions provides an additional, and in some cases, much more desirable method for procurement of certain supplies and services. Benefits that the City may experience may include more and better solutions for the dollar, equitable methodology based on pre- determined criteria for measuring quality and quantity of certain supplies and services, ability to incorporate special features (e.g. neighborhood preferences in playground design and selection criteria), improved management of risk, and extension of warranties. Attachments: Resolution Montana Code Annotated, Title 18, Chapter 4, Part 3: http://data.opi.state.mt.us/bills/mca_toc/18_4_3.htm Montana Administrative Rules: http://www.mtrules.org/ Additional Information: 18-4-304. Competitive sealed proposals. The department may procure supplies and services through competitive sealed proposals. Proposals must be solicited through a request for proposals. Adequate public notice of the request for proposals must be given in the same manner as provided in 18-4-303(2). After the proposals have been opened at the time and place designated in the request for proposals and reviewed by the procurement officer for release, proposal documents may be inspected by the public, subject to the limitations of: the Uniform Trade Secrets Act, Title 30, chapter 14, part 4; matters involving individual safety as determined by the department; and other constitutional protections. The request for proposals must state the evaluation criteria and their relative importance. If an award is made, it must be made to the responsible and responsive offeror whose proposal best meets the evaluation criteria. Other criteria may not be used in the evaluation. The contract file must demonstrate the basis on which the award is made. The department may discuss a proposal with an offeror for the purpose of clarification or revision of the proposal. 2.5.602 COMPETITIVE SEALED PROPOSALS "Competitive sealed proposal" is a procurement option allowing the award to be based upon an evaluation process using stated criteria to arrive at a contract that will be the most advantageous to the state. ---PAGE BREAK--- Competitive sealed proposals, solicited through a request for proposals, may be practical when one or more of the following conditions exist: the contract needs to be other than a fixed-price type; oral or written discussions may need to be conducted with offerors concerning technical and price aspects of their proposal; offerors may need to be afforded the opportunity to revise their proposal, including prices; award may need to be based upon a comparative evaluation as stated in the request for proposals of differing price, quality, and contractual factors in order to determine the most advantageous offering to the state. Quality factors include technical and performance capability and the content of the technical proposal; or price will only be one of the criteria considered in determining an award. The request for proposals must be prepared in accordance with ARM 2.5.601 and must also include: a statement that discussions may be conducted with one or more offerors who submit proposals, but that proposals may be accepted and a contract issued without such discussions; and the criteria that will be used to evaluate the proposals. An evaluation committee may be utilized to evaluate the proposals. Facsimile transmission of a proposal is only acceptable on an exception basis with prior approval of the procurement officer. Proposals shall be time-stamped upon receipt and held in a secure place by an employee of the agency until the due date specified in the request for proposals. After the time established for receipt of proposals, a procurement officer shall open the proposals and inspect the proposals for material not available for public inspection pursuant to 18- 4-304 and 18-4-308, MCA. The procurement officer will remove this material and then make the remainder of the proposal available for public inspection. Offerors submitting a proposal containing a claim to shield confidential information pursuant to 18-4-304, MCA, must include a statement that attests to the offeror's acceptance of the legal and financial responsibility for defending the claim. In addition, any claim to shield trade secret material must be made by an offeror's legal counsel using the affidavit form prescribed by the division. For the purpose of conducting discussions, proposals shall be initially classified as responsive or nonresponsive. Proposals may be found nonresponsive any time during the procurement process if: any of the required information is not provided; (ii) the submitted price is found to be excessive or inadequate as measured by criteria stated in the request for proposals; or (iii) the proposal is not within the plans and specifications described and required in the request for proposal. Nonresponsive proposals will be eliminated from further consideration. Discussions including oral presentations, interviews, demonstrations, responses to specific questions, modifications, and negotiations may be held with one or more offerors to: promote understanding of the state's requirements and the offerors' proposals; and facilitate arriving at a contract that will be most advantageous to the state taking into consideration all criteria set forth in the request for proposals. (10) At the discretion of the procurement officer, one or more offerors may be provided an opportunity to submit a best and final offer if additional information is required in order to reach a ---PAGE BREAK--- final decision. Unless the request for proposals so states, a best and final offer may not be requested from the offeror(s) on price alone. (11) References and the credit and financial responsibility of the offerors may be verified as appropriate. (12) The evaluation shall be based on the evaluation criteria set forth in the request for proposals. The evaluators shall exercise discretion in assigning points or value to a proposal, which involves a judgmental assessment of the evaluation criteria. If an award is made, it must be made to the responsive and responsible offeror whose proposal best meets the evaluation criteria. (13) The department reserves the right to negotiate with one or more offerors for the award of a contract that is most advantageous to the state. The department reserves the right to award a contract without negotiations or to reject any or all proposals. (14) Interested parties are responsible for making their own arrangements to make copies of proposal materials. (15) Multiple award contracts are allowable if determined to be in the best interest of the state. (16) The state may create a roster of contractors to provide supplies and/or services on an "as needed, if needed" basis. In this situation, contractors have no guarantee that any supplies or services will be purchased by the state. The solicitation document will establish the method to be used to select contractors for the roster.