Visalia: Vendor Relations & Vendor Performance

CHAPTER 8
VENDOR RELATIONS AND VENDOR PERFORMANCE

RERVIEW
This section is intended to summarize the basic City policies governing vendor relationships and to furnish information on specific purchasing practices. It is intended only to supplement the policies and regulations set forth elsewhere in the Purchasing Manual.

VENDOR RELATIONS
It is essential that a professional, business-like relationship of mutual trust and confidence exist between the City and its suppliers. The primary responsibility for establishing this relationship for the City rests with Purchasing.
The following concepts are considered basic and fundamental to the City’s vendor relationship policy.

Department staff has no obligation to see or talk with vendors unless requested to do so by Purchasing. In fact, vendors are discouraged from making site visits with individual City employees outside of the Purchasing Division.
Only the City Council, the City Manager and Purchasing can obligate the City to the procurement of goods and/or services above the $2,500 delegated authority limit.
Vendors soliciting sales are to be received by Purchasing staff only. However, if it is deemed necessary or beneficial by Purchasing, interviews for specific needs will be arranged with representatives of the other city departments.
Purchasing shall not make, nor be asked to make unreasonable or unnecessary demands on suppliers.
The name of the contractor(s) contacted by a using department should appear on any resulting purchase request as a suggested contractor(s).

UNAUTHORIZED VENDOR CONTACT WITH CITY DEPARTMENTS
Once the bid has been issued, prospective bidders are prohibited from contacting any City department during the bid process unless approval is received from Purchasing. Failure to comply with this policy will be considered cause to reject the vendor’s bid. This does not preclude the vendor from contacting City departments concerning other ongoing business.

POLICY ON VENDOR VISITS

Purchasing Division Buying Staff
Visits by appointment are preferred since drop-in visits can lead to inconvenience for both parties. Buyers may be in a meeting or away from the office at the time of the unscheduled visit.

Buyers are available to meet with vendor representatives between 10:00 a.m. and 4:00 p.m., Tuesday through Thursday. Meetings should be made by appointment.

Other City Employees
It is preferred that vendors use Purchasing as the first point of contact with the City. This saves time for both the City and the vendor because Purchasing is a central source of information on the City’s needs, buying plans and existing contracts.
When a using department requires information from a vendor, these requests normally will be handled by Purchasing except when technical detail or preliminary information is required. If this occurs, Purchasing shall receive copies of all correspondence that includes pricing.

Vendors are asked to refrain from attempts to "backdoor" sell. This is defined as the vendor attempting to have the using department specify to Purchasing a specific brand, product or supplier to the exclusion of legitimate competition.
Visits with City departments may be made upon the recommendation of Purchasing. Purchasing will direct the vendor to the correct person and phone number. Using departments should maintain a log of all sales people making calls in their department.

City employees are not required to speak to or see private vendors.

Role of Non-Purchasing City Employees
Non-Purchasing City employees may find some vendors to be useful sources of products and price information needed for budget planning. Such employees, however, do not have authority to contract with vendors unless the purchase can be made with petty cash or as authorized under the small dollar purchase limit procedures.

Non-Purchasing City employees should notify Purchasing if they receive a visit from a vendor with useful products and price information and should also encourage the vendor to call Purchasing for an appointment with a buyer. Also, Purchasing can help vendors to use their sales time more efficiently by informing them about expiration dates of existing contracts, upcoming bids and where similar products are used throughout the City.

VENDOR OFFERS OF FREE TRIALS AND SAMPLES
In some industries it is common for vendors to offer free loaners, demonstrator equipment, trial use, free supplies or other promotionals. These offers are sales tactics and acceptance of such "free" equipment, supplies or services may or may not be to the City’s the best interest.

Any department that receives a "free" offer should contact Purchasing for assistance. The offer will be evaluated and other alternatives will be considered which may better meet the department’s needs. If the offer is in the best interest of the City, Purchasing will advise the department.

City departments shall not accept offers from vendors for free repair or services of any kind until a "no charge" Purchase Order is issued to cover the work to be performed or otherwise approved by Purchasing. The Purchase Order contains terms and conditions designed to protect the City from claims for damages resulting from injuries and accidents that might occur while work is in progress.

If a product demonstration is required, the demonstration shall be requested, arranged and overseen by Purchasing or their designee.

Occasionally, the City requires bidders to submit production samples of products that the City intends to purchase. For example, samples may be required for new, untried products where workmanship might be a significant factor or in cases when most of the bidders are expected to be distributors who may offer a wide variety of similar products. Failure to comply with a request for submission of a sample may be cause for the bid to be declared non-responsive and subject to rejection.

When samples are required for test and/or evaluation and the product will be consumed, the City may purchase the material. This allows the City the right to use the material as it sees fit and use the results of the tests in any manner it wishes. The determination of whether samples are requested free is dependent upon the reasonableness of the dollar amount and quantity requested. This determination will be at Purchasing’s discretion and direction.

The most responsive bidder’s sample is retained to compare with the vendor’s shipment of the purchased goods. This sample will be returned at the request of the low bidder following acceptance of the total shipment. All other bidders wishing to have samples returned must pick them up at Purchasing within thirty (30) days following award of the bid. Samples not claimed within that period become the property of the City to be disposed of as the City sees fit. Bidders desiring to have samples returned by mail or parcel post must furnish return mail cartons, packing, postage, insurance, etc.

VENDORS AS CONSULTANTS
Departments shall not request nor expect contractors to perform no-cost pre-purchase design, demonstrations, layouts or presentations, as such services cannot be considered when an award of purchase is ultimately made by Purchasing.

When it is necessary to obtain pre-purchase services, these services will be purchased separately from any purchase of equipment, supplies or services. Contact Purchasing for assistance in advance of the need for pre-purchase services.

Fair and open competition requires equal treatment for all prospective vendors. No vendor will be given an advantage over another. For instance, a vendor is not allowed to dictate the product specifications, thereby limiting the bidding to only his company’s product.

It is the City’s policy that contractors or consultants who are paid to write product specifications, prepare bid documents and/or evaluate proposals, or the like, may not also participate as bidders to sell the City the subject product either directly or through business partners, associates or affiliates.

COMPETITIVE SEALED BIDS
Whenever sealed bids are used for goods and services, all bids shall be publicly opened and the dollar amount of each bid shall be read aloud. Bids are then closed for public review after the last person leaves the bid opening, until the contract is awarded. Bids or proposals received at the designated place of opening after the established closing time for receipt of bids, as designated in the invitation for bids, shall not be opened or considered. Except for late bids, it is to be understood that a bid irregularity or minor informality may be waived by the Purchasing Agent when it can be determined that such waivers will not adversely affect the bidding process.

The Purchasing Agent may elect, if it is in the City of Visalia’s best interest, to accept a bid from a bidder who has not submitted the proper number of copies. A bidder who does not submit the proper number of copies as designated in the invitation to bid may be allowed up to one (1) working day, or sufficient time as deemed necessary by the Purchasing Agent, from the time of bid opening to supply the proper number of copies.

RELEASING BID RESULTS
During the bidding process, each vendor’s bid is kept confidential and is not shared with anyone. However, any vendor or member of the public is entitled to review bid results after the bidding process has been completed. There are two ways to obtain this information:

For written, sealed bids, an interested party may be present at the time and date given in the bid document as the "closing date" or "opening date" and request to witness the bid opening from Purchasing.
For any bid or quotation, an interested party may contact the Buyer and make an appointment to review the bid or quotation file after the award decision has been made.

Purchasing, as a matter of practice, does not normally photocopy bids. However, if an interested party requests photocopies, Purchasing will charge a fee to cover the costs of providing the copies.

LOCAL VENDORS
To provide for the purchase of goods and services by the City, if price and quality are equal, preference shall be given to local vendors and local products.

VENDOR PROTESTS
The procedures for protesting, both before and after an award, are set forth in Chapter 5, Bid Requirements and Procedures, Appeals.
Protests should be made verbally to Purchasing and confirmed in writing to the Purchasing Agent as soon as possible so that an objective decision can be made by the City and costly delays in the acquisition process can be avoided.

CONFIDENTIAL VENDOR INFORMATION
Generally, all information submitted by vendors during the competitive process is public information. "Trade Secrets" are deemed not to be public record.

If trade secret information is included in the bid, bidders must submit the trade secret information under separate cover, plainly marked "Trade Secret" or "Confidential" or "Proprietary Information". This information will be reviewed by Purchasing and referred to the City Attorney as deemed necessary.

Information identified by a bidder as a trade secret and determined not to be in conformance with the trade secrets definition shall be excluded from the proposal unless released by the bidder. Such information will be returned to the bidder, at the bidder’s expense and upon written request.

Trade secrets are defined as, including, but not limited to:

Any formula, plan pattern, process, tool, mechanism, compound, procedure, production data or compilation of information that is not patented, which is known only to certain individuals within a commercial concern who are using it to fabricate, produce or compound and article of trade or a service having commercial value and which gives its user an opportunity to obtain a business advantage over competitors who do not know or use it.

The City shall not in any way be liable or responsible for the disclosure of any proposals or portions thereof containing trade secret information unless it is (1) submitted under separate cover that is plainly marked "Trade Secret", "Confidential" or "Proprietary Information" on the outside or (2) if disclosure is required under the provision of law or by the order of the Court. Vendors shall be advised that the City does not wish to receive trade secret information and that vendors are not to supply trade secrets unless absolutely necessary.

The Trade Secret Acknowledgment (See Appendix) shall be executed by the bidder as part of his/her response to a City Request for Proposal (RFP) or Request for Quotation (RFQ).

BIDDERS’ LIST
Any vendor may apply to be placed on Purchasing’s bidders’ list. The only requirement is for the vendor to complete the Bid List Vendor Application Form (See Appendix).

Filling out a Bid List Vendor Application Form will not ensure receipt of an Invitation for Bid (IFB), a Request for Proposal (RFP) or a Request for Quotation (RFQ) for the items specified on the application. The City of Visalia receives many requests for certain types of goods or services. Due to the cost involved in processing RFP’s and RFQ's, the City is unable to send them to all interested vendors. Vendors are encouraged to frequently review the ‘Out for Bid’ binder in Purchasing’s reception area. Specific bids that are requested will be provided.

REMOVAL FROM THE BIDDERS’ LIST

Authority and Grounds
After reasonable notice to the vendor involved, and a reasonable opportunity for that vendor to be heard, the Purchasing Agent, after consulting with the City Attorney where appropriate, is authorized to debar a vendor for cause from consideration for award of contracts. The debarment shall be for no more than three years. Additionally, after consultation, the Purchasing Agent is authorized to suspend a vendor from consideration for award of contracts if there is probable cause to believe that the vendor has engaged in any activity that might lead to debarment. The period of debarment or suspension shall be as prescribed by the Purchasing Agent. The causes for debarment include:

Conviction for commission of a criminal offense as an incident to obtaining or attempting to obtain a public or private contract or subcontract, or in the performance of such contract or subcontract;
Conviction under state or federal statutes of embezzlement, theft, forgery, bribery, falsification or destruction of records, receiving stolen property or any other offense indicating a lack of business integrity or business honesty which currently, seriously and directly affects responsibility as a City contractor;
Conviction under state or federal antitrust statutes arising out of submission of bids or proposals;
Violation of contract provisions, as set forth below, of a character that is regarded by the Purchasing Agent to be so serious as to justify debarment action:
Deliberate failure, without good cause, to perform in accordance with the specifications or within the time limit provided in the contract; or
A recent record of failure to perform or of unsatisfactory performance in accordance with the terms of one or more contracts; provided that failure to perform or unsatisfactory performance caused by acts beyond the control of the vendor shall not be considered to be a basis for debarment;
Any other cause the Purchasing Agent determines to be so serious and compelling as to affect the responsibility as a City vendor, including debarment by another governmental entity for any cause listed in this section; and
For violation of ethical standards (Chapter 2, Ethical Considerations).

Written Decision
The Purchasing Agent shall issue a written decision to debar or suspend. The decision shall state the reasons for the action taken and inform the debarred or suspended vendor involved of their rights concerning judicial or administrative review.

Notice to Vendor
A copy of the decision shall be mailed or otherwise furnished immediately to the debarred or suspended vendor.

Finality of Decision
A decision to debar or suspend shall be final and conclusive, unless the debarred or suspended vendor files a written appeal with the Purchasing Agent or commences a timely action in court in accordance with applicable law. Appeals must be filed within ten (10) days after the receipt of the decision to debar or suspend.

REINSTATEMENT TO BIDDERS’ LIST
After the time for suspension or debarment has passed, the vendor may apply for reinstatement to the Bidders’ List by submitting a new Bid List Vendor Application to Purchasing.

DOCUMENTING VENDOR PERFORMANCE
A file is established for each vendor on the bidders’ list. The file includes the vendor’s bid list application form and correspondence regarding performance and attempts to resolve any problems. Correspondence should reference the related purchase order or agreement number and the related bid number, if any.

Performance records for vendors who are not on the bid list should also be maintained in a vendor file. It will not contain a Bid List Vendor Application form.
All departments are encouraged to document vendor performance in writing and forward a copy to Purchasing.

MINORITY, DISADVANTAGED AND
WOMEN-OWNED BUSINESS UTILIZATION
It is the policy of the City of Visalia that business concerns owned and controlled by women and/or socially and economically disadvantaged individuals shall have equal and maximum practicable opportunity to participate in the City’s purchasing program.

Definitions
Small Business - Those businesses that fall in the category of small by the Small Business Administration criteria.

Minority Business Enterprise (MBE) - An independent and continuing business for profit, which performs a commercially useful function, and which is owned and controlled by one or more minority group members. For purpose of this definition, minority group members include Black Americans, Hispanic Americans, Native Americans (including American Indians, Eskimos, Aleutians and Native Hawaiians) and Asian-Pacific Americans (including persons whose origins are from Japan, China, the Philippines, Vietnam, Korea, Samoa, Guam, the United States, Trust Territories of the Pacific, Northern Marianas, Laos, Cambodia and Taiwan).

Women-Owned Business Enterprise (WBE) - An independent and continuing business for profit, which performs a commercially useful function, and which is owned and controlled by one or more women.

Disadvantaged Business Enterprise (DBE) - A small business concern which is (a) at least fifty-one percent (51%) owned by one or more socially and economically disadvantaged individuals, or in the case of any publicly owned business, at least fifty-one percent (51%) of the stock of which is owned by one or more socially and economically disadvantaged individuals; and (b) whose management and daily business operations are controlled by one or more socially and economically disadvantaged individuals who own it. Socially and economically disadvantaged individuals include MBE’s, WBE’s and any other minorities or individuals found to be disadvantaged by the Small Business Administration pursuant to Section 8(a) of the Small Business Act.

Handicapped-Owned Business Enterprise (HBE) - An independent and continuing business for profit, which performs a commercially useful function, and which is owned and controlled by one or more disabled individuals pursuant to the federal ADA Act.

Good Faith Effort
The City of Visalia expects all general contractors to solicit minority, disadvantaged and women-owned business firm as subcontractors and materials suppliers. All general contractors should make a good faith effort to work with the City of Visalia Purchasing Division to fulfill our joint commitment to these business enterprises. Only through this combined effort can we create a business climate favorable to all citizens of the City of Visalia.

Minority Determination
For purposes of determining whether a business is a Minority-Owned Business Enterprise, Disadvantaged-Owned Business Enterprise or a Women-Owned Business Enterprise, the minority or minorities, the woman or women, or a combination of minorities and women as the context requires shall (1) possess legal authority and power to manage business assets, good will and daily operation of the business, and (2) actively and continuously exercise such authority and power in determining the policies and directing the daily operations

General Requirements
City contracts and City Purchasing Division staff will:

Provide all qualified DBE’s an opportunity to bid on any City contract.
Provide one-on-one counseling to DBE’s with respect to obtaining bid bonds and performance bonds.
Advertise all upcoming contracts in minority publications.
Take a leadership role in interacting with organizations which promote minority business development such as the Hispanic Chamber of Commerce and the Small Business Development Center
Hold special events to acquaint DBE’s with City purchasing procedures and upcoming opportunities.
Coordinate pre-bid conferences to include general contractors and subcontractors at the same time so as to provide opportunities for minority, women and handicapped business owners to meet general contractors

DISADVANTAGED BUSINESS ENTERPRISE (DBE) PROGRAM

Policy Statement
It is the policy of the City of Visalia to utilize Disadvantaged Business Enterprises (DBE’s) and firms as defined in 49 CFR Part 23 in all aspects of contracting, to the maximum extent possible. This policy, which is fully described herein, constitutes policy and commitment to substantially increase DBE utilization in all program activities funded wholly or in part by any U.S. Department of Transportation model element.

This Agency, its contractors and subcontractors, which are the recipients of Federal-aid funds, agree to ensure DBE firms have the maximum opportunity to participate in the performance of contracts and subcontracts. In this regard, this Agency and all of its contractors and subcontractors will take all reasonable steps in accordance with 49 CFR Part 23 to ensure that DBE firms have the maximum opportunity to compete for and perform contracts.

Disadvantaged Business Enterprise Liaison Officer
The City of Visalia Purchasing Agent is the DBE Liaison Officer for this agency and shall report to the City Manager. The DBE Liaison Officer shall be assigned such staff as necessary to fully implement the provisions of 49 CFR Part 23 and such other DBE programs as may be required.

Duties of the DBE Liaison Officer
The DBE Liaison Officer shall develop, manage and implement the DBE Program on a day-to-day basis. The Liaison Officer shall:

Develop and carry out technical assistance programs for DBE’s.
Arrange solicitations, time for the presentation of bids, quantities, specifications and delivery schedules so as to facilitate the participation of DBE’s. Where such changes are found necessary to increase DBE utilization, they will be made in consultation and cooperation with the functional unit involved.
Provide guidance to DBE’s in overcoming barriers such as inability to obtain bonding or financing.
Carry out information and communication programs on contracting opportunities in timely manner. Programs shall be bilingual where applicable.
Investigate the services offered by banks owned and controlled by DBE’s.
Listing of certified DBE’s are to be made available to all project bidders. Such listing will include the following information: Name, address, telephone number, DBE classification and type of work performed by the firm.
Prior to approval of the substitution of any DBE subcontractor for any given project, the prime contractors will be required to provide and prove good faith effort to replace the DBE with another eligible DBE.
Establish a DBE overall annual goal. The goal shall be evaluated annually and adjusted as necessary.
Establish an appropriate individual project DBE goal for each Federal Aid Project advertised.
Perform good faith analysis when the project goal is not achieved.
Maintain such documentation as is necessary to verify performance of all activities included in this program.

Public Notification
Public notification shall include published notice in both a minority and majority local media and shall include the following information:

Annual overall DBE goal.
Notification that a description of how the goal was set is available for public inspection for a period of thirty (30) days.
Notification that both the U.S. DOT and this agency will accept comments on the goal for 45 days from the date of the notice. The notice shall advise interested parties that comments are for information purposes only.

The program will be reaffirmed annually, by public notice, at the time of the publication of the overall goal. If substantial changes are made to this document, the entire document shall be subject to notification as noted above.
In addition to the foregoing, interested DBE and majority contractor organizations will receive direct mailings of this complete program.

Establishment of Goal
The DBE goal will be established both annually (overall) and on a per contract basis. The overall goal will be based on planned contract activity for the coming year. The overall goal established will be subject to methodology and procedures established in 49 CFR Part 23, Subparts (C) and (D) and take effect on October 1st of each year.

The overall DBE goal established with this program is 10%. Individual project goals will be established based on the following criteria:

Attainment of established overall goals.
Size of the project.
Opportunities for DBE’s as subcontractors, vendors and suppliers.
Minority population of the geographic area in which the work is to be performed.
DBE goals being utilized in the geographic area by other State Federal or local jurisdictions.
Availability of certified DBE’s.
Past experience on projects similar to the project being evaluated.
Such other factors as may affect the utilization of DBE’s.

Projects that do not contain a specific goal will contain the following provisions:

Policy. It is the policy of the Department of Transportation that Disadvantaged Business Enterprises as defined in 40 CFR Part 23 shall have the maximum opportunity to participate in the performance of contracts financed in whole or in part with Federal finds under this agreement. Consequently, the DBE requirements of 49 CFR Part 23 apply to this agreement."
DBE Obligation. The recipient or its contractor agree to ensure that Disadvantaged Business Enterprises, as defined in 49 CFR Part 23, have the maximum opportunity to participate in the performance of contracts and subcontracts financed in whole or in part with Federal funds provided under this agreement. In this regard, all recipients or contractors shall take all necessary and reasonable steps in accordance with 49 CFR Part 23 to ensure that Disadvantaged Business Enterprises have the maximum opportunity to compete for and perform contracts. Recipients and their contractors shall not discriminate on the basis of race, color, national origin, ancestry, religion handicap or gender in the award or performance of U.S. DOT-assisted contracts.

Contract Procedure
These procedures require bidders to submit the names of DBE subcontractors and suppliers, a description of the work each is to perform or material to be furnished, and the dollar value of each DBE subactivity.

DBE Notification
Projects will be advertised in local newspapers and minority-focus newspapers when possible. These ads will include reference to DBE requirements and will indicate the DBE project goal. DBE supportive service assistance centers will receive notification of projects scheduled to be advertised. Such centers will be afforded the opportunity to receive complementary plans and specifications for projects within their geographical area of responsibility.

Selection Criteria for Projects with DBE Goals
Every project containing a DBE goal shall be evaluated by the DBE Liaison Officer or his/her designee to ascertain bidding contractor’s efforts to attain the DBE goal. The award of any project must be concurred by the DBE Liaison Officer or his/her designee before said contract may be awarded. Should there be a disagreement between functional units concerning contractor’s efforts to attain contract goals for DBE participation, the matter shall be referred to the City Manager or his/her designee, for final determination. Competitors that fail to meet the DBE goal and fail to demonstrate sufficient reasonable good faith efforts shall be declared non-responsive and ineligible for award of contract.

All contracts that contain a DBE goal, pursuant to this policy, will be monitored on an on-going basis by City project personnel during the course of construction. The DBE Liaison Officer is to be immediately advised of any circumstances wherein contractor compliance with the DBE provision of the contract is questionable. The contractor shall submit a final report for each project that includes total payments to the prime contractor, as well as any payments the prime contractor has made to DBE subcontractors, vendors and suppliers. If the report indicates the prime contractor has not achieved project goal, project personnel shall attach an evaluation in narrative form, of the reasons for failure to attain the goal and any corrective action that was taken. Prime contractors will be required to notify the Agency of any situation in which regularly scheduled progress payments are not made to DBE subcontractors, vendors or suppliers.

Counting DBE Participants
This Agency, its contractors and subcontractors shall count DBE participation in accordance with the provisions of Section 23.47, Title 49, of the Code of Federal Regulations.

Records and Reports
The DBE Liaison Officer shall maintain such records, and provide such reports as are necessary to ensure full compliance with this policy. Such records and reports shall include, as a minimum, the following information:

Awards to DBE’s.
Awards to majority contractors.
Final project reports concerning DBE Utilization.
Such other data as is needed to fully evaluate compliance with this program.

The DBE Liaison Officer shall submit reports to the California Department of Transportation or U.S. DOT element as required. These reports will include:

Number and dollar value of contracts awarded.
Number and dollar value of contracts and subcontracts awarded to DBE’s.
The percentage of the dollar value of all contracts awarded during the year which were awarded to DBE’s.
Reports shall be broken down separately by ethnic grouping.

Complaints
Any complaints received by the Agency concerning this program will be investigated. The Agency shall endeavor to resolve said complaints within ninety (90) days of receipt of the complaint by the DBE Liaison Officer. The appropriate U.S. DOT element will be furnished a copy of the complaint and may be invited to participate in the investigation/resolution of the complaint. The U.S. DOT will receive a complete investigative report on the complaint and may be requested to concur in the proposed disposition of said complaint. The contractor will be directed to notify the Agency of any complaints they may receive concerning this program.