ACTION BULLETINS (PY 2004)
AB - 45 PROCUREMENT OF GOODS AND SERVICES
AB - 45
Effective Date: Immediately
ACTION BULLETIN
TO: All WIA Program Operators
DATE: November 9, 2004
SUBJECT: PROCUREMENT OF GOODS AND SERVICES
Purpose of Bulletin: This policy provides guidance and oversight in the procurement of goods and services by entities receiving Workforce Investment Act (WIA) funds, including the Alameda County Workforce Investment Board (WIB) and its sub recipients. These entities include, but are not limited to: One-Stop Operators, youth providers, other contractors and lower tier sub recipients.
Citation(s):
· Title 20 Code of Federal Regulations (CFR) 663.410
· Title 20 CFR 667.200
· Title 29 CFR 93
· Title 29 CFR 95.40 through 48
· Title 29 CFR 97.36
· Title 29 CFR 98
· WIA Section 122
· Title 20 Code of Federal Regulations (CFR) Federal Register, Section 663.500
· State Directive, WIAD00-2, “Procurement”
· State Directive, WIAD01-16, “Eligible Training Provider List (ETPL)”
Background
The WIA regulations at 20 CFR 652 provide guidance for the administration of the WIA program. The guidance includes specific direction and referral to 29 CFR 95 for institutions of higher education, hospitals and other nonprofit and commercial organizations, and to 29 CFR 97 for states and local governments. While the format and wording of Part 95 and Part 97 vary slightly, the intent of the federal government is consistent: procurement policies must ensure free and open competition and must secure the best possible price.
Role of ACWIB Administration:
The administration office of the ACWIB will provide oversight and site monitoring in congruence of this bulletin to ensure that all service providers and contractors in the appropriate utilization of WIA funds are adhering to the standards contained herein.
Definitions
Procurement: For purposes of this policy, the term "procurement" includes ANY acquisition action which obligates WIA funds for the purchase of equipment, materials, supplies, and/or program or administrative services beginning with the process for determining the need and ending with contract completion and closeout.
Request for Proposal (RFP): A document which invites offers from service providers for the delivery of a specific type of service. It includes a description of the product(s) or service(s) desired which enable a potential contractor to submit a proposal. The RFP will include information necessary for an objective evaluation and comparison to similar proposals. The RFP is the specific term applied to a solicitation where negotiation is used.
This method is the most commonly used form of solicitation when:
1. The nature of the service needed precludes developing a specification or purchase description so precise that all proposers would have an identical understanding or approach to the requirements; and
2. Cost is not the only factor considered in making an award.
Request for Quotation (RFQ): A document that is used to acquire the price(s) and any pertinent information needed from a vendor/supplier. Since the quotation is not a formal offer, the awarding agency must reach a bilateral negotiated agreement before a binding contract exists. An RFQ differs from an RFP in that it simply asks for a price based on standard specifications that are generally known or apply industry wide.
It is appropriate to use an RFQ when:
1. A complete, adequate and realistic specification or purchase description is available; and
2. There are at least two responsible vendors who compete effectively for the award; and
3. The procurement lends itself to a firm fixed-price contract and selection of a contractor based wholly on price is appropriate and reflective of the nature of the products or service being purchased.
Responsible entity is one that has been determined to: (1) have adequate financial resources to perform the contract or the ability to obtain such resources; (2) be able to comply with the required or proposed delivery or performance schedule, taking into consideration all existing commercial and business commitments; (3) have a satisfactory performance record; (4) have a satisfactory record of integrity and business ethics; (5) have the needed organization, experience, accounting, operational control and technical skills or ability to obtain them; (6) have adequate production, construction or technical equipment and needed facilities or the ability to obtain them; and (7) be both qualified and eligible to receive the award under applicable law and regulation.
Responsive proposal is the term used for a proposal or bid that meets all requirements of the solicitation adequately; and the submitted document does not constitute a substitute or counter offer. When a bidder substitutes a “like item,” the submittal is considered non-responsive when the like item fails to meet published specifications. The same principle holds when the proposal is a substitute or counter offer.
Solicitation: means an Invitation for Bid, Request for Proposal, or any other document, such as a Request for Quotation, issued by a purchasing agency for the purpose of soliciting offers to perform a contract.
General Policies
All procurement will be conducted in a manner that ensures that the most effective service provider is selected. Procurements will be conducted in a fair and impartial manner and in accordance with all applicable federal and state laws. Generally all procurement activities will be conducted in confidential manner. All proposals will be due in a timely manner published, and must be free of any conflict of interest.
Exclusions:
The following exclusions will apply to this policy:
On- The-Job Training (OJT): The competitive provisions of this policy will not apply to OJT employers, except in the procurement of OJT brokering services.
Individual Training Accounts (ITA): The delivery of classroom training from vendors through an ITA as described in 20 CFR 663.410 is excluded if the cost falls within the guidelines of the small purchase procedures.
General Requirements
At a minimum, procurement will:
A. Be conducted in a manner that provides full and open competition regardless of method or dollar amount. Where appropriate, cost analysis will be made of lease versus rental or purchase alternatives, and any other appropriate analysis to determine which approach would be the most economical;
B. Minimize the use of sole source procurement;
C. Clearly set forth the requirements that bidders or offerors must meet and the factors to be used in evaluating bids or proposals;
D. Include a clear and accurate written description of the technical requirements for the material, product, or service to be procured, including the method of procurement, selection and basis for the type of contract, criteria for contractor selection or rejection, contractor selection and basis for payment. Competitive procurement will not contain features that unduly restrict or eliminate completion.
E. Contracts will be awarded to responsible bidders who possess the potential ability to perform successfully under the terms and conditions of the procurement. Consideration will be given to such matters as contractor integrity, compliance with public policy, record of past performance, and financial and technical resources. The contract award will also include the following provisions:
1. Clearly specify deliverables and basis for payment;
2. Compliance with all applicable regulations;
3. Assurance of nondiscrimination and equal opportunity as found in 29 CFR 34.20 is required;
4. Certifications, where applicable, regarding debarment, suspension, lobbying and drug free workplace.
5. The opportunity to protest the award.
F. Procurement transactions with any other governmental organization will be conducted on a cost reimbursement basis.
G. To the extent possible, small firms, minority firms, and women-owned businesses will be included in bidders lists, and will be targeted for mailings and advertised procurement. These firms will be provided the maximum opportunity to compete in all procurement of goods and services.
H. WIA funds will not be used to duplicate facilities or services available in the area (with or without reimbursement) from Federal, State or local sources, unless it is demonstrated that additional capacity is needed or that alternative services or facilities would be more effective or more likely to achieve performance goals and mission.
I. Procurement activities and record keeping will be subject to State and Federal audits and monitoring. Special audit requirements specify that internal procurement policies and procedures are in place and must be produced when necessary.
Methods of Procurement
For the purpose of this policy, procurement will be made by the following methods:
1. Small Purchases
2. Competitive Sealed Bids
3. Competitive Negotiation
4. Non-Competitive Negotiation (Sole Source)
Contract Pricing
The cost-plus method of contracting will not be used.
Price Analysis: A price analysis will be used in all instances to determine the reasonableness of a proposed contract price, including contract modifications. A price analysis is the process of examining and evaluating a price without looking at the estimated cost elements and proposed profit. It is used when price reasonableness can be established on the basis of a catalog or market price of a commercial product sold in substantial quantities to the general public or based on prices set by law or regulations.
Cost Analysis: A cost analysis of the proposed contract or contract modification will be performed when: the offeror is deemed a sub-recipient; individual cost elements have been requested; procurement is made by sole source method; or, no catalog or market price is available. A cost analysis is the process that examines, element-by-element, costs and related information presented in the cost and pricing data submitted by offerors. The method and degree of cost analysis is dependent on the facts surrounding the procurement.
Costs or prices will be consistent with reasonable and allowable cost principles. The offeror will certify that to the best of its knowledge and belief, the cost data are accurate, complete, and current at the time of agreement on price. Contracts or modifications negotiated in reliance on data provided by the offeror may be adjusted if it is discovered data is not accurate, complete, or current.
Profit: The following factors will be consider in determining whether income or profits are excessive:
1. Complexity of work to be performed;
2. The risk borne by the contractor;
3. The contractor's investment;
4. The amount of subcontracting;
5. The quality of the contractor's record of past performance;
6. Industry profit rates in the surrounding geographical area;
7. Market conditions in the surrounding geographic area.
Selection of Training Providers
With the exception of certain types of customized and on-the-job training, only providers, through their training programs being listed on the State Eligible Training Provider List (ETPL), are eligible to receive WIA funds for training adults and/or dislocated workers. In order to be listed on the ETPL as a vendor providers must submit an application to the WIB in any local area in which the provider desires to provide training services. Only one provider application is required; however, a separate application is required for each program of training services offered by the provider.
Once the provider is listed on the ETPL, it is eligible to train individuals enrolled in WIB programs without further selection through the procurement process.
Procurement Records
A. Procurement records will be retained for three years after final payment on a contract and all other matters are closed or five years, whichever is greater. Records will be maintained sufficient to detail the significant history of a procurement. These records will include, but are not necessarily limited to, the following:
1. Rationale for the method of procurement (small purchase, request for proposal, etc.)
2. The selection of agreement type, (cost reimbursement or fixed price)
3. Awardees selection or rejections.
B. Records of solicitations shall include:
1. Copy of the solicitation package
2. Copy of the public notification
3. Bidders' List to which notices were mailed
4. List of all organizations/entities that received the RFP
5. Agenda and minutes of a bidders' conference, if held
6. Written responses to all clarifying questions received outside of the bidders’ conference
7. Copy of each proposal received
8. Rating and scoring sheets completed in the evaluation process
9. Determination of demonstrated performance
10. Documentation of the rationale for selection and funding any offeror, which did not receive the highest score/ranking in the evaluation process
11. Completed Memorandum of Negotiation for each contract
12. Completed cost or price analysis for each selected bidder
13. Copy of any submitted protests and the resolution of each.
ACTION:
All WIB providers and their sub recipients shall strictly adhere to this policy. Please distribute this directive to appropriate procurement staff within your organization. This policy will remain in effect from the date of issue until such time that a revision is required.
Information & Inquiries:
For further information and inquiries, please contact:
Cotrell Ward, Management Analyst
(510) 259-3814
Cward@acgov.org
Attachment A: Alameda County WIB “Conflict of Interest Policy”
Cc: Dorothy Chen
Patti Castro
WRS
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