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Article X. Procurement and Real Estate Code.

Division 1. Generally

Sec. 2-1101. Short title.

   This article shall be known and may be cited as the procurement and real estate code of the city. (Ord. No. 2009-78(09-O-1876), § 1, 12-15-09)

Sec. 2-1102. Definitions.

   The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section:

   Actual offeror means any firm that has submitted a bid or proposal in response to the particular solicitation in question. Individual joint venturers, subcontractors, subconsultants, or individuals or entities comprising a part of the bidder or proponent team are not actual offerors.

   Annual contract means any contract entered into for a period of one year or multiple one-year periods (including options to renew for additional one year periods), with a contractor, to provide the city upon request with a specified product or service at a predetermined rate or price.

   Award means when legislation authorizing the award of the contract has been adopted by the council and approved by the Mayor, provided, however, that the contract will not become bind- ing upon the city and the city will incur no liability under it until it has been duly executed by the contractor, returned to the city with all required submittals, including insurance and bond- ing, if applicable, executed by the Mayor, attested to by the municipal clerk, approved by the city attorney as to form and delivered to the contrac- tor.

   Business means any corporation, partnership, individual, sole proprietorship, joint stock com- pany, joint venture, firm or any other private legal entity.

   Change order (unilateral) means a written or- der signed and unilaterally issued by the chief procurement officer or other authorized individ- ual, directing the contractor to make changes that the changes clause of the contract authorizes without the consent of the contractor.

   Chief procurement officer means the person holding the position created in and governed by code sections 2-222, 2-250, 2-251, 2-252 and divi- sion 2 of this article, and any other Charter or Code provisions applicable.

   Clock calibration means coordination of the bid clock with the time as indicated by the National Bureau of Standards.

   Construction means the process of building, altering, repairing, remodeling, improving or de- molishing any public structure or building or other public improvements of any kind to any public real property. It does not include the rou- tine operation, routine repair or routine mainte- nance of structures, buildings or real property.

   Contract means all types of city agreements, including purchase orders, regardless of what they may be called, for the procurement or dis- posal of supplies, services, construction, profes- sional or consultant services and for the transfer of interests in real property.

   Contract modification or change order means any written alteration in specifications, delivery point, time and rate of delivery, period of perfor- mance, price, quantity or other provision of any contract accomplished by mutual action of the parties to the contract.

   Contractor means any person having a contract with the city.

   Cost analysis means the evaluation of cost data for the purpose of arriving at costs actually in- curred or estimates of costs to be incurred, prices to be paid and costs to be reimbursed.

   Cost data means factual information concern- ing the cost of labor, material, overhead and other cost elements that are expected to be incurred or which have been actually incurred by the contrac- tor in performing the contract.

   Cost reimbursement contract means a contract under which a contractor is reimbursed for costs, which are allowable and allocable in accordance with the contract terms and this article, and a fee or profit, if any.

   Data means recorded information, regardless of form or characteristics.

   Days means calendar days. In computing any period of time prescribed by the procurement code, the first day shall not be counted but the last day shall be counted. If the last day falls on a Saturday or Sunday, the party shall have through the following Monday. When the last day falls on a legal holiday observed by the city, the party shall have through the next day.

   Designee means a duly authorized representative of a person.

   Discussions means an exchange of information or other manner of negotiation during which the offeror and the city may alter or otherwise change the conditions, terms and price of the proposed contract. Discussionsmay be conducted in connec- tion with competitive sealed proposals, sole source and emergency procurement. Discussions are not permissible in competitive sealed bidding, except to the extent permissible in the first phase of multi-step sealed bidding, when all competitive bids exceed available funds but the responsive bid does not exceed such funds by more than five percent or as otherwise permitted by applicable law.

   Employee means an individual drawing a salary or compensation from the city, whether elected or not.

   Firm means any individual, partnership, cor- poration, association, joint venture or other legal entity permitted by law to practice or offer pro- fessional or consultant services.

   Grant agreement means any written agree- ment between the city and a grantor, or donor, or a proposed grant recipient, or beneficiary, which states in specific terms the amount and purposes of the grant, the conditions of the grant, if any, and pursuant to which a grant award is disbursed or otherwise satisfied. A grant agreement may also relate to gifts, bequests or donations.

   Invitation for bids means all documents,whether attached or incorporated by reference, utilized for soliciting sealed bids.

   Prequalification means the determination that a prospective offeror satisfies the criteria estab- lished for inclusion on the prequalified offeror's list.

   Price analysis means the evaluation of price data, without price analysis of the separate cost components and profit as in cost analysis, which may assist in arriving at prices to be paid and costs to be reimbursed.

   Price data means factual information concern- ing prices for items substantially similar to those being procured. Prices in this definition refer to offered or proposed selling prices. The definition refers to data relevant to both prime and subcon- tract prices.

   Procurement means buying, purchasing, rent- ing, leasing or otherwise acquiring any supplies, services or construction. It also includes all func- tions that pertain to the obtaining of any supply, service or construction, including a description of requirements, selection and solicitation of sources, preparation and award of contracts and all phases of contract administration.

   Professional and consultant services means those services within the scope of the practices of archi- tecture, investment banking, professional engi- neering, planning, landscape architecture, land surveying, the medical arts, management and analysis, accounting or auditing, law, psychology or any other similar kind or type of professional practice. For purposes of this division, profes- sional and consultant services shall not include investment management services.

   Proposal means solicited submission of infor- mation from a prospective offeror in accordance with the terms of the applicable request for pro- posals and applicable law.

   Purchase description means the words used in a solicitation to describe the supplies, services or construction to be purchased, including specifica- tions attached to or made a part of the solicita- tion.

   Purchase order means a short form of contract which is issued by the chief procurement officer at the written request of the using agency for the procurement of supplies, goods or services.

   Qualified products list means an approved list of supplies, services or construction items de- scribed by model or catalogue numbers that, prior to competitive solicitation, the city has deter- mined will meet the applicable specification re- quirements.

   Request for proposals means all documents, whether attached or incorporated by reference, utilized for soliciting proposals.

   Responsible offeror means any person who has the capability in all respects to perform fully the contract requirements and the tenacity, persever- ance, experience, integrity, reliability, capacity, facilities, equipment and credit which will ensure good faith performance.

   Responsive offeror means a person who has submitted an offer that conforms in all material respects to the invitation for bids or request for proposals.

   Solicitation means an invitation for bids, a request for proposals, a request for quotations or any other document issued by the city concerning its soliciting bids or proposals to perform a city contract or purchase order.

   Service means the furnishing of labor, time or effort by a contractor, not involving the delivery of a specific end product other than reports which are merely incidental to the required perfor- mance.

   Supplies means all property, including, but not limited to, equipment, materials, printing, insur- ance and leases of real property, excluding land or a permanent interest in land.

   Using agency means any city entity that uti- lizes any supplies, services, construction, profes- sional or consultant services, real property and leases procured under this article.
(Ord. No. 2009-78(09-O-1876), § 1, 12-15-09)

Sec. 2-1103. Severability.

If any section or part of a section of this article or any application thereof to any person or cir- cumstances is held invalid, such invalidity shall not affect other sections or part of a section or application of this article which can be given effect without the invalid section or part of a section or application, and to this end the sections and parts of sections of this article are declared to be severable.
(Ord. No. 2009-78(09-O-1876), § 1, 12-15-09)

Sec. 2-1104. Interpretation; purposes and policies.

1. Interpretation. This article shall be construed and applied to promote its underlying purposes and policies.
2. Purposes and policies. The underlying purposes and policies of this article are to:
   1. Simplify, clarify, consolidate and modernize the law governing procurement and real estate for this city;
   2. Permit the continued development of explicit and thoroughly considered procurement and real estate policies and practices;
   3. Provide for centralized procurement for this city;
   4. Ensure the fair and equitable treatment of all persons who deal with the procurement system and real estate transactions of this city;
   5. Provide increased economy in city procurement and real estate activities and maximize to the fullest extent practicable the purchasing value of city funds;
   6. Foster effective broad-based competition for public procurement within the free enterprise system; and
   7. Provide safeguards for the maintenance of a procurement and real estate system of quality and integrity.
   (Ord. No. 2009-78(09-O-1876), § 1, 12-15-09)

Sec. 2-1105. Application of article.

1. General application. This article applies to contracts for the procurement of supplies, ser- vices, construction, professional and consultant services and real estate, solicited or entered into by this city after 12:01 a.m. on November 1, 1983, unless the parties agree to its application to a contract solicited or entered into prior to such date.
2. Application to city procurements and real estate transactions. This article shall apply to every expenditure of public funds, irrespective of the source. It shall apply to the disposal of city supplies, as provided in division 8 of this article pertaining to supply management and to the disposal of city real property, as provided in division 14, subdivision III of this article pertain- ing to sale and disposition of real estate. Nothing in this article shall prevent any public agency from complying with the terms and conditions of any grant, gift, donation or bequest that are otherwise consistent with law and the operational procedures promulgated by the chief procurement officer as authorized in division 17.

(Ord. No. 2009-78(09-O-1876), § 1, 12-15-09)

Sec. 2-1106. Supplementary general principles of law applicable.

   Unless displaced by the particular sections of this article, the principles of law and equity, including the uniform commercial code of the state, the law merchant, the law of real property and the law relative to capacity to contract, agency, fraud, misrepresentation, duress, coercion, mis- take or bankruptcy, shall supplement this article.
(Ord. No. 2009-78(09-O-1876), § 1, 12-15-09)

Sec. 2-1107. Good faith actions.

   This article requires all parties involved in the negotiation, performance or administration of city contracts to act in good faith. The term "good faith" means honesty in fact in the conduct or transaction concerned and the observance of rea- sonable commercial standards of fair dealing.
(Ord. No. 2009-78(09-O-1876), § 1, 12-15-09)

Sec. 2-1108. Procurement records.

1. Contract file.All determinations and other written records pertaining to the solicitation, award or performance of a contract or purchase order shall be maintained by the city in a contract file by the chief procurement officer.
2. Retention. All procurement records shall be retained and disposed of by the city in accordance with records retention guidelines and schedules approved by the city council. If a contract is being funded in whole or in part by assistance from a federal agency, all procurement records pertain- ing to that contract shall be maintained for three years from the closeout date of the assistance agreement or the final disposition of any contro- versy arising out of the assistance agreement.
3. Public access. Procurement information shall be a public record to the extent required by the laws of the state.

(Ord. No. 2009-78(09-O-1876), § 1, 12-15-09)

Sec. 2-1109. Compliance with federal requirements.

   When the procurement or real estate transac- tion involves the expenditure of federal assistance or contract funds, the procurement or real estate transaction shall be conducted in accordance with any applicable mandatory federal law and autho- rized regulations which are not reflected in this article. Notwithstanding, where federal assis- tance or contract funds are used in a procurement or real estate transaction, requirements that are more restrictive than federal requirements shall be followed.
(Ord. No. 2009-78(09-O-1876), § 1, 12-15-09)

Sec. 2-1110. Construction of water treatment plant.

   The construction and operation of a water treatment plant and appurtenances inNorth Fulton County, as a joint venture of the city and Fulton County, being necessary to serve the joint needs of the city and Fulton County in ensuring an ade- quate supply of potable water for their citizens, the Atlanta-Fulton CountyWater Resources Com- mission is authorized to contract for goods and services and to make purchases of real and per- sonal property, in connection with the water treat- ment plant and appurtenances, subject to the following limitations:

1. The funds for the purchase of goods and services are available to the commission in line item appropriations of its approved budget.
2. Such contracts or purchases of goods and services do not exceed $20,000.00, except that contracts exceeding that amount are authorized:
   1. For goods or services for which the entity providing the goods or services is listed by name in its approved budget; or
   2. When the chair of the commission certifies that emergency circum- stances exist and that failure to con- tract for goods or services to correct such circumstances would result in the loss of operations of the facilities and that insufficient time is avail- able to secure specific approval of the contract by the city and Fulton County.
3. Such contracts are made pursuant to purchasing and minority participation procedures as determined by the commission.
4. Regardless of the amount and when jointly authorized by resolution of the city coun- cil and of Fulton County, all contracts that are reasonable and necessary for the con- struction of the water treatment facilities and appurtenances, including professional and consultant contracts, may be exe- cuted, provided that the funds for the contracts are available to the commission in line item appropriations of its approved budget.
5. All pertinent requirements of the joint venture agreement for the making of con- tracts and purchases have been met.

(Ord. No. 2009-78(09-O-1876), § 1, 12-15-09)

Sec. 2-1111. Limitation on work orders authorized under annual contracts.

   Any using agency or bureau may expend up to $100,000.00 under an annual contract individu- ally or in the aggregate with any one contractor. This limitation of $100,000.00 is imposed for the term of the contract. Where the expenditures under an annual contract by any using agency or bureau exceeds $100,000.00 for an individual project or work order or $100,000.00 in the aggre- gate for a particular contractor, such expendi- tures shall be subject to the approval of the city council, unless such contract authorizes the issu- ance of work authorizations or similar directives to the contractor in excess of $100,000.00 without further council approval.
(Ord. No. 2009-78(09-O-1876), § 1, 12-15-09)

Sec. 2-1112. Multiple awards; limitations on multiple awards.

1. Multiple awards. Unless otherwise pro- vided in this section, or unless otherwise provided by law, two or more offerors may be awarded separate city contracts, at the discretion of the city, on the basis of one solicitation for the same or similar work, supplies or services if the city reserves the right to do so in the solicitation. Multiple contracts may be awarded, in the discre- tion of the city, for the procurement of annual contracts for supplies, annual contracts for con- struction, annual contracts for services, and an- nual contracts for professional and consultant services. The solicitation shall also include a statement that the city may, in its discretion, elect to award only one contract if the chief procure- ment officer, after consultation with the head of the using agency, determines in writing that one contract is sufficient for the needs anticipated by the city at the level of quality desired. Awards shall be made in accordance with the provisions of division 4 of this article. Notwithstanding any- thing contained in this section, however, if multi- ple awards are not anticipated in a solicitation prior to the deadline established for receipt of bids, proposals or quotations, multiple awards shall not be made under that solicitation.
2. Prohibition against multiple awards for the procurement of construction, services or profes- sional and consultant services that are not annual contracts. Except as provided in subsection (a) of this section, or unless otherwise provided by law, multiple city contracts shall not be awarded un- der one solicitation for the procurement of con- struction, services or professional and consultant services which are not annual contracts.
3. Inapplicability. This section shall not apply to the purchase, sale or disposition of real estate, nor shall this section apply to grant agreements, intergovernmental agreements or emergency pro- curements.

(Ord. No. 2009-78(09-O-1876), § 1, 12-15-09)

Sec. 2-1113. Monetary limits; effective date.

   To the extent that any monetary limits in this article specifically relate to monetary limits set forth in Article 3, Chapter 1, section 3-104(14), and Article 6, Chapter 4, section 6-402 of the City's Charter, to become effective on September 30, 2008, such monetary limits in this article will also become effective on September 30, 2008. Prior to such date, the previous monetary limits in this article will apply.
(Ord. No. 2009-78(09-O-1876), § 1, 12-15-09)

Secs. 2-1114—2-1137. Reserved.

DIVISION 2. CHIEF PROCUREMENT OFFICER

Sec. 2-1138. Centralization of procurement authority.

1. Chief procurement officer. Except as pro- vided in this article, the chief procurement officer shall have the authority to solicit and enter into contracts for the procurement of supplies, ser- vices, construction, professional or consultant ser- vices and real estate for all using agencies of the city.
2. Purchasing staff. Under the authority of the chief procurement officer, the purchasing staff shall execute responsibilities at all bid openings which shall include coordination of clock calibra- tion with the National Bureau of Standards, shall stamp all bids received and shall have any subse- quent responsibilities as specified prior to and after all bid openings.
3. Other city officers or employees. Except as provided in this article, no city officer or employee shall order the procurement of supplies, services, construction, professional or consultant services and real estate or make any contract other than through the department of procurement.
4. Delegation of authority. The chief procure- ment officer shall designate a deputy chief pro- curement officer to execute contracts on behalf of the chief procurement officer once the chief pro- curement officer has reviewed and approved said contracts. The chief procurement officer shall assume ultimate responsibility to solicit and en- ter into contracts for the procurement of supplies, services, construction, professional or consultant services and real estate for all using agencies of the city.
5. Controls and procedures. The chief procure- ment officer shall establish written procedures for the execution of contracts for the procurement of supplies, services, construction, professional or consultant services and real estate for all using agencies of the city. Such procedures shall include explicit delegation of authority to only the speci- fied deputy chief procurement officer to sign con- tracts to the extent the chief procurement officer has authority to sign said contracts. The chief procurement officer shall inform the municipal clerk and the mayor's office in writing of the name of the individual he designates to sign on his behalf. No person is authorized to enter into any contract on behalf of the city except as provided under the terms of this article and the written procedures. Authority granted to the deputy chief procurement officer is effective until rescinded or until termination of the person's employment by the city. The chief procurement officer shall be responsible for all transactions undertaken and shall establish a system of controls, to be re- viewed by the city attorney, to regulate the activities of the subordinate official. Both the chief procurement officer and the deputy chief procure- ment officer shall possess sufficientworking knowl- edge and shall possess a master's degree in busi- ness administration, public administration or marketing; five years prior experience as a deputy chief procurement officer or equivalent title in a contracting or procurement system of comparable size and scope. The requirement of a master's degree may be substituted by a bachelor's degree in the same field(s), plus ten year's managerial experience in public or corporate purchasing op- erations, marketing, or contract administration, economics and securities markets, as well as the supervisory experience and judgment necessary to carry out the responsibilities outlined in this policy.

(Ord. No. 2009-78(09-O-1876), § 2, 12-15-09)

Sec. 2-1139. Using agency requirements.

1. Relationship with using agencies and other city agencies and departments. The chief procure- ment officer shall maintain a close and coopera- tive relationship with the using agencies. The chief procurement officer shall afford each using agency reasonable opportunity to participate in and make recommendations with respect to pro- curement and real estate matters affecting the using agency. Notwithstanding any other provi- sion in this chapter, when in consultation with the using agency with respect to a procurement or real estate matter, the chief procurement officer, in cooperation with the head of the using agency, shall consult and seek technical assistance, spe- cialized knowledge and expertise from appropri- ate subject matter professionals or persons within the affected using agency and, if the knowledge and expertise required are not available within the using agency, then the chief procurement officer shall consult and seek technical assistance, specialized knowledge and expertise from profes- sionals or persons in other appropriate agencies and departments of the city. Such assistance may include, among other things, reviewing bids, eval- uating or scoring proposals, making recommenda- tions concerning bids and proposals, and partici- pating during interviews, discussions and negotiations in connection with requests for pro- posals. The chief procurement officer, to the extent practicable, shall use every effort to reach an agreement with the using agency with respect to procurement or real estate matters affecting that agency.
2. Requisitions. All using agencies, with the authorization of the head of the department un- der which the using agency operates, shall file with the chief procurement officer detailed requi- sitions or estimates of the department require- ments of supplies, services, construction, profes- sional or consultant services and real property in such manner and at such times and for future periods as the chief procurement officer shall prescribe in writing and as follows:
   1. Unforeseen requirements. A using agency may file with the chief procurement of- ficer at any time a requisition or estimate for any supplies, services, construction, professional or consultant services or real property, the need for which was not fore- seen or anticipated when the estimates were filed under this subsection; and
   2. Revisory power of chief procurement officer. The chief procurement officer shall examine each requisition or estimate and shall have the authority to revise it as to quantity, quality or estimated cost, pro- vided that the needs of the using agency are met and revisions as to quality and quantity shall be made in accordance with standards and specifications established pursuant to this article.
3. Estimates. All using agencies shall file with the chief procurement officer, within 30 days after the adoption of the annual budget and quarterly thereafter, estimates of their needs for the pro- curement of services, supplies, construction, pro- fessional or consultant services and real property for the ensuing fiscal year or calendar quarter.
   
   The chief procurement officer shall utilize such estimates for the scheduling of work activities and of procurements to be made by the depart- ment of procurement. The chief procurement of- ficer shall compile and consolidate all estimates of supplies needed by using agencies to determine total requirements of a given commodity.
4. List of authorized signatures. Every head of a using agency shall provide the chief procure- ment officer annually with a list of signatures of persons in the using agency who are authorized to sign requisitions on behalf of the using agency.
5. Examination of contracts. The chief procure- ment officer and the head of the using agency shall examine all contracts to determine the ac- curacy of the substance and the inclusion of required bonds and certificates of insurance.
6. Receiving reports. The head of the using agency shall deliver receiving reports to the chief financial officer and to the chief procurement officer upon receipt of supplies procured under city contracts.
7. Buy and pay entities. The chief procure- ment officer, in cooperation with each using agency, and the chief financial officer, shall establish buy and pay entities for appropriate designation in all procurement and real property transactions, con- tracts issued by the city pursuant to agreements adhering to special grantor agreements, and city contracts of whatever kind and nature, regardless of what they may be called.

(Ord. No. 2009-78(09-O-1876), § 2, 12-15-09)

Sec. 2-1140. Signing contracts on behalf of mayor.

   Except as otherwise provided in this article, the chief procurement officer shall have the au- thority to sign contracts on behalf of the mayor, pursuant to section 6-401 of the Charter, in the following circumstances:

1. For the purchase of supplies of every type and description and contracts which take the form of purchase orders where the city council has authorized the purchase in the normal course of the budget process, without further authorization by the city council; or
2. For services, construction, professional and consultant services, grant agreements and intergovernmental agreements, when a duly enacted appropriation is passed by the city council which authorizes the ex- penditure of moneys for such purpose and the purchase amount does not exceed $100,000.00 individually or in the aggre- gate. Except in the case of grant agree- ments or intergovernmental agreements the limitation of $100,000.00 applies to all individual contracts of the firm and all contracts to the individual principals of the contracting firm associated with a specific project. In computing whether any contract shall exceed $100,000.00, the chief procurement officer shall include all indi- vidual contracts to a firm and any con- tracts to the principals of the contracting firm. These contracts in total shall not exceed $100,000.00.

(Ord. No. 2009-78(09-O-1876), § 2, 12-15-09)

Sec. 2-1141. Appointment of procurement advisory groups.

   The chief procurement officer may appoint pro- curement advisory groups to assist the chief pro- curement officer with respect to specifications or procurement in specific areas and with respect to any other matters within the authority of the chief procurement officer.
(Ord. No. 2009-78(09-O-1876), § 2, 12-15-09)

Sec. 2-1142. Periodic reporting to city council.

1. The chief procurement officer shall submit to the council, and to the municipal clerk, before the 15th of each month, a report listing for the previous month the following information:
   1. The titles of all requests for proposals and the method of source selections to be used;
   2. All contracts authorized by the council, the method of source selection used and the total dollar amount;
   3. All contracts authorized by the chief pro- curement officer pursuant to subsection 2-1140(2), the method of source selection, as well as all emergency procurements pursuant to section 2-1192.
   4. All change orders of contract modifica- tions authorized by the council, the dollar amount, and the reason;
   5. All change orders or contract modifica- tions authorized by the chief procurement officer pursuant to subsection 2-1292(a)(1), the dollar amount, and the reason;
   6. An explanation of any changes, and the costs involved, in the scope of services made between the time an award recom- mendation for a contract is made and the time that a resolution authorizing the contract is sent to the council for adop- tion.
2. Each department shall submit to the com- mittees of purview, at the beginning of each quarter, a report listing for the previous quarter:
   1. The status of construction contracts au- thorized by the council with a contract price of tenmillion dollars ($10,000,000.00) or more. The status report shall include a list of project milestones for each such contract, and shall indicate whether the contractors are meeting project mile- stones. For those contracts which are not achieving project milestones, the report shall include the reason for the delay and the actions to be taken to resolve the delay.

(Ord. No. 2009-78(09-O-1876), § 2, 12-15-09)

Secs. 2-1143—2-1160. Reserved.

DIVISION 3. APPEALS AND REMEDIES

Sec. 2-1161. Authority to resolve protested solicitations and awards.

1. Right to protest. Any actual offeror that has submitted a bid/proposal for a particular procurement and is aggrieved in connection with the solicitation or award of the contract shall protest in writing to the chief procurement officer after the date that the specific bid or proposal is submitted. No protest will be accepted or considered prior to the date the specific bid or proposal is submitted; it will be considered untimely. All protests shall set forth in full detail the factual and legal bases for the protest and specific relief sought by the protestor. Protests arising from factual or legal bases that the protestor knew or should have known prior to the submission of the bid/proposal must be submitted within three days of the submission of the bid/proposal. Protests arising from factual or legal bases that the protestor knew or should have known subsequent to the date the bid/proposal was submitted must be submitted within ten days after the protestor knew or should have known of such bases, but in no event shall any protest be submitted more than ten days after the award of the contract. Untimely protests will not be considered by the chief procurement officer and will be simply denied as untimely.
2. Posting of protest security. Any actual offeror submitting a written bid/proposal that files a protest must, at the time of filing, post security in the amount of one percent of the financial offer of the protestor or, in the event the bid/proposal does not involve a fixed financial offer either in the form of payment of monies to the city or payment of monies to the offeror, $100,000, to be tendered in the form of a bond or certified check.
3. Application of protest security. If the chief procurement officer denies the protest, he/she shall assess against the protestor reasonable attorneys' fees and other administrative costs incurred by the city in reviewing and responding to the protest. If the city is represented by its law department, such fees and costs will be calculated at the hourly rate of each attorney participating in the review and response to the protest set forth in each attorney's most recent city paycheck times the number of hours worked by such participating attorneys on the protest, or if Georgia Law permits a greater hourly rate, such greater rate, plus all out of pocket costs of the city concerning the protest. If the city is represented by outside counsel, such fees and costs will be calculated at the billing rates of the firm's attorneys participat- ing in the review and response to the protest, times the number of hours worked by such participating attorneys, plus all out of pocket costs of the firm concerning the protest. Within 15 days of denying the protest, the chief procurement officer, in consultation with the city's law department and outside counsel, if any, will calculate the city's cost in reviewing and responding to the protest and will apply the protester's bond or certified check to such costs. Any remaining balance of the bond or certified check will be returned to the protestor; provided, however, if the protester files an appeal of the city's denial of its protest pursu- ant to code section 2-1166, such certified check or bond will continue to be retained by the city to cover the costs of the city associated with such appeal.
4. Decision on protest. If a protest is timely filed, the chief procurement officer shall inform the protestor of the decision in writing within ten days or, if the chief procurement officer requires more than ten days to render a decision, will advise the protestor within the initial ten days of the additional amount of time required to render a decision on the protest.
5. Finality of decision. A decision under sub-section (d) of this section is final and conclusive, unless fraudulent or the protestor, having the right to file under this division, files an administrative appeal with the procurement appeals hearing officer in accordance with this division.

(Ord. No. 2009-78(09-O-1876), § 3, 12-15-09)

Sec. 2-1162. Debarment or suspension from consideration for contract award.

1. Authority to debar or suspend. The chief procurement officer, after consulting with the city attorney, is authorized to debar a person for cause from participation in any city procurements at any tier and consideration for award of contracts. The debarment shall be for a period of not more than five years. The period of time during which the debarment will be imposed is to be determined by the chief procurement officer based upon the severity of the causes for debarment. After consultation with the using agency and city attorney, the chief procurement officer is authorized to suspend a person from participation in any city procurement at any tier and consideration for award of contracts if there is probable cause for debarment. The suspension shall not be for a period exceeding the greater of: (1) three months; (2) the period during which administrative review of the suspension is pending; or (3) the period during which judicial review of an administrative decision that was adverse to the suspended firm is pending.
2. Causes for debarment or suspension. The causes for debarment or suspension include:
   1. 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.
   2. Conviction under state and 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.
   3. Conviction under state or federal anti-trust statutes arising out of the solicitation and submission of bids or proposals.
   4. Violation of contract provisions, as set forth below, of a character which is re- garded by the chief procurement officer to be so serious as to justify debarment ac- tion:
      1. Deliberate failure to perform in accordancewith the provisions orwithin the time limit provided in any city contract.
      2. 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 contractor shall not be considered to be a basis for debarment. In the event that the contractor asserts in a city suspension or debarment proceeding that such recent failure to perform or unsatisfactory performance in accordance with the terms of one or more contracts was caused by acts beyond the control of the contractor, the contractor must introduce documentation from the applicable contract/project in which it provided notice of such acts beyond its control and/or invoked its rights to equitable adjustment or other similar remedies under the applicable contract as a result of forcemajeure or other similar events; provided, however, that the city's determination on such issue will be independent fromthe contract/project at issue. It is insufficient in a city debarment proceeding for the con- tractor to raise this issue for the first time concerning a prior contract under which it failed to perform or performed unsatisfactorily.
   5. Violation of the ethical standards set forth in division 13 of this article.
   6. Submission to the city of a claim for additional compensation that is without merit, including, but not limited to claims seeking to recoup:
      1. Costs incurred by the contractor but not included in its bid or proposal due to its own error;
      2. Costs that it has already been paid or will be paid under the contract;
      3. Costs asserted simply for the purpose of forcing the city to consider a settlement at a reduced amount;
      4. Costs that the contractor has not certified pursuant to the contract documents; and
      5. Costs that the contractor would not be entitled to recover under the contract documents, including, but not limited to attorneys fees and interest on unpaid sums.
   7. Knowing misrepresentation to the city of the use which a majority-owned contractor intends to make of a minority and female business enterprise (a business entity at least 51 percent of which is owned and controlled by one or more African Americans, Asian Pacific Americans, Hispanic Americans, or females, or a combination thereof, as defined in section 2-1443 and certified as such by the city), as a subcontractor, member of a mentor-protégé relationship, or a joint venture partner, in performing work un- der a contract with the city.
   8. Material misrepresentation of the composition of the ownership or work force of a business entity certified to the city as a minority and female business enterprise.
   9. Any other cause the chief procurement officer, in consultation with the using agency and city attorney, determines to be so serious and compelling as to affect responsibility, including, but not limited to, debarment by another governmental entity.
3. Notice. The chief procurement officer shall issue a written notice of the decision to debar or suspend. The notice shall state the reasons for the action taken and the effective date of the debarment or suspension and shall inform the debarred or suspended person involved of the right to administrative review as provided in this division.
4. Finality of decision. A decision under subsection (c) of this section is final and conclusive, unless fraudulent or any person adversely affected by the decision appeals administratively to the procurement appeals hearing officer in accordance with this division.
5. City council initiated debarment. The city's council, by enactment of an appropriate resolution, may request that the chief procurement officer initiate an investigation into whether a particular person should be debarred and/or suspended and, after consulting with the city attorney, the chief procurement officer is authorized to debar or suspend such person for cause from participation in any city procurements at any tier and consideration for award of contracts.

(Ord. No. 2009-78(09-O-1876), § 3, 12-15-09)

Sec. 2-1163. Solicitations or awards in violation of law.

1. Applicability. This section applies where it is determined by administrative review that a solicitation or award of a contract is in violation of applicable law. For purposes of this section administrative review shall refer to a review by the chief procurement officer, in consultation with the city attorney, or a review by an appropriate procurement or office of contract compliance hearing officer. A determination by the chief procurement officer may be made independently and as a result of the chief procurement officer receiving a decision from an appeals officer that a solicitation or award of a contract is in violation of applicable law.
2. Remedies prior to award. If, prior to award, the chief procurement officer, after consultation with the city attorney, determines that a solicitation or proposed award of a contract is in violation of law, the solicitation or proposed award shall be canceled or revised to comply with the law.
3. Remedies after award. If, after an award, the chief procurement officer, after consultation with the city attorney, determines that a solicitation or award of a contract is in violation of applicable law, then:
   1. If the person awarded the contract has not acted fraudulently or in bad faith:
   1. The contract may be ratified and affirmed, provided it is determined that doing so is in the best interest of the city; or
   2. If services or work have not commenced under the contract, it may be terminated and the person awarded the contract shall be compensated for the actual expenses rea- sonably incurred in preparing to perform and in terminating its performance under the contract, plus a reasonable profit, prior to the termination; or
   3. If services or work have commenced under the contract, it may be terminated and the person awarded the contract shall be compensated for the actual expenses reasonably incurred in preparing to perform and in terminating its performance under the contract, plus a reasonable profit, prior to the termination, less any amount previously paid to it under the contract.
4. If the person awarded the contract has acted fraudulently or in bad faith:
   1. The contract may be declared null and void; or
   2. The contract may be ratified and affirmed if such action is in the best interests of the city, without prejudice to the city's right to such damages as may be appropriate.

(Ord. No. 2009-78(09-O-1876), § 3, 12-15-09)

Sec. 2-1164. Procurement appeals hearing officers.

1. Appointment, qualifications and term. The Mayor shall appoint three procurement appeals hearing officers who shall be confirmed by the city council and who shall serve on an alternating basis. The officers shall possess the educational background and public or private employment experience to examine facts and apply legal principles, including, but not limited to experience with evidentiary and civil procedure issues, to controversies regarding the following subjects: procurement and disposal of goods and services, construction, professional and consultant services and information technology. No city employee or official shall be appointed who is a contractor or subcontractor or who owns any interest in any contracting or subcontracting firm or who does business with the city as a contractor. The officer shall serve a two-year term and shall not be eligible to serve more than two consecutive terms.
2. Duties and compensation. Each officer shall hold hearings upon appeal by any contractor, and the hearings shall be held in any municipal build- ing and shall be open to the public. Each officer shall be paid the sum of $300.00 per day or for any portion of the day that the officer serves. Admin- istrative services, as may be required by the officers, shall be furnished by city departments and agencies.

(Ord. No. 2009-78(09-O-1876), § 3, 12-15-09)

Sec. 2-1165. Authority of procurement appeals hearing officers.

   Unless the matter is within the authority of the contract compliance hearing officer pursuant to section 2-1384, the procurement appeals hearing officers shall have the authority to review and determine any appeal by an aggrieved party from a determination by the chief procurement officer that is authorized in sections 2-1161 and 2-1162.
(Ord. No. 2009-78(09-O-1876), § 3, 12-15-09)

Sec. 2-1166. Appeals.

1. Time for filing notice of appeal. For an appeal before a procurement appeals hearing officer under section 2-1165, the aggrieved person shall file a notice of appeal with the chief procure- ment officer with a copy to the head of the applicable using agency and city attorney within seven days of receipt of the notice of an adverse action by the chief procurement officer concerning the person's protest.
2. Notice of hearing date; hearing. Upon re- ceipt of the notice of appeal from the aggrieved party by the chief procurement officer, the chief procurement officer shall forward the notice to a procurement appeals hearing officer within three days of receipt of the notice. The duties of the procurement appeals hearing officer shall be as follows:
   1. The procurement appeals hearing officer shall set a hearing date not more than seven days from the date of receipt of the notice from the chief procurement officer. The officer shall cause notice of the hear- ing date, time and location to be served upon all parties, by registered mail.
   2. At the hearing, all parties shall be pro- vided a fair and impartial hearing and shall be allowed to produce any and all admissible evidence in either party's pos- session concerning the appeal.
3. Decision. The procurement appeals hearing officer shall, within seven days of the hearing, make a written decision on the appeal, which decision shall affirm or deny the decision by the chief procurement officer. The officer shall decide whether:
   1. The solicitation or award being appealed was in accordance with applicable law and the terms and conditions of the solic- itation; or
   2. The debarment or suspension being appealed was in accordance with applicable law and in the best interest of the city and was fair.
4. Notice of decision. The procurement ap- peals hearing officer shall issue written notice of the decision on the appeal to all parties within seven days of the hearing. The notice of the decision shall be sent to all parties by registered mail and shall set forth the reasons for the decision.
5. Standard of review for factual issues. A determination of an issue of fact by the procurement appeals hearing officer shall be final and conclusive, unless arbitrary, capricious, fraudulent or clearly erroneous.
6. Discontinuance of appeal. After a notice of appeal to the chief procurement officer has been filed, a protestor may not discontinue such appeal without prejudice, except as authorized by a pro- curement appeals hearing officer.
7. Recovery of costs by the city. If at the procurement appeals hearing, the city prevails, the procurement appeals hearing officer shall assess against the protestor reasonable attorneys' fees and costs incurred by the city in preparing for and attending the hearing. If the city is represented by its law department, for each attorney participating in the appeal, such fees and costs will be calculated at the hourly rate of pay as set forth in each attorney's most recent city paycheck multiplied by the number of hours worked by such participating attorneys on the appeal, plus all out of pocket costs of the city concerning the appeal, such as copying costs, transcription fees, litigation services fees, etc. If the city is represented by outside counsel at the hearing, such fees and costs will be calculated at the billing rates of the firm's attorneys participating in the appeal, times the number of hours worked by such participating attorneys, plus all out of pocket costs of the firm concerning the appeal. If the protestor appeals the decision of the procurement appeals hearing officer to the superior court, the city shall continue to hold the bond or certified check of the protester pending the results of the appeal to superior court. If the protester is unsuccessful in the superior court, the city shall deduct from the bond or certified check all of its costs associated with its review and response to the protest, its preparation for and attendance at the procurement appeals hearing and its response to, preparation for and attendance at any hearing held in superior court concerning protest and subsequent appeals. The city's costs in responding to, preparing for and attending any hearing in the superior court will be calculated in the same manner as its costs in preparing for and attending a procurement appeals hearing.

(Ord. No. 2009-78(09-O-1876), § 3, 12-15-09)

Secs. 2-1167—2-1186. Reserved.

DIVISION 4. SOURCE SELECTION AND CONTRACT FORMATION

Sec. 2-1187. Methods of source selection.

   Unless otherwise authorized by law, all city contracts, except for the purchase, sale and dis- position of real estate, shall be awarded by com- petitive sealed bidding, pursuant to section 2-1188, except as provided in the following:

1. Section 2-1189 (competitive sealed proposals);
2. Section 2-1190 (small purchases);
3. Section 2-1191 (sole source procurement);
4. Section 2-1191.1 (special procurement);
5. Section 2-1192 (emergency procurement);
6. Section 2-1193 (competitive selection procedures for professional and consultant services); or
7. Section 2-1332 (disposition of surplus supplies).

(Ord. No. 2009-78(09-O-1876), § 4, 12-15-09)

Sec. 2-1188. Competitive sealed bidding.

1. Conditions for use. Contracts or purchase orders under this article shall be awarded by competitive sealed bidding, except as otherwise provided in sections 2-1187 and divisions 15 and 17 of this article.
2. Invitations for bids. An invitation for bids shall be issued and shall include a purchase description and all contractual terms and condi- tions applicable to the procurement. Notice of all such invitations for bids shall be forwarded to all members of the finance/executive committee.
3. Public notice.
   1. General notice. An advertisement inviting bids shall be posted conspicuously at the department of procurement and advertised on an Internet website of the City of Atlanta, or a website designated by the City of Atlanta for such purpose and clearly indicated for that purpose. In addition, the department of procurement may elect to place an advertisement inviting bids in a newspaper of general circulation and in any other medium permitted under this article. The advertisement shall be posted for 14 consecutive days preceding the date set for receipt of bids. Notice of bid security, if required, shall be included in the public notice. The public notice shall contain a general description of the supplies, services, construction or professional and consultant services to be procured and shall state the location of where appropriate solicitation documents may be obtained and the time and place of opening the documents.
   2. Additional notice in unusual or special circumstances.
      1. Notice in trade or industry publications. When required supplies, services or construction are, in the determination of the chief procurement officer in consultation with the using agency, either unusual in nature or highly specialized, the chief procurement officer shall cause an advertisement to be placed in at least one trade journal or such other specialized industry publication of circulation in the city, whichever is appropriate and most likely to bring responses from qualified and available offerors. The advertisement shall be published once and at least 14 days preceding the date set for re- ceipt of bids. The provisions of this paragraph concerning unusual or spe- cial circumstances shall be used in addition to, and not in lieu of, the provisions in subsection (c)(1) of this section.
      2. Assistance of using agency. The chief procurement officer may rely upon the subject matter expertise and the assistance of personnel of the using agency who shall, prior to competitive solicitation,make a prompt writ- ten determination of the appropriate trade journal or specialized industry publication where the advertisement is to be placed. The written determination by the using agency shall be made sufficiently in advance such that notice and advertisement can be timely placed by the chief procurement officer in the next available issue of a journal or industry publication, which will be published at least 14 days preceding the date set for receipt of bids. The using agency shall provide the necessary funds from its budget for the costs and expenses associated with advertise- ment in trade journals or such other industry publications.
      3. Contents of notice. Notice of bid security, if required, shall be included in the public notice for the trade journal or such other industry publication. The public notice shall contain a general description of the supplies, services or construction to be procured and shall state the date and location where solicitation documents may be obtained, and the time and place of opening of the bids.
4. Receipt of competitive sealed bids. All bids must be delivered to and received by the chief procurement officer or designated department of procurement staff at the bid opening and stamped no later than 1:59 p.m. Eastern Time.
5. Clock calibration. Prior to all bid openings, the chief procurement officer or designated de- partment of procurement staff shall coordinate the clock calibration used in the bid process with the National Bureau of Standards.
6. Bid opening. Bids shall be opened publicly in the presence of one or more witnesses at the time and place designated in the invitation for bids. The name of each offeror, the amount of each bid and such other relevant information as the chief procurement officer deems appropriate shall be recorded.
7. Bid acceptance. Bids shall be received by the chief procurement officer or designated de- partment of procurement staff without alteration or correction, except as authorized in this article, provided that the bids are delivered to the chief procurement officer at the time, place and under the conditions contained in the invitation for bids.
8. Bid evaluation. Bids shall be evaluated based on the requirements set forth in the invita- tion for bids and the City's Code of Ordinances. Those criteria, including but not limited to dis- counts, transportation costs and total or life-cycle costs, that will affect the bid and price and be considered in the evaluation for the award shall be objectively measurable. The invitation for bids shall set forth the evaluation criteria to be used.
9. Correction or withdrawal of bids.
   1. Before bid opening. Correction or with- drawal of bids may be allowed by the chief procurement officer before the scheduled time and date of bid opening. The offeror may withdraw the bid, without revealing the amount of the bid, by submitting a new sealed bid or providing written notice of withdrawal before bid opening. Notice of withdrawal shall be received by the chief procurement officer prior to bid open- ing.
   2. After bid opening. After bid opening, cor- rections in bids shall be permitted only to the extent that the offeror can show by clear and convincing evidence that a mis- take of a nonjudgmental character was made, the nature of the mistake, and the bid price actually intended. After bid opening, no changes in bid prices or other provisions of bids prejudicial to the inter- ests of the city or fair competition shall be permitted.
   3. The chief procurement officer may also exercise all rights a bidder may have to correct its bid provided in this Code sec- tion and may communicate with any bid- der concerning the correction or with- drawal of its bid.
   4. Withdrawal. In lieu of bid correction, a low bidder alleging a material mistake of fact may be permitted to withdraw its bid if:
      1. The mistake is clearly evident on the face of the bid document, but the intended correct bid is not similarly evident; or
      2. The bidder submits evidence that clearly and convincingly demonstrates that a mistake was made.
   All decisions to permit the correction or with- drawal of bids shall be supported by a written determination made by the chief procurement officer.
10. Tie bids. If two or more offerors are tied in price while otherwise meeting all of the required conditions, the contract shall be awarded to an offeror whose principal place of business is within the city or, if not within the city, within the metropolitan Atlanta area or, if not within the city or metropolitan area, within the state. Where no offeror is located within the state, the chief pro- curement officer shall award the contract to the offeror whose principal place of business is the closest to the city.
11. Award. The contract shall be awarded with reasonable promptness by written notice to the most responsible and responsive offeror whose bid meets the requirements and criteria set forth in the invitation for bids. In determining the most responsible and responsive offeror, the chief pro- curement officer, in consultation with the using agency, shall consider the following:
    1. The ability, capacity and skill of the of- feror to perform the contract and provide the services/supplies required;
    2. The capability of the offeror to perform the contract and provide the services/ supplies promptly or within the time spec- ified without delay or interference;
    3. The character, integrity, reputation, judg- ment, experience and efficiency of the offeror;
    4. The quality of performance of the offeror of previous contracts and provision of ser- vices/supplies;
    5. The previous and existing compliance by the offeror with laws and ordinances re- lating to the contract and provision of services/supplies;
    6. The sufficiency of the financial resources and ability of the offeror to perform the contract and provide the services/sup- plies;
    7. The compliance of the offeror with the requirements of an equal employment op- portunity in contracting program as may be required by ordinance;
    8. When applicable, the compliance of the offeror with the requirements of a minor- ity and female business enterprise partic- ipation program as may be required by ordinance;
    9. The compliance of the offeror with the requirements of a local preference pro- gram as may be required by ordinance;
    10. The quality, availability and adaptability of the supplies or services to the particu- lar use required; and
    11. The price. If all bids exceed available funds as certified by the chief financial officer and the most responsible and re- sponsive bid does not exceed such funds by more than five percent, the chief pro- curement officer is authorized, when time or economic considerations preclude resolicitation of a reduced scope, to nego- tiate an adjustment of the bid price, in- cluding changes in the bid requirements, with the most responsible and responsive offeror in order to bring the bid within the amount of available funds.
12. Multi-step sealed bidding. When it is con- sidered impractical to initially prepare a pur- chase description to support an award based on price, an invitation for bidsmay be issued request- ing the submission of unpriced offers to be fol- lowed by an invitation for bids limited to those offerors whose offers have been qualified under the criteria set forth in the first solicitation.
13. Substitution, replacement by uncertified minority business enterprise or female business enterprise prohibited. An offeror may not substi- tute for or replace any minority business enter- prise (MBE) or female business enterprise (FBE), as those terms are defined in section 2-1443, when that MBE or FBE has been designated in writing by the offeror as a subcontractor for the contract on which the offeror has submitted a bid, if the MBE or FBE submitted as a part of the bid is not a certified, legitimate MBE or FBE, as determined by the office of contract compliance. If the office of contract compliance determines that the MBE or FBE is not legitimate or certified, the bid of the contractor who submitted the bid shall be rejected.
14. The office of contract compliance shall eval- uate each such bid as to the offeror's compliance with subsections (k)(7) and (8) of this section and shall notify the chief procurement officer, in writ- ing, whether the bid is responsive or nonrespon- sive.

(Ord. No. 2009-78(09-O-1876), § 4, 12-15-09)

Sec. 2-1188.1. Local preference.

1. Applicability. This local preference pro- gram shall only apply to any city contract (re- ferred to hereinafter as "Eligible local projects") procured under section 2-1188 competitive sealed bidding. It does not apply to procurements utiliz- ing competitive sealed proposals under section 2-1189, small purchases under section 2-1190, sole source procurement under section 2-1191, emergency procurement under section 2-1192, competitive selection procedures for professional and consultant services under section 2-1193 and federally-funded projects.
2. Statement of policy. The city has a signifi- cant interest in encouraging the creation of em- ployment opportunities for its residents and for businesses located within the city. As a purchaser of goods and services, the city will benefit from expanded job and business opportunities for its residents and businesses through additional rev- enues generated by its activities. It is in the interest of the city and its residents to give preference on eligible local projects to those eligi- ble offerors who have direct physical and eco- nomic relationships with the city.
3. Certification as a local offeror. In order to be certified as a local offeror, an eligible offeror must submit a completed application to the department of procurement, and the applicant must be ap- proved and certified by the department of procure- ment. An eligible offeror must submit a completed and signed written application to become a local offeror before it will be allowed to receive a bid preference on an eligible local project. In order to be approved as a local offeror and receive a bid preference on an eligible local project, the appli- cation for approval as a local offeror and all supporting documents must be received by the department of procurement at least 30 days prior to the date bids are received on such eligible local project. An eligible offeror who fails to submit an application for approval as a local offeror at least 30 days prior to the date bids are received on an eligible local project, and who otherwise meets the requirements for approval as a local offeror, will not be qualified for a bid preference on such eligible local project.
4. Criteria. To be certified as a local offeror, the eligible offeror must satisfy no less than two of the following criteria:
   1. The eligible offeror's principal place of business is located in the city or that the eligible offeror has held a valid city busi- ness license for at least one year prior to the date of application.
   2. A majority of the full time employees, chief officers, and managers of the eligible offeror have regularly conducted work and business in the city for at least one year prior to the date of application.
   3. A majority of the employees based at the eligible offeror's location(s) in the city have been residents of the city for at least one year prior to the date of application.
   4. The services the eligible offeror offers to the city have been provided by the eligible offeror in the city for at least one year prior to the date of application.
   If the applicant is a joint venture or mentor- protégé team, each participant in the joint ven- ture or mentor-protégé team must be approved independently as a local offeror in order for the joint venture or mentor-protégé team to receive the bid preference on eligible local projects.
5. Term. The certification as a local offeror shall expire two years from the date of the ap- proval of the application. Following the expiration date, a business is no longer a local offeror. An eligible offeror must submit a new application for certification as a local offeror to the department of procurement and establish that it continues to meet the requirements contained in paragraph (d) of this section in order to receive a bid prefer- ence on eligible local projects.
6. Determining responsiveness of non-local offerors. The geographic location of an eligible offeror shall be one of the factors considered by the department of procurement in determining whether a bid on an eligible local project is responsive. A bid submitted by a non-local offeror shall be deemed non-responsive on the basis that the eligible offeror is a non-local offeror, unless:
   1. For eligible local projects valued at less than $500,000.00, the amount of the bid submitted by the non-local offeror is ten percent lower than the lowest responsible and responsive bid submitted by a local offeror;
   2. For eligible local projects valued at $500,000.00 or more, the amount of the bid submitted by the non-local offeror is five percent lower than the lowest responsible and responsive bid submitted by a local offeror;
   3. The bid submitted by the non-local offeror would be responsible and responsive but for the fact that the eligible offeror is a non-local offeror; and
   4. The amount of the bid submitted by the non-local offeror is lowest among bids submitted by other non-local offerors that would be responsible and responsive but for the fact that such other eligible of- ferors are non-local offerors.
7. Continuing obligations of eligible offerors certified as local offerors. Eligible offerors certified as local offerors shall be under a continuing duty to immediately inform the department of procurement in writing of any changes in the eligible offeror's business if, as a result of such; changes, the eligible offeror no longer satisfies the requirements of paragraph (d) of this section.

(Ord. No. 2009-78(09-O-1876), § 4, 12-15-09)

Sec. 2-1189. Competitive sealed proposals.

1. Conditions for use. Under this article, when the chief procurement officer determines that the use of competitive sealed bidding is either not practicable or not advantageous to the city, a contract may be procured by the use of the com- petitive sealed proposals method.
2. Request for proposals. Proposals shall be solicited through a request for proposals. Notice of all such requests for proposals shall be for- warded to all members of the finance/executive committee.
3. Public notice. When requested by the using agency, the chief procurement officer shall issue public notice for request for proposals from of- ferors as provided in subsection 2-1188(c).
4. Selection. The chief procurement officer, in consultation with and upon recommendation of the head of the using agency, shall select from among the offerors no less than three offerors deemed to be the most responsible and respon- sive; provided, however, that if three or less offerors respond to the solicitation, this require- ment will not apply. The selection shall be made in order of preference. From the date proposals are received by the chief procurement officer through the date the contract is awarded, no offeror may make substitutions, deletions, addi- tions or other changes in the configuration or structure of the offeror's teams or members of offerors' teams. The selection criteria shall in- clude, but not be limited to, those contained in subsection 2-1188(k) and the following:
   1. Previous experience demonstrating com- petence to perform the services involved in the solicitation;
   2. Past performance of previous contracts with respect to time of completion and quality of services;
   3. The fee or compensation demanded for the services;
   4. The ability to comply with applicable laws;
   5. The ability to comply with the schedule for the performance of the services, as required by the city;
   6. The financial ability to furnish the necessary bonds;
   7. The financial condition of the offeror;
   8. The ability to provide staffing of manage- ment personnel, satisfactory to the city; and
   9. The offeror's compliance with the require- ments of equal employment opportunity (EEO) and, where applicable, equal busi- ness opportunity (EBO) programs, as may be required by ordinance.
   The office of contract compliance shall evaluate each proposal as to the offeror's compliance with the requirements of equal employment opportu- nity (EEO) and, where applicable, equal business opportunity (EBO) programs, as may be required by ordinance. The office of contract compliance shall evaluate each proponent's conformance to the city's EEO-ordinance and the city's EBO or- dinance according to relative weights assigned by the chief procurement officer. The combinedweights may not exceed 15 percent of the total evaluation points.
   
   When applicable, each request for proposal shall state with specificity the method by which EEO and EBO compliance is weighted to arrive at numerical evaluation points. Proposals that are noncompliant with the city's EEO or EBO require- ments shall be deemed nonresponsive without further evaluation of any other solicitation eval- uation factors.
5. Evaluation factors. The request for propos- als shall state the relative importance of evalua- tion factors.
6. Discussion with responsible offerors and revisions to proposals. Discussions may be conducted with responsible and responsive offerors who submit proposals determined to be reasonably susceptible of being selected for award for any purpose in the best interests of the city, including the purpose of clarification to ensure full understanding of and responsiveness to the solicitation requirements. Offerors shall be accorded fair and equal treatment with respect to any opportunity for discussion and revision of proposals, and such revisions may be permitted after submissions and prior to award for the purpose of obtaining the best and final offers. In conducting discussions, there shall be no disclosure of information derived from proposals submitted by competing offerors.
7. Award. Award shall be made to the most responsible and responsive offeror whose pro- posal is determined in writing to be the most advantageous to the city, taking into consider- ation the evaluation factors set forth in the re- quest for proposals, this section and in section 2-1188(k).

(Ord. No. 2009-78(09-O-1876), § 4, 12-15-09)

Sec. 2-1190. Small purchases.

1. General procedures. Any contract or pur- chase order for supplies, services and construc- tion not exceeding $20,000.00 may be made in accordancewith small purchase procedures adopted by the chief procurement officer in accordance with this article, provided that procurement re- quirements shall not be artificially divided so as to constitute a small purchase under this section. Insofar as it is practicable, no less than three businesses shall be solicited to submit quotations. Award shall be made to the business offering the lowest responsive quotation. The name of the business submitting a quotation and the date and amount of each quotation shall be recorded and maintained as a public record.
2. Authority of using agency. Heads of all city departments may, in their discretion, make small purchases without the assistance of the chief procurement officer under the following circum- stances:
   1. Where the purchase does not exceed $50.00 and is paid out of the petty cash fund allocated to the department under a duly enacted appropriation; and
   2. Where the purchase does not exceed $20,000.00 and is paid for by a miscella- neous requisition directing the chief finan- cial officer to make payment from funds previously allocated to such department.
3. Limitations on small purchases made by city departments. When small purchases are made by heads of city departments pursuant to subsection (b) of this section the following requirements shall be met:
   1. The aggregate amount of all such small purchases for each department shall not exceed an amount to be annually set ad- ministratively by the mayor during the normal budget process upon the recom- mendation of the chief procurement of- ficer, based upon the department's expen- ditures of the previous fiscal year, the department's estimated annual expendi- tures for the current fiscal year and other relevant factors;
   2. A copy of any purchase order or miscella- neous requisition shall be sent to the chief procurement officer at the time the pur- chase is made; and
   3. Purchases shall not be artificially divided so as to constitute a small purchase under subsection (b) of this section.
4. Certification of unencumbered appropriation. Except for emergency procurements under section 2-1192, the chief procurement officer shall not execute any contracts or purchase orders under this section until the chief financial officer shall have certified, after pre-audit, that there is to the credit of the using agency concerned a sufficient unencumbered appropriation balance, in excess of all unpaid obligations, to defray the amount of the order.

(Ord. No. 2009-78(09-O-1876), § 4, 12-15-09)

Sec. 2-1191. Sole source procurement.

1. Under this article, a contract or purchase order for a supply service, construction item or professional or consultant servicemay be awarded without competition when the chief procurement officer determines in writing, after conducting a good-faith due diligence review of reasonable available sources, that are in the city's best interest, there is only one source for the required supply, service, construction item or professional or con- sultant service. The due diligence review shall include, but not be limited to, research of avail- able sources and contact with professional and trade associations related to the required supply, service, construction item or professional or con- sultant service. The determination in writing shall also state the sources reviewed.
2. The chief procurement officer shall conduct negotiations as to the terms of the sole source procurement. A record of sole source procure- ments shall be maintained that lists each contractor's name, the name and type of each contract, the item(s) procured under each con- tract and the identification number of each con- tract file.
3. Subsequent to the execution of a sole source contract, the original sole source designee may not assign the contract to any other entity or individual unless the provisions of this subsection are satisfied. If the original sole source designee desires to assign the contract subsequent to its execution, it must make a request for assignment to the chief procurement officer and include with that request information concerning the proposed assignee. The chief procurement officer will re- view such request and information (including any additional information he/she may request) to determine if the assignee independently meets the sole source requirements of this section. If the chief procurement officer finds that the assignee meets the sole source requirements of this sec- tion, council must approve such assignment be- fore it may become effective.

(Ord. No. 2009-78(09-O-1876), § 4, 12-15-09)

Sec. 2-1191.1. Special procurements.

   Notwithstanding any other provision of this code, the chief procurement officer may initiate a procurement above the small purchase amount specified in section 2-1190 where he/she deter- mines that an unusual or unique situation exists that make the application of all requirements of competitive sealed bidding or competitive sealed proposals contrary to the public interest and such procurement does not technically qualify as a sole source procurement under Code section 2-1191. If determined as appropriate by the chief procure- ment officer, any special procurement under this section shall be made with such competition as is practicable under the circumstances; provided however, that the chief procurement officer may determine under appropriate circumstances that there is only one logical choice as to a contractor to provide the goods or services necessitated by the special procurement. A written determination of the basis for the procurement and for the selection of the particular contractor shall be included by the chief procurement officer in the contract file. Nothing in this section shall elimi- nate the chief procurement officer's obligation to present the recommendation of award of any contract procured under this section to city coun- cil for approval, prior to execution of the contract, when the value of the contract exceeds $100,000.00.
(Ord. No. 2009-78(09-O-1876), § 4, 12-15-09)

Sec. 2-1192. Emergency procurement.

1. When the chief procurement officer deter- mines that an emergency exists, the chief procure- ment officer may make or authorize others to make emergency procurements for supplies, ser- vices, construction items or professional or con- sultant services. The chief procurement officer shall make such determination when there exists a threat to public health, welfare or safety under emergency conditions. Such emergency procure- ments shall be made with as much competition as is practicable under the circumstances.
2. A written determination of the basis for the emergency and for the selection of the particular contractor shall be included in the contract file. As soon as practicable, a record of each emergency procurement shall be made and shall set forth the contractor's name, the amount and type of the contract, a listing of the item procured under the contract and the identification number of the contract file.
3. If an emergency should arise after office hours which requires immediate action on the part of the using agency involved for the protec- tion of the city or if a like situation arises on a Sunday or holiday and it is not possible or conve- nient to reach the chief procurement officer, any purchase necessary may be made by the official in charge of such using agency. The purchase shall be reported to the chief procurement officer within 24 hours. When the mayor declares a state of emergency and implements the Atlanta-Fulton County Emergency and Disaster Operations Plan, Annex 10A, additional supplies and equipment needed shall be procured in accordance with the plan, using the most practicable method which will ensure both expeditious procurement and effective control.

(Ord. No. 2009-78(09-O-1876), § 4, 12-15-09)

Sec. 2-1193. Competitive selection procedures for professional and consultant services.

1. Conditions for use. The chief procurement officer, upon the request or recommendation of the using agency, shall procure professional and consultant services, in accordance with this sec- tion, except as authorized under sections 2-1191 and 2-1192.
2. Statement of qualifications. The chief pro- curement officer shall request andmaintain state- ments of interest from persons interested in pro- viding professional and consultant services that shall include a statement of qualifications and performance data for such persons. Each using agency shall encourage professional and consult- ant firms, which desire to provide services to the agency, to submit statements of qualifications to the chief procurement officer. The chief procure- ment officer may specify a uniform format for statements of qualifications. Persons may amend these statements at any time by filing a new statement. Any person placed on the qualifica- tions list shall be removed if found in violation of any provision of this article, including, but not limited to, division 11, 12 or 13, or if such person is found in default under any contract with the city.
3. Public notice. When requested by the using agency, the chief procurement officer shall issue public notice for requests for proposals from pro- fessional and consultant offerors as provided in subsections 2-1188(c) and 2-1189(c).
4. Selection. The chief procurement officer, in consultation and upon the recommendation of the head of the using agency, shall select from among the offerors no less than three offerors (the "short- listed offerors") deemed to be the most responsible and responsive; provided, however, that if three or less offerors respond to the solicitation, this requirement will not apply. The selection of the short-listed offerors shall be made in order of preference. From the date proposals are received by the chief procurement officer through the date the contract is awarded, no offeror may make substitutions, deletions, additions or other changes in the configuration or structure of the offeror's teams or members of offeror's teams prior to award. The selection criteria shall include, but not be limited to, those contained in subsection 2-1188 (k) and the following:
   1. Previous experience demonstrating com- petence to perform work or services in- volved in the solicitation;
   2. Past performance of previous contracts with respect to time of completion and quality of work;
   3. The fee or compensation demanded for the services;
   4. The ability to comply with applicable laws;
   5. The ability to comply with the schedule of the commencement and completion of the services, as required by the city;
   6. The financial ability to furnish the neces- sary bonds;
   7. The financial condition of the offeror; and
   8. The ability to provide staffing of manage- ment personnel, satisfactory to the city.
   9. The offeror's compliance with the require- ments of equal employment opportunity (EEO) and, where applicable, equal busi- ness opportunity (EBO), as may be re- quired by ordinance. As part of the selec- tion process, the office of contract compliance shall evaluate each proposal as to the offeror's compliance with the requirements of equal employment oppor- tunity (EEO) and equal business opportu- nity (EBO) programs as may be required by ordinance. The office of contract com- pliance shall evaluate each proponent's conformance to the city's EEO ordinance and, where applicable, the city's EBO ordinance according to relative weights assigned by the chief procurement officer. The combined weights may not exceed 15 percent of the total evaluation points. Each request for proposal shall state with specificity the method by which EEO and EBO compliance is weighted to arrive at numerical evaluation points. Proposals that are noncompliant with the city's EEO or EBO requirements, where applicable, shall be deemed nonresponsive without further evaluation of any other solicitation eval- uation factors.
5. Negotiations and award. The chief procure- ment officer shall negotiate a contract with the most responsible and responsive short-listed of- feror at compensation that the chief procurement officer determines in writing to be fair and rea- sonable to the city. In making this decision, the chief procurement officer shall take into account the estimated value, the scope, the complexity and the professional nature of the services to be rendered. Should the chief procurement officer be unable to negotiate a satisfactory contract with the offeror considered to be the most responsible and responsive at a price for the chief procure- ment officer determines to be fair and reasonable to the city, negotiations with that offeror shall be terminated. The chief procurement officer shall then undertake negotiations with the secondmost responsible and responsive short-listed offeror. If negotiations with the second most responsible and responsive short-listed offeror are unsuccess- ful, negotiations shall be terminated and the chief procurement officer shall then undertake negoti- ations with the thirdmost responsible and respon- sive short-listed offeror. Should the chief procure- ment officer be unable to negotiate a contract with any of the short-listed offerors, the chief procurement officer and the using agency may select from the additional offerors that were not short-listed in order of their responsibility and responsiveness and the chief procurement officer may continue negotiations in accordance with this section until an agreement is reached.

(Ord. No. 2009-78(09-O-1876), § 4, 12-15-09)