ADMIN 190 - Procurement of Public Works Construction

Policy

Efficient and cost-effective procurement of public works construction is an important aspect of local government operations. Accordingly, CWI endeavors to procure public works construction pursuant to a publicly accountable process that respects the shared goals of economy and quality and is in full compliance with applicable law. This policy and the procedures set forth herein define the roles and responsibilities of affected Administrative Units and the Business Office as they apply to the procurement of public works construction. As a political subdivision, CWI is required to follow procedures regarding the procurement of public works construction as outlined in Idaho Code §§ 67-2801 et seq.

REGULATIONS

Idaho Code §§ 54-1901 et seq. Public Works Contractors

Idaho Code §§ 67-2801 et seq. Purchasing by Political Subdivisions

Idaho Code §§ 67-2320 Professional Service Contracts with Design Professionals, Construction Managers and Land Surveyors

Idaho Code § 67-2348 Preference for Idaho Domiciled Contractors on Public Works

Idaho Code §§ 44-1001 et seq. Requirement of Employment of Idaho Residents

Idaho Code § 59-1026 Willful and Knowing Avoidance of Competitive Bidding and Procurement Statutes

Federal Uniform Grant Guidance

Guidelines

For audit purposes, purchases made prior to the latest revision of this policy are subject to that version of this policy in effect at the time the purchase process was initiated. Purchases made after the latest revision date of this policy are subject to this policy as amended.

PRELIMINARY AUTHORIZATION

Prior to making a purchase, the appropriate Administrative Unit Manager should authorize the purchase. This should include verifying that there is adequate budget for the purchase and that the appropriate General Ledger (GL) code is used for the purchase. If a contract is involved in the purchase, contract review and signatures should occur in conjunction with the submittal of a purchase order and in compliance with ADMIN 000 - Contract Administration and Management Policy. Purchase authorizations require specific authorizations depending on the cost of the purchase.

PRELIMINARY COST ANALYSIS

The total value of the public works construction (Public Works Construction) project determines the solicitation process for that project. Total value is determined based on the cumulative total dollar value of the contemplated contract as a whole. CWI Departments are responsible for providing a good faith estimate of the contemplated Public Works Construction to the Contracts Group prior to any bid solicitation in compliance with state procurement laws. (See IC 59-1026). Different dollar amount thresholds may apply for procurements made with federal funds.

This Policy applies to procurement and contracting for Public Works Construction and for certain professional services. This Policy is divided into two main sections:

1. SECTION I: PUBLIC WORKS CONSTRUCTION
2. SECTION II: PROFESSIONAL SERVICES AGREEMENTS FOR ENGINEERING, ARCHITECTURAL, LANDSCAPE ARCHITECTURE, CONSTRUCTION MANAGEMENT, AND LAND SURVEYING SERVICES THAT EXCEED $50,000

Purchases made with federal funds will need to follow the requirements noted in the Grants Federal Monies section below.

SECTION I: PUBLIC WORKS CONSTRUCTION: BID PROCEDURES

All projects meeting the definition of Public Works Construction, as defined in IC 54-1901(b), require any contractor or subcontractor involved in the project to be licensed as a public works contractor unless exempted by Idaho law. (See IC 54-1903). Contractors and subcontractors are also required to be licensed in their own specialty or trade, as required by applicable Idaho statute or regulation.

A. PUBLIC WORKS CONSTRUCTION LESS THAN $50,000

Procurements of public works construction valued at less than $50,000 can be made on the open market provided that the procurement is guided by the best interests of CWI. Public Works Construction projects valued under $50,000 are exempt from statutory requirements regarding Public Works Construction, pursuant Idaho Code §§ 54-1901 et seq., including the requirement for contractors to obtain a public contractor license and the necessity of any performance or payment bond, as otherwise required. (See IC 54-1903 Exemptions). Contractors though are not exempt from state licensing law requirements that are specific to the contractor’s construction specialty.

B. INFORMAL BID REQUEST: PUBLIC WORKS CONSTRUCTION VALUED FROM $50,000 LESS THAN $200,000

The following procedures must be followed when CWI contemplates an expenditure to procure Public Works Construction valued in excess of $50,000 but does not exceed $200,000:

1. CWI, in consultation with the Contracts Group, shall solicit bids for the Public Works Construction from at least three (3) designated licensed public works contractors in writing, either by electronic or physical delivery.

2. Solicitation for bids shall describe the construction work to be completed in sufficient detail to allow an experienced public works contractor to understand the construction project CWI seeks to build.

3. Solicitation for bids shall describe the following:

     a. The electronic or physical delivery method(s) authorized to permit a Contractor to submit a bid; and

     b. The date and time by which a bid proposal from a Contractor must be received by CWI.

4. CWI shall provide a reasonable time to respond to the solicitation, provided that except in the event of an emergency, such time shall not be less than three (3) business days.

Written objections to specifications or bid procedures must be received by the Contracts Group, as the authorized CWI official, at least one (1) business day before the date and time upon which bids are scheduled to be received.

Contractors will submit written bids to the Contracts Group either by electronic or physical delivery. The Contracts Group is the official designee of the CWI Board of Trustees designated to receive and review Public Works Construction bids. Thereafter, the Contracts Group, as the designee of the Board of Trustees, is authorized, to exercise its discretion to either: (1) approve the responsive bid proposing the lowest procurement price or (2) reject all bids and publish notice for bids, as before. This decision shall be made by the Contracts Group in consultation with the CWI Department requesting the solicitation, but the decision is designated solely to the Contracts Group by the CWI Board of Trustees.

If the Contracts Group finds that it is impractical or impossible to obtain three (3) bids for the proposed public works procurement, in consultation with the CWI Department, the Contracts Group may acquire the work in any manner it deems best from a qualified public works contractor quoting the lowest price. When fewer than three (3) bids are considered, a description of the efforts undertaken to procure at least three (3) bids shall be documented by the Contracts Group and such documentation shall be maintained for at least six (6) months after the procurement decision is made.

If two or more price quotations offered by different licensed public works contractors are the same and the lowest responsive bids, the Contracts Group, as the authorized designee of the CWI Board of Trustees, in consultation with the requesting CWI Department will determine which public works contractor should be selected.

Selection of a public works contractor does not guarantee that a final contract will be executed between CWI and the public works contractor. CWI will make good faith efforts to fully execute an agreement with a Contractor selected by the above process.

INFORMAL BID REQUEST INFORMATION GATHERING TOOLS

Administrative Units can gather information from the internet, Contractors, white papers, etc. when developing bid specifications. Administrative Units should provide enough detail in the specifications to receive several bids for the goods and services requested.

C. FORMAL BID REQUEST: PUBLIC WORKS CONSTRUCTION VALUED IN EXCESS OF $200,000

Every Public Works Construction that costs in excess of $200,000 is required to follow a formal bid request procedure (“Formal Bid Request”) defined pursuant to Idaho Statutes. The following procedures must be followed when CWI contemplates an expenditure to procure Public Works Construction valued in excess of $200,000.

The purchase of public construction shall be made pursuant to a competitive sealed bid process from a qualified public works contractor which has submitted the lowest bid price and has complied with applicable bidding procedures and met any pre-qualifications (Category B) as established by the bid documents. Competitive bidding for public works may proceed through either of two alternative procedures – Category A or Category B. The Contracts Group, in consultation with the CWI Department, will identify the appropriate bidding process to follow regarding purchases of Public Works Construction.

CATEGORY A - Competitive Bidding

For Category A bids, competitive bidding procedures shall be open to receipt of bids from any licensed public works Contractor desiring to bid upon the public works project. For a Category A bid, CWI may only consider (i) the amount bid; (ii) bidder compliance with administrative requirements of the bidding process; and (iii) whether the bidder holds the requisite license. CWI shall award the bid to the qualified bidder submitting the lowest responsive bid.

Requests for bids shall set a date and place for the public opening of bids. All bids are to be submitted by the day and time specified in the request for bids, as published in the official newspaper of CWI. During the bid opening, CWI will consider only those bids timely received pursuant to the date established by the request for bid. To avoid bidders making last minute changes to their proposals by writing the changes on the sealed envelope, a bidder’s instruction may be included, such as: “The entire Bidder’s Proposal must be contained on the supplied proposal forms. Any information pertaining to the Bidder’s Proposal, not specifically included on the proposal forms, will not be considered.”

Two (2) notices soliciting bids shall be published in the official newspaper of the political subdivision. The first notice shall be published at least two (2) weeks before the date originally designated for opening bids; the second notice shall be published in the succeeding week at least seven (7) days before the date that bids are scheduled to be opened. The notice shall succinctly describe the project to be constructed and provide contact information to receive further information from the Contracts Group for further details.

The Contracts Group shall make available copies of specifications, bid forms, bidder’s instructions, contract documents, and general and special instructions upon request and payment of a reasonable copy fee by any interested bidder.

All plans and specifications shall state, in addition to any other information pertinent to the work to be performed or materials to be furnished, the number, size, kind and quality of materials, and service required for the contract. These plans and specifications should not specify or provide for the use of any materials of a specific brand or mark, or any patented device or appliance, when other materials are available for such purpose and when such a requirement would prevent competitive bidding on the part of dealers or Contractors in other articles or materials of equivalent value, utility, or merit.

Written objections from Contractors to specifications or bidding procedures must be received by the Contracts Group at least three (3) business days before the date and time upon which bids are scheduled to be opened. The Contracts Group shall respond to any such objection in writing and communicate such response to the objector and all other plan holders, adjusting bidding timeframes if necessary and may involve the rescheduling of the date when bids are to be opened.

All bids shall be presented or otherwise delivered under sealed cover to the Contracts Group with a concise statement marked on the outside generally identifying the project to which the bid pertains. Bids may be made by electronic or physical means.

If CWI deems it to be in its best interest, it may require bidders to provide bid security in an amount equal to at least five percent (5%) of the amount bid. If required, a bid shall not be considered unless one of the forms of bidder’s security is enclosed with it, and unless the bid is submitted in a form which substantially complies with the form provided by CWI. CWI may require that the bid security be in one of the following forms:

1. Cash;

2. Cashier’s check from a bank insured by the FDIC made payable to CWI;

3. Certified check from a bank insured by the FDIC made payable to CWI; or

4. Bidder’s bond executed by a qualified surety company, licensed to do business in the State of Idaho, made payable to CWI.

Any bid received by CWI may not be withdrawn after the time set in the notice for opening of bids. Sealed bids are received by a member of the Contracts Group as the authorized CWI official.

When sealed bids have been received, they shall be opened in public at a designated place and time and thereafter shall be compiled and submitted to the Contracts Group. The CWI Board of Trustees has authorized the Contracts Group to review, select, approve and award bids pursuant to Idaho Code 67-2805(2)(a)(v).

If the successful bidder fails to execute the contract, the amount of the bidder’s security may be forfeited to CWI, at CWI’s sole discretion, and the proceeds shall be deposited in a designated fund out of which the expenses for procuring substitute performance are paid.

The Contracts Group may, on the refusal or failure of the successful bidder to execute the contract, award the contract to the qualified bidder submitting the next lowest responsive bid. (See IC 67-2805(2)(a)(vii)).

If the CWI Board of Trustees awards the bid to the next lowest qualified bidder, the amount of the lowest qualified bidder’s security may be applied by CWI to the difference between the lowest responsive bid and the next lowest responsive bid. The surplus, if any, shall be returned to the lowest bidder if cash or certified check is used, or to the surety on the bidder’s bond if a bond is used, less reasonable administrative costs not to exceed twenty-five percent (25%) of the amount of the bidder’s security to CWI. (See IC 67-2805(2)(a)(vii)).

In its discretion, the CWI Board of Trustees may reject all bids presented and re-bid, or the CWI Board of Trustees may, after finding it to be a fact, pass a resolution declaring that the project sought to be accomplished by the expenditure can be performed more economically by purchasing goods and services on the open market. (See IC 67-2805(2)(a)(viii)).

If identical bids are received, the CWI Board of Trustees may choose the bidder it prefers. If no bids are received, the Board of Trustees may procure the goods or services without further competitive bidding procedures. (See IC 67-2805(2)(a)(viii)).

If the CWI Board of Trustees chooses to award a competitively bid contract involving the procurement of Public Works Construction to a bidder other than the apparent low bidder, the CWI Board of Trustees shall declare its reason(s) on the record and shall communicate such reason(s) in writing to all persons who have submitted a competing bid (See notice provisions to be communicated to bidders below). (See IC 67-2805(2)(a)(ix)).

If any participating bidder objects to an award to a bidder other than the apparent low bidder, by the CWI Board of Trustees, the participating bidders shall respond in writing to the notice of award from CWI within seven (7) calendar days of the date of transmittal of the notice, setting forth in such response the express reason(s) that the award decision is in error. Performance of the procurement shall be stayed pending consideration of any such objection. After addressing the contentions raised by the objecting bidder, the Board of Trustees shall review its decision and determine whether to affirm its prior award, modify the award, or choose to re- bid, setting forth its reason(s) therefore. After completion of the review process, CWI may proceed as it deems to be in the public interest. (See IC 67-2805(2)(a)(x)).

CATEGORY B - Request for Qualifications

For Category B bids, competitive bidding procedures shall be open to licensed public works contractors only after meeting preliminary supplemental qualifications established by CWI. The solicitation for bids shall consist of two (2) stages (See IC 67-2805(2)(b)):

1. An initial stage determining supplemental pre-qualifications for licensed Contractors, either prime or specialty Contractors; and

2. A stage during which bid prices will be accepted only from prequalified Contractors.

Notice of the prequalification stage shall be given in the same manner as for Category A bids, providing a specific date and time by which qualifications statements must be received, including public notice of request for qualifications.

CWI may establish prequalification standards premised upon one or a combination of the following:

1. Demonstrated technical competence;

2. Experience constructing similar facilities;

3. Prior experience with CWI;

4. Available nonfinancial resources;

5. Equipment and personnel as they relate to the subject project; or

6. Overall performance history based upon a Contractor’s entire body of work.

The prequalification request must include the standards for evaluating the qualifications of prospective bidders.

During the prequalification stage, licensed Contractors desiring to be prequalified to bid on a project must submit a written response to CWI’s request for qualifications. Written objections to prequalification procedures must be received by the Contracts Group, as the authorized CWI official, at least three (3) business days before the date and time upon which prequalification statements are due. The Contracts Group, as administrative officer of the bidding process, shall respond to any such objection in writing and communicate such response to the objector and all other Contractors seeking to prequalify, adjusting bidding timeframes if necessary. After a review of qualification submittals, CWI may select a licensed Contractor that meets the prequalification standards. (See IC 67-2805(2)(b)(iii)).

If any licensed Contractor submits a statement of qualifications but is not selected as a qualified bidder, CWI shall supply a written statement of the determination, regarding the reason(s) why the Contractor failed to meet qualification standards. Any licensed Contractor that fails the prequalification stage can appeal such determination to the CWI Board of Trustees within seven (7) days after transmittal of the prequalification results. If the CWI Board of Trustees sustains the decision that a Contractor fails to meet prequalification standards, it shall state its reason(s) for the record.

A decision by the CWI Board of Trustees sustaining the denial of prequalification may be appealed to the Public Works Contractors’ License Board (Licensing Board) no more than fourteen (14) days following any decision on appeal made by the CWI Board of Trustees. Category B prequalification procedures that are appealed shall be stayed during the pendency of the prequalification appeal until the Licensing Board completes its review, but in no instance more than forty-nine (49) days after the appellate decision of the Board of Trustees. (See IC 2805(2)(b)(iv)).

Following the conclusion of the prequalification administrative procedures, the bidding stage shall proceed by the setting of a time, date, and place for the public opening of bids.

1. In circumstances involving prequalified prime Contractors, a notice soliciting bids shall be transmitted to prequalified bidders at least fourteen (14) days before the date of opening the bids. The  notice shall succinctly describe the project to be constructed.

2. In circumstances involving prequalified specialty or subordinate Contractors, the notice soliciting bids shall be published in the same manner applicable to Category A bids. The notice shall succinctly describe the project to be constructed.

Copies of specifications, bid forms, bidder’s instructions, contract documents, and general and special instructions shall be made available upon request and payment of a reasonable plan copy fee by any eligible bidder. The Contracts Group shall be responsible for distributing these documents to potential bidders.

There is no requirement for CWI to conduct pre-bid meetings for potential bidders. This is optional and is determined on a project-by-project basis.

All plans and specifications shall state, in addition to any other information pertinent to the work to be performed or materials to be furnished, the number, size, kind and quality of materials and service required for the contract. These plans and specifications should not specify or provide for the use of any materials of a specific brand or mark, or any patented device or appliance, when other materials are available for such purpose and when such requirement would prevent competitive bidding on the part of dealers or Contractors in other articles or materials of equivalent value, utility or merit.

Written objections to specifications or bidding procedures must be received by the Contracts Group at least three (3) business days before the date and time upon which bids are scheduled to be opened.

All bids shall be presented or otherwise delivered under sealed cover to the Contracts Group with a concise statement marked on the outside generally identifying the project to which the bid pertains.

If CWI deems that it is in its best interest, CWI may require the bidder to provide bid security in an amount equal to at least five percent (5%) of the amount bid. If required, a bid shall not be considered unless one of the forms of bidder’s security is enclosed with it, and unless the bid is submitted in a form which substantially complies with the form provided by CWI. CWI requires that the bid security be in one of the following forms:

1. Cash;

2. Cashier’s check from a bank insured by the FDIC made payable to CWI;

3. Certified check from a bank insured by the FDIC made payable to CWI; or

4. Bidder’s bond executed by a qualified surety company, licensed to do business in the State of Idaho, made payable to CWI.

Any bid received by CWI may not be withdrawn after the time set in the notice for opening of bids.

When sealed bids have been received, they shall be opened in public by the Contracts Group at a designated place and time. The CWI Board of Trustees or the Contracts Group, as the designee of the CWI Board of Trustees, will compile and approve a selected bidder. If identical bids are received, the CWI Board of Trustees may choose the bidder it prefers. (See IC 67-2805(2)(b)(ix)).

If the successful bidder fails to execute the contract, the amount of the bidder’s security may be forfeited to CWI, at CWI’s sole discretion, and the proceeds shall be deposited in a designated fund out of which the expenses for procuring substitute performance are paid.

The Contracts Group may, on the refusal or failure of the successful bidder to execute the contract, award the contract to the qualified bidder submitting the next lowest responsive bid.

In addition, the CWI Board of Trustees may, on the refusal or failure of the successful bidder to execute the contract, award the contract to the qualified bidder submitting the next lowest responsive bid. If CWI awards the bid to the next lowest qualified bidder, the amount of the lowest qualified bidder’s security, if forfeited, shall be applied by CWI to the difference between the lowest responsive bid and the next lowest responsive bid, and the surplus, if any, shall be returned to the lowest bidder if cash or certified check is used, or to the surety on the bidder’s bond if a bond is used, less reasonable administrative costs not to exceed twenty-five percent (25%) of the amount of the bidder’s security to CWI. (See IC 2805(2)(b)(x)).

In its discretion, the CWI Board of Trustees may reject all bids presented and re-bid, or the Board of Trustees may, after finding it to be a fact, pass a resolution declaring that the project sought to be accomplished by the expenditure can be performed more economically by purchasing goods and services on the open market. (See IC 2805(2)(b)(xi)).

If no bids are received, the CWI Board of Trustees may make the expenditure without further competitive bidding procedures.

If the CWI Board of Trustees chooses to award a competitively bid contract involving the procurement of Public Works Construction to a bidder other than the apparent low bidder, the CWI Board of Trustees shall declare its reason(s) on the record and shall communicate such reason(s) in writing to all persons who have submitted a competing bid. (See IC 2805(2)(b)(xi).

If any participating bidder objects to an award to a bidder other than the apparent low bidder, it shall respond in writing to the notice from CWI within seven (7) calendar days of the date of transmittal of the notice, setting forth in such response the express reason(s) that the award decision of the Board of Trustees is in error. The performance of the procurement shall be stayed pending consideration of any such objection. After addressing the contentions raised by the objecting bidder, the Board of Trustees shall review its decision and determine whether to affirm its prior award, modify the award, or choose to re-bid, setting forth its reason(s) therefore. After completion of the review process, CWI may proceed as it deems to be in the public interest. (See IC 805(2)(b)(xiii)).

FORMAL BID REQUEST INFORMATION GATHERING TOOLS

Administrative Units must work with the Contracts Group on all Formal Bid Requests including use of information gathering tools.

There are two types of information gathering tools for Formal Bid Requests: (1) a Request for Information (RFI); and (2) a Request for Qualifications (RFQ). The RFI and the RFQ are not considered to be a determining process, but either may be used to gather information for an ITB or RFP. Both the RFI and RFQ require a publication of a legal notice and submission of proposals.

1. REQUEST FOR INFORMATION

An RFI is used to gather information from Contractors who provide goods and services. RFI responses “educate” and provide how a Contractor might solve a problem or fill a need. RFI responses may include a Contractor’s pricing structure, features, and its approach to implementation. Information obtained through such a solicitation may be used to develop specifications or a scope of services for a future solicitation. A RFI is not a bid process, and no award can be made from an RFI.

2. REQUEST FOR QUALIFICATIONS

A RFQ is used to gather information from Contractors who provide goods or services. RFQ responses “qualify” Contractors by allowing Contractors to show their credentials and work history. A RFQ is not a bid process, and no award can be made from a RFQ.

D. PREFERENCE FOR IDAHO DOMICILED CONTRACTORS AND EMPLOYEES

To the extent permitted by federal law, CWI will apply an Idaho preference when determining which Contractor submitted the lowest responsive bid. If the Contractor who submitted the lowest dollar bid is domiciled in a state with a preference law that penalizes Idaho domiciled Contractors, CWI will apply the preference law (percentage amount) of that domiciliary state to that Contractor’s bid. This preference only applies to competitively bid purchases. The purchasing preference is added to the amount of the bid for the purpose of determining the low bidder; CWI does not pay the percentage amount to the low bidder. A Contractor is domiciled in Idaho if it is chartered or incorporated in Idaho, or if it is a sole proprietor or partnership that is located or has its permanent headquarters in Idaho. (See IC 67-2348).

In all construction, repair, and maintenance work, the Contractor must employ ninety-five percent (95%) bona fide Idaho residents as employees, or where fifty (50) or less persons are employed by the Contractor, ten percent (10%) of the Contractor’s employees may be nonresidents. In all cases, Contractors must give preference to the employment of bona fide Idaho residents. All CWI contracts must have a provision requiring the foregoing terms, and no contract shall be entered into with a Contractor refusing to execute an agreement with these terms.

Federal uniform administrative guidelines prohibit preferences noted in this section. This must be taken into consideration if any federal funds will be used for the Public Works Construction project.

E. REQUIRED PERFORMANCE AND PAYMENT BONDS FOR CONTRACTS IN EXCESS OF $50,000

Before any contract for Public Works Construction, equal to or in excess of $50,000 is executed, the person or entity to whom the contract has been awarded (Contractor) is required to provide to CWI the following bond types pursuant to Idaho Code § 59-1926:

1. Performance Bond: A performance bond in any amount to be fixed by CWI, but in no event less than eighty-five percent (85%) of the contract amount conditioned upon the faithful performance of the contract in accordance with the plans, specifications, and conditions thereof. The performance bond shall be solely for the protection of CWI.

2. Payment Bond: A payment bond in an amount to be fixed by CWI but in no event less than eighty-five percent (85%) of the contract amount, solely for the protection of persons supplying labor or material, or renting, leasing, or otherwise supplying equipment to the Contractor or its subcontractor in the prosecution of the work provided for in the contract.

To the extent CWI requires a performance bond or payment bond in excess of fifty percent (50%) of the total contract amount, it may not withhold from the Contractor or subcontractor any amount exceeding five percent (5%) of the total amount payable as retainage. Further, CWI shall release to the contractor any retainage for those portions of the project accepted by CWI and the Contractor as complete within 30 days after such acceptance. Contractors, contracting with subcontractors shall not be authorized to withhold from the subcontractor any amount exceeding five percent (5%) of the total amount payable to the subcontractor as retainage. The Contractor shall remit the retainage to the subcontractor within thirty (30) days after completion of the subcontract.

Each bond shall be executed by a surety company duly authorized to do business in Idaho, or the Contractor may deposit any of the type of government obligations listed in subsection (2) (h) of Idaho Code § 54-1901, in lieu of furnishing a surety company performance or payment bond. CWI may also require a performance bond or other security in addition to those specified herein.

F. SPECIAL PURCHASING SITUATIONS

Emergency Expenditures for Public Works Construction
The CWI Board of Trustees may declare than an emergency exists and that the public interest and necessity demand the immediate expenditure of public money if: (i) there is a great public calamity such as an extraordinary fire, flood, storm, epidemic or other disaster; (ii) it is necessary to do emergency work to prepare for national or local defense; or (iii) it is necessary to do emergency work to safeguard life, health or property. Upon the declaration of an emergency and the need to expend public funds by the Board of Trustees, CWI may expend any sum required for the emergency expenditure without compliance with formal bidding procedures. A memorandum documenting the emergency expenditure should be provided to the Contracts Group with invoices for emergency Public Works Construction purchased. (See IC 67-2808(1)(b)).

Sole Source Expenditures
The CWI Board of Trustees may authorize an expenditure without compliance with formal bidding requirements, regardless of the contract amount, if there is only one (1) Contractor for the Public Works Construction to be acquired. This is generally referred to as a sole source expenditure. For purposes of Public Works Construction, only one (1) Contractor shall refer to situations where there is only one source reasonably available and includes, but is not limited to the following situations:

1. Where Public Works Construction is required to respond to a life-threatening situation or a situation which is immediately detrimental to the public welfare or property;

2. The purchase of Public Works Construction, services, or personal property for which it is determined there is no functional equivalent; or

3. Where competitive solicitation is impractical, disadvantageous, or unreasonable under the circumstances. (See IC 67-2808(2)(a)).

If the Contracts Group, in consultation with the Office of General Counsel (OGC), determines that the purchase falls within the definition of a sole source expenditure, OGC will present the expenditure to the CWI Board of Trustees for a declaration in a public meeting of the purchase as a sole source expenditure. Upon such a declaration, unless the purchase is required for a life-threatening situation or a situation that is immediately detrimental to the public welfare or property, notice of the sole source purchase must be published in the official newspaper of CWI (the Idaho Press) at least fourteen (14) calendar days prior to the award of the contract. A Purchase Order or contract cannot be issued until the fourteen (14) day period has expired.

Any objection to a sole source expenditure must be filed in writing with the Contracts Group within three (3) days from the date of the posting of notice. CWI shall review any such objection and within three (3) days of receipt thereof either deny the objection or affirm the objection and comply with formal bidding requirements.

A sole source declaration by the Board of Trustees is valid only for the purchase of Public Works Construction to which it pertains.

Grants: Federal Monies
Administrative Units must contact CWI’s Grants Group for guidance prior to expending federal grant money for procurement purposes. Federal uniform administrative guidelines apply to expenditures of monies received through federal grants, whether those monies come directly from a federal agency or through an intermediary, known as a “pass‐through entity”. Funds received from an intermediary are often referred to as “flow through funds”. Depending on the federal agency that provides the grant money, other restrictions may apply. Further, the dollar thresholds which dictate what procurement process is required may differ from non-grant related purchases. Compliance with federal guidelines and applicable restrictions is mandatory.

Information and guidelines for grants, including purchases with grant funds, are found in CWI’s ADMIN 040 - Federal, State & Local Government Grants policy and it’s Grants Management Manual. For procurement with federal funds, compliance with the Uniform Grant Guidance is mandatory. Information and rules for grants, including purchasing with grant funds, are found in CWI’s grants policy noted above.

Grants/Sponsored Projects: Non-Federal Monies
Administrative Units must contact CWI’s Grants Group for guidance prior to expending non-federal grant money.

Non‐Profit Organizations/Correctional Industries
Purchases of goods and services from Idaho correctional industries and from non‐profit corporations and public agencies operating rehabilitation facilities for people with disabilities or disadvantaged individuals are exempt from competitive solicitation requirements. The product or service provided by the non‐profit or public agency must be offered at fair market price which should be confirmed by estimates of current pricing.

Statewide Contracts
CWI may purchase goods or services at the same contract prices and under the same terms and conditions available to the State of Idaho. If a Contractor is included on the State purchasing list, the contract has already been awarded through an appropriate bid process and no further bids are required. Accordingly, Administrative Units, in consultation with the Contracts Group, should review the State purchasing list to determine whether a purchase may be made pursuant to a statewide contract. To the extent applicable, the Administrative Unit should note that the contract is a statewide contract on its purchase order request and include the state purchase order number in any requisite documentation.

Cooperative Purchasing Agreements
With the approval of the Board of Trustees, CWI may (i) participate in cooperative purchasing agreements with the State of Idaho, other Idaho political subdivisions, other government entities or associations; and (ii) participate in cooperative purchasing programs established by any association that offers its goods or services as a result of competitive solicitation processes. Goods or services procured by participation in any such cooperative agreements or programs shall be deemed to have been acquired in accordance with the formal bidding requirements provided by law. A list of cooperative purchasing programs approved by the Board of Trustees is maintained by the Contracts Group. Public Works Contractors cannot be procured under a Cooperative Purchasing Agreement; however, public works personal property may be purchased under a Cooperative Purchasing Agreement.

SECTION II: PROFESSIONAL SERVICES AGREEMENTS FOR ENGINEERING, ARCHITECTURAL, LANDSCAPE ARCHITECTURE, CONSTRUCTION MANAGEMENT, AND LAND SURVEYING SERVICES THAT EXCEED $50,000

See Idaho Code § 67-2320. Contracts for professional services are generally excluded from formal procurement requirements of this policy (See IC 67-2805(4)). However, any professional service agreements must use the following minimum guidelines when securing contracts for engineering, architectural, landscape architecture, construction management, and land surveying services on projects for which the professional service fee is anticipated to exceed the total sum of fifty thousand dollars ($50,000), excluding professional services contracts previously awarded for an associated or phased project, and for which the expenditure is otherwise exempt from the bidding process provided by law.

In securing contracts for engineering, architectural, landscape architecture, construction management, or land surveying services on projects for which the professional service fee is anticipated to be less than the total sum of fifty thousand dollars ($50,000), CWI may use the guidelines set forth in Section II Part1 or establish its own guidelines for selection based on demonstrated competence and qualifications to perform the type of services required, followed by negotiation of the fee at a price determined by the public agency or political subdivision to be fair and reasonable after considering the estimated value, scope, complexity, schedule, and nature of services required. (See IC 67-2320(3)).

Part 1: CWI shall use the use the following process to implement this policy: (See IC 67-2320(2)).

a. CWI Shall encourage persons or firms engaged in the services being solicited to submit statements of qualifications and performance data;

b. CWI shall establish and make available to the public the criteria and procedures used for the selection of qualified persons or firms to perform such services using a request for qualifications (RFQ);

c. CWI shall establish and make available to the public the RFQ, including the selection criteria and the procedures to be used for measurable scoring, ranking, and selection of qualified persons or firms to perform such services. Selection criteria for consideration of professionals may include but are not limited to: a description of the firm, including location and longevity; past performance; project manager and key staff experience, education, and training; experience with similar projects; specific approach to project or assignment; proposed schedule, if applicable; and quality control procedures;

d. After receiving responses for the RFQ, CWI shall rank the persons or firms in order of preference. The list of ranked respondents, including the scoring used to develop the ranking, shall be made available to the public. CWI shall select for negotiation the persons or firms whom CWI determines to be the highest ranked.

e. CWI shall negotiate with the highest ranked person or firm for a contract or agreement to perform such services at a price determined by CWI to be reasonable and fair to the public after considering the estimated value, the scope, the complexity and the nature of the services;

f. When unable to negotiate a satisfactory contract or agreement, CWI shall formally terminate negotiations and undertake negotiations with the next highest ranked person or firm, following the procedure as prescribed above;

g. When unable to negotiate a satisfactory contract or agreement with any of the selected persons or firms, shall continue with the selection and negotiation process as provided herein until a contract or agreement is reached or the procurement is terminated;

h. When soliciting proposals for professional services to be provided under Section II, CWI shall publish public notice in the same manner as required for procurement of Public Works Construction projects under section 67-2805(2), Idaho Code. (See IC 67-2320(2)(h)).
 

Part 2. Use of Pre-Approved Lists to Create List of Approved Professionals:
Pursuant to Idaho Code § 67-2320(3)(i) CWI may create a list of preapproved professionals that may be selected through the following process to perform professional services under Section II:

a. CWI may establish and select from a list of two (2) or more persons or firms selected and preapproved for consideration by CWI.

b. In establishing a preapproved list, CWI shall publish notice as set forth in paragraph Part 1(h) above.

c. However, when selecting a person or firm from the preapproved list, no notice shall be required;

d. Any list established under Part 2(a) shall remain valid for a maximum of five (5) years and may be canceled by the public agency or political subdivision prior to the list’s expiration if CWI determines that cancellation would be in the public’s interest. (See IC 67-2330(2)(h-j)).

Part 3: Extending or Creating New Contract with Person or Contractor
When CWI has previously awarded a professional services contract to a person or firm for an associated or phased project, it may negotiate an extended or new professional services contract with that person or firm in accordance with all provisions of section 59-1026, Idaho Code, negotiate an extended or new professional services contract with that person or firm. (See IC 67-2320(4)).

ETHICS

Conflicts of Interest CWI employees must refrain from engaging in unethical practices in the performance of their duties related to the award and administration of contracts. Employees shall not participate in the selection, award, or administration of a contract if a real or apparent conflict of interest would be created. For additional information regarding conflicts of interest, employees should review CWI’s conflict of interest policy. Further, the Ethics in Government Act of 2015, found at Idaho Code § 74-7401 et. seq, and the Bribery and Corruption Act found at Idaho Code § 18-1301 et. seq are fully applicable. Questions regarding ethics in government or conflicts of interest should be directed to Risk Management.

Contractor Influence
No Contractor or related party, or a subsidiary or affiliate of a Contractor may submit a bid to obtain a contract to provide goods or services to CWI if the Contractor, or related party, Contractor subsidiary or affiliate assisted CWI in the solicitation bid process for the project. A Contractor that assists CWI in the development of procurement specifications, scope of work or related solicitation documents, whether paid for its services or not, cannot submit a bid, proposal, or quote on the project it helped develop nor can the Contractor partner with another Contractor to circumvent this policy.

Influencing/Conspiring to Influence
No employee of CWI shall influence or attempt to influence the award of a contract to a particular Contractor or to deprive or attempt to deprive any Contractor of a contract.

Willfully or Knowingly Avoiding Competitive Bidding and Procurement Statutes
It is a violation of this policy and may be a violation of state law for a CWI employee to willfully or knowingly avoid compliance with procurement or competitive bidding statutes or to willfully or knowingly split or separate purchases with the intent of avoiding compliance with any such policies or statutes. A critical factor in evaluating possible bid splitting situations is the original intent of the purchase and whether all goods or services required to complete the project were taken into consideration when the purchase was made. If a reasonable person, acting under similar circumstances, would have been able to foresee the need for additional goods or services, the additional procurement for the project may very likely present a case of intentional bid splitting. (See IC § 59‐1026 Willful And Knowing Avoidance Of Competitive Bidding And Procurement Statutes).

Gifts/Gratuities
Employees are prohibited from accepting or soliciting money, gifts, or other benefits from a Contractor in exchange for a favorable decision or recommendation on behalf of the Contractor. In addition, under Idaho Code § 18-1359(1)(b), trivial gifts or benefits, which do not exceed $50.00 in value, are not prohibited if they are incidental to personal, professional or business contacts and do not affect official impartiality.

VIOLATIONS OF POLICY

Employees violating any of the provisions of this policy or applicable law may be subject to disciplinary action up to and including termination.