CC Ordinance 2273 ORDINANCE NO. 2273
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CAMPBELL ADDING
SECTION 3.20.110 TO CHAPTER 3.20 OF THE CITY OF CAMPBELL MUNICIPAL
CODE RELATED TO BIDDER RESPONSIBILITY DETERMINATIONS
THE CITY COUNCIL OF THE CITY OF CAMPBELL DOES HEREBY ORDAIN AS
FOLLOWS:
SECTION ONE: Section 3.20.110 is hereby added to Chapter 3.20 of the Campbell
Municipal Code to read as follow:
3.20.110 Determination of contractor non-responsibility.
(a) Definitions: As used herein, the following terms shall have the meaning set forth
below, unless the context clearly dictates a different meaning:
1 . "Bid" means any application submitted by a bidder in response to a notice
inviting bids, request for proposal, request for qualifications, or other
procurement process;
2. "Bidder" means any person, firm, corporation, partnership, association, or
other legal entity that applies for any contract whether or not the application
process is through a notice inviting bids, request for proposal, request for
qualifications or other procurement process, and includes a subcontractor
proposed to perform any work under the contract;
3. "City" means the City of Campbell;
4. "Contract" means any agreement to be entered by the City for the
performance of any work or service, the provision of any goods, equipment,
materials or supplies, or the rendition of any service to the City or to the
public, which is let, awarded or entered into by, or on behalf of, the City.
"Contract" also means any construction contract for a "public project" without
regard to the amount of the Contract;
5. "Contractor" means any person, firm, corporation, partnership, association, or
other legal entity, which enters into a contract with any awarding authority of
the City, and includes a subcontractor proposed to perform any work under
the contract;
6. "Director" means the Director of Public Works of the City of Campbell;
7. "Public project" means any of the following:
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i. A project for the erection, improvement, painting, or repair of public
buildings and works; or
ii. Work in or about streams, bays, waterfronts, embankments, or other work
for protection against overflow; or
iii. Street, stormwater or sewer work, including the installation of streetlights
and traffic control devises and other appurtenances to the streets, stormwater
facilities or sewers; or
iv. Improvements to public parks; or
v. Furnishing supplies or materials for any of the above-described projects,
including maintenance or repair of streets or sewers; or
vi. Any contract let pursuant to the requirements of the California Public
Contracts Code;
8. "Purchasing officer" shall have the same meaning as set forth in section
3.20.020 of this Chapter, provided that for public projects, the Director of
Public Works shall be the designee of the City Manager and serve as the
purchasing officer for purposes of this Section;
9. "Responsible" and "responsibility" refers to the attribute of trustworthiness, as
well as quality, fitness, capacity, and experience to satisfactorily perform the
contract;
10. "Subcontractor" means any person, firm, corporation, partnership,
association, or other legal entity not an employee of a contactor, including
consultants and consulting firms, which enters into a contract with a City
contractor or another subcontractor to assist the contractor or other
subcontractor in performing a contract with the City.
(b) Prior to awarding a contract, the City shall make a determination that the
prospective contractor is one that has the necessary attribute of trustworthiness,
as well as quality, fitness, capacity, and experience to satisfactorily perform the
work set forth in the contract. Responsibility will be determined from reliable
information concerning a number of criteria, including but not limited to:
management expertise; technical qualifications; experience; organization,
material, equipment, and facilities necessary to perform the work; financial
resources; bonding capacity; satisfactory performance of other contracts;
satisfactory record of compliance with relevant laws and regulations;
trustworthiness; and satisfactory record of business integrity.
(c) Prior to awarding a contract, the City may determine that a bidder is non-
responsible for purposes of that contract.
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(d) Before declaring a bidder non-responsible, the purchasing officer shall give written
notice to the bidder of the proposed determination of non-responsibility and the
basis for such proposed non-responsibility determination (including any evidence
reflecting upon the bidder's responsibility received from others or adduced as a
result of independent investigation). Such notice shall advise the bidder that,
upon timely request by the bidder, a non-responsibility hearing will be scheduled,
during which bidder will be provided an opportunity to be heard in accordance with
applicable law. The bidder must exercise its right to request a hearing within five
calendar days after receipt of such notice, by submitting a written request for a
hearing to the purchasing officer. Failure to submit a written request for a hearing
within the time frame set forth in this Section, will be deemed a waiver of the right
to such a hearing and the City may proceed to determine whether or not the
award of the contract should be made to another bidder or whether or not the
bidder is non-responsible for this and/or future contracts.
(e) Upon request for a hearing, the purchasing officer shall set a date, time, and
location of the hearing. Unless all parties agree otherwise, the purchasing officer
will send written notice of the hearing to the bidder no less than ten calendar days
before the hearing date or more than sixty days before the hearing date. The
notice shall include the date, time and location of the hearing.
(f) The purchasing officer shall conduct the hearing where evidence on the proposed
non-responsibility determination is presented. At the responsibility hearing, the
bidder and/or attorney or other authorized representative of the bidder will be
allowed to appear, to rebut adverse information, and to present evidence that the
bidder has the necessary quality, fitness, capacity, and experience to satisfactorily
perform the contract. Evidence may be oral or written. Any documents or written
argument and the names and addresses of witnesses must be submitted to the
purchasing officer, and exchanged between the City and the bidder, no later than
three business days prior to the hearing date. Any information or evidence
submitted after the deadline may be excluded by the purchasing officer. The
purchasing officer need not be bound by the common law or statutory rules of
evidence and procedures, but may make inquiries in the matter through all means
and in a manner best calculated to make a just factual determination.
(g) After the hearing is held, the purchasing officer shall prepare and deliver to the
bidder a written determination setting forth whether the bidder is found non-
responsible with respect to the contract(s) at issue.
(h) The purchasing officer may make a determination that the bidder is non-
responsible if the purchasing officer finds evidentiary support that the bidder has
committed any of the following: (1) violated a term of a contract, present or past,
with the City or other entity; (2) committed an act or omission which negatively
reflects on the contractor's quality, fitness, capacity, or experience to perform a
contract with the City or engaged in a pattern or practice which negatively reflects
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on the same; (3) committed an act or omission which evidences a lack of
business integrity or business honesty; (4) made or submitted a false claim
against the City or any other entity; (5) received a fine or citation for performing
work in an unsafe manner; or (6) violated a condition, rule, regulation, permit, or
standard applicable to a contract with the City or any other entity. In arriving at his
or her determination, the purchasing officer may consider past conduct of the
bidder on City projects or on any other public or private projects upon which
bidder performed work.
(i) An appeal of the purchasing officer's determination of non-responsibility may be
made by the bidder that is the subject of such determination to the City Council by
filing a written notice of appeal with the City Clerk within seven (7) calendar days
after the date of notice of the purchasing officer's determination accompanied by
any fee set by Resolution of the City Council. If an appeal is timely filed with the
required fee and subsequently has not been withdrawn by the bidder, the City
Council shall consider the appeal at a public meeting. The City Clerk shall provide
written notice of the hearing to the bidder no less than ten calendar days before
the hearing date or more than sixty days before the hearing date. The notice shall
include the date, time and location of the hearing. The City Council may, in its
discretion, hear the appeal as part of the City Council's consideration of the award
of the contract to which the determination of non-responsibility relates or may hear
the appeal as a separate item, provided that the City Council shall decide the
appeal prior to awarding the contract, unless the City Council exercises its
discretion to reject all bids.
(j) The purchasing officer's determination of non-responsibility and any staff
recommendations shall be presented to the City Council. In rendering its decision
on the appeal, the City Council shall apply the same standards that are set forth in
subsection (h) of this Section. The City Council shall have the right to modify,
reverse, or uphold the purchasing officer's determination, or take any other action
authorized by law.
(k) If the City determines that a bidder is non-responsible, the bidder's bid shall be
deemed rejected and the bidder shall be prohibited from being awarded and/or
performing any work on the contract(s) at issue.
(I) The purchasing officer's determination shall constitute a final decision for
purposes of judicial appeal, unless timely appealed to the City Council. If an
appeal is timely filed with the City Clerk, a non-responsibility determination shall
become final upon approval by the City Council.
(m) The purchasing officer's or City Council's determination shall not preclude the
City or any other agency from initiating any other legal proceeding against a
contractor or its affiliates for actions related to proceedings held pursuant to this
Section.
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SECTION TWO: This ordinance shall become effective thirty (30) days following its
passage and adoption and shall be published once within fifteen (15) days upon
passage and adoption in The Metro, a newspaper of general circulation in the City of
Campbell, County of Santa Clara,
PASSED AND ADOPTED this 1st day of June, 2021 by the following roll call vote:
AYES: COUNCILMEMEBRS: Bybee, Landry, Lopez, Resnikoff, Gibbons
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: None
ABSTAIN: COUNCILMEMBERS: None
APPROVED:
‘,,cie- . ;er ‘.
4iz beth "Liz" Gebons Ma
yor
ATTEST:
Dusty Christopherson, City Clerk
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