Fiscal Note
The requirements of this proposed ordinance amendment are generally consistent with current purchasing practices and can be accomplished with existing staff resources. No appropriation is required.
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SUBSTITUTE - Repealing Section 3.61 and recreating it as Section 4.26 of the Madison General Ordinances to modify the procedures for approval of purchase of service contracts and to relocate it in the Chapter on finance.
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DRAFTER'S ANALYSIS: Section 3.61 of the ordinances covers some aspects of City purchasing, but the ordinance is confusing and outdated. Following extensive meetings of the staff contract group, a new ordinance is being proposed. This ordinance repeals the current Section 3.61, amending and renumbering it to Section 4.26, so that it is relocated to the Chapter on finance. The revision keeps several of the provisions of current Sec. 3.61, and makes changes to several other provisions. The key elements of the ordinance are as follows:
1. The ordinance explicitly states that by granting the authority therein, the Council is approving the contracts that are executed pursuant to its terms.
2. The ordinance explicitly authorizes the purchase of goods and supplies when the Council has approved budget authorization for them. This follows current practice, but was nowhere codified.
3. The ordinance allows for the City to purchase services without Council further approval, provided that there has been a competitive process for obtaining the services and the funds have been authorized in the City budget. Such contracts must either be for a one-year period, or if for more than one year but less than three years, must be not more than $50,000 per year. No contracts for more than three years can be authorized without a resolution of the Council.
4. The ordinance codifies existing exceptions to the RFP process, with some modifications. The ordinance provides that, if a contract for the purchase of services exceeds $25,000 and was not subject to a competitive bidding process, it must be approved separately by the Common Council.
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The Common Council of the City of Madison do hereby ordain as follows:
Section 3.61 entitled "Consultant Services" of the Madison General Ordinances is hereby repealed and recreated as Section 4.26 entitled "City Purchasing" of the Madison General Ordinances to read as follows:
"4.26 CITY PURCHASING.
(1) Council Authorization. This ordinance authorizes the City Comptroller, or the Mayor and City Clerk, to enter into contracts on behalf of the City of Madison if the contracts meet the criteria of the ordinance. Contracts that do not meet the criteria set forth in this ordinance, and are not otherwise authorized by law, rule or regulation, shall be authorized separately by the Common Council, by resolution or otherwise. This ordinance does not apply to public works contracts required to be bid pursuant to sec. 62.15, Wis. Stats.
(2) Goods and Supplies. The City may purchase supplies, equipment, goods and materials when the costs of the same have been included in the approved City budget. Except as otherwise authorized by the Common Council, purchases shall be made by the Comptroller, under this section and sec. 3.17, MGO, pursuant to policies adopted by the Mayor or the Comptroller that include a competitive process, and on forms approved by the City Attorney. A contract that is for the purchase or rental of equipment and includes maintenance or repair services is considered a contract for the purchase of equipment.
(3) Services. The City may contract for the purchase of services. Except as otherwise directed by the Common Council, contracts for the purchase of services may be entered into without Council resolution when all the following conditions are met:
(a) The funds for the services are included in the approved City budget.
(b) The City has engaged in a Request for Proposals (RFP) or other competitive bidding process that has been approved by the Comptroller, or the contract is exempt from such a requirement pursuant to sub. (4) of this ordinance.
(c) The City Attorney has approved the form of the contract.
(d) The contract complies with other laws, resolutions, and ordinances.
(e) The contract is for a period of one (1) year or less, or the contract is for a period of more than one (1) year but not more than three (3) years and the cost of the services does not average more than $50,000 per year of the contract, provided that this subparagraph is subject to sub. (4)(b) of this ordinance for non-competitive contracts.
(4) Exceptions to RFP Process. The City may enter into negotiated contracts without a competitive bidding process for the purchase of services if the following are met:
(a) One or more of the following criteria are present as found by the Comptroller:
1. Public exigency will not permit the delay incident to advertising or other competitive processes;
2. The service required is available from only one person or firm;
3. The services are for professional services to be provided by attorneys;
4. The services are to be rendered by a university, college, or other educational institution;
5. No acceptable bids have been received after formal advertising;
6. Service fees are established by law or professional code;
7. A particular consultant has provided services to the City on a similar or continuing project in the recent past, and it would be economical to the City on the basis of time and money to retain the same consultant;
8. The contract is for $25,000 or less; or
9. Otherwise authorized by law, rule, resolution, or regulation.
(b) If the aggregate amount of the fee for services will exceed twenty-five thousand dollars ($25,000) and the contract was not subject to a competitive bidding process, the contract shall meet one of the other requirements of sub. (4)(a) and be approved by the Common Council by resolution.
(5) Execution of Contracts. Except as otherwise authorized by resolution or ordinance, contracts shall be signed by the Mayor and the City Clerk. Contracts allowed under subs. (2), (3), or (4)(a) may be signed by the Comptroller or designee. All contracts shall be on forms approved by the City Attorney."
EDITOR'S NOTE:
Section 3.61 currently reads as follows:
"3.61 CONSULTANT SERVICES.
(1) In certain instances, the interests of the City can best be served by contracting with outside consultants or researchers for services when City staff is not available for a particular management or technical project, either by pressure of time, incomplete expertise or by priority determination.
(2) The following guidelines shall be observed by the Department or Division seeking the services of consultant or researcher:
(a) Provision of all applicable State Statutes and City Ordinances including the Affirmative Action Ordinance and Code of Ethics, shall be strictly observed.
(b) All contracting for consultant or research services, whether negotiated or advertised and without regard to dollar value, shall be conducted in a manner so as to provide maximum open and free competition. The Department or Division seeking such services should be alert to organizational conflicts of interest or noncompetitive practices among contractors which may restrict or eliminate competition or otherwise restrain trade in violation of Section 3.47 of the Madison General Ordinances.
(c) The Department, Division or Purchasing Agent shall establish procedures which provide for, as a minimum, the following procedural requirements:
1. So that the most economical and practical services may be used, all staff resources including loan of personnel from other agencies shall be exhausted before seeking non-City assistance.
2. Invitations for bids or requests for proposals shall be based upon a clear and accurate description of the technical requirements, time period, and other essential decision details deemed necessary.
3. Positive efforts aimed on the utilization of Minority Business Enterprises must be undertaken in accordance with the City's Affirmative Action and Minority Business Enterprises Programs.
4. With the assistance of the City Attorney's office all contracts or agreements for services shall be of the most appropriate form for the particular type of service.
5. Formal advertising, with adequate description of services required, bids and public openings shall be the required method of securing services unless negotiation pursuant to Paragraph 6. below is necessary to accomplish the contracting for services. However, contracts of twenty-five thousand dollars ($25,000) or less need not be so advertised unless otherwise required by Federal laws, State Statutes, rules or regulations. Where such advertised bids are obtained the awards shall be made to the responsible bidder whose bid is responsive to the invitation and is most advantageous to the City, and such rejections are in accordance with other applicable laws, rules, and regulations.
6. Consultant or research services may be negotiated if it is impracticable and unfeasible to use formal advertising. Generally such contracts or agreements may be negotiated if:
a. Public exigency will not permit the delay incident to advertising;
b. The service required is available from only one person or firm;
c. The aggregate amount of the fee for service does not exceed twenty-five thousand dollars ($25,000);
d. The services are for professional services, or for any service to be rendered by a university, college, or other educational institution;
e. No acceptable bids have been received after formal advertising;
f. Service fees are established by law or professional code; or
g. Otherwise authorized by law, rule, or regulation.
(d) Provided they meet the minimum procedural requirements listed above, Departmental or Divisional Administrative Procedures on selection or hiring of consultants or researchers may differ or be more restrictive.
(3) The Common Council may exempt contracts for services in the amount over twenty-five thousand dollars ($25,000) for projects in which work has been accomplished by a particular consultant in the recent past. In those cases, the Common Council may determine that the previous consultant may provide services for the project when to do otherwise would be uneconomical for the City on the basis of both time and money.
(4) Construction Management Contracts Exempted. Construction management contracts for public construction shall be exempt from the provisions of this section notwithstanding any other provisions of this section to the contrary.
(5) Subject to rules which the Mayor may establish, the Purchasing Agent is authorized to sign contracts for purchase of services when all of the following apply:
(a) The total cost of the services is twenty-five thousand dollars ($25,000) or less.
(b) The expenditure is authorized in the City budget.
(c) The contract calls for the completion of the services in one twelve-month period.
(d) The contract is in a standard form previously approved by the City Attorney."