Chapter_8_Section_I_(1).pdf

CHAPTER 8: PROCEDURES FOR FORMAL COMPETITIVE BID PROCESS

A. Purpose of Request for Bids Process and Alternative Processes.

1. Purpose. The purpose of this chapter is to specify procedures for the submittal, receipt, opening, and recording of all responses to all formal Request for Bids required by all of the various laws, ordinances, and other procedures and manuals governing the request for and awarding of public Bids in Clay County, Florida, including but not limited to:

a. Section 336.44, Florida Statutes.

b. Section 287.055, Florida Statutes.

c. Section 255.20, Florida Statutes.

d. Applicable provisions of Clay County Code.

e. Florida Department of Transportation Standard Specifications, most recent edition.

2. Alternative Formal Competitive Processes. Although the use of a formal competitive Request for Bids process is the preferred process, another process should be used when it is difficult or inappropriate to define the scope of the work required, when the service or purpose of the acquisition may be satisfied in several different ways, when the qualifications and quality of service are considered primary factors instead of price, or when responses contain varying levels of service which may require subsequent negotiation to prescribe the required specificity. Many times the potential need for presentations, discussions or negotiations and use of evaluation factors in addition to price must be considered to determine what is in the Best Interest of the County. In such circumstances, the County Manager shall determine if the use of a competitive process other than the formal Request for Bids process, such as a Request for Proposal (RFP), Request for Qualification (RFQ), Invitation to Negotiate (ITN), Best Final Offer, or Design-Build, is advantageous to the County and if so, direct the Purchasing Department to utilize such process.

If an alternative process is chosen, the alternative process shall utilize and be subject to the same procedures and rules, with any necessary modifications, as outlined in this Chapter 8 for a Request for Bids.

B. Request for Bids.

1. With the approval of the County Manager, the Purchasing Department may solicit for

Bid all items included in or provided for in the current fiscal year Budget. Items not included in the current fiscal year Budget must come before the Finance and Audit Committee for a recommendation to the Board for consideration prior to any solicitation for Bids.

2. The County Manager shall, in cooperation with Department Directors, submit to the Purchasing Department a Request for Bids form approved by the Department Directors that includes a scope of work. Upon receipt, the Purchasing Department shall assemble the Request for Bids and assign a specific and discrete number and title to each Request for Bids, which shall be contained in the Request for Bids, the newspaper publication, the specifications, and any Bid form.

3. The Request for Bids shall include conspicuously the following statements:

FOLLOWING THE BID OPENING AND TABULATION, A “NOTICE

OF INTENT TO AWARD BID” OR A “NOTICE OF REJECTION OF

ALL BIDS” WILL BE POSTED ON THE INTERNET AT:

https://procurement.opengov.com/portal/claycounty?status=all. THIS

WEBPAGE CAN ALSO BE ACCESSED FROM THE HOMEPAGE OF

THE COUNTY’S WEBSITE AT:

https://www.claycountygov.com/government/purchasing/formal-bid-solicitation

PROSPECTIVE BIDDERS ARE NOTIFIED THAT THE FAILURE TO

INCLUDE A PROPER BID BOND OR OTHER SECURITY APPROVED

UNDER THE COUNTY’S PURCHASING POLICY, IF REQUIRED FOR

THIS REQUEST,WILL RESULT IN REJECTION OF THE BID AND

SHALL, AS WELL AS THE FAILURE TO FILE A WRITTEN NOTICE

OF PROTEST AND TO FILE A WRITTEN PETITION INITIATING A

FORMAL PROTEST PROCEEDING WITHIN THE TIMES AND IN

THE MANNER PRESCRIBED IN CHAPTER 8, SECTION I OF THE

COUNTY’S PURCHASING POLICY SHALL, CONSTITUTE A

WAIVER OF THE RIGHT TO PROTEST THE BID REQUEST, ANY

ADDENDUM THERETO, OR THE BID DECISION, AS APPLICABLE,

AND TO INITIATE A FORMAL PROTEST PROCEEDING UNDER

THE PURCHASING POLICY. THE COUNTY’S PURCHASING

POLICY CAN BE VIEWED AT THE COUNTY’S WEBSITE BY

FOLLOWING THE APPROPRIATE LINKS FROM THE HOMEPAGE

ADDRESS SET FORTH ABOVE.

IF A PROSPECTIVE BIDDER IS IN DOUBT WHETHER THIS

REQUEST REQUIRES A BID BOND, SUCH PROSPECTIVE BIDDER

IS SOLELY RESPONSIBLE FOR MAKING APPROPRIATE INQUIRY.

THE BOARD RESERVES THE RIGHT TO REJECT ANY AND ALL

BIDS WITHOUT CAUSE AND TO WAIVE TECHNICAL AND NON-

TECHNICAL OR NON-MATERIAL DEFECTS IN THE REQUEST OR

SUBMITTAL OF ANY BIDS.

4. The Purchasing Department will include the Request for Bids in the County’s electronic bidding system, publish a notice of the Request for Bids in a newspaper as well as on the County’s website, and forward the Request for Bids to any requesting Suppliers by electronic notification.

5. Published Notice. Notice of each Request for Bids shall be posted in a newspaper of general circulation within the County for a reasonable period of time or as required by Florida Statutes prior to the Bid Opening date.

6. Utility Relocation Agreements. Prior to requesting Bids for right-of-way improvements and other public works projects that require the removal or relocation of utilities, Agreements with the affected utilities must be entered into providing for the terms, scheduling and conditions of such relocation and removal. The County Manager may develop and maintain such form of Agreement as may be appropriate for accomplishing the requirements.

7. Bid Addenda. All Addenda distributed subsequent to the initial distribution of the Request for Bids shall be distributed in the same manner as the initial distribution of the Request for Bids. It is the responsibility of the Bidder to verify if any Addendum(s) has been issued prior to submitting a Response to a Request for Bids.

No Addendum shall be issued later than five (5) working days prior to the scheduled Bid Opening date.

C. No-Contact Rule.

1. Bidders are prohibited from contacting, by any means, whether orally, telephonically, electronically or in writing, any member of the Board, any County employee, including the County Manager, the County Attorney or the Commission Auditor, any member of the designated Evaluation Committee or any agent of the County regarding the Request for bids in any respect during the Request for Bid Period.

2. The Request for Bid Period during which no contact may occur commences from the date of publication of the notice of a Request for Bids and ends upon a Bid Decision becoming final, i.e. after the notice of bid protest period of 72 hours has expired.

However, in the event of a notice of protest, the no contact rule continues in place during the Protest Period and does not end until a resolution of the protest has occurred and become final.

3. Exceptions. The following exceptions exist to the no-contact rule:

a. Inquiries may be submitted to the Purchasing Department if specifically provided in the Request for Bids;

b. Pre-bid conferences provided for in the Request for Bids; and

c. Formal presentations by Bidders to the designated Evaluation Committee or to the

Board or any committee thereof specifically contemplated in the Request for Bids.

4. The purpose of the No-Contact Rule is to prevent any one Bidder from gaining an advantage over other Bidders through lobbying or otherwise attempting to influence the purchasing decision through discussions or the presentation of information or materials outside of the process contemplated in the Request for Bids package and this Purchasing Policy, and also to ensure that the dissemination of information from the County to Bidders regarding the Request for Bids is equal and uniform.

5. The violation of the No-Contact Rule shall result in the automatic disqualification of any Bid submitted by the violator in response to a Request for Bids. See Section J regarding violations and disqualifications related to the No-Contact Rule.

D. Bid Submittals.

All Bids shall be submitted as specified in the Request for Bids (and if applicable only on the forms provided by the County) through the County’s electronic bidding system and may not be submitted physically, by facsimile transmission or by email. All Bids shall comply with the following requirements to be considered an eligible bidder:

1. Public Entity Crimes. Each Bid shall conform to the requirements of Section 287.133, Florida Statutes, regarding public entity crimes.

2. Contractor Certification. All Contractors must be certified or registered pursuant to

Chapter 489, Florida Statutes, or hold a Clay County certification under Article III of Chapter 7 of the Clay County Code, as applicable, at the time of responding to a Request for Bids and must submit evidence of such at the time of submission of any Bid.

3. Bidder’s Insurance Requirements. Any Bidder submitting a Bid must include, within the initial Bid submittal, proof of the following insurance, as applicable, in effect continuously from the date of submittal through the sixty days subsequent to the scheduled Bid Opening date:

a. Commercial General Liability

Coverage must be afforded under a Commercial General Liability policy with limits not less than:

● $1,000,000 each occurrence and $2,000,000 aggregate for Bodily

Injury, Property Damage, and Personal and Advertising Injury (project specific aggregate may be required for construction projects)

● $1,000,000 each occurrence and $2,000,000 aggregate for Products and Completed Operations

● $50,000 each occurrence for Damage to Rented Premises

● $5,000 Medical Expenses (any one person)

Commercial and General Liability policy must include coverage for contractual liability and independent contractors.

b. Business Automobile Liability Coverage must be afforded for all Owned, Hired, Scheduled, and Non-Owned vehicles for Bodily Injury and Property Damage in an amount not less than $1,000,000 combined single limit each accident. If the Bidder does not own vehicles, the Bidder shall maintain coverage for Hired and Non-Owned Auto Liability, which may be satisfied by way of endorsement to the Commercial General Liability policy or separate Business Auto Liability policy.

c. Workers’ Compensation and Employer’s Liability

Any person or entity performing work for or on behalf of the County must provide Workers’ Compensation and Employer’s Liability insurance in limits not less than:

● Workers Compensation Statutory limits

● Employers Liability $100,000 Each Accident $500,000 Disease Policy $100,000 Disease-Each Employee

Exceptions and exemptions may be allowed by the County Manager, if they are in accordance with Florida Statutes.

The Bidder waives, and the Bidder shall ensure that its insurance carrier waives, all subrogation rights against the County, its employees, agents, boards, and commissions, for all losses or damages. The County requires the policy to be endorsed with WC 00 03 13 Waiver of our Right to Recover from Others or equivalent.

The Bidder must be in compliance with all applicable State and federal workers’ compensation laws, including the U.S. Longshore Harbor Workers’ Act and the Jones Act, if applicable.

For any Bidder who has exempt status as an individual, the County requires proof of Workers’ Compensation insurance coverage for that Bidder’s employees, leased employees, volunteers, and any workers performing work.

d. Property Coverage (Builder’s Risk) – Applies to Construction related Projects

Coverage must be afforded in an amount not less than 100% of the total Project value, including soft costs, with a deductible of no more than $25,000 each claim. Named Windstorm Deductibles, if any, must be disclosed to the County.

Coverage form shall include, but not be limited to:

● All Risk Coverage including Flood and Windstorm with no coinsurance clause

● Waiver of Occupancy Clause Endorsement, which will enable the County to occupy the property/structure under construction/renovation during the activity

● Storage and transport of materials, equipment, supplies of any kind whatsoever to be used on or incidental to the project

● Equipment Breakdown for cold testing of all mechanized, pressurized, or electrical equipment

● LEG2 Coverage or equivalent

For installation of property and/or equipment, Builder’s Risk Installation insurance must be provided to include coverage for materials or equipment stored at the Project site, while in transit, or while stored at a temporary location. Coverage limit must be no less than replacement cost.

The Property Coverage (Builder’s Risk) policy shall insure the interests of the owner, contractor, and subcontractors in the property against all risk of physical loss and damage, and name the County as a loss payee. Additionally, the County shall be named as an Additional Insured for its interest in the property/structure and for any materials purchased directly by the County. This insurance shall remain in effect until the work is completed and the property has been accepted by the County.

e. Professional Liability and/or Errors and Omissions – Applies to Projects involving Professional Services Coverage must be afforded for Wrongful Acts in an amount not less than $1,000,000 each claim and $1,000,000 aggregate.

Insurance must be kept in force until the third anniversary of the expiration or termination of any Contract that may be entered into between the parties.

f. Umbrella/Excess Insurance If the Bidder’s primary insurance policy/policies do not meet the minimum requirements, the Bidder may provide an Umbrella/Excess insurance policy to comply with the insurance requirements.

Providing and maintaining adequate insurance coverage is a material obligation of the Bidder. Upon being awarded the Bid and prior to commencement of the Services, the successful Bidder must deliver valid certificates of insurance for the required insurance coverage to the County’s Purchasing Department.

The certificates of insurance for the required coverages, with the exception of Workers’ Compensation, Employer’s Liability, and Professional Liability, shall name “Clay County, a political subdivision of the State of Florida, and The Board of County Commissioners, Clay County, Florida, its employees, agents, boards and commissions, as their interests may appear” as “Additional Insureds.” The coverage shall contain no special limitation on the scope of protection afforded to the County, its employees, agents, officials, boards, and commissions. The certificates of insurance shall indicate if coverage is provided under a claims-made or occurrence form. If any coverage is provided on a claims-made form, the certificates of insurance will show a retroactive date, which should be the same date of the initial Contract or prior. The Contract number, Bid number, event dates, or other identifying reference must be listed on the certificates of insurance.

The Certificate Holder on the certificates of insurance should read as follows: “Clay County Board of County Commissioners, P.O. Box 1366, Green Cove Springs, FL 32043” or as otherwise designated by the County’s Purchasing Department.

The certificates of insurance shall be provided to the County with a thirty (30) day notice of cancellation; ten (10) days’ notice if cancellation is for nonpayment of premium. In the event that the insurer is unable to accommodate the cancellation notice requirement, it shall be the responsibility of the Bidder to provide the proper notice. Such notification will be in writing by registered mail, return receipt requested, and addressed to the Certificate Holder. In the event the Contract term goes beyond the expiration date of any insurance policy, the Bidder shall provide the County’s Purchasing Department with an updated certificate of insurance no later than ten (10) days prior to the expiration of the insurance currently in effect. The County reserves the right to suspend the Contract until this requirement is met. If any required insurance coverage is canceled, terminated, or revoked, the Bidder agrees to immediately suspend its operations until replacement insurance is obtained and verified.

Any exclusions or provisions in the insurance maintained by the Bidder that excludes coverage for work or services contemplated under the Bid shall be deemed unacceptable, a material violation of the County’s Bidding requirements, and shall be considered a breach of any Contract entered into after a Bid Award.

It is the successful Bidder’s responsibility to ensure that all independent and subcontractors comply with the insurance requirements. All coverages for independent and subcontractors shall be subject to all of the requirements stated herein. Any and all deficiencies are the responsibility of the Bidder.

The County Manager may modify the insurance requirements for particular projects and/or Services.

4. Bid Bond. Any Bid submitted requires a five (5) percent bond unless waived or reduced by the County Manager prior to the Request for Bids, which Bid Bond cannot be withdrawn for a period of thirty (30) days subsequent to the date of the Bid Opening, notice of which shall be incorporated in any Request for Bids. As used herein, the term Bid Bond shall include bonds or cashier or certified checks payable to the County. If the requirement for the Bid Bond is satisfied by a cashier or certified check, the original check must be provided to the Purchasing

Department as instructed in the Request for Bids.

The failure to include with a Bid a proper Bid Bond, whether a bond or cashier or certified check, and to provide to the Purchasing Department the original cashier or certified check if such is utilized, if required for the particular Request for Bids, shall result in automatic rejection of a Bid and constitute a waiver of the right to protest the Request for Bids, any Addendum thereto, or the Bid Decision, and to initiate a formal protest proceeding.

The Purchasing Department is hereby authorized to release each Bid Bond to the Bidder, as soon as practicable, upon written request, but only after a Bid and Contract have been awarded and executed between the County and the successful Bidder for a particular project, or in the event that all Bids have been rejected by the Board, or in the event the time provided that the Bid shall remain in effect shall have expired and the Bidder requests its return in writing.

The following are exempt from the Bid Bond requirement:

a. SHIP. Bidders bidding on SHIP rehabilitation projects are exempt from the Bid

Bond requirements delineated above or as may be otherwise stated elsewhere in this Purchasing Policy.

b. Fixed Unit Price. Bidders bidding on Contracts with a fixed price, or any other type of Contract that does not commit the Board to an actual exchange transaction (purchase) but rather seeks only a Fixed Unit Price Commitment from a Bidder in the event a future purchase decision is made, shall be exempt from the Bid Bond requirements delineated above or as may be otherwise stated elsewhere in this Purchasing Policy.

A prospective Bidder is solely responsible for determining whether a particular Request for Bids requires a Bid Bond, and for resolving any doubt by making appropriate inquiry.

E. Receipt of Bid Submittals.

The deadline for receipt of a particular Bid submittal shall be per the Request for Bids. All Bids will be electronically received by the Purchasing Department prior to the deadline indicated in the Request for Bids.

F. Bid Opening.

The opening of all Bids properly submitted may be viewed by Bidders through the County’s electronic bidding system as well as by the public or Bidders in a public location so designated in the Request for Bids. Bidders and the public are welcome to attend and observe the Bid Opening without opportunity to comment.

Any Bid that does not meet the requirements for time of submittal, inclusion of a Bid Bond, if required, or contains material defects will be rejected, declared a “No Bid” and the reasons for such so stated.

At the Bid Opening, the Purchasing Department shall prepare a tabulated list of all Bidders and their Bids, including Bid number, Supplier name, amount of Bid, and verification of required documents. The County Manager or his or her designee shall cause to be spread upon the minutes of the regular meeting of the Board next following the opening of a particular Bid a copy of the Bid tabulation.

G. Review and Recommendation.

1. Review.

After the opening of a Bid, a copy of each Bid shall be distributed to the originating Department Directors or his or her designee. The Department Directors or his or her designee and the Purchasing Department will thereafter assign staff or an Evaluation Committee for review, when required. All staff or committee members assigned to evaluate Bids or responses, when applicable, shall do so observing all requirements of the Sunshine Law and in meetings noticed at least 72 hours in advance. Bidders and the public may attend and observe, without opportunity to comment, any Evaluation Committee meetings.

The exclusive right to compare, contrast and otherwise evaluate the qualifications, character, responsibility and financial qualifications of all persons, firms, partnerships, companies or corporations submitting Bids or Proposals in response to any purchase of Goods or Services is reserved by staff or an Evaluation Committee when determining what is in the Best Interest of the County.

Bid Awards for Request for Bids shall be awarded based on the lowest responsive bid. The term “Lowest Responsive Bid” shall mean the lowest Bid price submitted by a Responsive and Responsible Bidder. The term “Responsive Bidder” means a Bidder that has submitted a Bid, Proposal or reply that conforms in all material respects to the Request for Bids. The term “Responsible Bidder” means a Bidder who has the capability in all respects to fully perform the Contract requirements and the integrity and reliability that will assure good faith performance.

Awards for alternative competitive processes, such as a Request for Proposal (RFP), Request for Qualifications (RFQ), Invitation to Negotiate (ITN), Best Final Offer, or Design-Build, should be based on evaluation criteria specified in the request, in addition to price, to determine what is in the Best Interest of the County.

2. Recommendation.

After review, an award recommendation to include but not be limited to the Lowest Responsive Bid, or in a proper circumstance the best Bid or response, and Budget information is prepared for submittal to the Finance and Audit Committee. Under extenuating circumstances an award recommendation may be submitted directly to the Board with an explanation setting forth the facts, circumstances and/or reasons why such is being presented directly to the Board. The Purchasing Department may include the Contract or Agreement to be entered into with the successful Bidder for approval at the same time as the recommendation of the award, which approval will be subject to the 72 hour Bid Protest Period.

The Bids and award recommendation, along with any accompanying Contract or Agreement, shall thereafter be reviewed by the Finance and Audit Committee who in the absence of unusual circumstances, shall report its recommendation to the Board at the Board's next regularly scheduled meeting, which shall include the tabulated list of all Bidders and their Bids.

H. Bid Award.

The Board reserves the right and power to reject any and all Bids without cause and to waive technical and non-technical or non-material defects in the Request for Bids or submittal of any Bid, and in its discretion to re-advertise the Request for Bids. The Board reserves the right to award Bids, quotes, or Proposals which would be in the Best Interest of the County.

When only one Bid is received for the purchase of an item or a group of items, the Board shall review the Request for Bids and Bid in order to determine the reasons, if any, why only one Bid was received. The Board may accept the only Bid or it may direct that a second call for Bids be issued. If the only Bid is accepted then the reasons for accepting the single Bid as well as reasons for not rebidding shall have been documented.

Unless otherwise expressly directed by the Board in its Bid Decision, immediately following the Board’s decision the County Manager shall cause a “Notice of Intent to Award Bid” or a “Notice of Rejection of All Bids” to be posted on the County’s website, with the time and date of posting appearing thereon. No other posting of such notices are required. The notice shall be posted in portable document format or other secure format.

I. Bid Protest Procedures.

In accordance with the procedures contained herein, any person or entity that is adversely affected by a decision or intended decision concerning a document, award, or other process or procedure in this Chapter and who has standing to protest a decision or intended decision under Florida law, must timely file a Bid Protest seeking to challenge the decision or intended decision in strict adherence to the following procedures. These procedures shall be construed and implemented so as to secure the just, speedy, and inexpensive resolution of Bid Protests.

1. Notice of Bid Protest. Any person who is adversely affected by a Request for Bids, by any Addendum thereto, or by a Bid Decision may file with the County Manager a written notice of Bid Protest no later than 4:30 p.m. on the third Business Day immediately following the date notice is published, with respect to a Request for Bids; no later than 4:30 p.m. on the third Business Day immediately following the date of issuance, with respect to any Addendum; and within 72 hours after the posting of the notice, exclusive of hours occurring during days that are other than Business Days, with respect to a Bid Decision.

2. Protest Petition. A formal Bid Protest proceeding shall be deemed commenced upon the timely filing of a written petition initiating the same. A written petition initiating a formal Bid Protest proceeding must be filed with the County Manager no later than 4:30 p.m. on the tenth Calendar Day immediately following the date on which the written notice of protest was filed; provided, if the tenth Calendar Day is not a Business Day, then the petition must be filed no later than 4:30 p.m. on the first Business Day immediately following the tenth Calendar Day. The petition must set forth with particularity the facts and law upon which the protest is based. The petition must conform substantially with the requirements for petitions set forth in Fla.

Admin. Code R. 28-106.201.

3. Filing of Notice of Protest and Petition. The filing with the County Manager of a written notice of protest or of a written petition initiating a formal Bid Protest proceeding shall be deemed accomplished only when the original written notice or original written petition has been physically received by the County Manager or his or her designee. A notice or petition shall be deemed original only if it bears the original signature of the protesting party or such party’s authorized agent. No notice or petition may be filed by facsimile transmission or by e-mail, and any notice or petition received in such manner shall be deemed unfiled and ineffective. The use of an overnight delivery service, of the United States Postal Service, or any other type of delivery service to file a notice or petition shall be entirely at the risk of the person submitting the same, and any such notice or petition so received after the applicable deadline shall be deemed untimely.

4. Waiver. The failure by a prospective Bidder to file a 1) written notice of protest and

2) written petition initiating a formal protest proceeding within the times and in the manner prescribed in this section shall constitute a waiver of the prospective Bidder’s right to protest the Request for Bids, any Addendum thereto, or the Board’s Bid Decision, as applicable, and to initiate a formal protest proceeding hereunder.

5. Any Bid Protest of a Request for Bids or Bid Addendum shall pertain exclusively to the terms, conditions, and specifications contained in a Request for Bids or Bid Addendum, including any provisions governing the methods for ranking Bids, Proposals, or replies, awarding Contracts, reserving rights of further negotiation, or modifying or amending any Contract.

6. Suspension. Upon receipt of a formal written notice of Bid Protest that has been timely filed, the County Manager shall suspend the Request for Bids or Bid Award process, including entry into any accompanying Contract or Agreement, until the subject of the protest is resolved by final action as specified in this section, unless the County Manager sets forth in writing particular facts and circumstances which require the continuance of the Request for Bids or Bid Award process without delay in order to avoid an immediate and serious danger to the public health, safety, or welfare. Such suspension shall be lifted immediately in the event the protesting party shall have failed to timely file a petition.

7. Notice of Receipt of Petition and Suspension. Within three (3) Business Days of receipt of a written petition initiating a formal protest proceeding, the County Manager or his or her designee shall provide notice to any Bidders of the written petition and that the Request for Bids or Bid Award process has been suspended until the subject of the protest is resolved by final action as specified in this section. Upon receipt by the Bidder of the notice, the Protest Period commences.

8. Intervenors. Intervenors shall be permitted to participate in the formal protest proceeding in accordance with the procedures governing intervenor practice set forth in Chapter 28-106, Florida Administrative Code, and shall be subject to all limitations provided therein applicable to intervenors.

9. Resolution by Mutual Agreement. In his or her discretion, the County Manager may provide an opportunity to resolve the Bid Protest by a mutual Agreement between the County Manager and the protesting party within seven (7) Calendar Days after receipt of a timely written petition. Such Agreement must be reduced to writing, signed by the County Manager and the protesting party or such party’s authorized agent, and submitted to the Board at the earliest opportunity. The Agreement shall not be deemed effective unless ratified by the Board. If the Board shall fail to ratify the Agreement, then the Bid Protest shall proceed to resolution as hereinafter provided.

10. Hearing. Within ten (10) Business Days following the timely filing of a written petition, or, if the Board shall have considered but failed to ratify an Agreement submitted to it under section 9 above, then within ten (10) Business Days thereafter, a hearing shall be conducted before a Hearing Officer, who shall be the County Manager or his or her designee. The County Manager may designate any Department Director as the Hearing Officer; provided, a Department Director who is substantially involved in or connected with the Request for Bids or Bid Award process shall be deemed disqualified from serving as the Hearing Officer, unless such involvement or connection is purely ministerial in nature. All hearings shall be conducted pursuant to written notice to the protesting party, the County Attorney’s Office and all intervenors by the Hearing Officer specifying the time, date and place of the hearing.

The rules and procedures governing each hearing are as follows:

a. The audio thereof shall be recorded electronically.

b. Prior to the hearing only, motion practice may be permitted by the Hearing

Officer in his or her discretion in accordance with the rules governing the same set forth in Fla. Admin. Code R. 28-106.204. All motions shall be ruled upon prior to or at the start of the hearing, except that rulings on motions in limine may be deferred to an appropriate time during or after the hearing.

c. Prior to the hearing, the protesting party, the County and all intervenors must confer and endeavor to stipulate to as many relevant and undisputed facts upon which the decision is to be based as may be practicable. Such stipulation must also identify those issues of material fact, if any, that remain in dispute. The stipulation must be reduced to a writing signed by or on behalf of the protesting party, the County and all intervenors, and be submitted to the Hearing Officer at least two (2) Business Days prior to the hearing. The stipulation may include an appendix comprising documents that shall be deemed admitted and considered as evidence for purposes of the hearing, or referring to tangible items deemed admitted and considered as evidence for purposes of the hearing, which items shall either be presented at the hearing or, if such presentation is impractical, submitted to the Hearing Officer by graphic, descriptive, representational, photographic, videotape or similar medium properly depicting or characterizing the items.

d. The protesting party and all intervenors shall have the right to appear before the Hearing Officer at the hearing in proper person or through Counsel and, as to those issues of material fact, if any, that remain in dispute, as identified in the stipulation, to present relevant testimonial, documentary and tangible evidence, and to be heard on the substantive issues bearing on the protest. The County shall be deemed a party to the proceeding, and the County Attorney or any Assistant County Attorney may participate in the protest proceeding, appear before the Hearing Officer, present evidence and be heard on behalf of the County.

e. All witnesses shall be placed under oath by the Hearing Officer prior to testifying, and shall be subject to cross-examination by any Hearing Participant.

f. Hearsay evidence shall be admissible unless the Hearing Officer shall determine the same to be redundant, unreliable or prejudicial.

g. At the hearing any Hearing Participant may offer appropriate argument and summation, and submit a written brief and a proposed order, but only after the conclusion of the evidentiary portion of the hearing, if any.

h. Immediately following the hearing, the County Manager shall cause a written transcript of all testimonial evidence introduced at the hearing to be prepared expeditiously, and shall provide copies of the same to all of the Hearing Participants.

11. Order.

a. Within seven (7) Business Days following the hearing, the Hearing Officer shall submit a recommended order to the County Manager and serve copies on all Hearing Participants; provided, if the County Manager is the Hearing Officer, then within seven (7) Business Days following the hearing, the County Manager shall issue a recommended order and serve copies on all Hearing Participants.

The recommended order shall contain findings of fact and, based upon such facts, a disposition of the Bid Protest; provided, no finding of fact may be predicated solely upon the basis of hearsay.

b. The recommended order shall thereafter be submitted to the Board along with the transcript of the hearing testimony and the entire written and tangible record of the Bid Protest proceedings at the earliest opportunity to be considered at a time certain, with notice thereof served upon the Hearing Participants. Each of the Hearing Participants shall be allowed five (5) minutes to address the Board regarding the recommended order, unless the Chairman in his or her discretion shall allow additional time. No testimony or other evidence beyond the record and the transcript shall be presented to the Board.

c. Thereafter the Board shall render its decision on the Bid Protest. In so doing the Board shall be bound by the findings of fact in the recommended order that are based upon testimonial evidence, except those for which it upholds a challenge.

A finding of fact challenge shall be upheld only if the finding of fact is not supported by competent, substantial evidence in the record or in the transcript.

Otherwise, the Board shall not be bound by any of the provisions of the recommended order. The decision of the Board shall be reduced to a written order signed by the Chairman, and shall constitute final action of the County on the protest.

12. All proceedings before the Hearing Officer shall be informal, and customary rules of evidence shall be relaxed. In all respects both the Hearing Officer and the Board shall observe the requirements of procedural and substantive due process that are the minimum necessary for accomplishing a fair, just and expeditious resolution of the protest.

13. Ex parte communications between a Hearing Participant and the Hearing Officer are forbidden. The Hearing Officer may take such steps as he or she may deem just and appropriate to prevent or sanction attempted ex parte communications, including promptly disclosing the attempted communication, or requiring the offending Hearing Participant to disclose promptly the attempted communication, to the other Hearing Participants. Where necessary, the Hearing Officer may recuse himself or herself, and the subsequently designated Hearing Officer may order the offending participant to pay for all or any portion of the costs incurred by the County and any other Hearing Participant strictly as a consequence of the ex parte communication or attempted ex parte communication, else be excluded from further participation.

Neither the County Attorney nor any Assistant County Attorney shall be subject to this subsection or prohibited from engaging in ex parte communications with the Hearing Officer.

14. The purpose of this Purchasing Policy is to promote fairness and public confidence in the competitive bidding process. To further such end, and except as otherwise specifically provided herein, the substantive law governing the resolution of Bid Protests found in the decisions of the Florida appellate courts, as well as any statutes or agency rules that may be applicable to the particular Request for Bids, shall guide the Hearing Officer and the Board in rendering a decision on a Bid Protest under this section. The significant principles of law governing the Bid Protest and the resolution thereof, which shall prevail to the extent not otherwise in conflict with any governing statutes or agency rules, are as follows:

a. The burden is on the party filing the Protest Petition to establish a ground for invalidating the Request for Bids, any Addendum thereto, or Bid Decision that is being challenged.

b. The standard of proof for the Bid Protest proceeding shall be whether the Request for Bids, any Addendum thereto, or the Bid Decision that is being challenged was clearly erroneous, contrary to competition, arbitrary, or capricious.

c. The Request for Bids, any Addendum thereto, or the Bid Decision being challenged shall be deemed arbitrary or capricious if it is contrary in a material way to any governing statutes, the County’s rules or policies, or as to a Bid Decision, the Request for Bids.

d. The scope of the inquiry is limited initially to whether the Request for Bids, any Addendum thereto, or the Bid Decision being challenged is improper under the foregoing standard of proof. If and only if the Hearing Officer first determines on the basis of competent and substantial evidence that the Request for Bids, any Addendum thereto, or the Bid Decision being challenged is improper, then the Hearing Officer may recommend, in accordance with the law and this Purchasing Policy, an alternate disposition for the Bid Protest. Such disposition may include, but shall not be limited to, invalidating the Request for Bids or any Addendum thereto, rejecting all Bids, and/or awarding all or a portion of the Bid to the protesting party.

e. A Bid Protest proceeding may not serve as a vehicle for the Board to revisit a Bid Decision absent a determination of impropriety as set forth above.

15. By written Agreement amongst the protesting party, the County, and all then-existing intervenors, any provision of this section pertaining to the procedures for resolving a protest for which a petition has been timely filed may be modified or waived so long as such modification or waiver shall not hinder or thwart the proper and expeditious resolution of the protest, or otherwise operate to undermine the salutary purposes of competitive, public bidding.

16. Only to the extent necessary to avoid a miscarriage of justice or to prevent a manifest violation of a Hearing Participant’s procedural or substantive due process rights, a Hearing Officer may modify or suspend the applicability of any of the provisions or requirements of this section in the course of conducting a Bid Protest proceeding hereunder; provided, a hearing officer may not modify or suspend any of the provisions or requirements of sections D(5), I(1)-I (5), and I(14) hereof.

17. Except and to the extent specifically provided in this section, and except and to the extent otherwise specified provided by written Agreement amongst the protesting party, the County, and all then-existing intervenors, no provisions of Chapter 28-106, Florida Administrative Code, shall be deemed applicable to the resolution of protests under this section.

J. No-Contact Rule Violation, Disqualification and Challenge.

1. Violation and Disqualification. The violation of the No-Contact Rule shall result in the automatic disqualification of any Bid submitted by the violator in response to a Request for Bids. A violation of the No-Contact Rule shall be reviewed by the Purchasing Director and after consultation with the County Manager and the attorney in the County Attorney’s Office assigned to represent and advocate for the County in hearings under this section, the Purchasing Director shall make a determination as to disqualification.

a. If a determination of disqualification is made by the Purchasing Director under this section, the violator shall be notified in writing with the factual basis of the determination set forth. A disqualification determination shall be delivered to the violator by hand delivery or overnight delivery to the violator’s regular place of Business during the hours such place is open for Business or by email, if the violator has previously provided the County an email address for use in connection with the Request for Bids.

b. Upon a determination of disqualification under this section, any Bid submitted by the violator for the related Request for Bids shall not be eligible for consideration and shall be deemed withdrawn from further consideration.

2. Disqualification Challenge. In accordance with the procedures contained herein, the violator may challenge the disqualification determination. This section shall be construed and implemented so as to secure the just, speedy, and inexpensive resolution of disqualification challenges.

a. Notice of Disqualification Challenge. The violator may file with the County

Manager a written notice of disqualification challenge no later than 4:30 p.m. on the third Business Day immediately following the date the disqualification determination is delivered. The failure by the violator to file a written notice of disqualification challenge within the time prescribed in this subsection shall constitute a waiver of the violator’s right to challenge the disqualification determination.

b. Filing of Notice of Disqualification Challenge. A formal disqualification challenge proceeding shall be deemed commenced upon the timely filing of a written notice of disqualification challenge under this section. The filing with the County Manager of a written notice of disqualification challenge shall be deemed accomplished only when the original has been physically received by the County Manager or his or her designee. A notice of disqualification challenge shall be deemed original only if it bears the original signature of the challenging party or such party’s authorized agent. No notice of disqualification challenge may be filed by facsimile transmission or by e-mail, and any notice received in such manner shall be deemed unfiled and ineffective. The use of an overnight delivery service, of the United States Postal Service, or any other type of delivery service to file a notice of disqualification challenge shall be entirely at the risk of the person submitting the same, and any such notice so received after the applicable deadline shall be deemed untimely.

c. Suspension. Upon receipt of a formal written notice of disqualification challenge that has been timely filed, the County Manager shall suspend the Request for Bids or Bid Award process, including entry into any accompanying Contract or Agreement, until the subject of the disqualification challenge is resolved by final action as specified in this section, unless the County Manager sets forth in writing particular facts and circumstances which require the continuance of the Request for Bids or Bid Award process without delay in order to avoid an immediate and serious danger to the public health, safety, or welfare.

d. Notice of Receipt of Disqualification Challenge and Suspension. Within three (3) Business Days of receipt of a written notice of disqualification challenge, the County Manager or his or her designee shall provide notice to any Bidders of the written notice of disqualification challenge and that the Request for Bids or Bid Award process has been suspended until the subject of the disqualification challenge is resolved by final action as specified in this section.

e. Intervenors. Intervenors shall be permitted to participate in the challenge proceeding in accordance with the procedures governing intervenor practice set forth in Chapter 28-106, Florida Administrative Code, and shall be subject to all limitations provided therein applicable to intervenors.

f. Hearing. Within ten (10) Business Days following the timely filing of a written notice of disqualification challenge, a hearing shall be conducted before a Hearing Officer, who shall be any Department Director so designated by the County Manager; provided, a Department Director who is substantially involved in or connected with the Request for Bids or Bid Award process shall be deemed disqualified from serving as the Hearing Officer, unless such involvement or connection is purely ministerial in nature. All hearings on a disqualification challenge shall be conducted pursuant to written notice to the challenging party, the County Manager, the County Attorney’s Office and all intervenors by the Hearing Officer specifying the time, date and place of the hearing.

Particular rules and procedures governing each such hearing are as follows:

i. The audio shall be recorded electronically.

ii. Prior to the hearing only, motion practice may be permitted by the Hearing

Officer in his or her discretion in accordance with the rules governing the same set forth in Chapter 28-106, Florida Administrative Code. All motions shall be ruled upon prior to or at the start of the hearing, except that rulings on motions in limine may be deferred to an appropriate time during or after the hearing.

iii. Prior to the hearing, the challenger, the County Manager and all intervenors must confer and endeavor to stipulate to as many relevant and undisputed facts upon which the decision is to be based as may be practicable. Such stipulation must also identify those issues of material fact, if any, that remain in dispute. The stipulation must be reduced to a writing signed by or on behalf of the challenger and the County Manager, and be submitted to the Hearing Officer at least two (2) Business Days prior to the hearing. The stipulation may include an appendix comprising documents that shall be deemed admitted and considered as evidence for purposes of the hearing, or referring to tangible items deemed admitted and considered as evidence for purposes of the hearing, which items shall either be presented at the hearing or, if such presentation is impractical, submitted to the Hearing Officer by graphic, descriptive, representational, photographic, videotape or similar medium properly depicting or characterizing the items.

iv. The challenger and all intervenors shall have the right to appear before the

Hearing Officer at the hearing in proper person or through Counsel and, as to those issues of material fact, if any, that remain in dispute, as identified in the stipulation, to present relevant testimonial, documentary and tangible evidence, and to be heard on the substantive issues bearing on the disqualification challenge. The County Manager shall be deemed a party to the proceeding, and the County Attorney or any Assistant County Attorney may participate in the disqualification challenge proceeding, appear before the Hearing Officer, present evidence and be heard on behalf of the County Manager.

v. All witnesses shall be placed under oath by the Hearing Officer prior to testifying, and shall be subject to cross-examination by any Hearing Participant.

vi. Hearsay evidence shall be admissible unless the Hearing Officer shall determine the same to be redundant, unreliable or prejudicial .

vii. At the hearing any Hearing Participant may offer appropriate argument and summation, and submit a written brief and a proposed order, but only after the conclusion of the evidentiary portion of the hearing, if any.

viii. Immediately following the hearing, the County Manager shall cause a written transcript of all testimonial evidence introduced at the hearing to be prepared expeditiously, and shall provide copies of the same to all of the Hearing Participants.

g. Order.

i. Within seven (7) Business Days following the hearing, the Hearing Officer shall submit a recommended order to the County Manager and serve copies on all Hearing Participants. The recommended order shall contain findings of fact and, based upon such facts, a disposition of the disqualification challenge; provided, no finding of fact may be predicated solely upon the basis of hearsay.

ii. The recommended order shall thereafter be submitted to the Board along with the transcript of the hearing testimony and the entire written and tangible record of the disqualification challenge proceeding at the…