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Southern California Regional Rail Authority

Contracts Administration & Procurement Division

Procurement and Contracting Procedures Manual

1 INTRODUCTION The Southern California Regional Rail Authority (Authority) is a Joint Powers Authority organized pursuant to Government Code Section 6500 et seq and is specifically enabled pursuant to Public Utilities Code Section 130255. Pursuant both to its Joint Powers Agreement and by statute, the Authority may acquire such property, facilities, equipment, materials, supplies, and services as may be deemed necessary to carry out its duties.

On [insert date], the Authority’s Board of Directors (Board) adopted revised Procurement and Contracting Policies, dated [insert date]i) (Attachment A). The Procurement and Contracting Policies promote fair and open competition among vendors, while ensuring fair and equitable treatment for all, and maintain a procurement and contracting process in compliance with applicable State and Federal laws and regulations.

Based on the general principles of public sector procurement, the Authority has articulated its procurement and contracting procedures in this Procurement and Contracting Procedures Manual (Procedures Manual).

The Procedures Manual is structured to provide a common framework for the Authority’s available methods of initiating, developing, executing and administering procurements and contracts within the parameters of federal, state, local and the Authority requirements. This Procedures Manual provides an overview of the standards and methods that will guide the Authority in obtaining goods and services.

The Procedures Manual has been developed in compliance with the prevailing standards and limitation established by state and federal requirements. While representative codes and statues are provided in Attachment D, the list is indicative and not intended to be exhaustive. The list and text of applicable state and federal requirements is current as of the date of this Procedures Manual. Please direct all inquiries related to the most up to date state and federal law to the Authority’s General Counsel.

Abbreviations and capitalized terms used in this Procurement Manual are defined in Attachment C.

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2 PROCUREMENT APPROVAL AUTHORITY/DELEGATION The [insert date] Board-adopted Procurement and Contracting Policies (Procurement Policies) authorize the CEO to sub-delegate Board-granted authority to a designee or designees.

2.1 CEO’s Procurement Delegation Authority The delegation of procurement authority is delineated in Table 1, Delegation of Procurement Authority. For avoidance of doubt, wherever the Procedures Manual refers to the CEO’s delegated authority, such authority will be understood to include the designee of the CEO.

Table 1: Delegation of Procurement Authority

Delegated Authority Delegated Approval Amount Director, Contract, Procurement and Materials Management Up to $100,000 Principal Contract & Compliance Administrator Up to $75,000 Senior Contract & Compliance Administrator Up to $50,000 Contract & Compliance Administrator Up to $25,000 Contract & Compliance Specialist Up to $10,000

3 STANDARDS OF CONDUCT AND CONFLICTS OF INTEREST The Authority’s Board of Directors adopted a Code of Conduct and Conflicts of Interest Policy (the “Ethics Policyii”) dated February 12, 1993 and further revised September 2016 (See Attachment E). The Ethics Policy:

• Applies to all procurement activities. • Provides the standards of conduct required for all “Employees” which includes Authority Board

Members and Alternates, Employees, and consultants, and all other individuals who through their relationship with the Authority, may participate in the development of solicitation documents, have access to prohibited information, evaluation of offers and/or award of Contracts that financially bind the Authority.

• Establishes standards of conduct that are binding on all the any other individual(s) including Contractors and other vendors who may participate in any phase of the procurement process including, but not limited to, award of Contracts that financially bind the Authority, and through Contract administration activities.

The provisions of the Ethics Policy shall apply uniformly and equitably to all activities associated with the procurement of goods and services. The Ethics Policy is generally divided in five sections:

• Acceptance of Gifts and Income • Standards of Conduct: Outside Activities • Conflicts of Interest • Disqualifying Political Contributions • Restrictions on Contracting with Former Board Members/Alternates or Former/Current

Employees

The Procedures Manual covers the Standards of Conduct and the Conflicts of Interest more specifically.

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Authority Employees and Contractors/Consultants are encouraged to be familiar with the remaining sections of the Ethics Policy not included in this Chapter 2.

3.1 Standards of Conduct Procurement Objectives

The Ethics Policy, governing standards of conduct, applies to all active procurements. An “active” procurement includes but is not limited to the following procurement phases: planning or development of solicitation documents including evaluation criteria or methodology, evaluation of proposals/bids, award of Contract, Contract management, and final Contract close out. The standards of conduct and ethics contained in the Ethics Policy shall be interpreted in a manner consistent with the laws and regulations which govern the conduct of public officials and employees.

Communication with Prospective Bidders, “Black-Out” Period Communication with prospective proposer or bidder that relate to the procurement shall be conducted only with the staff member designated (Designated Contact) by the Contracts, Procurement & Materials Management Department. For the purposes of pre-award procurement activities, the Designated Contact is the single point of contact pursuant to the procedures identified in the solicitation. Except for the authorized Designated Contact, Employees are prohibited from participating in communications with vendors and prospective vendors that relate to a procurement except as otherwise authorized pursuant to the Procedures Manual, specific procedures delineated in the solicitation, and/or any applicable Authority policies and procedures.

The “Black-Out” Period is imposed upon each solicitation from the time a procurement is published/advertised to the Notice of Intent to Award.

The Black Out Period is intended to prevent any unfair advantage to a prospective bidder/proposer. This Period prohibits any communications with Employees in any form, other than the authorized Designated Contact regarding the solicitations, by:

• Potential vendors, proposers, subcontractors, service providers, bidders, any lobbyists or consultants, any member of Employees’ professional staff, and members of the respective selection/evaluation committee

The provisions do not apply to, among other communications:

• Oral communications with Procurement or Contract Administrator, provided the communications is limited strictly to matters of process or procedure already contained in the solicitation document;

• The provisions of the Black-Out Period do not apply to oral communications at pre-proposal

or pre-bid conferences, oral presentations before evaluation committees, contract negotiations during duly notice public meeting, public presentations made to the Board during a duly noticed public meeting; or

• Violations may result to rejection or disqualification of the violator’s proposal or bid, and

subject the Employee to disciplinary action. The CEO, at the recommendation of the CPMM Department, shall have sole discretion to decide whether to reject or disqualify the proposal

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or bid. Any person having personal knowledge of a violation of these provisions shall report such violations to the Authority.

3.2 Conflicts of Interest Procurement Objectives

The conflicts of interest limitations are governed by state and federal laws and regulations and are incorporated by reference in the Ethics Policy. The conflicts of interest limitations apply to all Authority Board Members and Alternates, Employees, and Consultants who may participate in the development of solicitation documents, evaluation of offers and/or award of Contracts that financially bind the Authority, and through Contract administration. The Ethics Policy addresses the following conflict of interest limitations

Financial Interest Restrictions Authority personnel, including Board Members and Alternates, and any other employees and Contractors participating in the preparation of any aspect of a solicitation package, evaluation of offers received in response to a procurement solicitation, and/or the award of a Contract, shall not have a financial interest either direct or indirect in the outcome of the procurement action. In cases where there may be a benefit, either direct or indirect, the individual shall disqualify himself or herself from any involvement in the procurement activity. Employees, officers or agents of the Authority shall abide by the Ethics Policy and those who violate its provisions shall be subject to the penalties, sanctions or other disciplinary actions identified therein and/or by law.

Ex Parte Prohibited Communications with Contractors No Board Members or Alternates, or Employees responsible for awarding a Contract that is subject to the competitive negotiation shall engage in any ex parte communication with a potential Contractor or any representative of that potential Contractor, except in writing and provided that the communication shall be made public. Staff shall notify Board Members and Alternates, and affected Employees, of all procurements and repeat this restriction in bold type in all documents related to the award of a Contract subject to these restrictions. No Board Members or Alternates, or Employees, shall disclose information that would result in an unfair competitive advantage to a person or organization seeking to enter into a Contract with the Authority.

Prohibition Against Participation in Decisions in Which Board Members/Alternates or Authority Employees Are Financially Interested

The restrictions discussed below are set forth in a body of state law known as the California Political Reform Act, Government Code section 87000, et. Seq. (the “Act”)iii. This Act is enumerated, implemented, and regulated through numerous statutes, regulations, and administrative opinions. As such, Board Members/Alternates and Employees should seek specific advice from the General Counsel in interpreting and applying these principles when they encounter a situation where they believe these principles may apply. A “financial interest” can consist of an income source amounting to as little as $500 within a twelve-month period. However, salary from a state or local government agency is not considered “income” for these purposes. The determination on financial interest is further set forth in the Chapter 5 and statutorily reflected in Government Code §§ 82030, 87100, and 87103).

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Board Members/Alternates, Employees and Consultants shall:

• Disqualify themselves from making, participating in the making, or in any way attempting to use their official position to influence, an Authority decision in which they know or have reason to know they have a financial interest.

• Shall not make, participate in the making, or in any way attempt to use his/her appointed position to influence, an Authority decision in which the Alternate knows or has reason to know that the regular member, who the Alternate represents, has a financial interest.

Prohibition Against Financial Interests in Contracts In accordance with the Chapter 5 of the Ethics Policy, and further specified in Government Code section 1090 et seq., Board Members/Alternates, Employees, and Consultants shall not be purchasers at any sale or vendors at any purchase made by them in their official capacity. Board Members/Alternates, Employees and Consultants may not be financially interested in any Contract made by them in their official capacity or by any board or body of which they are members.

Federal Law Federal Law requires that no Board Member/Alternate or Employee, or his/her immediate family member, partner, or organization that employs or is about to employ any of the foregoing, shall participate in the selection, or the recommendation for award or in the awarding or administration of a Contract supported by FTA funds if a real or apparent conflict of interest would be involved. As defined in FTA Circular 4220.1F (Attachment F), a conflict would arise when any one of those listed above has a financial or other interest in the firm selected for award.

Board Members/Alternates, and Employees or agents, will neither accept nor solicit gifts, gratuities, favors or anything or monetary value from Contractors, potential Contractors, or parties to sub-agreements. In addition, no Contractors, potential Contractors, or parties to sub-agreements shall offer gratuities, favors or anything of monetary value to Board Members/Alternates, Employees or agents. [See 2 CFR §200.318(c)(1)].

Disclosure of Related Parties Employed by Contractors/Vendors Existing Human Resources Policy No. 1.2.3 (HR Policy No. 1.2.3) prohibits employment of relatives of department directors, division managers and/or supervisors within the same department or for a Contractor whose Contract is directly managed by the department director, division manager or supervisor. This policy establishes a requirement and a procedure to annually disclose familial relationships between or among Authority directors, managers, project managers, and supervisors on the one hand, and employees of the Authority’s vendors and Contractors on the other hand. The purpose of this policy is to avoid an actual or potential conflict of interest when vendors or Contractors employ relatives of Authority personnel. The broad policy embodied in the Ethics Policy, as well as in HR Policy No. 1.2.3, is that there should be no supervisory or managerial oversight of Contracts by Authority personnel who are related to an employee of such vendor or Contractor. Specifically, relatives of supervisory or managerial Employees should not be assigned by vendors or Contractors to Contracts managed by these same Employees.

Annually, concurrently with the required FPPC Form 700 filing, designated personnel will file an additional disclosure with the Board Secretary, identifying relatives, including current spouse, children, parents,

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grandparents, brothers and sisters, step-relationships and in-law relationships, who are employed by vendors or Contractors of the Authority. For purposes of this policy, “spouse” means those Employees having legal marital relationships, as well as those involved in registered domestic partnerships.

Forms submitted by designated personnel will be reviewed by the CEO or designee to determine if an actual or apparent conflict of interest may exist. The CEO or designee shall consult with the relevant Director, the Director of Human Resources, and/or General Counsel to determine the resolution of an actual or apparent conflict of interest.

Supervisors and managers with relatives who are or may be employed by the vendors or Contractors should seek guidance to determine whether an actual or apparent conflict of interest may exist. In general, if an Employee’s relative is employed by an Authority vendor or Contractor that is not in a supervisorial or managerial relationship with that same Employee, a conflict of interest will not exist. In addition, if a relative is employed by an Authority vendor or Contractor in an overhead position or is assigned to a Contract not managed or directed by an Employee, a conflict of interest will not exist. If, however, a direct or indirect supervisory relationship may be present between an Authority supervisor or manager and a relative, such relationship shall be disclosed, the potential for a conflict does exist, and a resolution of the matter will be determined by the CEO in concert with appropriate Authority personnel.

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4 LOBBYING AND GIFTS 4.1 Procurement Objective

This section sets forth the requirements established in the Ethics Policy governing lobbying and gifts and the application of these requirements to Board Members, Alternates, Employees. All procurements shall be conducted in accordance with the Ethics Policy. All Board Members, Alternates, officers, Employees, agents, and any others associated with the procurement process shall familiarize themselves with the requirements of the Ethics Policy. The General Counsel should be consulted prior to accepting a gift from a third party to determine whether the acceptance would require disqualification from a procurement and/or disclosure.

4.2 Gifts The following limitations are summaries of state law or federal regulation. Requirements and prohibitions specific to gifts are set forth in the Ethics Policy and further delineated below:

Board Member, Alternate, Employee Prohibitions The following prohibitions apply to Board Members, Alternatives Employees or agents:

• No Board Member, Alternate, officer, Employee, or agent shall solicit, demand, or accept gifts, gratuities, favors, honorarium, or anything of monetary value from Contractors, potential Contractors, subcontractors, or parties to sub-agreements. Board Members, Alternates, officers, Employees, and agents may accept: (i) unsolicited gifts of nominal intrinsic value not to exceed ten dollars ($10.00) in a calendar month; and (ii) items that are either not considered “gifts” within the meaning of the Procedures Manual or which are excepted from the gift limitations as set forth in Chapter 3 of the Ethics Policy.

• Board Members, Alternates, officers, Employees, and agents designated in this Procedures

Manual must file annual financial disclosure statements. They will be required to report gifts aggregating fifty dollars ($50) or more and income of five hundred dollars ($500) or more received from a single source in a calendar year.

• A Board Member, Alternate, officer, Employee, or agent shall recuse herself or himself from participating in the selection, the recommendation for award, or in the awarding or administration of a Contract involving (i) a donor that provided gifts to the Board Member, Alternate, officer, Employee, or agent, totaling more than one hundred and twenty dollars ($120) within the twelve (12) months preceding the release of a procurement request; or (ii) a source of the Board Member, Alternate, officer, Employee, or agent’s income totaling five hundred dollars ($500) or more or received within the twelve (12) months preceding the release of a procurement request. A violation of subsection 4(e) may render the Contract(s) at issue subject to termination.

• No Board Member, Alternate, officer, Employee, or agent is to accept paid meals from vendors or

consultants that are then billed back to the Authority.

Contractor Prohibitions No Contractors, potential Contractors, subcontractors, or parties to sub-agreements shall offer gratuities,

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favors or anything of monetary value to Board Members, Alternates, officers, Employees, or agents.

4.3 Lobbying The following limitations are summaries of state law or federal regulation relating to lobbying. Requirements and prohibitions specific to lobbying activities are established in the Ethics Policy and further delineated below:

• No Board Member, Alternate, officer, Employee, or agent shall accept gifts aggregating more than ten dollars ($10) in a calendar month from a lobbyist, lobbying firm, or lobbyist employer.

• For any Contract and subcontract of $100,000 or more in which any funds other than federal funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the Contract or subcontract, the Contractor or subcontractor must submit and the Authority must obtain a lobbying certification and lobbying disclosure before award of the Contract. The lobbying certification (Lobbying Certification) must be submitted to the Authority in accordance with Chapter 7 of the Ethics Policy.

The Lobbying Certification is a material representation of fact upon which reliance is placed when the Contract or subcontract is made or entered into. Submission of the Lobbying Certification is a prerequisite for making or entering into a Contract or subcontract of $100,000 or more.

4.4 Consultation with the Authority Counsel Employees are encouraged to request an advisory opinion from the General Counsel regarding questions related to the applicability of any provision of the Ethics Policy to any situation. The request for an advisory opinion should be in writing and set forth all facts upon which the opinion is to be based. If there are any questions on the applicability or interpretation of the limitations set forth in the Ethics Policy specific to a conflict of interest, Employees shall consult the General Counsel prior to actions, which may be covered by these limitations.

4.5 Violations of the Ethics Policy Penalties for a violation of the Ethics Policy by Authority Board Members, Alternatives, Employee, and or Contracts, bidders, or proposers is specified in the Ethics Policy. Penalties will be administered in accordance with the Ethics Policy and any other applicable Authority policies and procedures.

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5 GENERAL PROCUREMENT REQUIREMENTS 5.1 Preference for Competitive Process Full and open competition is the Authority’s preferred method of procurement unless competition is infeasible or not in the Authority's best interests due to an emergency, restricted availability of goods or services, unique or innovative concept, unsolicited proposal as defined further, or other extenuating circumstances that indicate the need for something other than a competitive process.

5.2 Contract Duration Ordinarily, the term of Authority contracts should generally be no more than five years, which may be broken out into a base period plus option years.

Contracts, contract options, contract extensions, and contract renewals, may be awarded with periods of performance in excess of five years if the reasonableness of the duration of the longer contract is documented. Situations where contract terms longer than five years may be appropriate include the following:

• Contracts for complex projects that require longer terms to complete the projects, including things such as construction, rehabilitation, etc.;

• Contracts for Information Technology (IT)-related systems, applications, and other items that will become part of the Authority’s IT infrastructure, which require long deployment times that may exceed the standard five-year base period. The contract should include maintenance and support unless those services may be purchased more economically separately;

• Contracts where the work includes a significant up-front investment by the contractor;

• Contracts where a Task Order has been issued that will extend beyond the contract term;

• Leases; or

• Contracts where the term is specified by statute or regulation.

5.3 Project Manager/Contract Administrator (PM or CA) Acquisitions for the Authority are team efforts, and the participants in the procurement process include various stakeholders such as representatives of the CPMM Department, client departments, all support departments and functions including, but not limited to, engineering, safety and legal counsel, and the contractors who provide goods and services. Each participant in the procurement efforts must adhere to the Procurement Policies and Procedures.

All contracts, and their associated procurements, must have a designated Project Manager (PM) and Contract Administrator (CA). The PM is responsible for:

• Developing an appropriate scope of work, scope of services, or specifications • Developing an Independent Cost Estimate (ICE) • Completing a Sole-Source Justification Form, if applicable

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• Developing a Cost Analysis for sole-source procurements, if applicable • Identifying, securing, and monitoring contract budget authorization • Preparing and submitting a requisition • Developing evaluation criteria and sub-criteria for negotiated procurements (e.g., Request for

Proposals), in consultation with the CPMM Department • Identifying Evaluation Team for negotiated procurements (e.g., Request for Proposals), in

consultation with the CPMM Department • Drafting the “Background” and “Discussion” section of procurement or contract-related Board

reports, in consultation with the CPMM Department • Assisting in the preparation of relevant Contract Task Order (CTO), Job Order Contract (JOC), or

Work Order (WO) documents • Completing the relevant Contract Closeout steps and form

5.4 Requisitions All procurement must start with an approved Requisition in the Authority’s Financial Information System (FIS). The approved Requisition must include:

1. Scope of Work/Services 2. Schedule 3. Independent Cost Estimate (ICE) when applicable 4. Cost as requested by a PM that will result in binding the Authority financially, except those

necessitated by an emergency ($1 Requisition will not be accepted)

User Department or PM shall give CPMM Department at least 5 business days of advance notice, and when practicable, plan the procurement in accordance with minimum six-month look ahead. All procurement and contract administration actions, whether competitive, non-competitive, or a modification to an existing contract or purchase order, require a fully approved requisition to initiate the procurement or contract administration process regardless of dollar value. Requisitions are only accepted via FIS. Entering requisition and ensuring its approval is the sole responsibility of the User Department/PM. The CA is not authorized to enter purchase requisitions. NOTE: User Departments are never authorized to incur services or to purchase goods without the appropriate authorization (i.e. a Purchase Order issued by the CPMM Department) The requisition provides a record for auditing purposes that the requested actions was budgeted for and approved by the appropriate hierarchy. See Table 3, Table of Requisition Approval Limits, for the requisition approval hierarchy. It is the responsibility of the PM to ensure that funding is available within the requesting Department’s approved fiscal year budget. Preparation must be done far enough in advance of the date when the good/services are physically needed so as to allow the Contracts, Procurement & Materials Management (CPMM) Department and the contractors/vendors sufficient time to do their jobs properly, including:

• Advertising for bids or RFPs, if necessary. • Obtaining bids or price quotations or proposals.

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• Processing bids, placing purchase orders of concluding contracts • Approval Process • Allowing delivery of goods or services

The requisition must include the appropriate account codes, task numbers, and funding source(s). Upon approval of the requisition, funding for the procurement or contract administration action is encumbered within the FIS.

• New competitive procurements: If the purpose of a requisition is to initiate a new procurement, the requisition should be accompanied by a scope or specification, ICE, and evaluation criteria and sub-criteria for negotiated procurements (e.g., Request for Proposals).

• Sole-Source procurements: If the purpose of a requisition is to initiate a sole-source procurement,

the requisition should be accompanied by a scope or specification, completed Sole-Source Justification Form, and Cost Analysis.

5.5 Contract Administrator Once a requisition has been approved by the appropriate hierarchy. The Director of CPMM, or the Director’s designee, shall be responsible for selecting, training, recommending and appointing Contract Administrators (CA). CA are the only agents of the Authority authorized to enter into, modify, administer, or terminate contracts and make related determinations and findings; as delegated by the CEO. The CA shall receive clear instructions in writing regarding the limits of their authority.

The CPMM Department will assign the approved requisition to the appropriate CA depending on the nature of the requirement and staffing availability and expertise. The CA will confirm that all required information and documents are attached to the requisition, or otherwise received, before initiating and executing the requested action. The CA will notify the PM of the assignment and discuss, if necessary, how the requested action will be handled and the general timeframe. The CA will then initiate the appropriate process for the requested action.

Responsibilities The CA must assemble all relevant written records for all procurements. The records will be collected into and placed into the Authority’s record keeping system. To ensure all relevant procurement processes are followed and all required documents are included in the procurement record file, the appropriate checklist (refer to Appendix A for checklists) should be followed by the CA to ensure that the proper procurement processes have been followed, all considerations relevant to the procurement process have been addressed, and all components of the procurement file shall be assembled no later than 90 days after contract award. The procurement record includes all relevant documentation including, but not limited to, the rationale for the method of procurement, selection of contract type, and contractor selection, the independent cost estimate, cost or price analysis, and evidence that the System for Award Management (“SAM”), formerly the Excluded Parties List System (“EPLS”) search was successfully conducted in the file; DBE information, Record of Negotiations (RON).

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Pre-Solicitation Below are some of the CA’s responsibilities during the Pre-Award phase

• Selecting a Procurement method or strategy • Obtaining and assigning a Contract/Amendment/Purchase Order/Task Order/Job Order/Work

Order. • Verifying the funding sources for the procurement, particularly if Federal funds are included. • Creating a Procurement/Contract record file • Completing a draft procurement or contract administration documents (e.g., amendment) per the

request. • Ensuring that rules governing participation by Disadvantaged Business Enterprises (DBEs) are

followed. • Determining whether other requirements are needed and met and requesting legal review when

necessary. • Determining whether a pre-award audit is required and sending a formal request to Internal

Audits to carry out the audit. • Scheduling all procurement activities. • Consulting with the Grants Department to reviewing any funding grants or agreements that will

be used and incorporating necessary provisions or referencing any pass-through obligations in the draft contract, Task Order, Memorandum of Understanding (MOU), etc.

• Preparing final solicitation and contract documents. • Assembling the procurement package and including copies or links to supporting documents such

as other supporting agreements, terms and conditions, etc. • Routing the draft procurement package for all required approvals • Reviewing the approved package for any comments or follow-up actions once the draft document

is approved. If any comments or other follow-up is required, the CA will ensure those comments are addressed and the follow-up actions are completed.

Solicitation • Posting the solicitation on the online procurement portal1 and ensuring advertisement in

newspapers if required. • Ensure strict adherence by Employees to the Procurement Policies and Procedures • Scheduling and leading any pre-proposal or pre-bid conference, if applicable. • Gathering and coordinating responses to questions and comments • Issuing addenda to the solicitation • Receiving bids or proposals • Tabulating bids and notifying the PM of the apparent low bid • For negotiated procurements:

o Distributing copies of proposals to the evaluation committee. o (Coordinating evaluation activities) o Tabulating scores o Contacting proposers for oral interviews and leading the interviews.

1 The Authority’s current online procurement portal is PlanetBids.

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o Requesting Best and Final Offers (BAFOs), if applicable. o Arranging and assisting in negotiations with winning firm(s), if applicable.

Award • Conducting pre-award due diligence and background checks. • Conducting a Cost or Price Analysis, for competitive procurements. • Assisting with preparation of the Board report, if applicable. • Presenting the award recommendation to the Board, when applicable. • Notifying non-selected firms that another has been selected. • Sending the final conformed contract document to the contractor for signature. • Routing documents internally for final signatures. • Obtaining signed W-9 forms and insurance. • Sending Notice to Proceed and a copy of the executed contract document or Purchase Order/Task

Order/Job Order/Work Order to the contractor.

Post Award Below are some of the CA’s responsibilities during the Post-Award phase:

• Coordinating issuance of contract change orders; • Ensuring contract compliance by both the Authority and the Contractor; • Clarifying and interpreting contract terms and conditions as required; • Processing disputes and claims, recommending disposition; • Coordinating performance reviews; • Coordinating contract closeout.

5.6 General Prohibitions Procurement Splitting Under no circumstances will acquisition actions be split into subparts, smaller similar actions, multiple purchases or orders to avoid competition, circumvent Policy and/or Procedures, use of a formal procurement process, or higher approval authority for requisitions or resulting contract.

Architectural and Engineering Services

Government Code §4529.12 specifically prohibits the procurement of Architectural and Engineering services on a sole source or non-competitively negotiated procurement basis (see Chapter XX for more information).

6. Statement of Work, Scope of Work, Scope or Services, and Specifications

The statements/scopes of work (“SOW”) or specifications developed by the Project Manager (PM) should provide a common basis for potential contractors, consultants or vendors to bid or propose on the Authority competitive procurements. The defined scope or specifications should set out the essential characteristics of the goods or services to be procured and should be based on the desired goals and outcomes of the procurement.

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Any of these means of describing the Authority’s requirements should be prepared in a way that promotes full, fair and open competition, and includes, as appropriate, requirements for inspection, testing, or preparation of the supplies, services or construction for delivery or performance.

The PM shall include the best and latest Scope or specifications when submitting the requisition through the Authority’s financial system.

6.1 General Guidelines The following guidelines apply to the development of scopes and specifications:

(1) Scopes and specifications should not require features or quality levels unnecessary to meet the Authority’s requirements.

(2) They serves as the basis for the evaluation criteria in a competitive procurement. (3) They serve as the baseline against which progress, and subsequent contract modifications are

compared during contract performance and dispute resolution. (4) Standard specifications and requirements allow for more efficient operations and result in lower

prices and should be used whenever possible. Maximum use should be made of industry, federal, state and local government specifications and requirements whenever applicable.

(5) The use of brand name specifications should be limited to the extent feasible. Where possible, a minimum of two acceptable brand names should be used, followed by the phrase “or approved equal”. The salient characteristics represented by the brand names must be identified to allow for evaluation of possible “or approved equal” material.

(6) If the scope or specifications requirement duplicates or replaces equipment, materials, supplies, or services currently in place or in use, specification of a product by brand name, make, model, etc. is permitted.

(7) Use of manufacturers’ or dealers’ specifications should be avoided. Use of such specifications may result in (1) restrictive specifications, (2) unfair competitive advantage, (3) violations of copyright, patent, license or royalty laws, and/or (4) filing of a Protest by an unsuccessful offeror.

(8) Whenever possible, the expected quality of services or goods to be provided, or the performance characteristics of the item, should be specified.

(9) All optional items should be identified. The solicitation documents should set forth the manner in which any options will be evaluated.

As part of developing the scope or specifications, the PM should identify and seek input from all relevant internal stakeholders, across different functional areas, that could be affected by the anticipated procurement or contract administration action.

The CA may assist the PM as they develop the specification, purchase description, or SOW to ensure that provisions pertaining of the contract are incorporated into the appropriate contract clauses. The CA will also assist in identifying any omissions, need for clarification, or additional information requirements in the specification, purchase description or SOW prior to the solicitation being issued.

In addition, the CA will review the solicitation document for the following:

Equipment and Supplies: Plans, drawings, specifications or purchase descriptions for equipment and supplies procurements shall only include the quantities necessary to meet the minimum needs of the

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Authority. They shall be free of restrictive features or limiting factors to the extent practicable to maximize competition.

Design specifications shall describe how an item is to be made. Performance specifications shall, at a minimum, describe what the item must do and allow manufacturers to design the item within the specified parameters of form, fit and function.

The plans, drawings, specifications, or purchase descriptions should also include the procedure by which it will be determined that the requirements of the equipment or supplies have been met, types of warranty, if practicable.

Construction Specifications: The technical provisions should be in sufficient detail so that when used with applicable drawings, and any specifications or standards incorporated by reference, full and open competition is achievable. Materials, equipment, components, or systems should utilize specifications or standards generally known such as Federal, military or other nationally recognized industry or technical society specifications or standards.

Services: should incorporate a Statement of Work (“SOW”). The SOW must define the minimum work, services required to be provided by the contractor/consultant under the contract.

6.2 Use of an Outside Consultant or Contractor An outside consultant or contractor (non-Authority employee) may be utilized to develop the scope or specifications. All scopes or specifications prepared by an outside consultant or contractor shall be reviewed and approved by a Project Manager, who is an employee of the Authority, before the scope or specification is included in the requisition or otherwise sent to the CPMM Department.

The consultant or contractor who developed the scope or specifications is precluded from competing for the award of any contract, agreement, Purchase Order, Task Order, Job Order, or Work Order resulting from the associated procurement or contract administration action.

7. PRE-SOLICITATION The Authority may use any method of procurement, such as informal bids or formal competitive solicitations, that is appropriate for the particular acquisition, complies with statutory and regulatory requirements, and is in the best interest of the Authority. All purchases and Contracts, made by any method, will be made on a competitive basis to the greatest extent practicable; provided, however, that purchases $10,000 or below, defined as "Micro-Purchases," do not require competition or advertising, competitive sealed bids or competitive negotiations.

7.1 Competitive Procurement Methods There are three methods to competitively procure equipment, materials, supplies, inventory requirements and material goods; general services, professional services, and public works:

• Informal Competitive Procurement (Micro-Purchase or Small Dollar Purchase)

o Micro-Purchase applies to purchases between $10,001 and $25,000. Such purchases are defined as “Small Dollar Purchases” and are procured competitively through written price quotations or proposals, via oral or e-mail, obtained from a minimum of three vendors.

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Small Dollar Purchases do not require advertising or sealed responses, and use a Request for Quote to procure goods and services when there are an adequate number of vendors to compete.

o Small Dollar Purchases using FTA funding benefit from being within FTA’s Simplified Acquisition Threshold ($250,000 in 2019). The Simplified Acquisition Threshold is further discussed in Section 6.5 below.

• Invitation for Bid (IFB) - Competitive Sealed Bids

o Competitive sealed bids procurement method are generally used to procure supplies, equipment, materials, construction projects and job order rehabilitation projects over $25,000. It can also be used for certain non-rail transit design-build projects in accordance with California Public Contract Code (Public Contract Code Section) § 20209.5, et seq. and FTA Circular 4220.1F, Section VI.

• Competitive Negotiations (using a Request for Qualifications or RFQ and Request for Proposals or RFP).

• Request for Proposal (RFP) is the competitive negotiations procurement method applicable to Public Works-Construction, Professional Services, Support Services, Technical Services, Operational Services, Maintenance Services, or Specialized Rail Transit Equipment as defined in Public Utilities Code §130238. The RFP can also be used for design-build projects in accordance with Public Contract Code § 20209.5 and FTA Circular 4220.1F (or most current version), Section VI.

Non-Competitive Procurements, other than Micro-Purchases, are reserved for emergencies and for goods and services requiring a sole source method.

7.2 Procurement Methodology Checklist To determine which method of procurement is best suited, the Project Manager shall classify the situation by checking off the appropriate boxes below in each of the procurement methods below. All elements must apply that use that method.

Competitive Procurement I. Informal Competitive Procurement

a. Small Dollar Purchase Purchases $10,001 to $25,000 An adequate number of vendors competing Award to bidder with lowest price whose quote conforms to all material terms,

conditions and specifications cited in the Request for Quote Purchase is catalogue items, inventory requirements, off-the-shelf item or goods and

services with very well defined specifications II. Competitive Sealed Bids (using an Invitation for Bid or IFB)

Supplies, equipment, materials construction projects and job order rehabilitation projects over $25,000

Certain non-rail transit design-build projects in accordance with current regulation Complete & adequate specifications or purchase description

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Selection can be made on basis of price III. Competitive Negotiations (using a Request for Qualifications/RFQ and/or Request for

Proposals/RFP) Public Works-Construction, Professional Services, Support Services, Technical Services,

Operational Services, Maintenance Services, or Specialized Rail Transit Equipment; or, a Revenue Contract or Concession; or, Design-build projects in accordance with current regulation

Bidder input needed for specifications Qualifications-based selection process (if using an RFQ) Discussions needed with individual bidders after receipt of proposals, prior to award

IV. Cooperative Procurement Two or more agencies entering into an agreement committing them to the quantity of

items to be purchases) Non-Competitive Procurement

I. Micro Purchase Purchases $10,000 or below Purchase is catalogue items, inventory requirements, off-the-shelf item or goods and

services with very well-defined specifications I. Emergency Procurement

Authorized by the CEO or the Board due to sudden, unexpected occurrence that poses a clear and imminent danger, requiring immediate action to prevent or mitigate the loss or impairment of life, health, property, or essential public services

II. Sole Source Procurement Only source available because competition is inadequate after public solicitation; or, Approved by FTA; or Public exigency issue/emergency Unique or Innovative Concept Patents or Restricted Data Rights Unacceptable Delay (under Procurement Policies) Substantial Duplication Costs

7.3 Procurement Documentation Checklists 7.3.1 Pre-Solicitation or Purchase Before issuing the procurement solicitation (or purchase, in the event of Micro-Purchase or Small Dollar Purchase), the Contract Administrator shall ensure that the following documents are completed, assembled and stored in the Authority's Procurement File:

Micro-Purchase Small Dollar Purchase Competitive Sealed Bids or Competitive Negotiations

Non-Competitive Procurement

Requisition Form )

Requisition Form Requisition Form Requisition Form Price rate

quotations Scope of work, include

design specifications, if applicable

Procurement Justification Form (Form 2)

Procurement Justification Form (Form 2; for

Signature necessary to proceed (See Section 2.1)

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Cooperative Procurement)

Evidence of supervisory or secondary review of procurement file Evaluation Criteria

Solicitation documents Signature necessary to

proceed Evidence of supervisory

or secondary review of procurement files

7.3.2 Contract Award When the Contract is awarded, the Contract Administrator shall work with the Project Manager to collect the following information for the Procurement File:

The executed Contract and notice of intent to award; Performance and payment bonds, bond-related documentation, and correspondence with any

sureties; Contract-required insurance documentation; Post-award (pre-performance) correspondence from or to the Contractor or other Governmental

agencies; Notice to proceed; If applicable, an independent cost estimate and any supporting documents such as historical

Contract or operating data; Procurement Justification Form (Form 2) , if necessary; A copy of the final solicitation (as amended) and any supporting documents such as pre-proposal

conference notes and Questions and Answers; A copy of proposals received including offeror acknowledgment of any solicitation amendments

and evaluation results; and, The Summary of Record of Negotiations, if applicable.

8. COMPETITIVE PROCUREMENT This section first identifies the Competitive Procurement methods required for specific scope of work and Contract limits. The methods are described broadly and indicate how award is determined for each method. Then, the section describes other forms of Competitive Procurement, such as Revenue Contracts and Concessions and Cooperative Procurements.

8.1 Equipment, Materials, Supplies, Inventory Requirements and Material Goods (between $10,001 and $25,000)

8.1.1 Small Dollar Purchases (between $10,001 and $25,000) Equipment, materials, and supplies to be purchased for amounts between $10,001 and $25,000 are considered Small Dollar Purchases. In such instances, price rate quotations, either oral or written, shall be obtained from an adequate number of qualified vendors by the CA. Both price and terms may be compared and considered for small dollar purchase of goods and services. Award will be made to the vendor offering the lowest price whose quote conforms to all material terms, conditions and

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specifications.

If oral quotes are obtained, CPMM staff shall maintain a written record. The record shall include, at a minimum, vendor name, telephone number and address, name of the person providing the quote, and date the offer was received, and terms.

8.2 Equipment, Materials, Supplies, Inventory Requirements and Material Goods (Greater than $25,000)

Supplies, equipment, and materials should be procured using the IFB method (unless an exception applies) where the expenditure required exceeds $25,000. Specialized rail transit equipment shall be procured using Competitive Negotiations, see Section 6.3.1.1.

8.2.1 Invitation to Bid (IFB) The IFB process includes a preliminary step to pre-qualify firms before sealed bids are received or opened. This may be so for some design-build projects procured under Public Contract Code § 20209.5, et seq. Pre-qualification may be based on, but is not limited to, the following criteria: compatibility with existing equipment and/or systems, experience, qualifications, past delivery history, facilities, financial capability and stability, and other characteristics proposed by the Project Manager in the Requisition Form.

Award will be made to the lowest priced responsive and responsible bidder whose bid conforms to all material terms, conditions and specifications of the Invitation for Bid. Bids shall be evaluated in accordance with Section 8.2, Contract Award Process for Competitive Sealed Bids.

8.2.1.1 Lowest Priced Technically Acceptable (LPTA) The LPTA procurement process is a variation of the Competitive Sealed Bid process, but it occurs in two steps. In Step 1, un-priced technical offers are received and evaluated to determine technical acceptability. The technical requirements must be specific and detailed enough to permit a rigorous evaluation that will identify any unacceptable weaknesses in areas such as engineering capability, compatibility with existing fleet or other equipment, reliability and maintainability. In Step 2, Contractors with technically acceptable offers are invited to submit sealed bids/proposals. Award is made to the lowest responsive, responsible bidder/proposer.

This process may be used when the non-cost/price factors are of significant importance and should not be traded off against cost/price factors. It is well suited for use on highly technical procurements that have technical restrictions due to the need to replace, add to and/or maintain compatibility with systems already in place. The Board must approve use of this procurement process as well as the evaluation criteria and technically acceptable cut-off point proposed for use in Step 1.

Contract award shall be made to the lowest-price responsive, responsible bidder. Bids shall be evaluated in accordance with Section 8.2, Contract Award Process for Competitive Sealed Bids.

8.3 Services 8.3.1 General Services Small Dollar Purchasing (also known as Competitive Pricing) is applicable to general services valued at $25,000 or less, refer to Section 6.1.1. General services valued between $25,001 and $250,000 may be procured using Competitive Sealed Bids, refer to Section 6.2.1. Competitive Negotiations shall be used for services valued greater than $250,000.

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8.3.1.1 Request for Qualifications The Competitive Negotiation process may include a preliminary step to pre-qualify firms before proposals are received. Pre-qualification, also known as a Request for Qualifications or RFQ, may be based on, but is not limited to, the following criteria: compatibility with existing equipment and/or systems, experience, qualifications, past delivery history, facilities, financial capability and stability, etc.

8.3.1.2 Request for Proposals Award shall be made to the responsible proposer whose proposal is the most advantageous to the Authority, price and technical qualifications being considered. Such offers shall be evaluated in accordance with Section 8.3, Contract Award Process for Competitive Negotiations.

8.3.2 Professional Services (Architecture and Engineering) Under the Brooks Act, a two steps process must be used when the following professional services are solicited:

Architectural Engineering Land Surveying Landscape Architects Environmental Services Construction Management

Architectural, landscape architectural, engineering, environmental and land surveying services include:

• Professional services of an architectural, landscape architectural, engineering, environmental, or land surveying nature

• Incidental services that members of these professions and others working for their firms may logically or justifiably perform

Construction project management:

• Includes services provided by a firm or individual that is a licensed architect, registered engineer, or licensed general contractors.

• Is provided by a firm or individual that demonstrates expertise or experience in: o construction project design review and evaluation, o construction mobilization and supervision, bid evaluation, project scheduling, cost-

benefit analysis, o claims review and negotiation, and o general management and administration of a construction project

Environmental Services also include:

• Services performed in connection with project development and permit processing in order to comply with federal and state environmental laws

• Processing and awarding of certain environmental claims

Professional services using the Competitive Negotiations process shall be awarded on the basis of qualifications only. Sections 4525 through 4529.5 of the Government Code (California Mini-Brooks Act)

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govern Contracts between public entities and private architectural, landscape architectural, engineering, environmental, land surveying, and construction project management firms. These statutes establish a Qualifications-Based Selection (QBS) method that public agencies in California must use to Contract for professional services. This method requires that such services be engaged on the basis of demonstrated competence and qualifications for the types of services to be performed and at a fair and reasonable price.

Accordingly, public agencies may not utilize competitive bidding for such services, except in the limited instances where the State or local agency head determines that the services needed are more of a technical nature and involve little professional judgment and that requiring bids would be in the public interest. (Gov. Code §4529.)

The Authority, or its authorized designee, shall negotiate a Contract with the best-qualified firm(s) at compensation, which the Authority, or its authorized designee, determines is fair and reasonable subject to the requirements of Government Code §§4525-4529.5. Should the Authority, or its authorized designee, be unable to negotiate a satisfactory Contract with the firm(s) considered to be most qualified, at a price the Authority, or its authorized designee, determines to be fair and reasonable to the Authority, negotiations with that firm shall be formally terminated. The Authority, or its authorized designee, shall then undertake negotiations with the second most qualified firm. Should the Authority, or its authorized designee, be unable to negotiate a satisfactory Contract with the second most qualified firm, the Authority, or its authorized designee, shall continue to negotiate with the evaluated firms in their order of competence as determined by the Authority, or its designee, until an agreement is reached in accordance with Government Code § 4528.

8.4 Public Works-Construction Public works projects that are valued $25,000 or less may be procured using a Small-Dollar Purchase or Competitive Pricing process. Public works must be procured using the Competitive Sealed Bids method (unless an exception applies) where the expenditure required exceeds $25,000 and is $500,000 or less, refer to Section 6.2.1. Public Works projects designed to be delivered as a Design-Build shall follow the processes in Section 12.

8.5 Innovative Project Delivery Tools 8.5.1 Design-Build (DB) 8.5.1.1 Procurement Objective The DB method typically focuses on best value and performance-based criteria and requirements rather than the traditional specifications-focused approach. The DB procurement process follows similar steps to that set forth in Section 6, Competitive Procurement.

8.5.1.2 Applicability A DB procurement means a procurement process in which both the design and construction of a project are procured from a single entity in accordance with the requirements of Public Contract Code Section 20209.5. When it is in the best interest of the Authority, the Authority may enter into a DB project for both the design and construction of transit projects meeting the DB statutory criteria. After evaluation of the traditional design-bid-build process versus the DB process in a public meeting, the Authority shall make written findings explaining that use of the DB process on the specific project under consideration will accomplish one of the following objects: a reduction in project costs, expedite the project's completion, or provide design features not achievable through the design-bid-build method, prior to

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entering into any DB Contract.

Depending on the nature and dollar amount of each project, DB projects may be awarded to the lowest responsible bidder, or by using the best value method in an RFP. In both cases, the Authority shall pre-qualify DB entities in accordance with Public Contract Code § 20209.7(e). The Authority shall also set forth all significant factors that the Authority reasonably expects to consider in evaluating proposals, including cost or price and all non-price-related factors, and the methodology and rating or weighting process that will be used by the Authority in evaluating competitive proposals, and specifically whether proposals will be rated accordingly to numeric or qualitative values.

8.5.1.3 Design-Build Procurement Procedure The Agency hires a General Engineering Contractor (GEC) through a competitive process to prepare a design criteria package for any DB project. The GEC that prepares the Design Criteria package may not compete for the DB Contract.

DB Contracts will be solicited, pursuant to a design criteria package, by the use of a qualifications-based RFQ process, followed by a competitive RFP selection process.

For the selection and Contract administration periods, the GEC will be employed or retained to serve as the Authority’s representative.

Construction activities may not begin on any portion of DB Projects until title has been obtained for the necessary rights-of-way and easements for the construction of that portion of the project has vested in the Authority or the state and all railroad crossing and utility agreements have been executed. Title to rights-of--way shall be deemed to have vested when the title has been dedicated to the public or acquired by prescription.

8.5.1.4 Preparation of Design Criteria The design criteria package shall be prepared for the DB Project by the GEC in close consultation with the Authority. The purpose of the design criteria package is to furnish sufficient information as to permit DB Firms to prepare a response to Competitive Bids, a response to a Requests for Proposals, or to permit the Authority to enter into a negotiated DB Contract. The Design Criteria shall specify applicable performance-based criteria for the DB Project, which may include, but not be limited to:

the legal description of the site; survey information concerning the site; interior space requirements (e.g. stations); material quality standards; schematic layouts and conceptual design criteria; cost or budget estimates; design and construction schedules; site development requirements; provisions for utilities; storm water retention and disposal; and parking requirements.

8.5.1.5 DB Contract Award Process Procedures for the use of a competitive proposal selection process must include the following:

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The preparation of a design criteria package for the design and construction of the DB Project. The qualification and selection of no fewer than three (if three submit proposals) DB firms as the

most qualified, based on the qualifications, availability, and past work of the firms, including the partners or members thereof.

The criteria, procedures, and standards for the evaluation of DB Contract proposals, based on price, technical, and design aspects of the project, weighted for each specific DB Project.

The Solicitation of competitive proposals, pursuant to a design criteria package, from those qualified DB firms and the evaluation of the responses submitted by those firms based on the evaluation criteria and procedures established prior to the Solicitation of competitive proposals.

No proposal may be withdrawn for at least one hundred eighty (180) days following proposal opening.

8.5.2 Construction Manager/General Contractor (CMGC) 8.5.2.1 Procurement Objective The Construction Manager/General Contractor (CMGC) project delivery method involves earlier Contractor involvement than in traditional design-bid-build projects. Prior to construction the Contractor becomes the prime or General Contractor and self performs a significant percentage of the work. In reality, the CMGC Contractor does not become a true construction manager; rather, the Owner supplies construction management through its own staff or a consultant. With CMGC, the Contract often includes both lump sum pay items and items that will be measured and paid for on a unit price basis.

The CM in transportation projects self-performs a majority of the work as the General Contractor, and the Contracts are most often negotiated toward a guaranteed maximum price using Independent Cost Estimates to verify competitive pricing.

In CMGC, the Owner is the primary Project Manager, much like in design-bid-build. However, with this method, the Owner takes on new roles while managing separate Contracts with a selected CMGC Services Contractor and its Design Consultant team. The Owner must act as facilitator, negotiator, decision maker, collaborator, manager, and leader and must be an active participant in every step of the Preconstruction and Construction phases.

8.5.2.2 Applicability A major factor in determining the selection of the CMGC Contractor is the ability of the Contractor to analyze the project goals, evaluate the Work elements, and formulate a proposal. This process may produce new approaches or modification to the project Work elements. Because of that, all Contractors should be aware that the final scope of Work for a project will be produced with input from the Authority, the selected Design Consultant, and the selected Contractor.

CMGC Project Managers make the final decisions on budget, design, and construction methods and must be able to make risk-based decisions on short timelines to meet project deadlines. CMGC Project Managers must also be able to question the design, estimates, and construction decisions.

The CMGC team relies on the Contractor to bring the following expertise to the project during the design phase:

The skills and knowledge to estimate the quantities of materials, labor, and equipment needed to construct the project

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The skills and knowledge to determine the tasks needed to complete the project and to estimate the costs, duration, and sequence of these tasks

An understanding of the availability, cost, capacities of materials, labor, and equipment The skills and knowledge to identify potential risks (including financial risks) and methods or

solutions to mitigate them during the design process The skills and knowledge to review the design plans and provide suggestions and methods to

improve the design for constructability, add innovative value engineering solutions, maximize scope, and optimize schedule and cost.

Once a construction Contract is executed, the Contractor’s role changes to that of a General Contractor (GC) during construction. This is a very traditional role and is similar to the responsibilities of a GC on a design-bid-build. The Contractor also manages its own risk that it assumed responsibility for or is sharing with the Owner.

8.5.2.3 CMGC Procurement Procedure Not all projects can and should be delivered with the CMGC project delivery method. With the time and resource investment required during preconstruction, each project needs to be carefully scoped and scheduled, project goals set, staff and resources considered, and an initial project risk assessment completed. These initial project development tasks should be completed before the method of delivery is selected for the project.

The project team needs to consider the following questions when determining whether to use the CMGC project delivery method:

Is the project technically complex (e.g., Accelerated Bridge Construction (ABC), tunnels, mechanical/electrical facilities, vertical construction)?

Are the project Scope of Work and technical requirements difficult to define? Are there high or medium risks on the project that are hard to quantify or define? Is there phased funding on the project that could allow early construction for portions of the

project? Does the Authority control which risks are allocated to the Authority and to the Contractor? Are there complex phasing requirements on the project? Is the project schedule driven? Are there opportunities for innovation? Are there opportunities to find schedule and cost savings? Will the project benefit from early Contractor involvement? Has design not advanced beyond a point where the Contractor can provide input? Does the Authority want to maintain design decision control? Are qualified Contractors interested in competing for a CMGC project?

The procurement process and schedule for CMGC projects are shorter than DB and can be accomplished within approximately two to five months from the RFP development to a Notice to Proceed (NTP) of CMGC Services.

Depending on the complexity of the project, the preparation of the RFP can take between two to eight weeks to get to advertisement, four to six weeks for Contractors to prepare proposals, three to six weeks for an agency to evaluate proposals and interview short-listed Contractors, and four to six weeks to make

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a selection and negotiate a Contract.

When initially scoping a project for possible CMGC project delivery, the project team should consider the project schedule and resources available to manage the process. CMGC projects place a unique demand on project team members, especially at the management level, and require a high level of interaction between the Authority personnel, the Designer, and the Contractor.

The project team should review the project for elements that are most favorably managed by the CMGC project delivery method. These may include:

complex construction elements that will benefit from Contractor input during the Design Phase of the project;

portions of the project that can or need to be phased, or projects that require complex phasing; specialty skills or unique construction techniques such as ABC or tunneling; design decisions where project staff desires to maintain more control; projects that require a high level of Context Sensitive Solutions; expectations to have enough competition to ensure best value; and project risks that can be managed and reduced using CMGC.

A unique benefit of the CMGC delivery method is the ability to use the Contractor during design development to evaluate the work elements, formulate a project approach, and minimize project risks. This process may produce new approaches or modifications to the project work elements. Therefore, all Contractors should be aware that the final Scope of Work for a project will be produced with input from the selected consultant and the selected Contractor.

8.5.2.4 CMGC Checklist Ensure that the proposed CMGC service is consistent with the Authority’s Long-Range

Plan, local Transportation Improvement Program, the Authority budget, and other the Authority policies.

Develop scope of work. Prepare a Contract cost estimate. Prepare CMGC selection request, including the Disadvantaged Business Enterprise

(DBE) goal. Establish a CMGC selection panel. Create a selection schedule. Advertise for CMGC Services. Create and distribute the selection information and instruction package to the CMGC

community. Coordinate and facilitate selection panels to achieve consensus and make a

recommendation to the [appropriate individual within the Authority]. Obtain appropriate Authority management approval of the selection results. Notify Contractors of selection results. Finalize scope of work, and for project-specific funds-encumbered Contracts,

negotiate work-hours and the cost proposal. Obtain and review the Contractor’s financial information, insurance information, and

initial cost proposal.

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Analyze audit evaluation report and negotiate Contractor fee and final Contract cost exhibit.

Prepare final Contract and route the Contract for approval and signatures. Distribute executed Contract.

Issue the Notice-to-Proceed to the Contractor. Debrief Contractors with CMGC Debrief Template on selection results. In-person

debriefs are optional. Compile selection documentation and appropriately record in Authority files.

8.6 FTA’s Simplified Acquisition Threshold FTA has established a dollar amount below which a non-Federal entity may purchase supplies, property, or services using small purchase methods, known as the Simplified Acquisition Threshold. Non-Federal entities, such as the Authority, adopt small purchase procedures in order to expedite the purchase of items costing less than or equal to the Simplified Acquisition Threshold. The threshold is set by the Federal Acquisition Regulation at 48 C.F.R. Subpart 2.1 (Definitions) and in accordance with 41 U.S.C. 1908. As of the date of this manual, the Simplified Acquisition Threshold is $250,000, but this threshold is periodically adjusted for inflation.

Purchases within the Simplified Acquisition Threshold benefit from being exempt from many of FTA’s grant requirements, although notably Davis-Bacon wage requirements apply to all construction Contracts in excess of $2,000. FTA Circular 4220.1F expressly excludes purchases under the Simplified Acquisition Threshold from FTA’s Buy America requirements. Other requirements that normally apply to purchases using FTA funds that do not apply to Simplified Acquisition Threshold purchases include:

a cost or price analysis; bid, performance, payment, and other bonding; and Contracts with administrative, Contractual, or legal remedies such as termination for breach of

Contract.

FTA does not have a specific process for Simplified Acquisition Threshold purchases; however, the 2016 Best Practices Procurement and Lessons Learned Manual contemplates that recipients will implement their own respective policies and procedures, as the Authority has done in this Manual with respect to Micro-Purchases and Small Dollar Purchases. The Authority’s upper limit of $25,000 for Small Dollar Purchases is within the Authority’s discretion to set a limit lower than FTA’s Simplified Acquisition Threshold when the subject procurement does not solely rely on Federal funds.

8.7 Revenue Contracts and Concessions A revenue Contract is any Contract whose primary purpose is to either generate revenues for the benefit of the Authority in connection with a transit related activity or to create business opportunities utilizing locally funded or FTA funded assets. A concession Contract is any Contract whose primary purpose is to generate revenue for the Contractor and the Authority receives a percentage of the revenue generated.

FTA Circular 4220.1F indicates that concession-type revenue Contracts generally be competed but does not specify the method of competition. The Authority has determined that the best method for soliciting bids or proposals for a concessions Contract is Competitive Negotiations.

The requirements for Competitive Negotiations (see Section 6.3.1.1) apply to all revenue generating

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Contracts. If the concession Contract uses FTA funds, all FTA requirements as specified in Circular 4220.IF apply.

The requirements for competitive procurements apply to all revenue generating Contracts. If the revenue Contract uses FTA funds, all FTA requirements as specified in Circular 4220.IF apply.

8.7.1 Allowable and Prohibited Contract Types Each revenue Contract shall use one of the following Contract types:

Firm Fixed Price (Lump Sum): A firm fixed price Contract includes a price that remains fixed irrespective of the Contractor’s cost experience in performing the Contract. A firm fixed price Contract may include an economic price adjustment provision, incentives, or both.

Cost Reimbursement: A cost-reimbursement Contract provides for payment of the Contractor’s allowable incurred costs, to the extent prescribed in the Contract. Allowable costs may include incentives if the recipient believes they can prove helpful. Cost-reimbursement Contracts are suitable for use only when the uncertainties involved in Contract performance do not permit costs to be estimated with sufficient accuracy to use any type of fixed price Contract.

The following Contract types are restricted or prohibited:

Cost Plus a Percentage of Cost: The Common Grant Rules expressly prohibits the use of the cost plus a percentage of cost method of Contracting.

Percentage of Construction Cost: The Common Grant Rules expressly prohibits the use of the percentage of construction cost method of Contracting.

Time and Materials: The Common Grant Rule for governmental recipients restricts the use of time and material Contracts and this form of Contract is permissible after: 1) Determining that no other Contract type is suitable; and, 2) If the Contract specifies a ceiling price that the Contractor may not exceed except at its own risk.

8.8 Cooperative Procurements The Authority may participate in a cooperative procurement initiated by another transit property or public agency when FTA funds are used. The Uniform Guidance (2 C.F.R. § 200.318(e)) states that recipients are “encouraged to enter into state and local intergovernmental agreements or inter-entity agreements, where appropriate, for procurement or use of common or shared goods and services.” FTA refers to such procurements as “joint procurements". For the purposes of the Procurement and Contracting Procedures Manual, references to these joint procurements will be known as “cooperative agreements."

A cooperative agreement assigns existing Contract rights to purchase supplies, equipment, or services. This may be permitted when FTA funds are involved if all federal terms and conditions are met and the Contract includes an assignments clause. Cooperative agreements do not permit non-parties to participate in the Contract except through the assignment of options.

Conducting a cooperative procurement requires that two or more parties enter into an agreement committing them to the quantity of items to be purchased (which may be a minimum and a maximum) and obligating them to be bound by the results of the solicitation. Prior to embarking on such agreement, the Project Manager should contemplate the following:

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• Does the agreement explain the role of each participant and the rights it has during the solicitation process?

• Does each participant (meaning the Authority and its joint partner) have the ability to jointly evaluate and select the vendor/Contractor?

• Do the parties want the same item(s)? • Can the parties commit to specific quantities? • Does the solicitation meet all FTA requirements? • How will the responsibilities for the procurement be allocated?

To initiate a procurement utilizing a cooperative agreement, the Project Manager shall submit a complete and approved Requisition in accordance with Section 6.8.

If the Project Manager is aware of an existing cooperative agreement for the requirement, it should be identified on the requisition. The Contract Administrator will confirm the applicability of the recommended cooperative agreement. If there is a viable cooperative agreement, the Contract Administrator will ensure all conditions of use requirements of the cooperative agreement are met. If federal funding will be used, the Contract Administrator shall negotiate with the Vendor to include all federally-required terms and conditions into the final agreement including requirements such as Buy America, if appropriate to the requirement. If the Vendor will not accept the inclusion of federal terms and conditions, the cooperative agreement shall not be used.

For those goods and services where Cooperative Agreements may exist due to the nature of the requirements but are unknown to either the Contract Administrator or the Project manager, the Contract Administrator will attempt to locate an appropriate Cooperative Agreement for use by the Authority. The Contract Administrator shall work with the Project Manager to advise him/her of the intent to use a Cooperative Agreement for their requirement. If such agreements are identified the Contract Administrator will contact the Project Manager regarding the availability of an applicable cooperative agreement. In this instance, the final determination to pursue the use of a cooperative agreement shall be made by the Project Manager.

If a Board resolution or approval is necessary to use the cooperative agreement, the Contract Administrator will advise the Project Manager and will initiate steps for consideration of the item by the Board.

Under certain circumstances, the Authority may initiate a cooperative procurement. In this case the Project Manager and the Contract Administrator shall work together to identify potential participants, to coordinate the requirements of all participants and ensure that the final scope of work/services or specifications represents the needs of all participants. If the procurement includes funding provided by the FTA, the appropriate federal clauses including an assignments clause, maximum quantity for both base and option quantities, and Contract term shall be included in the solicitation and Contract documents. The procurement shall be processed in accordance with FTA Circular 4220.1E or most current version. The Contract Administrator shall ensure that the commitment to participate in a cooperative procurement is confirmed in writing by an authorized representative of each participating entity.

If the Authority is invited to participate in a cooperative procurement for specific goods or services, the Project Manager shall advise the CPMM Department, and, if appropriate, due to the dollar value of the Authority’s participation, obtain approval to participate from the Board prior to issuance of the

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solicitation. If the Authority’s share of the requirement is funded through a federal grant, the Contract Administrator shall ensure that all requirements outlined in FTA Circular 4220.1E or the most current version are included in the solicitation package and that the procurement is processed in accordance with the Circular.

The CPMMC Department shall review all solicitation documents prior to issuance to ensure all requirements that may be imposed by FTA are met.

8.8.1 Piggybacking A cooperative agreement relies on a single Contract award, so "piggybacking" occurs when the sole Contract is viewed as a vehicle to receive additional goods and services without opening a new competitive procurement. Use of purchase orders organized under one basic Contract is a way to address this need without violating procurement policy. If the Project Manager anticipates future needs for indefinite quantity and/or indefinite delivery and is the lead authority in the cooperative procurement, the Project Manager may use the Requisitions Form (electronic, FIS) and Procurement Justifications Form (see Form 2) to justify a single basic Contract that specifies pricing, specifications, terms and conditions, etc., and then to have the participating agencies issue individual purchase orders against the basic Contract as funding becomes available to the agencies during the life of the Contract. The purchase orders would reflect the basic Contract unit prices and reference the basic Contract for other terms and conditions.

Any procurement where “piggy-backing” is involved shall have an assignability clause that provides for the assignment of all or part of the specified deliverables (base and option included) as originally advertised, competed, evaluated, and awarded. The clause cannot be added to the Contract after award if it was missing from the original solicitation. Bidders must be placed on notice that an assignment is likely and that they will thus be delivering all of the quantities called for by the Contract.

The procurement documents shall contain a minimum and maximum quantity of deliverables.

Any Contract clauses that unduly restrict competition are prohibited.

If a recipient is procuring any equipment or materials using option clauses, these must be evaluated at the time of the initial bid with prices established at that time.

The use of liquidated damage clauses in recipient procurements is mandatory.

In order to determine if a situation exists where piggybacking (assignment) of an existing agreement is appropriate, the following considerations are provided2. The Contract Administrator shall save a copy of the following worksheet in the Procurement File to substantiate the determination.

WORKSHEET YES NO

Have you obtained a copy of the Contract and the solicitation document, including the specifications and any Buy America Pre-award or Post- Delivery audits?

2 This worksheet is based upon the policies and guidance expressed in (a) the FTA Administrator's "Dear Colleague" letter of October 1, 1998, (b) the Best Practices Procurement Manual, Section 6.3.3—Joint Procurements of Rolling Stock and “Piggybacking,” and (c) FTA Circular 4220.1F.

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WORKSHEET YES NO

Does the solicitation and Contract contain an express “assignability” clause that provides for the assignment of all or part of the specified deliverables?

Did the Contractor submit the “certifications’ required by Federal regulations? See BPPM Section 4.3.3.2.

Does the Contract contain the clauses required by Federal regulations? See BPPM Appendix A1.

Were the piggybacking quantities included in the original solicitation; i.e., were they in the original bid and were they evaluated as part of the Contract award decision?

If this is an indefinite quantity Contract, did the original solicitation and resultant Contract contain both a minimum and maximum quantity, and did these represent the reasonably foreseeable needs of the parties to the Contract?

If this piggybacking action represents the exercise of an option in the Contract, is the option provision still valid or has it expired?

Does your State law allow for the procedures used by the original Contracting agency: e.g., negotiations vs. sealed bids?

Was a cost or price analysis performed by the original Contracting agency documenting the reasonableness of the price? Obtain a copy for your files.

If the Contract is for rolling stock or replacement parts, does the Contract term comply with the five-year term limit established by FTA? See FTA Circular 4220.1F, Chapter IV, 2 (14) (i).

Was there a proper evaluation of the bids or proposals? Include a copy of the analysis in your files.

If you will require changes to the vehicles (deliverables), are they “within the scope” of the Contract or are they “cardinal changes”? See BPPM Section 9.2.1.

8.9 Procurement Procedures for Competitive Procurements 8.9.1 Independent Cost Estimate (ICE) The User Department or PM shall prepare and submit an independent cost estimate for the good or services being procured with the Requisition Form prior to issuance of a solicitation for procurement of goods and services by the CA&P Division, when required by policy. The ICE must be submitted by PM and accepted by the CPMM Department prior to the receipt of bids or proposals.

An Independent cost estimate (ICE) means an estimate of the anticipated cost or price to be paid for an item, service, or project that is developed by an entity or entities not associated with the item, service, or project to be procured.

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The ICE assists in the Authority’s determination of the benefit of a project relative to its cost. Also, the ICE provides financial planning information, including an indication of the complexity of the project, and the amount of the investment prospective bidders and/or proposers will make in responding to the solicitation.

To be considered “independent,” the estimate cannot be developed by any potential source, supplier, or provider of the item, service, or project. However, it is acceptable to have an “independent” third party develop the estimate for the purchasing activity as long as that party has no interest in bidding or offering on the procurement. For more complex procurements, the ICE represents the documented result of a practical and unbiased analysis, assessment, and quantification of all costs and risks associated with a particular procurement. The ICE should be based upon the procurement’s technical specifications.

The independent cost estimate serves as a starting point in performing cost or price analyses in connection with every procurement action, including contract modifications or change orders. The ICE shall be included with the procurement record.

Confidentiality of the Independent Cost Estimate: Authority independent cost estimates are held confidential and shall not be disclosed. Access to the independent cost estimate shall be limited to those Authority personnel whose official duties require knowledge of the estimate. An exception to this rule may be made during contract negotiations to allow the CA to identify a specialized task and disclose the associated cost breakdown contained in the Authority’s estimate, but only to the extent deemed necessary to arrive at a fair and reasonable price.

Development of the Independent Cost Estimate: Independent cost estimates are required by the Authority and the FTA to be prepared without input from contractors/vendors/consultants who may bid or propose on the procurement. Independent cost estimates should be based on product knowledge, prior experience and market factors, using the following procedures:

The PM and/or Project Controls designee shall ensure preparation and documentation of equipment estimates using appropriate sources – such as published price lists; prices from past competitive procurements updated with inflation factors; and pricing data from other agencies that obtained competitive bids for the same equipment or supplies. In the case of specialized equipment, care must be taken that the source of the estimates is not disproportionately obtained from one supplier.

I. Professional Services: The PM and/or Project Controls designee shall ensure preparation and documentation of estimates for professional services using appropriate sources, such as past competitive procurements updated with inflation factors, published price lists such as Federal Supply Schedules, and pricing data from other agencies that obtained competitive bids for the same professional services. The Authority may also consider obtaining a professional cost estimate by a firm not interested in the final procurement if cost and price estimates are not reasonably available from other sources.

II. Construction: In some cases, cost estimates may be difficult to obtain or may lie outside the

expertise of Authority personnel. The PM and/or Project Controls designee may ensure preparation and documentation of cost estimates using appropriate sources, such as prior WMATA construction projects awarded competitively; and pricing data from other agencies that obtained competitive bids for similar construction work. A design firm may already be under

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contract, or may be engaged, to perform this service. In some cases, the Authority’s in-house personnel who have participated in design or past construction efforts may be the most professional and reliable cost estimators.

The PM and/or Project Controls designee must reconcile the difference between the contract award and the independent cost estimate amounts, where the difference is greater than 10%. The reconciliation should explain why the difference is not viewed as undermining the finding of reasonableness of the prospective award price. The results of this reconciliation must be placed in the contract file.

The Project Manager shall use Form 8 to prepare the ICE and will submit this estimate with the Requisition Form (see Section 6.8.4) for any procurements valued greater than $150,000. The level of effort expended to prepare any ICE should be equivalent to that which Authority staff would expect from the proposer, bidder or provider of the service, deliverable or product in question. This level of effort should be reflected in the detail and comprehensiveness of the ICE, including clearly identified source references that are broadly recognized as relevant and applicable throughout the industry in question.

8.9.2 Cost or Price Analysis A cost and/or price analysis must be performed for each procurement action. The method of cost and/or price analysis is dependent on the facts surrounding a particular procurement and will be determined and documented by the CA&P Department in accordance with Federal Transit Administration (FTA) Circular 4220.1F (or most current version) and 2 Code of Federal Regulations (CFR) Part 200. The cost and/or price analysis shall be performed prior to making any award or Contract modification or change order. The written analysis including all supporting documents shall be placed in the contract file.

8.9.2.1 Cost Analysis A cost analysis must be performed under the following conditions:

When an offer contains cost elements such as overhead, materials, labor hours, or profit. (Examples include Architecture and Engineering (A&E) services Contracts, professional consulting or technical services Contracts).

When a cost reimbursable or time and materials Contract is awarded. When adequate price competition is lacking such as in the case of a single bid or sole source/non-

competitive negotiated procurement. When a Contract change order, amendment or modification represents a cardinal change to the

original agreement.

General Cost analysis is the review and evaluation of the separate cost elements and the proposed profit in a bidder’s/proposer’s proposal (including cost or pricing data or information other than cost or pricing data) and the application of judgment to determine how well the proposed costs represent what the cost of the contract should be.

Cost analysis techniques include:

• Verification of cost or pricing data and evaluation of cost elements;

• Evaluating the effect of the proposer’s current business practices on future costs;

• Comparison of proposed costs with:

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o Actual costs incurred by the proposer;

o Previous cost estimates from the proposer or other proposers;

o Other cost estimates from other proposers; and

o The Authority’s Independent Cost Estimate.

• Analysis of subcontractor costs;

• Verification that costs or prices based on estimated costs for contracts that are federally funded are allowable only to the extent that costs incurred, or cost estimates included in negotiated prices would be allowable under FAR Part 31 or other applicable standards; and

• Verification that cost or pricing data is current, accurate and complete.

Cost Analysis Data: Cost analyses are performed using cost or pricing data provided by the proposer. The cost or pricing data are all of the facts that can reasonably be expected to contribute to the soundness of estimates of future costs and to the determinations of costs already incurred. They may also include such factors as:

• Vendor quotations;

• Nonrecurring costs;

• Information on changes in production methods and in production or purchasing volume;

• Data supporting projections of business prospects and objectives and related operations costs;

• Unit-cost trends such as those associated with labor efficiency;

• Make-or-buy decisions;

• Estimated resources to attain business goals; and

• Information on management decisions that could have a significant bearing on costs.

A COST ANALYSIS IS REQUIRED WHENEVER A PRICE ANALYSIS CANNOT BE PERFORMED. The Authority is also expected to prepare a cost analysis when price competition is inadequate, when only a sole source is available, or in the event of a change order.

Cost analysis is the review and evaluation of the separate cost elements and profit in a bidder's proposal and the application of judgment to determine how well the proposed costs represent what the cost of the Contract should be assuming reasonable economy and efficiency. The FTA Pricing Guide also discusses the steps that must be taken to perform a cost analysis. The Project Manager shall use Form 9 to complete the Cost Analysis.

8.9.2.2 Price Analysis Price analyses shall be used in all other instances to determine the reasonableness of price, typically in a competitive solicitation, and performed by the CA. In this instance, price analysis is an evaluation of the proposer’s/bidder’s price relative to other prices being offered in the same solicitation by other vendors. The price analysis must be documented and placed in the contract file.

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Price reasonableness may be determined on the basis of catalogue, market price, or previous purchases of a commercial item sold in substantial quantities to the general public or if law or regulation sets prices. If a previous purchase is to be used in the price analysis, ensure that the previous price was fair and reasonable. The Project Manager shall use Form 9 to complete the Cost Analysis.

A price analysis will be used to determine price reasonableness for Competitive Sealed Bids when two or more bids are received.

The FTA Pricing Guide provides process steps to determine the reasonableness and the realism of prices offered by vendors, Contractors, etc. The Guide describes six price analysis techniques that recipients might use depending on the circumstances of the particular procurement. The accepted forms of price analysis techniques include:

• Adequate price competition; • Prices set by law or regulation; • Established catalog prices and market prices; • Comparison to previous purchases; • Comparison to a valid recipient independent estimate; and, • Value analysis.

8.9.2.3 Profit Profit will be negotiated as a separate item for all A&E Contracts and/or associated Contract task orders and where there is no price competition. In determining fair and reasonable profit, consideration may be given to the complexity of work being performed, risk borne by vendor, level of vendor investment, subcontracted amount, industry profit rates in the surrounding geographical area for similar work and quality record of past performance as permitted under 2 CFR Part 200.

8.9.3 Contingency Funds The Project Manager should advise the CA if an Authority Contingency or otherwise known as “owner contingency” fund is going to be requested. This is different from “contractor contingency” which is often time included in the contracted price but not disclosed to the “owner”. When a Guaranteed Maximum Price (GMP) is the compensation basis, the “contractor contingency” would then be disclosed as an element of cost and used for purposes specified in the project agreement.

The definition of contingency is: provision for an unforeseen future event or circumstance that is possible but cannot be predicted with certainty (unknown, unknown).

Authority contingency is recommended by the PM, subject to the Board’s approval, to address various elements of risk whether they be schedule, scope, technology application, or delays, including those related to permitting requirements, site issues, or other risks borne by the owner as the project proceeds.

Authority may elect to establish a contingency when planning for a capital project. This contingency is not disclosed to any project delivery firms that may compete for a project and is only used discreetly by the Authority to address issues raised above.

The request that an owner contingency fund be authorized must be justified in writing and will be included in the staff report to the Board and the permanent procurement file. Typically, a contingency fund request shall not exceed 10% of the Contract funding authorization. When a contingency in excess of 10% is

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requested, the requesting Department Director must approve the request.

Examples of Contracts where contingency funds are typically requested include new construction, track and structures rehabilitation, remodeling of existing facilities, and equipment rehabilitation or rebuild. Use of contingency funds is not allowed in connection with Job Order Contracts (JOC).

For professional and technical services agreements, a contingency fund may be requested if it is fully justified and approved by the Department Director before it is presented to the Board for consideration. The justification shall become a part of the permanent procurement file.

Typically, contingency funds are not provided for in agreements for off-the-shelf or “brand name” items. If the Project Manager feels there is a compelling reason for the use of a contingency fund in connection with such an agreement, it must be fully justified in writing and approved by the Department Director and the CEO before it is presented to the Board for consideration.

Contingency funds will not be used in connection with Contracts for specifically priced items such as automobiles, rail ties, track, etc.

8.9.4 Evaluation Criteria Evaluation criteria will differ with each solicitation. Evaluation criteria must reflect what is being requested in the proposal. The CA and the PM should base the evaluation criteria according to the specific needs of the department. The maximum available points for each of the evaluation criteria factors must reflect the areas most important to the department.

The evaluation criteria are to be clearly established in the RFP document. It is essential that proposers know how they will be rated. The PM will propose appropriate categories and weighting of evaluation criteria in the Requisition Form. The CPMM Department approves evaluation criteria.

Technical and Cost Criteria Weights are required for Competitive Negotiated procurements or Lowest Priced Technically Acceptable procurement. Both weighted technical and cost criteria and subcriteria and a minimum acceptable technical score shall be incorporated into the solicitation document. The weighted technical and cost criteria and subcriteria and the minimum technical score shall be 1) established prior to issuing the solicitation, 2) shall be included in the solicitation document, and 3) shall be used to evaluate the proposals or offers received.

8.9.5 Procurements Involving Specialized Rail Equipment and Goods The Board shall also approve the criteria and weights for all negotiated competitive procurements for Specialized Rail Equipment and Goods conducted under the authority of Public Utilities Code § 130238. Under this code section the Board must find by at least a two-thirds vote that the procurement qualifies under this subdivision and direct that the procurement be conducted through competitive negotiation. All requirements of the code section shall be followed in conducting such a procurement. In accordance with “Ex Parte Communications with Contractors” of the Ethics Policy, when a procurement is authorized under Public Utilities Code § 130238, staff must notify Board Members/Alternates in bold type of the following communication restriction:

“No Board Member/Alternate responsible for awarding a Contract that is subject to the competitive negotiation provisions of Section 130238 of the Public Utilities Code shall engage in any ex parte communication with a potential Contractor or representative of that potential Contractor except in writing and provided that the communication shall be

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made public”

8.9.5.1 Interviews Interviews are optional. If considered, Interviews should not be listed as a sub-criteria in the solicitation package. Interviews should be used to help evaluators seek clarifications from the technical proposals. Following the conclusion of the interviews, evaluators should have an opportunity to modify their technical scores based on clarifications gleaned from the interviews. If interviews are planned, it should be noted in the solicitation package, along with a description of the basis for selecting proposers to bring in for an interview, as well as a timeframe for when the interviews

8.9.6 Solicitation Documents Solicitation documents are required for Competitive Sealed Bids and Competitive Negotiations. Solicitations may not be drafted in a manner that limits bidding or proposing unnecessarily or intentionally to any one offeror. Solicitation documents must set forth all requirements, which must be fulfilled in order to be responsive.

Competitive Negotiation procurements require issuance of Requests for Proposals, which clearly set forth all the requirements, and state the qualitative factors in addition to price which will be used to evaluate and rank the Proposals. The solicitation documents must include an “Exceptions Form” as part of the solicitation process, which allows proposers to list proposed changes to the draft Contract that is included as part of the solicitation package. An award, if made, will be to the proposer receiving the highest ranking, subject to successful negotiations with the Authority. Once a vendor is selected, CA&P will review the Exceptions Form and will negotiate identified changes with the vendor prior to Contract award.

Competitive Sealed Bids require solicitation documents that identify the cost elements to be considered in determining the low bid. When options are included in the solicitation, the cost of the options shall be included in determining the lowest priced responsive, responsible bidder. An award, if made, will be to the bidder with the lowest price.

Solicitation documents must be advertised in accordance with State or Federal legal requirements. If a Contract will be Federally-funded, all relevant Federal provisions must be included in the solicitation documents.

8.9.7 Project Advertisement Advertisements for equipment, material and supplies and professional, technical and specialized services shall be published in newspapers of general circulation covering the Authority’s five county service region at least 10 days before offers are received. The Contract Administrator drafts the appropriate advertising copy, with assistance from the Project Manager and prepares and submits a Requisition for the purchase of advertising in the identified papers. The Contract Administrator shall use Form 1, Advertising to complete the request.

Advertisements for public works or construction projects shall be published in newspapers of general circulation covering the Authority’s five county service region at least 14 days before offers are received. Advertisements shall be run once a week for two successive weeks with a minimum of five days between each published notification.

For public works construction Contracts, advertisements shall also be published in representative industry media, such as the Dodge Green Sheet, Construction Data News, etc.

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In addition, for procurements that include a DBE goal, advertisements shall be published in newspapers specializing in diversity, such as La Opinion, The Sentinel, Rafu Shimpo, etc.

When time permits, in addition to local newspapers, special interest publications should be used to advertise for specialized goods or services or for materials, equipment and services specific to the rail transit industry.

Advertisements for specialized rail transit equipment as defined in Public Utilities Code § 130238 shall be published at least twice in newspapers of general circulation in the Authority’s five county service region. The second publishing shall occur at least 10 days prior to receipt of offers. In addition, the advertisement may be published in rail industry publications if the estimated Contract value and lead-time justify the additional expense.

Copies of advertisement requests as well as tear-sheets and copies of the actual advertisements shall be made a part of the permanent procurement file as required by Section 5.4.

9. NON-COMPETITIVE PROCUREMENT This section first identifies the Non-Competitive Procurement methods required for Micro-Purchases, Emergency Procurement, and Sole Source Procurement. The methods are described broadly and indicate how award is determined for each method. This section concludes with the procedures that are universal to Non-Competitive Procurement methods.

NOTE: All Non-Competitive Procurement Above Micro-Purchase Level Requires a Cost Analysis

9.1 Micro-Purchases ($10,000 or less) Micro-Purchases may be made by CPMM if the price is deemed to be fair and reasonable and is properly documented in the Procurement File. There should be equitable distribution among qualified suppliers and procurements shall not be split to avoid competition. For very small purchases (under $-500) the requester should consult with Finance and the Contract Administrator to determine if the requirement should be handled through Petty Cash or a Check Request. A P-Card is required for Micro-Purchases; refer to Chapter 10.

9.2 Emergency Procurement An “emergency” means a sudden, unexpected occurrence that poses a clear and imminent danger, requiring immediate action to prevent or mitigate the loss or impairment of life, health, property, or essential public services, as generally defined under Public Utilities Code Section 130234. In the case of emergency, the Authority can enter into Contracts without observance of competitive bids, advertisement or notice. In the event of an emergency, the Board and CEO are authorized to initiate procurements without following competitive bidding requirements.

Pursuant to Public Contract Code 22050, the Board, by a four-fifths vote, may take any immediate procurement action required by an emergency, and may procure necessary equipment, services, and supplies without giving notice for bids to let contracts.

The CEO is authorized to take all necessary and proper measures in emergency conditions to repair or replace Authority facilities as necessary, without giving notice for bids or proposals. The CEO will promptly report on any contracts executed and the reasons and necessity for proceeding without a competitive solicitation to the Board at the next available meeting after the emergency action is taken.

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Board ratification is required for any Contract in excess of $500,000 and must be obtained as soon as it is practicable to do so. The CEO will make reasonable attempts to convene an emergency meeting of the Board prior to execution of any contract in excess of $500,000. In the event the Board chooses not to ratify a contract, the specific contract termination clauses will apply.

Staff shall take those steps necessary to procure those goods and/or services necessary to implement immediate remedial measures to avert or alleviate damage to property, or to replace, repair or restore property or to maintain or restore daily transit service.

As soon as practicable after the emergency event, a requisition shall be submitted. The CPMM Department shall issue an appropriate Contract for the goods and/or services necessary to respond to the emergency.

9.3 Unsolicited Proposal An Unsolicited Proposal is written proposal that is submitted to the Authority on the initiative of the submitter for the purpose of developing a partnership that is not in response to a formal or informal request issued by the Authority. The Authority will only consider an unsolicited proposal for evaluation and contract award if the criteria

below are satisfied:

• It must be innovative and unique; • It must have been independently originated and developed by the proposer; • It must have been prepared without Authority direct input, involvement; and • It must show that the proposed work would benefit the Authority An Unsolicited Proposal is not any of the following:

• An offer responding to the Authority’s previously published expression of need or request for proposals;

• An advance proposal that the Authority could acquire through competitive methods (submitted within the budget year before release of a published request for proposal); or

• A replacement for an existing contract that is already in effect; or • An opportunity to stipulate the means and methods of an existing contractual relationship.

All Unsolicited Proposals shall be submitted to the CPMM Department, which will log the proposal and distribute to appropriate departments for evaluation of technical and/or financial aspects of the proposal. When practicable, the Authority will evaluate Unsolicited Proposals using a two-phased approach: Phase One – Conceptual Proposal This phase is the evaluation of conceptual proposals within 90 calendar days of receipt, at which time a determination will be made as to whether to review additional and detailed information in Phase Two.

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If there is interest in a conceptual proposal as evident in a memo to the CPMM Department from the User Department, Chief(s) or CEO, the proposer may be asked via written notice to submit a detailed proposal for evaluation in Phase Two. In the event that the project proceeds beyond Phase Two or otherwise involves a competitive procurement or sole source procurement, the Authority’s procurement policies and procedures will apply. The Authority may, at any time, choose not to proceed further with any Unsolicited Proposal via a written notice. Phase Two – Detailed Proposal The purpose of Phase Two is for the Authority to receive more detailed technical and financial information to fully understand and evaluate the proposal. At the conclusion of this phase, SCRRA will decide whether to forego the proposal, to proceed to a sole source agreement, or to pursue a competitive solicitation. Processing: Once the detailed proposal is received, the CPMM staff will keep and share with a record of the persons on the evaluation team and record the final disposition of the proposal. Content – Detailed Proposal: In addition to the information provided in Phase One, a detailed proposal must be submitted by the proposer. Recommendation: The evaluation team will make a recommendation on the disposition of the detailed proposal to the CEO for review and approval. The Board’s approval may be required if the value exceeds the CEO’s delegation of authority. Full and Open Competition Requirement: The Authority’s receipt of an Unsolicited Proposal does not justify a contract award. If the Unsolicited Proposal offers a proprietary concept that is essential to contract performance, it may be deemed a Sole Source. If not, at the Authority’s discretion, a competitive procurement will be pursued. Proof of Concept: The Authority may choose to work with another party to prove a concept as a means of better understanding an offering and its application and value, provided that the work is done at the expense of the other party.

9.4 Sole Source Procurement According to the FTA, "noncompetitive or sole source procurements may be used only when one or more of the following circumstances apply: (1) The item is available only from a single source; (2) The public exigency or emergency for the requirement will not permit a delay resulting from competitive solicitation; (3) The Federal awarding agency or pass-through entity expressly authorizes noncompetitive proposals in response to a written request from the non- Federal entity; or (4) After solicitation of a number of sources, competition is determined inadequate. 2 C.F.R. § 200.320(f)."

The CA and the PM shall retain copies of its sole source award justification in the procurement files. All Sole Source Procurement shall have an ICE, Cost Analysis, and/or Record of Negotiation if applicable.

Sole Source and Non-Competitive Negotiated procurements may occur if the Authority requires goods (equipment, materials, supplies) and services (if in the best interest of the Authority and justification

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meets the sole source definition). Sole source procurement of goods and services when not Federalized, may be permitted under the following circumstances:

Emergencies, as described in Section 6.1.1;

Upon determining that immediate remedial measures to avert or alleviate damage to property or to repair or restore damaged or destroyed Authority property, the CEO may authorize the expenditure of money for the direct purchase of goods, services or construction without the observance of competitive bidding requirements to ensure the facilities and equipment of the Authority are available to serve the transportation needs of the general public. After any such expenditure, the CEO shall submit to the Board a complete report explaining the necessity of the action. (Public Utilities Code § 130235)

Unique or Innovative Concept means a new, novel, or changed concept, approach, or method that is the product of original thinking, the details of which are kept confidential or are patented or copyrighted, and is available to the Authority only from one source and has not in the past been available to the Authority from another source.

Patents or Restricted Data Rights – Patent or data rights restrictions preclude competition.

Substantial Duplication Costs – In the case of a follow-on contract for the continued development or production of highly specialized equipment and major components thereof, when it is likely that award to another contractor would result in substantial duplication of costs that are not expected to be recovered through competition.

Unacceptable Delay – In the case of a follow-on contract for the continued development or production of a highly specialized equipment and major components thereof, when it is likely that award to another contractor would result in unacceptable delays in fulfilling the Authority’s needs.

Sole source procurement of goods may be permitted under the following circumstances:

The Board may direct the purchase of any supply equipment, or material upon a finding of two/thirds vote that there is only a single source of procurement and that the purchase is for the sole purpose of duplicating or replacing supplies, equipment, or material already in use. (Public Utilities Code § 130237).

If all offers are rejected during a competitive procurement, the Board may determine and declare, by a two/thirds vote, that supplies, equipment, and materials may be purchases at a lower price in the open market. The Board may direct that the purchase be made in the open market without further observance of competitive bidding. (Public Utilities Code § 130233).

The Board may, by a two-thirds vote, direct the procurement of prototype equipment or modifications in an amount sufficient to conduct and evaluate operational testing without the observance of competitive procurement requirements (Public Utilities Code §130236).

The goods are an associated capital maintenance item as defined in 49 USC §5307 (a) (I) that is procured directly from the original manufacturer or supplier of the item to be replaced. When Federal Transit Administration (FTA) funding is involved, the Authority must certify in writing to the FTA that such manufacturer or supplier is the only source for such item and that

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the price of such item is no higher than the price paid for such item by like customers. Sole source procurement of services may be permitted under the following circumstances:

After a competitive solicitation of a number of sources, competition is determined to be inadequate. (Public Utilities Code § 130220)

The item is available from only a single source, i.e. licensed software, patented material or process, etc. (Public Utilities Code § 130220)

The Board determines in its sole discretion that non-competitive procurement is in the best interest of the Authority.

Board ratification is required for any Contract in excess of $500,000 and must be obtained as soon as it is practicable to do so.

9.5 Procurement Procedures for Non-Competitive Procurement 9.5.1 Justification for Emergency and Sole Source Procurements If the CEO initiates an Emergency procurement, the CEO will promptly report on the reasons and necessity for proceeding without a competitive solicitation to the Board at the next available meeting after the emergency action is taken.

All requests for sole source procurements shall be fully justified according to the conditions listed in 9.4 Sole Source Procurement and approved by the Director of the CPMM Department. Accompanying the Requisition Form (an electronic form submitted via FIS) shall be a justification for the sole source procurement request. The justification may be submitted on the Procurement Justification Form (Form 2).

9.5.1.1 Exception for Micro-Purchases For Micro-Purchases, a cost analysis would depend on the nature of the product or service. The price must be justified as reasonable, which can be based on the Project Manager's and/or Contract Administrator's familiarity with the product or service and need not entail a cost breakdown or detailed analysis of cost elements. The Project Manager should include a justification for not using a cost analysis for a Micro-Purchase with the Requisition Form.

9.5.2 Sole Source and Emergency Procurement File Documentation The Contract Administrator is required to file documentation associated with any Sole Source or Emergency Procurement in the Procurement File. Required documentation includes:

Requisition Form including the required approval;

If applicable, an independent cost estimate and any supporting documents such as historical Contract or operating data;

Justification Form explaining the circumstances, if necessary;

A copy of the final solicitation (as amended) and any supporting documents such as pre-proposal conference notes and Questions and Answers;

The solicitation mailing or source list, annotated with the date the RFP and any amendments were distributed and the solicitation closing date;

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A copy of the proposal received including offeror acknowledgment of any solicitation amendments;

The written determination that the price offered by the apparent successful offeror is “fair and reasonable;”

A written determination that the proposed Contractor is “responsible” and “responsive;”

A copy of the proposed Contract that is consistent with the solicitation, including the applicable federal clauses;

Evidence of supervisory or secondary review of the Procurement File;

The original and signed Contract/Agreement; and

After award, any subsequent Contract amendments/modifications including but not limited to those exercising available option periods.

10. CONTRACT AWARD PROCESS 10.1 Evaluators Competitive Sealed Bids and Competitive Negotiations require the assembly of an Evaluation Team. Evaluators are selected and evaluators are required to complete confidentiality and impartiality forms per Section 8.1.3 prior to the opening of sealed bids or distribution of proposals.

10.1.1 Identifying the Evaluation Team for Competitive Sealed Bids The Evaluation Team is comprised of the CA and the PM, with the CA leading the procurement process while the PM is responsible for technical elements.

10.1.2 Identifying the Evaluation Team for Competitive Negotiations An ad hoc Evaluation Team shall be established for each competitively negotiated procurement. As part of preparing the Evaluation Plan, the Contract Administrator will work with the Project Manager to identify the Evaluation Team. The assigned Contract Administrator chairs the Evaluation Team and may be a voting member of the Team. The Evaluation Team may include a member from the requesting department or division as well as one other SCRRA staff member from the same department, and a representative from any department or division that has an interest in, or will be affected by, the Contract award. Each Authority department or division represented on the Team, including the requesting department or division, will have only one vote. It is the Contract Administrator’s responsibility, working with the Project Manager, to ensure that the Evaluation Team is balanced and that no one department or division has a majority of votes on the team.

The members of the Evaluation Team shall be chosen to ensure impartiality during the evaluation process. Each Evaluation Team member shall 1) evaluate and score all proposals received for technical merit, 2) participate in any interviews or presentations, 3) evaluate and score cost proposals (if included in the process), 4) evaluate and score Best and Final Offers (if requested and received), and 5) participate in the recommendation for award. Proposals shall be evaluated against the evaluation criteria and subcriteria and their respective weights as approved by the Board and not against other proposals received in response to the solicitation.

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10.1.3 Confidentiality and Impartiality Evaluation Evaluation Team members are required to complete the following forms (Forms 4 to 6, Confidentiality).

Declaration of Confidentiality – This is the Team member’s statement that they will maintain complete confidentiality during their service on the Evaluation Team.

Conflict of Interest Statement – After the proposals are received, each Team member must affirmatively state that they have no financial interest either direct or indirect in any of the firms, either prime or subconsultants, included in the proposals.

Certification of Reasonable Impartiality – After the proposals are received, each Team member must affirmatively state that they can perform their role as a reasonably impartial, non-involved reviewer with no actual or reasonable probability of actual bias for or against any of the firms submitting or participating in the proposals to be evaluated.

10.2 Award Process for Competitive Sealed Bids 10.2.1 Bid Review For all procurements utilizing competitive bids in response to an Invitation for Bid (IFB), the Contract Administrator and the Project Manager will review the bids. A formal Evaluation Plan is not required, but may be used to inform the reviewers about schedules, requirements and to distribute needed forms. The reviewers independently review each bid received and complete a review form (see Form 3, Sample Bid Review Form) to determine the lowest-priced responsible, responsive bidder. After the review is complete, the PM will prepare a report to the Board recommending award and the CA will prepare a purchase order or Contract depending on the dollar value of the procurement.

10.2.2 Determination of Responsibility The term “responsible" refers to a bidder’s financial resources, judgment, skill experience, integrity and business ethics, and ability to successfully fulfill the requirements of the Contract. The Authority will not award a Contract to any bidder determined to be non-responsible. Information not contained in the bid may be requested from the bidder for evaluation purposes. Information from outside sources (e.g., Dun & Bradstreet) may also be used.

10.2.3 Determination of Responsiveness To be responsive and to be considered for award, a bid must comply both as to method and timeliness of submittal and as to the substance of the resulting Contract. The responsiveness of the bid itself is determined by its conformance to the technical, legal and commercial requirements of the bid documents. Generally, a bid is not responsive and may be eliminated from consideration for award on that basis if the bidder deviates from the bid requirements, fails to follow the procedures for submittal, does not include the required bid forms properly filled out and signed. A bid may be rejected when the bidder imposes conditions that would modify requirements of the solicitation documents. The Authority may waive minor, non-material errors or omissions, which do not allow a competitive advantage.

10.3 Contract Award Process for Competitive Negotiations

10.3.1 Establishing the Evaluation Plan Prior to issuing the Request for Proposal, the CA and PM will develop an Evaluation Plan tailored to the specific requirements of the RFP. For procurements estimated at $100,000 or more, the plan will identify the Evaluation Team, list the evaluation criteria and sub-criteria and their individual weights, identify the

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technical score, and summarize the evaluation process. For procurements estimated to cost $100,000 or less, the plan may be less detailed.

10.3.2 Confidentiality and Impartiality The membership of the Evaluation Team, the technical and cost proposals, evaluation materials, evaluation scores, and the recommendation for award shall remain confidential until the end of the Black-Out Period.

If a procurement action is cancelled, the solicitation documents shall clearly state as much via a Notice from the Authority.

The membership of the Evaluation Team, evaluation materials, evaluation scores, any material developed or used in the cancelled solicitation action, shall remain confidential until a procurement is successfully concluded and successful award of the requirements is made.

To ensure each proposal received is evaluated impartially, each member of the Evaluation Team may be requested to state affirmatively that they have no financial interest, neither directly nor indirectly, in any of the firms either prime or subconsultants identified in the proposals. Members of the Evaluation Team may also be requested to state affirmatively that there is no actual or reasonable probability of actual bias with regard to any of the primes or subconsultants identified in the proposals.

For awards of $500,000 or more, a notification of award and an invitation to participate in a debriefing regarding the strengths of the offeror’s submitted proposal and discussion of the evaluation process should be sent to each proposer. The purpose of the debriefing is to assist the offeror in identifying the strengths and weaknesses of his own proposal so that in the future the offeror may be successful in securing a Contract with the Authority.

10.3.3 Evaluation Process The Evaluation Team reviews, evaluates and scores all technical proposals or offers, using technical evaluation criteria and weights. An interview or presentation may be included as part of the technical evaluation, if the requirement for an interview is included in the solicitation package and evaluation criteria. Proposers receiving the minimum technical score are included in the cost proposal evaluation. After the technical and cost evaluations are completed, as appropriate to the requirement, the Evaluation Team’s scores are compiled and the Team makes a recommendation for award.

For Architectural/Engineering services, cost proposals are generally not received. The firms are ranked according to the technical qualification scores (in accordance with the 2 steps process). The highest rated firms are presented to the Board with a request to negotiate a Contract including costs with the highest technically ranked firm.

For LPTA solicitations, those firms scoring above the technical qualifications cut-off will be presented to the Board and the Board will authorize entering into the second phase of the procurement action.

The Contract Administrator prepares an agenda item, recommending award of the Contract to the firm or firms recommended by the Evaluation Team or providing the rankings of the technically qualified firms.

For agreements and leases for equipment, supplies, materials, services or construction when the total amount to be paid by the Authority (including all options) does not exceed $500,000, or for Contracts over $500,000 for inventory materials where multiple bids were received, the award recommendation is

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provided to the CEO to seek authorization to proceed with procurement action.

For procurements that exceed $500,000 (including those for inventory materials over $500,000 in which only a single bid was received), the final decision regarding award of Contracts resides solely with the Board. The Authority’s Board retains the right to re-evaluate technical and cost proposals, and re-score technical and cost proposals in accordance with the requirements of the solicitation.

10.3.4 Modified Evaluation Process To the maximum extent authorized by law, and in advance of the release of a competitive solicitation and on a case by case basis, the Authority's Board further retains the right to adopt a modified or alternative evaluation process for proposals, and to conform the procedures as appropriate for consistency, if it is determined to be in the best interest of the Authority in its sole discretion.

10.3.5 Rejected Bids in Competitive Procurement Pursuant to PUC § 130233, if a competitive procurement results in all bids being rejected and the Board determines by a two-thirds vote that supplies, equipment, and materials may be purchased at a lower price in the open market, the Board may proceed to direct the purchase be made in the open market. Procedures for Sole Source Procurement (Section 7.3) shall be observed in this event.

10.4 Contract Award Process for Single-Bid If a Single Bid is received in response to a solicitation, the Contract Administrator must determine whether or not competition is adequate.

10.4.1 Surveys First, the Contract Administrator should determine whether the specifications were unduly restrictive. The Contract Administrator may also survey potential sources that chose not to submit a bid to reveal why they did not respond to the solicitation. The Contract Administrator should document the results of such surveys and include the documentation in the Procurement File for audit purposes.

10.4.2 Adequate Competition Competition may be adequate when the reasons for few responses were caused by conditions beyond the Authority's control. After the recipient determines that the specifications are not unduly restrictive and changes cannot be made to encourage greater competition, the recipient may determine the competition adequate.

10.4.3 Inadequate Competition Competition is inadequate when the reasons for few responses were caused by conditions within the Authority's control. For example, if the specifications used were unduly restrictive, competition will be inadequate. If the Contract Administrator determines the competition is inadequate but the conditions for proceeding with the award as a sole source (see Section 7) is justified, the Project Manager must still undertake either a price or cost analysis to determine the reasonableness of the bid price.

10.4.4 Price Analysis or Cost Analysis If the competition is deemed to be adequate or the recipient determines a sole source award is justified, a price analysis must be performed to determine the reasonableness of the bid price. If, however, the reasonableness of the bid price cannot be established, recipients must proceed with a cost analysis discussed in Section 7.4.

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10.4.5 Negotiation In those instances where either the price or cost analysis has not established that the bid price is fair and reasonable, the Authority may enter into negotiations per Section 8.8 with the proposer in an attempt to establish a different price that ultimately can be determined to be reasonable. Details of the negotiation must be documented by the Record of Negotiation (RON), signed by the participating PM, CA, and Project Controls (Estimator).

10.5 Contract Award Process for Tie Bids

10.5.1 Procurement Objective This procedure establishes a method to address tie bids. This procedure applies when the lowest bid is a tie bid submitted by two or more responsive responsible bidders in response to an Invitation for Bid. A random selection of one bid from the fully responsive and responsible tie bids received, referred to as drawing of lots, shall be used to determine the winner.

10.5.2 Tie Bids Procedure If the individual or team evaluating bids makes a determination that the lowest two or more responsible and responsive bids are tied, the following steps shall be taken:

Confirm that the bids are identical and responsive to the requirements and terms and conditions of the Invitation for Bid.

If the bids are tied, establish a date and time to draw lots to determine the winner. Advise the tied bidders in writing that a tie has occurred, advise them a winner will be determined

by drawing lots, and invite them to attend. Conduct the drawing of lots on the date and time previously established. The drawing of lots is to be witnessed by at least two individuals. The procurement file shall be documented to reflect the proceedings and shall include the name

of the Contract Administrator administering the drawing as well as the name, title and department of the witnesses. If the witnesses are not SCRRA employees, the name, company, address, and telephone number of the individuals shall be included in the procurement file.

10.6 Bid or Proposal Rejection Waiver of Informalities and/or Non-Material Defects

10.6.1 Procurement Objective This procedure establishes methods to reject bids proposals. It also establishes methods for waiving minor non-material errors, omissions, irregularities, or informalities that may appear in bids or proposals.

10.6.2 Bid or Proposal Rejection Waiver of Informalities and/or Non-Material Defects Procedure For all procurements, the Authority may reject any or all bids or proposals at any time during the evaluation and award process if it is determined by the Director of the CPMM Department that it is in the best interest of the Authority to do so. Reasons to reject any or all bids or proposals include, but are not limited to, inadequate or ambiguous requirement(s) were contained in the solicitation documents; solicitation documents have been or will be revised; goods or services are no longer required; unreasonable pricing; competition was not adequate to ensure a reasonable price; evidence of collusion or bad faith; bidder or proposer imposes conditions that modify the requirements of the solicitation. Bids or proposals received after the date and time established for receipt shall not be accepted and shall be returned unopened.

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From time to time, bids or proposals may be received that are responsive to the Authority’s requirements, but may contain minor non-material errors, omissions, irregularities, or informalities (e.g. a defect that is a matter of form and not substance or pertains to some immaterial or inconsequential variation to the exact requirement). So long as the correction or waiver of such irregularity, informality, or defect would not be unfairly prejudicial to other bidders or proposers, the CPMM Department may waive such irregularities, informalities or defects, if deemed to be in the best interest of the Authority to do so.

Any determination to reject a bid or proposal or to waive any minor informality or non-material defect shall always be fully documented in the Procurement File and in the Board Agenda Report, if the award of the Contract or purchase order is to be made by the Board.

The determination to reject all bids or proposals shall be made by the Director of the CPMM Department in consultation with Legal Counsel and shall be fully documented in the Procurement File. Rejection of all bids or proposals or cancellation of a solicitation action does not require Board approval regardless of the dollar amount of the procurement.

10.7 Protests

10.7.1 Procurement Objective This procedure is for the submittal and evaluation of protests relating to any Authority procurement actions. This procedure applies to all Authority procurement actions except purchases $25,000 or less (Micro-Purchases and Small Dollar Purchases).

Any protests submitted for procurements in excess of $25,000, with the exception of those protests submitted in response to procurement for Specialized Rail Equipment conducted under Public Utilities Code §130238, shall be evaluated in accordance with the procedures described below through Section 1.6 of these procedures. Procedures for protests submitted in response to a procurement for specialized rail equipment conducted under Public Utilities Code § 130238 are described in Section 1.7 of these procedures. Protests submitted against procurements of $25,000 or less will not be considered by the Authority and will be returned.

10.7.2 Notice of Availability of Protest Procedures Notice of the availability of these protest procedures and information on the applicable protest deadlines shall be provided to Bidders/Proposers in all solicitations in excess of $25,000. The protest procedures shall be available on the Authority’s website and may be accessed at www.metrolinktrains.com; About Metrolink; Public Projects and Contracting Opportunities; current Contracting opportunities. A copy of the Protest Procedures may also be requested from the Contract Administrator identified in the solicitation package.

10.7.3 Protest Grounds-General Prior to receipt of bids/proposals, a protest may be submitted on the basis of one or more of the following grounds:

• The solicitation package contains unduly restrictive specifications or scope of work. • The solicitation package violates local, state, or federal law or regulation. • After receipt of bids/proposals and after an Authority action relating to selection of a

consultant/Contractor, a protest may be submitted on the basis of one or more of the following grounds:

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o The Authority made a clerical or mathematical error during evaluation of the bid/proposal.

o Evidence of violations of the Black-Out Period o The Authority did not follow the posted award basis in solicitation document (e.g. lowest

bid, best value)

10.7.4 Protest Submittal Criteria-General In order for a protest to be considered, the submittal must meet each one of the following criteria:

Must be for a procurement action in excess of $25,000. Must be submitted on a timely basis. Must be submitted by an Interested Party. Must identify the solicitation or Contract number being protested. Must be submitted in writing. Must include all supporting documentation for each material issue raised in the protest. Must include a detailed statement of the legal and/or factual grounds for each material issue

identified in the protest. Must describe the resolution to the protest desired by the Interested Party. Must be signed by a properly authorized representative of the Interested Party.

The Authority reserves the right to waive minor, non- substantive, frivolous, or trivial deficiencies in a protest in its sole discretion.

10.7.5 Protests Filed Prior to Submittal of Bids/Proposals To be timely submitted, a protest filed prior to submittal of bids /protests that addresses the content of the solicitation package, must be received by the Protest Officer in conformance with the deadlines as defined in Timely Filed Protests in Section 2.0 of these procedures.

A protest not received within the applicable time period may be found to be untimely, may not be considered, and may be returned without response other than the determination that it is untimely filed.

Additional material associated with the protest may be submitted within seven (7) calendar days of submitting the initial protest. Any additional material may not be submitted after the seven (7) calendar days have passed unless specifically requested in writing by the Protest Officer.

10.7.6 Authority Actions for Protests Filed Prior to Submittal of Bids/Proposals If the protest is determined to be timely and meets the criteria identified in Section 8.7.5 above, the following actions will be initiated:

All planholders will be notified within two (2) working days that a protest has been filed and will be provided with a copy of the protest.

Planholders will be given an opportunity to respond to the protest. The date for receipt of bids/proposals may be delayed, in the Protest Officer’s sole discretion, to

provide adequate opportunity to resolve the protest. The Protest Officer, at his/her discretion, may meet, either in person or over the telephone, with

the Protestor to discuss the protest and/or perform additional fact finding. Should the Protestor determine, at this point or any other point in the evaluation of the protest,

that he/she wishes to withdraw the protest, a written request to withdraw the protest will be

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provided to the Protest Officer and the Protest Officer will promptly notify all planholders that the protest has been withdrawn.

The Protest Officer will research the protest and may call upon any resources he/she feels are necessary and appropriate to assist in the evaluation of the protest.

The CEO will render a determination to uphold or deny the protest, which determination shall be final and there shall be no further administrative recourse, with the exception of 1) protests filed in conjunction with procurements funded in whole or in part by the FTA; or 2) protests filed in conjunction with a procurement for specialized rail equipment subject to Public Utilities Code §120238.

If the protest is upheld, an addendum to the solicitation may be issued to all planholders and the date for receipt of bids/proposals may be extended, at the CEO’s sole discretion, to provide adequate time for all potential bidders/proposers to respond to the addendum.

If the protest is denied, the solicitation may be continued without further delay.

Acceptance of bids/proposals will be subject to the administrative resolution of any protests timely filed.

10.7.7 Protests Submitted After Receipt of Bids/Proposals and Relating to Selection of Consultant/Contractor

To be timely submitted, protests after the receipt of Bids/Proposals and relating to selection of a consultant/Contractor, must be received by the Protest Officer in conformance with the deadlines as defined in Timely Filed Protests of these procedures. A protest not received within this time period, may be found to be untimely, may not be considered, and may be returned without response other than the determination that it is untimely filed.

Additional material associated with the protest may be submitted within seven (7) calendar days of submitting the initial protest. Any additional material may not be submitted after the seven (7) calendar days have passed unless specifically requested in writing by the Protest Officer.

Award of any Contract is subject to administrative resolution of any protest timely filed.

10.7.8 Authority Actions for Protests Submitted After Receipt of Bids/Proposals and Relating to Selection of Consultant/Contractor

If the protest is determined to be timely and meets the criteria identified in Section 8.7 above, the following actions will be initiated:

The potential successful bidder/proposer will be notified within (2) working days of receipt of the protest that a protest has been filed and a copy of the protest will be provided to the potential successful offeror.

The potential successful bidder/proposer will be provided an opportunity to respond to the protest and provide any information the bidder/proposer feels is germane to the issues raised in the protest. The length of time for response shall be determined by the Protest Officer and shall be based on the complexity of the issues raised in the protest.

The Protest Officer, at his/her discretion, may meet, either in person or over the telephone, with the Protestor to discuss the protest and/or perform additional fact finding.

o Should the Protestor determine, at this point or any other point in the evaluation of the protest, that he/she wishes to withdraw the protest, a written request to withdraw the protest will be provided to the Protest Officer and the Protest Officer will promptly notify

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the successful bidder/proposer. o Depending on the nature and complexity of the protest, the Protest Officer may, after

evaluating all of the information available, provide a written recommendation to the CEO that the protest should be denied or upheld in whole or in part. The recommendation will include reasons supporting the recommendation.

o The Protest Officer may call upon one or more experts, either from within or outside the Authority, to evaluate the merits of the protest. The expert(s) may provide a written opinion regarding the merits of the protest and may provide a recommendation for consideration by the Protest Officer and CEO that the protest be denied or upheld in whole or in part.

The Protest Officer may convene a Protest Evaluation Team to review the merits of the protest. Such a team shall not include any members of the original proposal evaluation or bid review teams.

o The expert(s) and/ or Protest Evaluation Team will consider the issues raised in the protest and may interview or request additional information from Authority staff, the potential successful bidder/proposer or protestor as may be necessary. Issues raised in the protest may be considered by one or more experts or members of the Protest Evaluation Team depending on their expertise and at the sole discretion of the Protest Officer.

After completing their review, the expert(s)and/ or Protest Evaluation Team will review the protest with the Protest Officer and provide its recommendation for resolution of the protest. Such recommendation may be in writing.

The Protest Officer shall review the recommendation and documentation with Legal Counsel and shall prepare a recommended resolution of the protest for consideration by the CEO.

If the CEO upholds the protest, in whole or in part, he/she may direct such actions, as he/she deems appropriate.

o If the decision of the CEO is to deny the protest, the challenged determination made by the Board may move forward.

The CEO’s decision will be provided to the protestor and to the potential successful bidder/proposer. The CEO’s decision shall be final and there shall be no further administrative recourse, with the exception of 1) protests filed in conjunction with procurements funded in whole or in part by the FTA; or 2) protests filed in conjunction with a procurement for specialized rail equipment subject to Public Utilities Code §120238.

10.7.9 Protests Relating to a Solicitation Issued under Public Utilities Code § 130238 for Specialized Rail Equipment

This section of the procedures applies only to procurements of specialized rail transit equipment including rail cars, and computers, telecommunications equipment, fare collection equipment, microwave equipment and other related equipment and apparatus that have been found by a two-thirds majority of the Board to qualify under Public Utilities Code § 130238 (b).

A protest related to either the scope of work/specifications of a solicitation or an award of a Contract under Public Utilities Code § 130238 shall comply with the communication requirements set forth in Public Contract Code (" Public Contract Code Section") § 20216, which states in part:

Ex Parte Communication: Authority Board members or any other person responsible

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for awarding a Contract subject to Public Utilities Code § 130238 shall not have any ex parte communication with a Bidder/Proposer or any representative of the Bidder/Proposer except in writing and provided that the communication be made public. Public Contract Code § 20216 (d).

Staff Communication: Other than proprietary information, the content of any RFP, any proposal received, and any other communications between a transportation agency and a potential Bidder/ Proposer of a Contract that is subject to Public Utilities Code § 130238 shall be made available to the public no later than the same time that a recommendation for awarding a Contract is made to the governing board or persons responsible for approving the award of a Contract to a Bidder/Proposer, except that the price proposed in any Bidder's/Proposer's initial proposal shall be made available upon the opening of the bid by the agency requesting the proposal. Public Contract Code § 20216 (b).

A firm that submits or plans to submit a proposal may protest any acquisition conducted in accordance with Public Utilities Code § 130238 as follows:

Protests based on the content of the request for proposals shall be filed with the Protest Officer within ten (10) calendar days after the request for proposal is first advertised.

The protest shall contain a full and complete written statement specifying in detail the grounds of the protest and the facts supporting the protest.

The Protest Officer shall review the protest with the CEO and prepare a report for the Board, which shall include a copy of the original protest filed and a recommendation for resolution. The Protest Officer and/or CEO may choose to confer with Authority staff or individuals outside the Authority with specific expertise in the area(s) identified in the protest.

Authority staff shall notify the Protestor of the date and time that the Board shall consider the matter and the Protestor shall have the opportunity to appear and be heard before the Board. Such hearing shall occur prior to the opening of proposals.

The Board shall review the protest, hear the Protestor, if he/she wishes to speak, review the recommendation for resolution and issue a written decision on the protest prior to the opening of the proposals.

10.7.10 Protests Relating to a Solicitation Issued under Public Utilities Code § 130238 for Grounds Not Based upon Content of RFP

Any firm submitting a proposal in response to an acquisition conducted in accordance with Public Utilities Code § 1302383 may protest the recommended award on any ground not based upon the content of the request for proposal.

The protest must be filed with the Protest Officer not more than 15 calendar days from the date the notice of recommended award is mailed by Authority to Bidder/ Proposer(s). Day 1 is defined as the day after

3 § 130238(a): “The Legislature finds and declares that (1) because of the highly specialized and unique nature of all rail transit equipment, (2) because of products and materials which are undergoing rapid technological changes, and (3) for the introduction of new technological changes into the operations of the commission, it may be in the public interest to consider, in addition to price, factors such as vendor financing, performance reliability, standardization, life-cycle costs, delivery timetables, support logistics, and the broadest possible range of competing products and materials available, fitness of purchase, manufacturer’s warranty, and similar factors in the award of contracts for these vehicles and equipment.”

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the mailing date.

The protest shall contain a full and complete written statement specifying in detail the grounds of the protest and the facts supporting the protest.

The Protest Officer shall review the protest with the CEO and prepare a report for the Board, which shall include a copy of the original protest filed and a recommendation for resolution.

The Protest Officer and/or CEO may choose to confer with Authority staff or individuals outside the Authority with specific expertise in the area(s) identified in the protest.

Authority staff shall notify the Protestor of the date and time that the Board shall consider the matter and the Protestor shall have the opportunity to appear and be heard before the Board.

The Protestor shall have the opportunity to be heard before the Board prior to final award in the case of protests based on grounds other that content or on the renewal of protests based on content of the request for proposal.

10.7.11 Protests Relating to Federally Funded Procurements Protests of procurement actions may be appealed to the Federal Transit Administration (FTA) only if the procurement is funded in whole or in part by the FTA. Any such protest must be filed in accordance with FTA Circular 4220.1F or most current version.

• Reviews of Protests by FTA may be limited to: • The Authority’s failure to have or follow its protest procedures • The Authority’s failure to review a complaint or protest • Violations of Federal law or regulation. • An appeal to FTA must be received by the cognizant FTA regional or Headquarters office within

five (5) working days of the date the Protestor learned or should have learned of an adverse decision by the Authority or other basis of appeal to FTA.

• The Protestor shall provide a copy of all correspondence provided to the FTA to the Authority’s Protest Officer.

• Award of any proposed Contract may be delayed by the Authority pending resolution of the protest by FTA unless one or more of the following conditions is present:

• The items or services being procured are urgently required. • Delivery or performance will be unduly delayed by failure to make award promptly. • Failure to make prompt award will otherwise cause undue harm to the Authority.

10.7.12 Timely Filed Protest A protest that addresses the content of the solicitation package must be received by the Protest Officer within seven (7) calendar days after all requests for clarifications and requests for approved equals have been answered by the Authority. Day 1 is the day after the date of the Authority answer.

If no requests for clarification or approved equals are received, a protest regarding the content of the solicitation must be received by the Protest Officer within seven (7) calendar days after the period for requests for clarification or approved equals has closed. This period shall be defined in each solicitation package in the Section entitled Requests for Clarification or Approved Equals.

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For protests submitted after receipt of bids/proposals, the protest must be received by the Protest Officer within seven calendar days after the Authority’s Board action, if applicable; or within seven calendar days after the successful award of the contract; or such other time period as may be specified in the solicitation document. Day 1 is defined as the day after the Board meets and takes action.

For protests associated with the content of procurements conducted under Public Utilities Code § 130238: a written document filed by the Protestor must be received by the Protest Officer within ten (10) calendar days after the request for proposal is first advertised. The protest may be renewed by re-filing the original protest with the Board not more than 15 calendar days from the date the notice of recommended award is mailed by Authority to Bidder/Proposer(s). If the 15th calendar day falls on a weekend or legal holiday, the protest period ends at 5:00 p.m. (local time) the following business day.

For protests of the recommended award not based on the contents of procurements conducted under Public Utilities Code § 130238: a written document filed by the Protestor must be received by the Protest Officer not more than seven calendar days from the date the notice of recommended award is mailed by Authority to Bidder/Proposer(s). If the 7th calendar day falls on a weekend or legal holiday, the protest period ends at 5:00 p.m. (local time) the following business day.

Any solicitation for which Contract award is not made by the Board will include a date certain by which a protest must be filed in order to be considered timely. A protest received after the date certain identified in the solicitation may be considered untimely, may not be considered, and may be returned without response. In all other respects such a protest will be handled in accordance with Section 8.7.

10.8 Negotiations

10.8.1 A Summary of Record of Negotiations A summary of record of negotiations shall be included in the Procurement File of any Non-Competitive Procurement, Competitive Negotiated Procurements or Contracts with Amendments, Contract Task Orders, or Change Orders. The summary Record of Negotiations (RON) is signed by the participating PM, CA, and/or Project Controls (Estimator), and should include the most important aspects of the procurement which would consist of:

The purpose of the procurement; History of negotiations describing the most important aspects of the procurement; Names and positions of each person who participated in the negotiations; An explanation of how the final price was negotiated; Pertinent discussions and evolution of certain positions A description of important Contract terms and conditions and redline version of Contract

indicating the negotiated terms and conditions; and Evidence of supervisory or secondary review of the Summary of Record of Negotiations.

11. CONTRACT MANAGEMENT (POST – AWARD) 11.1 Contract Amendments and Modification

11.1.1 Procurement Objective All Contract amendments and modifications (including Change Orders) must comply with applicable laws and regulations, be within the scope of the original Contract, and be appropriately documented in writing

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and approved before the work is performed.

This section applies to all Contract amendments and modifications initiated for Contracts and purchase orders awarded by the Authority with the exception of public works/construction Contracts. Contract modifications for Public Works/Construction Contracts are covered in Section 9.2 (Change Orders for Public Works/Construction Contracts). To be binding, all Contract amendments and modifications shall comply with applicable laws and regulations, be appropriately documented, and properly approved. Amendments and modifications shall be within the scope of the original Contract, in writing and fully signed before the work is performed. Amendments and modifications that reflect a cardinal change shall be considered as sole source/non-competitive procurements and shall be handled in accordance with Section 7 (Non-Competitive Procurements). The Board must approve all cardinal changes.

The CEO may authorize and approve Contract amendments and modifications for professional and technical services, and equipment or goods.

11.1.2 Applicability An amendment or modification to a Contract may be issued pursuant to the provisions of a Contract when it becomes necessary to increase or decrease the Contract authorization and/or fee, change the scope of work or specifications, Contract duration, or any other element of the Contract. A clause shall be included in all Contracts and purchase orders that allows amendments or modifications after award.

The exercise of an option to an existing Contract requires that the option be identified in the original solicitation, that the Contract reference the option and that a Contract amendment or modification be issued. The option quantities or periods contained in the original bid or offer must have been evaluated along with the base requirements in order to determine Contract award. When options have not been evaluated as part of the original award, the exercise of such options will be considered a sole source or non-competitive procurement and handled in accordance with Section 7. The Contract Administrator shall ensure that the exercise of an option is in accordance with the terms and conditions of the option as stated in the original Contract awarded. An option shall not be exercised unless the Contract Administrator has determined that the option price is better than prices currently available in the market or that the option is the more advantageous offer at the time the option is exercised.

The Project Manager or the Contractor/Consultant may identify the need to amend or modify the Contract or purchase order. Such amendments or modifications will be binding only if they are in writing and signed by properly authorized representatives of both Contracting parties.

11.1.3 Contract or Purchase Order Changes For changes to a Contract or purchase order that are within the scope of the original Contract, the Contract Administrator and the Project Manager will coordinate and document the following when appropriate for the requested amendment or modification:

Conditions or circumstances from which the need for the amendment or modification arises

Specific change(s) required to the scope of work or specifications, Contract terms and conditions, key personnel, delivery schedule, funding authorization, or etc.

Determination that the requested changes are within the original scope of the

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agreement. Consult with the Purchasing Agent and/or Legal Counsel, if necessary Offer from the Contractor/Consultant responding to the proposed changes Negotiation record Exercise of an existing option.

All documentation is to be included in the Procurement File.

Occasionally the need may arise to issue an amendment or modification that is outside the scope of work of the original Contract. For changes to a Contract or purchase order that are outside of the scope of the original Contract, will be reviewed based on the following factors: based on the nature of the changed work/services, the amount of additional effort required by the Contractor/Consultant, variance from the scope or specifications of the original procurement, or the amount of increase/decrease to quantities. If, CA&P working with Legal Counsel, determine that a proposed amendment or modification is outside the original scope of the Contract, it shall be handled as a sole source or non-competitive negotiated procurement and must be approved by the Board.

If necessary, the Contract Administrator shall arrange for a cost and price analysis of the offer submitted by the Contractor/Consultant.

11.2 Change Orders for Public Works/Construction Contracts

11.2.1 Procurement Objective All Contract amendments and modifications (including Change Orders) must comply with applicable laws and regulations, be within the scope of the original Contract, and be appropriately documented in writing and approved before the work is performed.

This section sets forth the requirements to ensure appropriate documentation and approvals for all change orders associated with public works/construction Contracts are obtained. This policy applies to all change orders associated with public works/construction Contracts awarded by the Authority. All change orders shall comply with applicable laws and regulations, be appropriately documented, and properly approved. Change orders shall be within the scope of the original Contract and in writing.

Change Orders for Public Works/Construction Contracts shall be in accordance with Public Contract Code Sections 20142 and 20145 and shall be handled in accordance with the Authority Resident Engineer Manual. The authority to approve change orders under the combined authority of Public Contract Code Sections 20142 and 20145 is limited to the following maximums on a per change order basis:

Original Contract Amount Maximum Individual Change Order Amount $50,000 or less $5,000 $50,001-$250,000 10% of the original Contract amount $250,001-$2,750,000 $25,000 plus 5% of the original Contract amount in excess of $250,000 More than $2,750,001 $210,000

The aggregate total amount of the change orders approved under delegated authority may not exceed the contingency amount approved by the Board, nor may it exceed 25% of the original Contract amount (Public Contract Code § 20145). The Board must approve all Change Orders in excess of the maximums shown above. When Change Orders result in an increase to the total Contract value, all appropriate bonds

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shall be increased in a commensurate amount in accordance with Section 11.5.

11.2.2 Change Orders to Public Works/Construction Contracts Change Orders to public works/construction Contracts shall be initiated pursuant to the guidelines provided by the Authority's Resident Engineer Manual. In case of any conflicts between this policy and the Manual, this policy shall prevail. With the exception of Change Orders requiring Board approval, the Director, Engineering and Construction shall process in accordance with the requirements of Public Contract Code §20142 and §20145, all change Orders for public works/construction Contracts originating in the Engineering and Construction Department. The Purchasing Agent shall process Change Orders for public works/construction Contracts valued at $50,000 or less and initiated by a department other than Engineering and Construction.

Occasionally the need may arise to issue a Change Order that is outside the scope of work of the original Contract. If CA&P working with Legal Counsel determine that a Change Order is outside the original scope of the Contract, the following steps shall be taken: 1) prepare an analysis or finding that determines that the award of a new Contract is not feasible, the public exigency or emergency for the requirement will not permit a delay resulting from competitive solicitation, or FTA has authorized non-competitive negotiations, or after solicitation of a number of sources, competition is determined inadequate and 2) perform a cost analysis, i.e., verifying the proposed cost data, the projections of the data, and the evaluation of the specific elements of costs and profit. The Board shall review and approve the change order and the supporting documentation.

11.3 Contract Task Orders Contract Task Orders (CTOs) are an indefinite-quantity procurement vehicle utilized to acquire services when the exact times and/or exact quantities of future deliveries are not known at the time of {master} Contract award. A task order issued by Authority for Architectural & Engineering Services (A&E), Project/Contract Management (PM/CM), Special Supplementary Maintenance, or other services authorizing Contractor to perform a specified task or service. Individual task orders are requested, negotiated and awarded under a master Contract using agreed upon rates. Requisitions are entered to reserve funds based on an estimate. Once the task order is fully executed, a Standard Purchase Order is created in Oracle as the payment mechanism.

A Task Order are individual Contracts that are assigned under an executed Contract. Task Orders require compliance with applicable the policies and procedures outlined in the Procurement and Contracting Procedures Manual which includes but is not limited to payment and performance bonds, DBE compliance, and insurance.

11.4 Job Order Contracting Job Orders Contracts (JOCs) are an indefinite-quantity procurement vehicle in which the Contractor agrees to fixed-unit prices that provide for the use of job orders for public works projects. An individual job order is a firm, fixed priced, lump-sum order issued to a Contractor for a definite project scope of work as compiled from the unit price catalogue to be performed pursuant to a job order Contract. Requisitions are entered to reserve funds. Once the job order is fully executed, a Standard Purchase Order is created in Oracle as the payment mechanism.

Each issued Job Order is a lump sum, firm-fixed-price and includes a specific, detailed scope of work and

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price proposal, that includes per unit prices. Job Order Contracts require compliance with the applicable policies and procedures outlined in the Procurement and Contracting Procedures Manual which includes but is not limited to payment and performance bonds, DBE compliance, and insurance.

11.5 Procurement/Pre-Award/Post-Award/Close-Out Contract Files

11.5.1 Procurement Objective This section requires the establishment of procurement files that contain all relevant records for all procurements processed by the CA&P and applies to all procurements. The CA&P shall retain the originals of all documents associated with procurement actions including the requisition, solicitation documents (Invitation for Bid, Request for Proposals, Request for Quotes, etc.), bids or proposals, procurement evaluation reports, any negotiation or meeting notes, insurance certifications, correspondence relevant to the specific procurement action, notices, purchase orders and Contract agreements. This requirement extends to all goods and services procured using micro and small dollar procurement procedures, Invitation for Bid, Request for Proposals, and Lowest Priced Technically Acceptable procedures as well as any sole source or non-competitive procurements. These files shall be retained in accordance with the most current Records Retention Policy adopted by the Board.

11.5.2 Applicability A separate procurement file for each procurement action assigned by the CA&P shall be maintained regardless of dollar value. The procurement file containing original documentation will remain with the CA&P through closeout of the Contract or purchase order.

The Contract Administrator will file all original documents in a consistent manner in an active working file during the solicitation phase of the procurement. The Contract Administrator shall forward the active working file to the Administrative Assistant for inclusion in the Department’s official file upon award of the Contract. The Administrative Assistant shall maintain the official files in a central location through closeout of the Contract or purchase order. The Contract Administrator or Administrative Assistant may from time to time update the official file with additional relevant procurement documentation.

In addition to all documentation relevant to the procurement action, federally-funded projects shall also include: rationale for method of procurement; rationale for selection of Contract type (when a time and material Contract type is used, the rationale must include a discussion of why no other Contract type was appropriate for the requirement); rationale for Contractor selection or rejection; negotiation memo (if appropriate); analysis of option pricing (if appropriate), a determination of how liquidated damages were derived (if applicable), an independent initial cost estimate from the Project Manager and evidence of cost and/or price analysis.

Files shall be maintained in an orderly and consistent manner and shall follow the order outlined in the Section 5.4.

The Project Manager or designee shall maintain all relevant documentation required for the management and administration of the procurement after award and/or after Notice to Proceed for the Contract issued by the CA&P.

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After Contract or purchase order audit (if required) and/or closeout, Records Management shall be responsible for all procurement records from the CA&P and the Project Manager.

11.6 Scrap and Surplus Items

11.6.1 Procurement Objective This section sets forth the process for the declaration of materials and items as scrap or surplus, and their disposal. These procedures applies to inventory and material, capital and non-capital items, revenue vehicles and other personal property, which have reached the end of their useful life, are obsolete, or are no longer necessary for the operation of the Authority. The determination and declaration that materials or items are to be considered as surplus or scrap shall be initiated and made by the Project Manager or Materials Manager in consultation with the CA&P and Finance department for inventory, material, non-capital items and capital items with an original purchase price of $100,000 or less. If the assets are owned by a Member Agency, the Member Agency shall concur in the disposition of the material.

When specified by Contract, Contractors may dispose of inventory, materials and other items in compliance with the terms of the Contract.

The CEO must approve the disposal of surplus property that are beyond their useful life and whose depreciated value does not exceed $500,000.

The Board must approve the disposal of surplus property that are beyond their useful life and whose depreciated value does exceed $500,000.

11.6.2 Applicability The Project Manager will notify the CA&P, in writing, when an item is identified as scrap or surplus. The notification shall include a description of the item, purchase price, asset number, if appropriate, approximate date of purchase, funding source for the item’s procurement, condition and reason for disposition of the item. If the item is owned by a Member Agency, the Project Manager shall obtain the Member Agency’s concurrence the item is scrap, surplus or obsolete and authorization to dispose of the item.

The method of disposal to be used for each surplus or scrap item will be decided by CA&P. CA&P may trade in on replacement equipment or other goods, solicit bids to sell to the highest bidder, or otherwise dispose of items which have been declared scrap. If efforts to trade-in or sell surplus or scrap items fail, disposal may include donation to schools or charities as defined by the Internal Revenue Service Code 501 (C) (3) or discard. Consumable materials removed from service and found not to be reusable in regular service may be donated or discarded.

Sealed bids or public auction may be used to dispose of items declared surplus or scrap. If sealed bid is the method used, such requirements shall be advertised at least 10 days prior to receipt of sealed bids. An opportunity for all prospective bidders to view the surplus or scrap items shall be provided. The surplus or scrap items shall be sold to the highest responsive and responsible bid received.

If the surplus or scrap is to be auctioned, the Authority may participate in an auction conducted on behalf of another public agency.

In all cases of sale or other means of disposal of surplus or scrap items, it shall be on an “as is, where is” basis without any guarantees or warranties whatsoever.

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In some circumstances, after consultation with Legal Counsel, some surplus or scrap items may be offered for sale to eligible the Authority staff through sealed bids.

Sale of items are not permitted under any circumstances to the following:

• Members/Alternates of the Board • the Authority or Contractor employees involved in: • The original procurement • Determining the item as surplus or scrap • Disposal of the item • CA&P staff • Spouses or dependents of any of the above

Funds received shall be promptly submitted to the Chief Financial Officer (CFO) with a copy of the sales agreement. Only cash, certified check, or other form of payment previously approved by the CFO may be accepted. Upon receipt of verification of sale or other disposal of a capital asset, Finance shall remove the item from the capital assets inventory.

If the item to be disposed of was originally procured with funding provided by the Federal Transit Administration (FTA), the following shall apply:

For non-capital items with a unit cost of less than $5,000, the Authority may use the property for other activities including non-FTA funded without reimbursement to FTA or may sell the property and retain the proceeds.

• For capital items with a unit acquisition cost of $5,000 or more and a useful life of more than three years, the Authority may retain the property for other uses or may sell the property provided compensation is made to FTA. The amount of compensation to be returned to FTA shall be computed in accordance with FTA Circular 5010.1D or most current revision. The Authority may transfer the property to another agency for use on an FTA project. Transfer of such assets requires prior FTA approval.

• For consumable material never having been placed in service with a residual inventory of such property exceeding $5,000 in total aggregate fair market value at the time of termination or completion of the grant and if the property is not needed for any other FTA sponsored project or program, the Authority may retain the property for use on non-FTA sponsored activities or sell it, but in either case the Authority must compensate FTA for its share. The amount of compensation to be returned to FTA shall be computed in accordance with FTA Circular 5010.1D or most current revision.

• After surplus or disposal of FTA funded fixed assets with an initial purchase price of $5,000 or more per unit and a useful life of more than three years, CA&P shall send notification to the Grants Manager for inclusion in the Quarterly Report of Grant Activity.

11.7 Termination All Contracts and subcontracts must contain clauses that that allow for termination for cause and for convenience by the Authority, including the manner by which it will be effected and the basis for settlement, per FTA 2 C.F.R. part 200—Contract Provisions for Non-Federal Entity Contracts Under Federal Awards, and FTA Circular 4220.1F, Chapter IV, paragraph 2.b.(6)(b)4. – Termination.

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11.7.1 Termination for Cause All Contracts and subcontracts must include a clause which defines "cause" or "default" for which the Authority may terminate the agreement for cause. The clause shall include provisions specifying the notice the Authority must provide, the form of notice, and whether any cure periods are applicable before the Authority may invoke its right to terminate. The clause must specify that the Contractor shall immediately cease work upon the effective date of the termination, and that the Contractor shall only undertake such activities as are necessarily to protect the safety of the site. The clause may specify the Authority’s step-in rights in the event of termination. The clause must further provide that the Contractor shall notify all subcontractors and necessary third-parties of the termination for cause and that the subcontractors shall stop work in the same manner as the Contractor. Either the clause or the Contract must specify any limitations on liability of the Authority. The clause may specify how costs will be accounted for, including specific damages for which the Contractor may be liable, including costs to complete the project. If certain specific damages are provided, the Contract must further specify that recovery of such damages is cumulative and does not impair other rights the Authority may have at law or in equity. The termination for cause provision may provide a process for dispute resolution of claims pending before termination and claims arising from the termination.

11.7.2 Termination for Cause Procedure When a problem arises that could result in termination for cause, CA&P should work with the Project Manager to determine appropriate actions, including how and when to notify the Contractor. Before notifying the Contract, the Authority should consult with legal counsel. All costs should be evaluated before effecting termination for cause, including an evaluation of other measures that could be implemented instead of termination. If it is determined that the Contract cannot be salvaged, or that it is more cost effective to bring it to a conclusion, termination or cancellation proceedings should be initiated, including the provision of notice and the triggering of applicable cure periods. Termination proceedings should adhere to the timeframe and steps explained in the termination clause in the Contract.

11.7.3 Termination for Convenience All Contracts and subcontracts must include a clause providing that the Authority may cancel the Contract for convenience of the Authority. The clause must specify the notice procedures the Authority must follow to effect the termination for convenience and the actions that the Contractor must take upon the effective date of the termination. The clause must specify that the Contractor shall immediately notify subcontractors and appropriate third-parties of the termination. The clause must specify how the Authority will determine the settlement costs arising from the termination, including demobilization costs, costs associated with termination of subcontracts, and payment for work completed but not yet invoiced. The clause may have a provision providing that the Contractor may not recover consequential damages or unearned profits as a result of the termination, and that the termination costs for subcontractors may not include recovery for these items. The clause must also include a provision allowing for a partial termination of the work, whereby the Contractor must continue with the unterminated portion of the work. The partial termination for convenience clause may also provide a procedure for adjustment of the Contract price to accord with the modified scope of work.

11.7.4 Other Grounds for Termination The Contract must additionally specify other grounds for termination that may be applicable, including termination due to a court ruling or termination based on the Authority’s statutory right to terminate.

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These clauses shall provide the same procedures as the termination for cause and convenience provisions, including time to cease work and settlement procedures.

11.7.5 Termination Documentation If a Contract is terminated for cause or convenience, documentation of the reason for termination should be included in each Procurement File. The documentation should include: (1) the purpose of the termination; (2) history of actions leading to termination, including a detailed account of how and when the Authority provided notice and assessed whether cure periods lapsed without cure; (3) names and positions of each person who participated in the termination; (4) an explanation of how the final price was determined and; (5) a description of important Contract terms and conditions.

11.8 Contract Close-out

11.8.1 Procurement Objective A completed Contract is one that is both physically and administratively complete. A Contract is physically complete only after all deliverable items and services called for under the Contract have been delivered and accepted by the recipient. This section ensures that after all Contractual requirements and obligations have been fulfilled, the Contract, purchase order, release, job order or Contract task order will be appropriately closed. The requirements of this section apply to all procurements. There shall be an administrative procedure undertaken for each Contract, purchase order, and/or Contract task order or release or job order that ensures that:

All Contractual requirements and obligations have been fulfilled satisfactorily; Any and all known claims have been resolved; If necessary, a Contract performance review has been performed; Any questioned costs have been resolved; If applicable, any unused funds are de-obligated; If necessary, a close-out audit has been performed; and Final payment has been made (including release of retention); and all official Contract

files are properly documented.

The Contract close out processes outlined in the Procedures Manual is informed by other Contract close out processes developed by the Program Management Office and further outlined in the Program Management Office Standard Operating Procedures (PC-8.0 Close out), Project Management Manual, and Resident Engineers Manual.

11.8.2 Contract Completion Contract completion occurs when either 1) All services, work or goods required by the Contract have been performed or received and accepted by the Authority; or 2) A notice of termination has been issued pursuant to the terms of the agreement. A Contract shall not be closed:

i. If the Contract is subject to a claim or dispute; ii. Questioned costs such as overhead, direct and out of pocket expenses, back charges for

performance, extra work claims or claims by the Authority have not been resolved; iii. If the Contract is under appeal or in litigation; iv. If FTA approval is required to complete an action and has not been received (for example recovery

of liquidated damages claims); or

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v. In the case of termination, all the termination actions have not been completed.

11.8.3 Contract Close Out Procedures Close out of Contracts, purchase orders, Contract task orders, job orders or releases shall be initiated by the Project Manager when all work and other requirements and obligations of the agreement have been met with the exception of such work as may be necessary to effect the close out, in accordance with this section.

At the conclusion of a Contract (or termination), the Contract Administrator shall follow Close Out procedures and ensure that the following documents are completed, assembled and stored in the Authority's Procurement File. All Procurement Files will contain the following documentation to be considered complete and compliant at Contract close out:

Formal Notice of Termination prior to completion of Contract requirements; Contract/Purchase Order Closeout Form (See Form 7); The original and signed Contract/Agreement; Approvals or disapprovals of Contract submittals required by the Contract and requests for

waivers or deviations from Contractual requirements; Modifications/changes to the Contracts, including the rationale for the change, change orders

issued, and documentation reflecting any time and/or increases to or decreases from the Contract price as a result of those modifications;

Documentation regarding stop work and suspension of work orders and termination actions; Documentation regarding settlement of claims and disputes including, as appropriate, results of

audit and legal reviews of the claims and approval by of the settlement amount; Any subsequent Contract amendments/modifications including but not limited to those exercising

available option periods; and, De-obligate the committed funds in FIS, or reconcile to actual cost, if applicable Evidence of supervisory or secondary review of the Procurement File at the time of close-out.

For the following scope of work, the Procurement File will also require:

Procurement of Services Procurement of Public Works Written Evaluation of Consultant’s

Performance (and written Errors and Omissions Review)

Written Evaluation of Contractor’s Performance

Filling of design and construction records and written Notice of Completion

Sole Source and Emergency Procurements must follow the documentation requirements as listed in Section XXXX.

11.8.3.1Notification Close out shall be initiated when a formal notice of termination prior to completion of the Contract requirements has been issued. The Project Manager is responsible to ensure all work, services or goods have been received and are acceptable against the terms and conditions of the Contract. The Project Manager shall provide a written notification by using Form 7 (Contract/Purchase Order Closeout Form) to

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the Contract Administrator certifying that the Contract is complete and that all required deliverables have been received and accepted. Close out shall be initiated when, in a multi-year procurement, work has proceeded to a point where it is appropriate to close out compensation issues from prior years (Contract task orders, releases, job orders etc.). With the exception of multi-year procurements, partial Contract close outs shall not be performed. The entire Contract including all modifications, change orders or amendments shall be closed as one Contract. Service agreements that support more than one capital project shall not be closed until the services required for all projects are completed or terminated. Individual Contract task orders, releases, or job orders may be closed upon completion and acceptance of the work specifically described therein.

11.8.3.2Written Errors and Omissions Review (A&E Services only) For Architect/Engineering services, the Project Manager shall perform a written errors and omissions review to determine if back charges are warranted. For consultant services including Architect/Engineering, the Project Manager shall provide the Contract Administrator an evaluation of the Consultant’s performance under the agreement.

11.8.3.3Retention of Necessary Documentation The Contract Administrator shall include all documentation from the Project Manager into the Procurement File per Section 5.4.2 and shall request a close out audit if appropriate (as outlined in this section) and after consultation with the Internal Audit Department.

11.8.3.4Internal Audit Any Contract involving the expenditure of public funds is subject to review/audit during and after performance to ensure that, at the very broadest level, the Authority got what it paid for.

The Contract Administrator shall confer with Internal Audit to determine when a Contract close-out audit should be initiated. Ideally in accordance with this section, an audit should be conducted periodically for multi-year agreements depending on the duration of the agreement, the dollar value of the agreement and the number and dollar amount of Contract task orders, releases, job orders etc. issued against the base agreement. Unless there are extenuating circumstances, close-out audits should be initiated within six months of the Contract termination date regardless of whether or not periodic audits have been conducted. If extenuating circumstances delay the initiation of the close out audit, the Project Manager, Contracts Administration and Procurement, and the Contractor or consultant shall be advised of the delay and when the closeout audit can reasonably be expected to begin.

11.8.3.5Contractor Performance Evaluation For the procurement of Services and Public Works, a Contractor performance evaluation is required per Form 7 (Contract/Purchase Order Closeout Form). Contractors should be furnished with the report and given an opportunity to submit comments, rebut statements or provide additional information. The Contractor’s comments should be retained in the report file. If there is a disagreement regarding the evaluation, the CEO may consider resolution between the parties regarding the evaluation; final decision on the content of the report, however, rests with the CEO. Copies of the final evaluation should be furnished to the Contractor.

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12. PURCHASE CARD A Purchasing Card (P-Card) is may be utilized for Micro-Purchases under FT-established threshold. Goods and services procured under the Competitive Sealed Bid, Competitive Negotiation, Emergency Procurement or check request procedures may not use a Purchasing Card. Requirements for use of the Purchasing Card are defined in Attachment I.

13. DISADVANTAGED BUSINESS ENTERPRISE PROGRAM 13.1 DBE Program Objectives The Authority is committed to and has adopted a Disadvantaged Business Enterprise Program (DBE Program) for participation in Authority’s Contracting opportunities in accordance with 49 CFR Part 26, as amended. It is the policy of the Authority to ensure nondiscrimination on the basis of race, color, national origin, or sex in the award and administration of U.S. Department of Transportation assisted and Authority Contracts. It is the intention of the Authority to create a level playing field on which DBEs can compete fairly for Contracts and subcontracts relating to the Authority's construction, procurement and services activities which allows the promotion, fostering, and utilization of the business enterprises as required and defined in 49 CFR 26.

The Authority will require a Mentor Protégé Program for procurements valued at more than $25,000,000. See the Authority DBE Program Manual for more information on DBE requirements.

13.2 Labor Compliance

13.2.1 Procurement Objective The Authority’s Labor Compliance Program was approved by the California Department of Industrial Relation on July 2, 2012. The Authority administers its Labor Compliance Program pursuant to prevailing wage and other labor compliance requirements applicable to state and federally-assisted public works Contracts. A copy of the Authority’s Labor Compliance Program can be requested from the CPMM department.

13.3 Small Business Enterprises Program

13.3.1 SBE Program Objectives The U.S. DOT final rule issued on January 28, 2011 added §26.39 to 49 CFR Part 26. This section required recipients (local agencies) of U.S. DOT financial assistance to include an element in their Contracting requirements to facilitate competition by small businesses. While the Authority has historically utilized race and gender-neutral strategies to promote and advance Small Business participation as a part of the Authority’s DBE Program implementation efforts, this element of the program serves to unify in a singular location these important efforts within the Authority’s DBE Program.

The Authority submitted its proposed Small Business Enterprise (SBE) provisions for FTA approval and received concurrence from the FTA on March 14, 2013. The Authority revised its Small Business element in 2015 in response to the Authority’s transition away from a strictly race-neutral DBE Program to a DBE Program inclusive of race-conscious DBE provisions. The revised Small Business element was developed as a supplement to the Authority’s existing DBE Program, to facilitate competition by small business concerns, taking all reasonable steps to eliminate obstacles to their participation, including unnecessary

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and unjustified bundling of Contract requirements that may preclude small business participation in procurements as prime Contractors or subcontractors in direct response to regulatory requirements, 49 CFR Part 26.39 “Fostering Small Business Participation” (Federal Register/ Vol. 76, No. 19/ Friday, January 28, 2011/ Rules and Regulations).

The Authority's Small Business element also includes additional enhanced and targeted outreach measures, as follows:

Partnering with local Agencies within the Authority’s market area to reach SBEs. Creating face-to-face opportunities for SBEs to engage with Authority staff to familiarize

themselves with Authority's bid/procurement process. Share upcoming Contracting opportunities and tips to promote success within the Authority's

Contracting program. The Authority has broadened its outreach efforts to promote direct access and communication

between Authority staff and small businesses. These steps have enabled the Authority the ability to connect with qualified businesses who may have not otherwise looked to the Authority to market its services and/or products.

The Authority will actively implement the Small Business elements to foster small business participation as a requirement of good faith implementation of the Authority’s DBE program. The small business element applies to sub-recipients in the same way as the Authority's DBE Program. If a sub-recipient has its own DBE Program separate from the Authority's DBE Program, the sub-recipient is responsible for creating and implementing its own small business element.

13.4 Responsibility and Debarment

13.4.1 Procurement Objective This section sets forth the Authority’s obligations to evaluate potential Contractors’ responsibility and award Contracts to Contractors capable of successfully performing under the terms and conditions of the proposed Contract. This section also establishes the Authority’s obligation to determine that all necessary steps have been followed to ensure that an offeror being considered for award of a Contract that is funded in whole or in part by the Federal Transit Administration (FTA) has not been suspended, debarred, or otherwise found ineligible by any federal agency. The requirements established in this section apply equally to bidders, proposers, prime Contractors and listed subcontractors, subconsultants, and suppliers being considered for the award of a Contract funded with local or state funding and those procurements with an estimated value of $25,000 or more that are funded in whole or in part by FTA.

The Authority shall only award Contracts to firms that the Authority has found to be responsible as a result of the bid or proposal evaluation. The Authority shall thoroughly investigate the responsibility of a firm recommended for award of a Contract in accordance with Section 8.2.1, Bid Review and Section 8.3, Contract Award Process for Competitive Negotiation Procurements to ensure that the firm(s) and all of its subcontractors, subconsultants, or suppliers, recommended for award, are not suspended or debarred, and have met all the required criteria to be deemed responsive and responsible.

13.4.2 Contract Administrator Responsibility The Authority’s Contract Administrator shall thoroughly investigate the responsibility of a bidding firm(s) recommended for award of a Contract. To ensure that the firm(s) recommended for award are capable of

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successfully performing under the terms and conditions of the proposed Contract, the Contract Administrator must ensure that the firm(s) has meet one or more of the following criteria to be deemed responsible:

1 Financial and technical resources adequate to perform the Contract, or the ability to obtain them;

2 Ability to comply with the required or proposed delivery or performance schedule, taking into consideration all existing commercial and governmental business commitments;

3 A satisfactory record of past performance verified by acceptable references;

4 A satisfactory record of integrity and business ethics;

5 The necessary organization, experience, accounting, and operational controls, and technical skills, or the ability to obtain them;

6 Compliance with applicable licensing, tax laws, regulations, and public policy; and

7 The necessary production, construction, and technical equipment and facilities, or the ability to obtain them.

For public works Contracts, and in compliance with the Public Contract Code Section 1103, the Contract Administrator must ensure that the firm(s) has demonstrated the attribute of trustworthiness, as well as quality, fitness, capacity, and experience to satisfactorily perform the public works Contract.

13.4.3 Suspension and Debarment No Contract award for an estimated Contract value of $25,000 or more funded in whole or part with federal funds can be made to a Contractor listed on the federal General Services Administration’s (GSA) Excluded Parties List System (EPLS) in the System for Award Management (SAM). The EPLS in SAM is an electronic, web-based system that identifies those parties excluded from receiving Federal Contracts, certain subcontracts, and certain types of Federal financial and non-financial assistance and benefits. It contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549.

The Authority may also treat any prospective Contractor or subcontractor listed on the State of California, Department of Industrial Relations’ Division of Labor Standards Enforcement (DLSE) database of debarred Contractors as non-responsible and ineligible for Contract award.

The Authority must apply U.S. DOT’s debarment and suspension requirements to itself and each Contractor by requiring itself and its Contractors to verify that the entity (as well as its principals and affiliates) with which they propose to Contract or subcontract is not excluded or disqualified. This is done by: (a) checking the SAM exclusions prior to award of a federally-funded Contract; (b) collecting a debarment and suspension certification from the prospective Contractor; or (c) including a clause to the Contract or subcontract requiring disclosure.

The Authority’s Contract Administrator shall ensure that debarment and suspension certification instructions and disclosure forms are included in solicitation documents. The debarment and suspension certification instructions shall provide that, by signing and submitting its bid or proposal, the bidder or proposer certifies that the certification is a material representation of fact relied upon by the Authority. If it is later determined by the Authority that the bidder or proposer knowingly rendered an erroneous

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certification, in addition to remedies available to the Authority, the federal government may pursue available remedies, including but not limited to suspension and/or debarment.

The Contract Administrator handling a solicitation will review SAM and the DLSE Debarments List to determine if bidders, proposers or listed subcontractors, subconsultants, or suppliers are currently debarred or suspended from participation on federally-funded procurements or have been suspended or debarred by any federal, state or local agencies.

If the Contractor, subcontractor, subconsultant, or supplier on a federally-funded procurement is found to be currently barred from bidding on, accepting, or performing any Contract, either as a Contractor or subcontractor, the Contractor, subcontractor, subconsultant, or supplier shall be determined to be non-responsible and award of a Contract to that firm shall not be recommended to the Board. The Procurement File shall be properly documented to reflect this finding.

If the Authority’s Contract Administrator finds that a proposed subcontractor, subconsultant and/or supplier has been suspended or debarred by a federal, state, or local agency, the prime Contractor or consultant shall immediately substitute another firm to perform the work.

If the Authority’s Contract Administrator discovers, after award of a Contract funded in whole or in part by the federal government, that a suspended or debarred subcontractor, subconsultant, or supplier has been paid during the performance of a Contract, the Authority’s Contract Administrator shall notify the prime Contractor that these monies must be returned to the Authority. If such monies are not voluntarily repaid to the Authority, equivalent monies shall be withheld from future payments to the prime Contractor. In addition, the prime Contractor shall immediately, upon notification of the debarred or suspended status of the subcontractor, replace the firm at no additional expense to the Authority.

Prime Contractors shall verify prior to award that its principals, affiliates, and subcontractors are eligible to participate in a federally-funded Contract and are not presently declared by any federal department or agency to be:

1. Debarred from participation in any federally assisted Award;

2. Suspended from participation in any federally assisted Award;

3. Proposed for debarment from participation in any federally assisted Award;

4. Declared ineligible to participate in any federally assisted Award;

5. Voluntarily excluded from participation in any federally assisted Award; or

Disqualified from participation in ay federally assisted Award.

13.5 Bid Security and Bond Requirements All Public Works procurements must comply with Federal, State, and local requirements concerning bonds and securities. With the concurrence of the General Counsel, non-public work procurements may require bonds and securities when determined to be in the best interest of the Authority. This section sets forth the circumstances under which the Authority may require bid security and/or bonds as deemed necessary by the Authority based on applicable State, Federal, and local requirements. Bid security must be included with the sealed bid on all public works procurements. If bonds are required, the solicitation documents

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must specify the required items and their values.

All public works Contracts will require performance and payment (material and labor) bonds as a condition of receiving a Notice to Proceed. Prospective bidders/proposers shall be notified of the bid security requirement and the amount thereof, as well as any other security or bonds that may also be required, in the solicitation documents.

13.5.1 Bid Security The requirement for a bid bond or acceptable alternate security will be included in the solicitation documents for all Public Works and Job Order Contracts. The Bid Security is set forth as follows:

For All Public Works projects: The required amount shall be set at a minimum of 10 percent of the amount of the bid.

For Job Order Contracts: a bid bond in the amount of $50,000 shall be required

A bid, performance, and/or payment bond, letter of credit, or other security may be required of vendors for services, supplies or equipment as deemed necessary by the Purchasing Agent or Board. Determination of an acceptable alternative security is at the sole discretion of the Purchasing Agent in consultation with the Director of Finance or his designee. The bid bond or acceptable alternate security will be presented to the Authority under sealed cover and be accompanied by one of the following forms of bidder’s security:

Cash; A cashier’s check; A certified check; or A bidder’s bond executed by an admitted surety insurer.

Upon award to the lowest bidder, the bid bond or acceptable alternative security of any unsuccessful bidder shall be returned when the Authority executes the Contract with the successful bidder or Authority issues a Notice to Proceed. Notwithstanding the foregoing, and in accordance with the provisions of the Public Contract Code Section 20129, in no event shall the bid bond or alternate security be held later than 60 days after award. When the project involves federal funding, the bid bond will be returned after the Contract is signed or Notice to Proceed is issued and after the Contractor has provided the Authority with the names and addresses of all potential subcontractors contacted to participate in the bid.

13.5.2 Performance Bonds Subject to the Section 11, the Authority shall require a performance bond for all applicable Public Works Contracts in the amount of one hundred (100%) perfect of the Contract value, in accordance with regulations set forth by the State of California. The Authority shall include the requirement for a performance bond for 100% of the public works Contract value from construction Contractors to assure Contractor’s full performance of the work.

13.5.3 Payment Bonds Subject to Civil Code Section 9550 et seq, the Authority shall include a requirement for a payment (material and labor) bond for 100% of the Public Works Contract value from construction Contractors to assure Contractor’s full discharge of obligations to the subcontractors and suppliers used on the project for Public Works Contracts. For Job Order Contracts the Contractor shall be required to provide Payment and Performance bonds in the amount of $1,500,000 each.

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13.5.4 Contract Modification; Changes to Bid Security and Bonds If a Contract with bonds is modified by a change increasing the total Contract price, the Contractor shall be required to furnish additional bonding to cover the change in price of the Contract.

13.6 Warranty and Guaranty Register

13.6.1 Objective Some Contracts with the Authority may require that individual warranties or guarantees be furnished for various installed equipment or building systems. A Warranty is a promise which provides assurance that a product is free from defects in materials and workmanship or performance and shall be of good quality and when installed, shall be new. A Guarantee is a promise by the Contractor/Consultant for prompt payment and performance when due of all the obligations under the Contract.

13.6.2 Applicability A Warranty and Guaranty Register shall be used for Contracts for installed equipment or building systems with a Contract value greater than $500,000 or if the Project Manager has determined that the scope of work is unique enough to warrant the development of a register. The Project Manager shall develop and complete a Warranty and Guarantee Register to be used as part of the Contract Close out process to ensure that all deliverables are completed in accordance with the terms and conditions specified in the Contract. The Warranty and Guarantee Register (Form 10) shall include the following:

Each individual item of equipment and system for which a warranty or guarantee is specified (roofing, doors, sealants, etc.);

The pertinent section in the Contract specification; The name of the company providing the warranty; The expiration date of the warranty; and The address of the providing company.

13.7 Buy America

13.7.1 Procurement Objective The requirements in this section set for the Authority’s obligation to include an appropriate notice in its bid or request for proposal specification for procurement of steel, iron or manufactured goods, including rolling stock, of federal Buy America requirements, as a condition of responsiveness. The notice must require that bids or offers include a completed Buy America certificate in accordance with 49 CFR §§661.6 or 661.12. FTA is prohibited from obligating federal funds to a project unless the steel, iron, and manufactured goods used in the project are produced in the United States. The requirements set forth in this section equally apply to bidders, proposers, prime Contractors and listed subcontractors, subconsultants, and suppliers bidding or proposing on any federally-funded Contracts involving the purchase and use of more than $150,000 of iron, steel, manufactured goods, or rolling stock. FTA’s Buy America law and regulations apply to:

Procurements of rolling stock, including train control, communication, traction power equipment, and rolling stock prototypes, for which the cost of components and subcomponents produced in the U.S. must be more than 70 percent;

Final assembly for rolling stock, which must occur in the U.S.; and

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Manufactured goods, which must be 100 percent produced in the U.S. as demonstrated by two conditions: (1) All of the manufacturing processes for the product take place in the U.S.; and (2) All of the components of the product, regardless of the origin of its subcomponents, are of U.S. origin.

FTA’s Buy America law and regulations do not apply to property that a Contractor acquires to fabricate a deliverable for the Authority, such as tools, machinery, and other equipment or facilities, unless the Authority intends to take possession of that property upon completion of the project. Thus, if a Contractor acquires property for its general inventory of equipment or facilities to conduct its overall business affairs, the Authority may enter the cost of that acquisition into its calculations of overhead amounts applicable to the FTA-funded project irrespective of whether the property acquired would comply with FTA’s Buy America regulations.

FTA Buy America requirements apply when the General Services Administration (GSA) schedules are utilized to acquire property or services. In this case, the Authority must ensure that FTA’s Buy America requirements are properly followed and included in the master intergovernmental Contract or in the Authority's purchase order.

13.7.2 Buy America Requirements The Authority shall provide appropriate notice of FTA’s Buy America law and regulations to bidders, proposers, prime Contractors and listed subcontractors, subconsultants, and suppliers proposing on a federally-funded project that involves the purchase and use of more than $150,000 of iron, steel, manufactured goods, or rolling stock. FTA’s Buy America law and regulations require that the steel, iron, and manufactured products acquired for use in a federally-funded construction project be produced in the United States, unless FTA has granted a waiver. In addition to the Authority’s Buy America obligation, the Authority’s prime Contractors are responsible for ensuring that their subcontractors are in compliance with FTA’s Buy America law and regulations.

If FTA funds are used for an Authority project that involves the purchase of more than $150,000 of iron, steel, manufactured goods, or rolling stock, FTA’s Buy America law and regulations shall apply. These requirements apply whether the project is funded in whole or in part with federal funds. They do not apply if a project is funded or financed entirely without federal funds.

13.7.3 Notice and Certification The Authority’s Contract Administrator shall include notification of FTA’s Buy America requirements in any bid or request for proposal for a project that is funded in whole or in part with federal funds and involves the purchase and use of more than $150,000 of iron, steel, manufactured goods, or rolling stock. The notice shall require that each bid or proposal include a Buy America certification, which shall provide the following:

The Contractor agrees to comply with 49 U.S.C. 5323(j) and 49 C.F.R. part 661, which provide that Federal funds may not be obligated unless all steel, iron, and manufactured products used in FTA funded projects are produced in the United States, unless a waiver has been granted by FTA or the product is subject to a general waiver. General waivers are listed in 49 C.F.R. § 661.7. Separate requirements for rolling stock are set out at 49 U.S.C. 5323(j)(2)(C) and 49 C.F.R. § 661.11.

The [bidder or offeror] must submit to the Authority the appropriate Buy America certification below with

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its [bid or offer]. Bids or offers that are not accompanied by a completed Buy America certification (Buy American Certification) will be rejected as nonresponsive. The form of the Buy America Certification is included as Attachment H.

The Authority shall notify bidders or proposers that they may not include both the rolling stock and steel, iron, or manufactured products certificates in the documents unless acquiring both in the same procurement.

When GSA schedules are utilized to acquire property or services, the Authority and other purchasing parties shall agree to append this Buy America notice in the purchase order or other document that effects the procurement. The Authority shall obtain an FTA Buy America certification before entering into the purchase order. If the property to be purchased is Buy America-compliant under FTA regulations, the recipient may proceed with its acquisition. If the property is not Buy America-compliant under FTA standards, the recipient will need to obtain a waiver from FTA before proceeding.

13.7.4 Waivers Under limited circumstances, the Authority may seek a Buy America waiver from FTA if a Contractor submits a Certification of Non-Compliance with Buy America Requirements or a Certification of Non-Compliance with Buy America Rolling Stock Requirements because:

• Application of Buy America is inconsistent with the public interest; • The steel, iron, and goods produced in the U.S. are not produced in a sufficient and reasonably

available amount or are not of a satisfactory quality; or • Including domestic material will increase the cost of the overall project by more than 25

percent for rolling stock. The Authority shall apply for a waiver as soon as possible as set forth in 49 CFR part 661. Such requests will include the project description, project cost, waiver item, cost of waiver item, country of origin of the product, reasons for the waiver request, description of the efforts made to locate a domestically manufactured product, and an analysis of re-design of the project using alternate or approved equal domestic product. FTA determination on waiver requests are published in the Federal Register for notice and comment.

13.7.5 Reviews, Audits, and Documentation The Authority is responsible for ensuring the Contractor’s compliance with FTA’s Buy America requirements. As such, the Authority shall perform all required Buy America pre-award review, notifications, and validations of compliance with Buy America requirements and post-delivery review certifications. The Authority shall also perform pre-award and post-delivery Buy America audits for rolling stock procurements as set forth in 49 U.S.C. § 5323(m) and 49 CFR part 663. These actions shall be documented by the Authority. All documentation supporting the Authority’s audits of pre-award and post-delivery Buy America compliance shall be collected and appropriately filed by the Authority’s Contract Administrator.

13.8 Insurance Provisions

13.8.1 Procurement Objective The minimum insurance requirements are set forth in each solicitation document and Contract and are established by Risk Management. The Contract Administrator is responsible for consulting with Risk

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Management before a solicitation is issues for a Contract valued greater than $500,000 or if the Contract Administrator determines that there is a unique aspect of the procurement to could lead to an unusually high-risk profile.

Contractors are advised to carefully review the minimum insurance requirements set forth in the Contract and to take these minimum requirements into account in putting together their proposals. The Contractor shall provide evidence of insurance as proof of compliance for all insurance requirements contained in the Contract.

All Contracts requiring the Contractor to maintain insurance for its products or services (e.g., professional liability or product liability insurance), shall require the Contract Administrator to request and obtain the proof of insurance from the Contractor as part of both the Contract Award and Contract Closeout process. This proof of insurance documentation should be submitted to Risk Management for approval prior to final payment of the Contractor. Risk Management will be required to maintain these documents as “active” files until such time as the insurance requirement ceases under the terms and conditions of the Contract; i.e., these insurance terms will continue past (survive) the final Contract payment.

13.8.2 Evidence and Submission of Insurance Documentation Evidence of insurance in the form of copies of insurance policies, Certificates of Insurance, and any self-insurance coverage documentation, including the required “additional insured” endorsements, shall be furnished by the Contractor to the Contract Administrator. The evidence of insurance shall provide that no lapse, cancellation, or reduction of coverage without thirty (30) days’ prior written notice to the Contract Administrator. Insurance policies and Certificates of Insurance, furnished as evidence of required insurance, for the General Liability, Umbrella-Excess Liability and Professional Liability (Errors and Omissions) policies shall set forth deductible amounts applicable to each policy and all exclusions which are added by endorsement to each policy. Allowance of any additional exclusions is at the sole discretion of the Authority.

Before the commencement of any work, the Contractor shall submit the following, as applicable: General Liability Insurance shall be provided under Commercial General Liability policy as

published by the Insurance Services office (ISO), or under a policy form at least as broad as policy form No. CG 001 and is not inconsistent with the requirements of the Contract.

Copy of its commercial general liability policy and its excess policy, including the declarations page, all amendments, riders, endorsements, and other modifications in effect at the time of Contract execution.

Certificate of Insurance showing all other required coverages, including Professional Liability (Errors and Omissions), auto liability insurance, and workers compensation insurance.

All insurance companies providing policies obtained to satisfy the insurance requirements shall have an A.M. Best rating of A- or better, a Financial Size Category of VII or better and be authorized to do business in the State of California. All policies shall remain in full force and effect throughout the term of the Project and, when there is an extended reporting period, shall remain in effect for the time stipulated. The Contractor shall maintain completed operations coverage with a carrier acceptable to the Authority through the expiration in accordance with the Code of Civil Procedure Section 337.1.

14. ELECTRONIC SIGNATURES

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The Authority will adopt e-signatures, e-transactions, and e- records that are practical and secure, and that balance risk and cost.

Individuals who falsify e-records, e-transactions, or e-signatures are subject to disciplinary action, up to and including termination of employment and criminal prosecution, as specified in policies and under applicable federal and state laws. Individuals are required to report any suspect or fraudulent activities related to e-transactions, e-records, or e-signatures immediately to any manager or supervisor in the individual’s department or division.

Electronic Signatures and Handwritten Signature Requirements

To the fullest extent permitted by law, the Authority accepts e-signatures as legally binding and equivalent to handwritten signatures to signify an Agreement. When a transaction has been identified and uses e-signatures, and where policies, state or federal laws, regulations, or rules require a handwritten signature, that requirement is met if the document contains an e-signature. A document containing the e-signature cannot be modified afterward without going through the signatory steps.

This procedure does not limit the Authority’s right or option to conduct a transaction on paper or in non-electronic form, nor affect the Authority’s right or obligation to have documents be provided or made available on paper when required by applicable policies, laws, or regulations.

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i Procurement and Contracting Policies, dated October xx, 2019. [insert link]. ii Ethics Policy, dated February 12, 1993 and further revised September 2016. [insert link]. iii California Public Records Act, Government Code § 87000, et seq.