HomeMy WebLinkAboutChapter 170 - Procurement BY-LAW NUMBER 2022-109
of the
CORPORATION OF THE CITY OF KITCHENER
(Being a By-law regarding the Procurement of
Goods and Services)
WHEREAS the Municipal Act 2001, S.O.,Section 270 requires all municipalities and local boards
to adopt and maintain a policy concerning the procurement of goods and services.
AND WHEREAS the Corporation of the City of Kitchener is committed to ensuring its procurement
decisions are fair, open and transparent;
AND WHEREAS purchases made by the City of Kitchener should reflect best value for the
taxpayer, protect the Corporation's financial interests and encourage competitive bidding;
AND WHEREAS the Corporation of the City of Kitchener must be prepared to manage
extraordinary circumstances from time to time, and that such circumstances may require
immediate procurement decisions that are necessary to prevent or alleviate serious delay,a threat
to public health,safety or welfare,the disruption of essential services or damage to public property
or to respond to any emergency of the Corporation or as required under the provincial Emergency
Management and Civil Protection Act(as amended);
AND WHEREAS effective planning, monitoring and control of public sector procurement are
essential for maintaining public trust and confidence;
AND WHEREAS it is deemed expedient that the Council of The Corporation of the City of
Kitchener establish a policy concerning the procurement of goods and services.
NOW THEREFORE the Council of The Corporation of the City of Kitchener enacts as follows:
1. PURPOSES OF THIS BY-LAW
The purposes of this By-law are:
1.1. To express the City's goals and objectives in relation to its procurement of goods,services
and construction;
1.2. To describe the roles, responsibilities and authorities of the City's employees,officers and
elected officials in carrying out the City's procurement operations;
1.3. To extend authority to the CAO and CPO for the approval of detailed procurement procedures
and protocols that are consistent with the intent of this By-law and,to supplement and amend
those procedures and protocols as and when deemed necessary, to meet the present and
future needs of the City;and,
1.4. To comply with the requirements of Section 270(1)of the Municipal Act,S.O.,2001,as
amended from time to time.
2. PROCUREMENT GOALS AND OBJECTIVES
The goals and objectives of the City's procurement operations are:
2.1. To obtain the best value for the City when procuring goods and service(s)and construction
and manage inventory in an efficient,timely and cost effective manner;
2.2. To encourage competitive procurement and ensure the principles of fairness,objectivity,
transparency and accountability are reflected in the City's procurement processes;
2.3. To support effective business planning such that goods,services and construction will only
be acquired after consideration of need, alternatives, timing and appropriate life cycle
management issues;
2.4. To adhere to the highest standards of ethical conduct and to avoid conflicts between the
interests of the City and those of the City's employees,officers and elected officials;
2.5. To ensure compliance with all applicable trade agreements,laws and regulations;
1
2.6. To practice reciprocal non-discrimination and geographic neutrality with respect to
Ontario's trading partners and avoid preferential treatment of local suppliers;
2.7. To avoid creating situations or relationships which may result in a continuous reliance on a
particular supplier;and,
2.8. To encourage the procurement of goods, services and construction with due regard to the
preservation of the natural environment and the promotion of human rights and fair labour
practices.
3. APPLICATION OF THIS BY-LAW
3.1. This By-law applies to all departments of the City and may be adopted in principle and,at
their own discretion, by local boards and affiliates of the City;
3.2. This By-law applies to the procurement of all goods, service(s) or construction, except for
those items set out in Schedule "A". This By-law also applies to the disposal of the City's
Surplus Assets;
3.3. In addition to the items set out in Schedule"A",this By-law does not apply to the acquisition
or disposal of real property. The disposal of real property is governed by the Policy and/or
By-law in effect at the time of such disposition;and,
3.4. In addition to this By-law, the City has procedures, protocols, templates and forms for use
during the procurement cycle.All tools for engaging in procurement activity will be maintained
and updated by the Procurement Section as required and stored on the City's Intranet and
where applicable the external website.
4. DEFINITIONS
4.1. In this By-law:
"Agreement " means a written document, executed by the City and the Supplier,
evidencing the Contract between the City and the Supplier for the Deliverables being
procured;
"Approval Authority " means the authority to approve Procurements and award
Contracts, as well as any assignment or corporate change requests related to such
Contracts, in accordance with Section 10, but does not include the authority to issue
Purchase Orders or execute Agreements;
"Best value" means the optimal balance of performance and cost determined in
accordance with specified evaluation criteria;
"Bid"means a submission in response to a solicitation document;
"Bidder"means a supplier that submits a bid;
"Business Unit"means the City Department,division or unit initiating or requesting
the Procurement of Deliverables;
"CAO"means the Chief Administrative Officer of the City or designate;
"CFO"means the Chief Financial Officer and Treasurer of the City or designate;
"Chief Procurement Officer" or "CPO"" means the head of the City's Procurement
Section or designate;
"City"means The Corporation of the City of Kitchener;
"City Solicitor"means the head of the City's Legal Services Division or designate;
"Competitive Process"means either an Open Competition or an Invitational
Competition;
"Construction" means the process of using labour to build, alter, repair, improve or
demolish any structure, building or public improvement, and generally does not apply
to routine maintenance,repair or operations of existing real property;
"Contract" means a commitment by the City for the procurement of goods, services or
construction from a supplier,which may be evidenced by an agreement executed by the
supplier and the City or a purchase order issued to the supplier by a duly authorized
employee of the City;
"Cooperative Purchasing"means a variety of arrangements whereby two or more public
procurement entities combine their requirements in a single procurement process to
obtain advantages of volume purchases from the same supplier(s)or contractor(s);
"Council"means the Council of the City;
2
"Deliverables"means Goods, Services,Construction,or any combination thereof;
"Department"means any department of the City;
"Department Head"or"DH"means the General Manager of a Department,and includes
the CFO and CAO,or their designate;,
"Designate"means a person authorized by the Department Head to act on their
behalf,for the purpose of this By-law;
"Disposal"means an act through which the City gives up title to property;
"Goods"means moveable property including services that are incidental to the provision of
the moveable property, such as manufacturing, delivery, installation or maintenance, and
any necessary raw materials, products,supplies, equipment and other physical objects of
every kind and description whether in solid, liquid,gaseous or electronic form, unless they
are procured as part of a construction contract;
"Immediate Family"means the spouse of the individual,as defined in Part III of the Family
Law Act,and the child,stepchild,parent,stepparent,sibling,grandchild and grandparent of
either the individual or their spouse;
"Invitational Competition"means a competitive process in which an invitation to submit bids
is issued to at least three suppliers;
"Limited Competition"has the meaning ascribed thereto in Section 15.1;
"Low Cost Purchase"(LCP)means a purchase of Deliverables,as per the thresholds stated
in Schedule"B"of this By-law,that are not covered by an existing Standing Offer or Qualified
Supplier Roster or available through the City's existing materials inventory;
"Non-Competitive Process"has the meaning ascribed thereto in Section 15.1;
"Non-Standard Procurement"has the meaning ascribed thereto in Section 15.1;
"Open Competition"means the solicitation of bids through a publicly posted solicitation
document;
"Procurement"or"Purchasing"means the acquisition of goods,service(s)or construction
by purchasing,renting or leasing;
"Procurement Review Committee"or"PRC"means the committee established pursuant
to Section 13 of this By-law;
"Procurement Value"means the estimated maximum total value of the Deliverables being
procured over the entire duration of the Contract,including the total value of all options
for extension of the Contract term and/or expansion of the scope of Deliverables to be
purchased under the Contract.The Procurement Value must include all anticipated costs
to the City,including,as applicable,acquisition,delivery,installation,training,operation,
maintenance,replacement and Disposal, less applicable rebates or discounts and shall
exclude HST or other sales taxes;
"Purchase Order"means the City's written document issued by a duly authorized employee
of the City to a Supplier formalizing all the terms and conditions of the purchase and supply
of the Deliverables identified on the face of the Purchase Order;
"Procurement Section"means the section of the Finance Department responsible for
the procurement of Deliverables for the City;
"Purchasing Card"means a credit card provided by the City to duly authorized employees
of the City for use as a payment method to purchase directly from Suppliers where
permitted under this By-law and in accordance with a written card holder agreement and
applicable procedures;
"Qualified Supplier Roster"means a list of Suppliers that have participated in and
successfully met the requirements of a Open Competition in accordance with Section
14.5,and have been pre-qualified to perform discrete work assignments involving the
delivery of a particular type of Deliverables for a specified term;
"Qualified Supplier Roster Competition" or "QSRC" means an expedited, invitational
competition between suppliers that have been included on a Qualified Supplier Roster for
the selection of a supplier to provide the Deliverables as specified in the original Open
Competition during the term of the roster;
"Real Property"means land or any interest in land and its permanently affixed buildings
or structures;
"Services"means the furnishing of labour, time or effort by a supplier,which may involve
the delivery or supply of products incidental to the provision of the services, and includes
professional, construction or maintenance services, and expert or strategic advice that is
presented for consideration and decision-making;
3
"Solicitation Document"means the document issued by the City to solicit bids from bidders;
"Standard Procurement"has the meaning ascribed to it in Section 14;
"Standing Offer"means a written offer from a pre-approved Supplier to supply Deliverables
to the City,upon request,through the use of an ordering process during a particular period
of time,at a predetermined price or discount,generally within a pre-defined dollar limit.The
Standing Offer does not create a contractual commitment from either party for a defined
volume of business. The commitment to purchase against a Standing Offer is formed at
the time a specific order is placed through the issuance of a Purchase Order to the
Supplier;
"Supplier" means a person carrying on the business of providing goods, services or
construction;
"Surplus Assets"means tangible or intangible property owned by the Corporation,other
than Real Property, including but not limited to movable property subject to ownership,with
exchange value that has been identified by authorized City staff as being Surplus Assets in
accordance with Section 26;
4.2. References within this by-law to municipal, provincial or federal laws,by-laws,policies or
procedures shall include any amendment to, and any modification or re-enactment
thereof; any law, by-law, policy, procedure or provision substituted therefor; and all
regulations and instruments issued thereunder or pursuant thereto.
5. CONTRACT SPLITTING
5.1. Subdividing, splitting or otherwise structuring procurement requirements or contracts in
order to reduce the procurement value or in any way circumvent the requirements or intent
of this By-law is not permissible.
6. CITY'S CONDUCT AND CONFLICTS OF INTEREST
6.1. The City's procurement activities must be conducted with integrity so as to maintain the
public's trust. All procurement activities undertaken by the City must be conducted in
accordance with:
a) the City's Code of Conduct for Members of Council, Local Boards,&
Advisory Committees,as applicable;
b) the City's Conflict of Interest Policy for employees,as applicable;
C) the City's Confidentiality of Information Policy,as applicable;
d) the City's Procurement Procedures and Protocols,as applicable;
e) the Statement of Ethics for Public Purchasers in Schedule"D"of this By-law;
and
f) the Municipal Conflict of Interest Act, R.S.O. 1990,c.M.50,as applicable.
6.2. All participants in a procurement process,including any external consultants or other service
providers acting on the City's behalf,must declare any perceived,possible or actual conflicts
of interest.
6.3. No purchase will be processed for personal items of direct benefit to officers or employees
of the City or any member of Council except where permitted by policy, or under the
auspices of a City-sponsored employee program or with the prior approval of the CAO.
6.4. No Deliverables will be purchased from an officer or employee of the City,or any associate
or Immediate Family of an officer or employee,directly or indirectly,unless the extent of the
interest of such individual has been fully disclosed to the CPO and the purchase has been
subsequently approved by the CAO.
6.5. Members of Council are required to declare any direct or indirect pecuniary interest,and its
general nature,which may result in a conflict of interest pursuant to the Municipal Conflict
of Interest Act and the member of Council shall otherwise comply with that Act.
6.6. Any Contract with the City in which a member of Council or any employee of the City has
an undeclared direct or indirect pecuniary interest may be voided.
7. SUPPLIER'S CONDUCT AND CONFLICTS OF INTEREST
7.1 The City expects its Suppliers to act with integrity and conduct business in an ethical
manner.
7.2 The City may refuse to do business with any Supplier that,in the City's opinion:
a) has engaged in illegal or unethical bidding practices;
4
b) has an actual or potential conflict of interest;
C) has an unfair advantage in the procurement process;or
d) fails to adhere to ethical business practices.
7.3 All Suppliers participating in a procurement process must declare any perceived, possible
or actual conflicts of interest.
7.4 Where a supplier is retained to participate in the development of a Solicitation Document or
the specifications for inclusion in a Solicitation Document,that Supplier will not be allowed
to respond,directly or indirectly,to that Solicitation Document.
7.5 Illegal or unethical bidding practices include:
a) bid-rigging, price-fixing, bribery or collusion or other behaviours or practices
prohibited by federal or provincial statutes;
b) attempting to gain favour or advantage by offering gifts or incentives to City officers
and employees,members of Council or any other representative of the City;
C) lobbying members of Council or City officers and employees or engaging in any
prohibited communications during a procurement process;
d) submitting inaccurate or misleading information in response to a procurement
opportunity;and
e) engaging in any other activity that compromises the City's ability to run a fair
procurement process.
7.6 The City will report any suspected cases of collusion or other bid-rigging offences under the
Competition Act to the Competition Bureau or to other relevant authorities.
7.7 In providing Deliverables to the City, Suppliers are expected to adhere to ethical business
practices,including:
a) performing all City contracts in a professional and competent manner and in
accordance with the terms and conditions of the contract;
b) complying with all applicable laws,including safety and labour codes(both domestic
and international as may be applicable);
C) ensuring that fair wages are paid to suppliers'employees;and
d) providing workplaces that are free from harassment or discrimination of any kind.
8. SEPARATION OF ROLES AND THE ROLE OF COUNCIL
8.1. In accordance with best practices in municipal procurement, Council recognizes the need
for a clear separation of political and administrative functions in relation to the City's
procurement operations. It is the role of Council to establish policy and to approve
expenditures through the City's budget approval process. Through this By-law, Council
delegates to the City's officers and employees the authority to incur expenditures in
accordance with approved budgets through the procurement of Deliverables in accordance
with the rules and processes set out in this By-law.
8.2. To facilitate Council's oversight role in respect of significant projects, Council may require
Departments to obtain Council's authority to initiate specific procurements by identifying
procurement projects of interest, such as procurements that are of a high value or involve
significant risk,security concerns or significant community interest.
8.3. To avoid the potential appearance of bias or political influence in procurement contract
award decisions, members of Council will have no involvement in competitive procurement
processes from the time those procurement process have been initiated through the
advertisement or issuance of the solicitation document until a contract has been entered
into with the successful bidder, except where Council is required to approve the contract
award in accordance with Section 11 of this By-law.
9. ROLES&RESPONSIBILITIES
9.1. Specific responsibilities pertaining to all stages of a procurement process, from the initial
identification of requirements through to the management of contracts with suppliers, are
detailed in this By-law and the City's procurement procedures and protocols. In addition to
those specific responsibilities, the general roles and responsibilities delegated to the City's
officers and employees are set out below.
5
9.2. Chief Administrative Officer
It is the role of the CAO to lead the City's operations and promote this By-law.
In fulfilling this role,the CAO is responsible for:
a) exercising their authority for all procurement activity within the prescribed limits of
this By-law;and
b) providing support and guidance to the CFO, CPO and the Procurement Review
Committee,as required.
9.3. Chief Financial Officer
The CFO is responsible for overseeing the Procurement Section. It is the role of the CFO to
implement and promote this By-law and oversee the conduct and activities of the City's
employees in carrying out the City's procurement operations.
In fulfilling this role,the CFO is responsible for:
a) providing support and guidance to the CPO and the Procurement Review
Committee,as required;
b) ensuring compliance with this By-law and reporting serious or repetitive incidents of
non-compliance to Council,as warranted;and
C) review and approval of recommendations submitted by the CPO and reporting to
Council.
9.4. Chief Procurement Officer
It is the role of the CPO to lead the City's procurement and inventory management
operations. In fulfilling this role,the CPO or designate is responsible for:
a) researching developments in Canadian public procurement requirements and best
practices and recommending updates to this By-law, as necessary, to reflect such
developments and support the City's procurement goals and objectives;
b) developing, implementing, maintaining and updating, as necessary, the City's
Procurement Procedures and Protocols;
C) providing procurement advice and related services, including developing and
maintaining the necessary forms,contracts,and solicitation document templates,for
the purposes of fulfilling the procurement needs of the City;
d) developing procurement strategies and continually analyzing City's business
requirements and spending patterns to identify opportunities for more strategic
sourcing, including:
i) the standardization of goods and service(s)in conjunction with
departments,where appropriate and feasible;and
ii) the consolidation of all similar goods and service(s)where appropriate
and possible;
e) submitting recommendations and reports to Council,as required under this By-
law.
f) ensuring the consistent application of procurement procedures and protocols and
providing procurement services and inventory management in an efficient and
diligent manner;
g) addressing and,where possible,resolving issues or concerns that arise in respect of
a procurement process or the application and interpretation of this By-law and the
City's procurement procedures and protocols and seeking guidance and advice from
the Department Head,CFO and City Solicitor,as required;
h) referring unresolved issues or concerns raised by the City's officers or employees
relating to the procurement process to the CFO,as necessary;
i) referring unresolved complaints from bidders or suppliers to the Procurement Review
Committee, as necessary, or where required in accordance with applicable
procedures and protocols;
j) ensuring compliance with this By-law and reporting non-compliance,in writing,to the
appropriate Department Head and/or the CFO where warranted;
k) providing appropriate orientation, training and tools to City employees involved in
6
procurement activities;and
1) serving as the City's representative as a member of co-operative procurement groups
and organizations,where such membership is determined to be in the best interests
of the City.
9.5. Lecial Services
It is the role of Legal Services to provide legal advice and assistance in respect of the City's
procurement activities and its relationships with Suppliers.In fulfilling this role,Legal Services
is responsible for:
a) advising the CPO, as required, in relation to legal issues arising from procurement
activities,and reviewing and approving specific procurement documentation referred
for legal review by the CPO;
b) providing advice on the finalization of contracts and agreements,and reviewing and
advising on proposed changes to the City's standard terms and conditions, legal
agreements and solicitation document templates;
C) providing opinions to the Procurement Review Committee,as requested;and
d) providing legal advice and counsel to the City in the event of a contract dispute or
legal challenge flowing from a procurement process.
9.6. Business Units Department Heads
It is the role of the Business Units to ensure that their requirements for Deliverables are met
in accordance with the goals and objectives of this By-law. In fulfilling this role, Department
Heads,or their designates,are responsible for:
a) exercising their authority for all procurement activity within the prescribed limits of
this By-law;
b) delegating authority approval limits to staff in compliance with this By-law and all
applicable procedures and protocols;
C) ensuring that all procurement activities and decisions are authorized by this By-law
and are carried out in accordance with the City's procurement procedures and
protocols;
d) monitoring all contract expenditures to ensure compliance with financial limits;
e) identifying and addressing non-compliance with this By-law and applicable
procedures and protocols within their Departments;and
f) upon discovery of instances of non-compliance, notifying the Procurement Section
and consulting with Legal Services to obtain advice with respect to mitigating
potential risks to the City arising from the non-compliance;and
g) ensuring compliance of the requirements of the City's Contractor Safety Program
in the procurement of Deliverables to which the Program applies.
9.7. Business Unit Employees
Employees of all Business Units are responsible for complying with this By-law. All
employees involved in procurement activities must clearly understand their obligations and
responsibilities under this By-law and all applicable procedures and protocols,and should
consult with the Procurement Section in respect of any questions regarding the application
or interpretation of this By-law or the procurement procedures and protocols.
Department employees involved in procurement activities are encouraged to develop and
foster productive and cooperative professional relationships with their colleagues in the
Procurement Section.
9.8. Procurement Section Employees
Employees of the Procurement Section are responsible for complying with this By-law and
ensuring all procurement procedures and protocols are applied consistently. Procurement
Section employees must clearly understand their obligations and responsibilities under this
By-law and all applicable procedures and protocols and should consult with the CPO in
respect of any questions regarding the application or interpretation of this By-law or the
procurement procedures and protocols.
Procurement Section employees are expected to provide purchasing services to
Departments in an efficient and diligent manner,and are encouraged to develop and foster
productive and cooperative professional relationships with their colleagues in Departments.
7
10. DELEGATED APPROVAL AUTHORITY
10.1. Delegated Approval Authority
Delegated Approval Authority to award a contract are set out in Schedule "B". A contract must be
established by the execution of a legal agreement and/or the issuance of a purchase order before
work on the Deliverables commences. The Procurement processes shown in the Schedule"B"are
minimum standards. Although Schedule "B" indicates that the Procurement process shall become
progressively more formal as the estimated Procurement Value increases,the Business Unit or the
CPO may always choose to use a more formal Procurement process than the process indicated in
the table.
10.2. Approval Authority to CAO
a) The CAO is hereby given delegated Approval Authority to approve any Contract
awards each year during the months of June,July and August,provided that the total
costs are within the relevant approved budget and that an information only report
regarding these Contract awards is brought to Council at its next meeting.
b) The CAO is hereby given delegated Approval Authority to approve any Contract
award that would not be permitted for approval by Council under Sections 275(1)to
(4.1) of the Municipal Act, 2001 (otherwise known as "Restricted Acts After
Nomination Day"), provided the total costs are within the most recently approved
budget adopted by the Council before nomination day in the election and that an
information only report regarding these Contract awards is brought to Council at its
next meeting.
10.3. Conditions of Delegated Approval Authority
All delegated Approval Authority is subject to the following conditions:
a) Sufficient funding for the Procurement Value is available in the appropriate Council
approved budget as may be amended and approved in accordance with standard
City practice;
b) The Procurement process was conducted in accordance with this by-law and all
applicable procedures and protocols;
C) Where a Competitive Process was conducted,the Contract is awarded to the top-
ranked Bidder, as determined in accordance with the evaluation and selection
process set out in the Solicitation Document;
d) No contract may be entered into,either through the issuance of a purchase order
or the execution of a legal agreement, unless approved budget in an amount
sufficient to cover the Procurement Value is available and the procurement process
was conducted in accordance with this By-law and all applicable procedures and
protocols;
e) A financing lease may only be approved and entered into in accordance with City
Policy;
f) The delegation of authority to approve a contract does not apply to a contract
requiring Council approval under Section 11 of this By-law.
11. COUNCIL APPROVAL
11.1. The following contracts require Council approval:
a) any contract requiring approval from the Ontario Municipal Board;
b) any contract prescribed by statute to be made by Council;
C) where Council has waived any provisions or requirements of this Procurement
By-law;
d) where there is an irregularity or unresolved challenge in connection with the
procurement process and,in the opinion of the CFO,in consultation with the City
Solicitor, the award of the contract is likely to expose the City to legal, financial
or reputational risk;and,
e) any one or more of the conditions of delegated Approval Authority are not met.
12. EXECUTION OF CONTRACTS AND ISSUANCE OF PURCHASE ORDERS
a) The CPO has the delegated authority to issue Purchase Orders and execute all
Agreements,amendments to Agreements,assignments of Agreements and related
documents concerning the Contract for the procurement of goods, services and
construction in accordance with the terms of this By-law.All Agreements must be in
a form satisfactory to the City Solicitor.
b) Where an existing Contract includes extension or renewal options to permit the
8
City to extend the term of the Contract and/or to purchase additional Deliverables
under the Contract,the Approval Authority may exercise the option,provided that:
i) the Contract was awarded in accordance with this By-law based on the total
Procurement Value,including the value of the extension options;and
ii) sufficient funding for the financial commitment is available in the appropriate
Council approved budget.
C) Where any Contract has been authorized under this By-law, the CPO may
authorize disbursement of additional funds, under a Contract or by Purchase
Order, provided that the additional funds:
i) shall not exceed the greater of $120,000 or ten percent (10%) of the
original Contract price;
ii) are available within the relevant budget;and
iii) are required to complete works that are necessary as part of the original
scope of the Contract and do not expand the scope of work under the
Contract beyond what was expressly contemplated under the original
Procurement.
d) Extensions or amendments to existing Contracts must not expand scope of the
Contract beyond what was contemplated under the terms of the Contract and the
original Procurement, or circumvent the need to procure additional Deliverables
through a Competitive Process.
13. PROCUREMENT REVIEW COMMITTEE
13.1. The CPO is responsible for establishing a Procurement Review Committee(the"PRC") in
accordance with the City's Procurement Policies and Protocols for the purpose of satisfying
the requirements of this Section and providing oversight in other areas of procurement as
established in the Procurement Policies and Protocols.
13.2. The PRC will consist of the CPO and two or more persons designated by the Corporate
Leadership Team.
13.3. Where irregularities occur or complaints or challenges are made by bidders or suppliers in
respect of a procurement process,the CPO will review the matter and may consult with the
City Solicitor,where necessary.Where a bidder or supplier is not satisfied with the proposed
resolution by the CPO,they may submit a request for review to the CPO and the CPO must
refer the matter to the PRC,which will review with the objective of determining the merits of
the alleged irregularity or complaint and an appropriate resolution.
13.4. Any decision of the PRC,or in the event the PRC cannot reach agreement on the resolution
of a matter referred to it, a report of the findings of the PRC must be prepared and submitted
to the CFO for consideration and determination of the matter.A copy of the report shall be
provided to the CPO.
14. STANDARD PROCUREMENT
14.1. A standard procurement is the acquisition of goods, services or construction through the
applicable process and method identified and described in Schedule "B" of this By-law.
Depending on the type and value of the goods,services or construction required,standard
procurement processes include:
a) placing an order under an existing Standing Offer;
b) making a Low Cost Purchases using a corporate purchasing card,or the issuance
of a purchase order;
C) conducting a Qualified Supplier Roster Competition to solicit bids from suppliers on
an existing Qualified Supplier Roster;
d) conducting an Invitational Competition by soliciting bids from a minimum of three
suppliers;or
e) conducting an Open Competition by publicly advertising and posting the solicitation
document.
14.2. All standard procurement processes must be approved, conducted and reported in
accordance with this By-law and all applicable procedures and protocols.
14.3. The CPO may initiate requests for information for the purposes of gathering information
about the marketplace in order to assist in the determination of future purchasing options or
requirements.
9
14.4. The CPO may establish Standing Offers for Deliverables that the City requires on a regular
or recurring basis.Standing Offers may be established through an Open Competition.The
establishment of a Standing Offer does not create a contractual commitment to procure
Deliverables from the Supplier.
14.5. Open Competitions may include a two-stage process in which a pre-qualification process is
conducted by soliciting and evaluating submissions from all interested Suppliers in order to
establish a Qualified Supplier Roster of pre-qualified Suppliers that will be eligible to submit
a Bid in response to a second-stage Solicitation Document for specified Deliverables during
a specified term.A pre-qualification process may be used whenever determined appropriate
by the CPO, in consultation with the Department requesting the procurement. Pre-qualified
suppliers must be selected in accordance with the evaluation and selection process set out
in the Solicitation Document. The establishment of a Qualified Supplier Roster does not
create a contractual commitment to procure Deliverables from any Supplier on the Qualified
Supplier Roster.
15. NON-STANDARD PROCUREMENT
15.1. A non-standard procurement is the acquisition of goods,services or construction through a
process or method other than the process and method normally required for the type and
value of the required Deliverables, as identified and described under Schedule "B"of this
By-law. Non-standard procurement processes include:
a) a Non-Competitive Process, where the Deliverables are acquired directly from a
particular supplier without conducting a competitive process when an Invitational
Competition or an Open Competition would normally be required;or
b) a Limited Competition,where bids are solicited from a limited number of suppliers
when an Open Competition would normally be required.
15.2. The use of a non-standard procurement process is only permitted under the specific
circumstances set out in Schedule"C"of this By-law.
15.3. All non-standard procurement processes must be approved and conducted in accordance
with this By-law and all applicable procedures and protocols.
16. EMERGENCY PURCHASES
16.1. Notwithstanding any other provisions of this By-law, Deliverables may be purchased on
an emergency basis where they are required as a result of an unforeseeable situation or
event occurring that is a threat to any of the following:
a) public health and/or safety;
b) the maintenance of essential City services or to prevent the disruption of
essential City services;
C) the welfare of persons or of public property;or
d) the security of the City's interests;and
e) time does not permit the use of a standard procurement process due to an event
that creates an unforeseen urgency that could not reasonably have been
addressed through appropriate advanced planning.
16.2. Where an emergency purchase is required as described above,the CPO has the authority
to issue a Purchase Order for the requirements.Any authorized emergency expenditure
should be time and cost limited to be proportionate to the emergency and should include
clear protocols to terminate the arrangement once that emergency is resolved.
16.3. Subject to the application of the provisions of By-law 2017-138 as amended,updated or
replaced from time to time and the City's Emergency Plan,where there is a major
Emergency and the City's Emergency Plan is implemented,the CPO or Department Head
has the Approval Authority to authorize any required purchases.
16.4. When the Procurement Value of the Emergency purchase exceeds$120,000,the CPO
shall provide a report to Council in accordance with Section 27.
17. BIDDER DEBRIEFINGS
17.1. Where the City has conducted a competitive procurement process, unsuccessful bidders
may request a debriefing. Debriefings must be conducted in accordance with the City's
Debriefing Protocol. This protocol is available to suppliers and staff on the City's Intranet
and external website
18. PROCUREMENT PROTESTS
18.1. Suppliers may formally protest the outcome of a procurement process. Formal protests
10
must be made by suppliers and responded to by the City in accordance with the City's
Procurement Protest Protocol.This protocol is available to suppliers and staff on the City's
Intranet and external website.
19. CONTRACT MANAGEMENTAND SUPPLIER PERFORMANCE
19.1. All contracts must be managed by the respective Department Employees in accordance
with this By-law and all applicable procedures and protocols to ensure that both the City
and the supplier fulfil the requirements of the contract.Department Employees must involve
the Procurement Section and Legal Services in the management of contract disputes,as
required by applicable procedures and protocols.
19.2. The respective Department Employee is responsible for monitoring and documenting
supplier performance and compliance with procurement contracts in accordance with the
City's Supplier Performance Evaluation Protocol.This protocol is available to suppliers and
staff on the City's Intranet and external website.
20. SUPPLIER DISQUALIFICATION
20.1. The City may disqualify suppliers from participating in future procurement opportunities in
accordance with the City's Supplier Suspension Protocol. This protocol is available to
suppliers and staff on the City's Intranet and external website.
20.2 The CPO shall apprise Council, CFO and City Solicitor where any Supplier has been
suspended under the City's Supplier Suspension Protocol.
21. RECORDS RETENTION AND ACCESS TO INFORMATION
21.1. All procurement activities must be supported by appropriate documentation and all records
relating to a procurement process must be retained in accordance with the City's Contract
Management Protocol and the City's Records Retention By-law and any associated records
management policies and procedures.
21.2. Disclosure of information related to the City's procurement processes must be made in
accordance with applicable procurement procedures and protocols and the City's policies
with respect to disclosure and protection of information in accordance with the Municipal
Freedom of Information and Protection of Privacy Act(MFIPPA) and the Personal Health
Information Protection Act(PHIPA),as amended.
22. UNSOLICITED PROPOSALS
22.1. All unsolicited proposals, including any offers for presentations or product/service trials
submitted to the City with the expectation on the part of the submitter of obtaining
consideration for an ensuing contract or purchase by the City,must be directed to the CPO
for review and approval for acceptance in accordance with this By-law.
22.2. Any procurement resulting from the receipt of an unsolicited bid must comply with the
provisions of this Procurement By-law.
22.3. In the absence of a competitive process,a contract may only be awarded in respect of an
unsolicited proposal if a Non-Standard Procurement is permitted in accordance with this
By-law and all applicable procedures and protocols.
23. CO-OPERATIVE PURCHASING
23.1. The City may participate in co-operative purchasing initiatives with other government or
broader public sector entities where it is in the best interests of the City to do so.
23.2. The co-operative purchasing process may be conducted in accordance with the
procurement policies and procedures of the entity that is responsible for co-ordinating and
leading the process, provided that those policies and procedures are consistent with the
City's obligations under applicable trade agreements and the City's procurement goals
and objectives set out in this By-law.
24. ACCESSIBILTY FOR ONTARIANS WITH DISABILITIES
24.1. The City will promote, and incorporate, whenever possible, the requirements of the
Ontarians with Disabilities Act,2001(ODA),the Accessibility for Ontarians with Disabilities
Act,2005(AODA),and specifically,Ontario Regulation 429-07 and Ontario Regulation 191-
11 made under the Accessibility for Ontarians with Disabilities Act, 2005 in procurement
activities of the City.
25. GREEN PROCUREMENT
25.1. The City is committed to the purchase of goods and services with due regard to the
preservation of the natural environment and to encourage the use of environmentally
friendly products and services.
11
25.2. All departments, in conjunction with the Procurement Section, are encouraged to seek
additional ways of achieving the goal of being environmentally safe and responsible by
ensuring that, wherever possible and economically feasible, the City's solicitation
document includes specifications that reflect environmentally friendly attributes of the goods
and services,as further described in the City's Document Drafting Protocol.
26. DISPOSAL OF SURPLUS ASSETS
26.1. The Department Head must submit to the CPO, a written report of all Surplus Assets,
including but not limited to,furniture,vehicles,equipment,supplies,and other goods and
material, which are deemed by the Department Head to be surplus or which have
become obsolete, worn out, or otherwise incapable of use. Real Property may not be
deemed to be a Surplus Asset.
26.2. The CPO is authorized to sell,exchange,or otherwise dispose of Surplus Assets.
26.3. The CPO may first offer the Surplus Assets to other Departments.Any Surplus Assets
not required by Departments and that are deemed by the CPO as having a residual value
may be disposed of by any of the following methods:
a) by auction or solicitation;
b) by trade-in;
C) by donation to a non-profit agency;
d) by recycling;or
e) in the event that all efforts to dispose of the goods by sale are unsuccessful, by
scrapping or destroying if recycling is unavailable.
26.4. No City employees, officers or elected officials, or any member of a City Board will
personally obtain any Surplus Assets unless they are obtained through a public process.
26.5. The disposal of Surplus Assets is exempt from the requirements of this By-law.
27. REPORTS TO COUNCIL
27.1. The CPO must submit quarterly procurement information reports to Council to provide
the following information about the City's procurement activities:
a) The circumstances and details of approved procurements exceeding$120,000
in value, under delegated authority of the CPO;and
b) the circumstances and details of any emergency purchase(s)with a
procurement value exceeding$120,000.
28. BY-LAW REVIEW
28.1. This Procurement By-law will be reviewed every five (5)years,or such earlier date as
the CPO or Council may deem it appropriate to evaluate its effectiveness.
29. SHORT TITLE
29.1. The short title of this By-law is the"Procurement By-law".
30. SCHEDULES
30.1. Schedule"A"to this Bylaw—Exempt Procurements forms an integral part of this By-law
and is attached hereto.
30.2. Schedule"B"to this Bylaw—Delegated Procurement Authorities forms an integral part of
this By-law and is attached hereto.
30.3. Schedule"C"to this Bylaw—Non-Standard Procurements forms an integral part of this
By-law and is attached hereto.
30.4. Schedule"D"to this Bylaw—Statement of Ethics for Public Purchasers forms an integral
part of this By-law and is attached hereto.
31. REPEAL
31.1 THAT By-law 2017-106 and the contents of Chapter 170 of The City of Kitchener
Municipal Code be repealed.
12
32. TRANSITION
32.1 THAT notwithstanding its repeal,any procurements begun but not yet completed by the
effective date of this By-law shall be completed in accordance with the terms of the previous
Chapter 170 of The City of Kitchener Municipal Code as if it were still in effect.
33. MUNICIPAL CODE
33.1 The Clerk is hereby directed to make this By-law a part of The City of Kitchener Municipal
Code by adding it to the Concordance and arranging and numbering it as Chapter 170 so as to fit
within the scheme of the Code.
34. ENACTMENT
34.1 That this By-law shall come into force and effect immediately upon the final passing thereof.
PASSED at the Council Chambers in the City of Kitchener this 261h day of September AID 2022.
MAYOR
CLERK
13
SCHEDULE"A"EXEMPT PROCUREMENTS
This By-law does not apply to the acquisition of the following goods or services:
1. Goods or services the supply of which is controlled by a statutory monopoly.
2. Work to be performed on property under the provisions of a lease,warranty or guarantee held in
respect of the property or the original work;
3. Goods purchased on a commodity market;
4. Procurement between the City and another public body;
5. Acquisitions related to local boards and affiliates;
6. Any form of assistance that the City provides,including co-operative agreements,grants,donations,
and loans;
7. Fund raising,naming rights and sponsorship of any kind;
8. Procurement by the City on behalf of a third party,which will be reimbursed in full,or paid for in full by
the third party,where the procurement would not be covered by this chapter if it were conducted by the
other person itself,unless the City determines that it is in the best interest of the City to procure the
goods,services or construction in accordance with the Standard or Non-Standard Procurement
processes of this By-law;
9. Development Charge Payments and Developer Credit refund agreements for land development and
for park development and reimbursement;
10. Contracts relating to hiring of employees or employee compensation;
11. The following goods and services related to training and education:
• Conferences,conventions,courses and seminars
• Newspapers,magazines,books and periodicals
• Computer software for educational purposes
12. Goods and services related to cultural or artistic fields,such as:
• Events supporting local non-profit organizations
• Entertainers for theatre or special events
• Original works of art
13. The following special services:
• Temporary staffing agencies and services
• Recreation program facilitators and/or hosts
• Honorariums
• Arbitrators
• Utility relocates by Public Utility
• Realty and Lease Arrangements
14. Goods and/or services specifically excluded by Council
This By-law does not apply to payment of the City's general expenses,such as:
• Refundable employee expenses(meal allowances,travel,miscellaneous)
• Memberships/Professional Dues
• Payroll deduction remittances
• Workplace Safety Insurance Board payments
• Health benefit payments
• Tax remittances
• Debt payments
• Insurance premiums and Damage claims
• Legal Counsel Fee's and Legal settlements
• Arbitration awards
• Charges to and from other government bodies
• Refund payments(such as property tax refunds,building permit refunds and refunds for cancelled
services,programs or events)
• Licence fees (regular licence fees for vehicles, elevators, communications, software, etc. required to
maintain existing products and systems originally obtained in accordance with the Procurement Bylaw)
• Utility bill payments(such as water and sewer,hydro,natural gas,telecommunications and cable television)
14
SCHEDULE"B"
DELEGATED PROCUREMENT AUTHORITIES
Authority to Approve Authority to Execute
Requirement Procurement Procurement Method(Note 1) the Award of a Agreement and/or Issue a
Value Process Contract Purchase Order(Note 2)
Low Cost Purchase-low value procuremeni Up to$30,000 Non-Competitive Purchase made through corporate purchasing card or issuance of purchase DH or designate CPO(Note 3)
any goods,services or construction order,or other.
Goods,Services and Construction as ny value(in Standing Offer Purchase made through corporate purchasing card or issuance of purchase DH or designate CPO
specified in Standing Offer Competition ccordance with order
ompetitive method)
Goods,Services and Construction from Anycompetitive
with value(in
accordance Invitational Competition Solicitation document issued to suppliers on the Qualified Supplier Roster CPO CPO
existing Qualified Supplier Roster ompetitive method)
Goods,Services and Construction $30,001-$60,000 Invitational Competition Solicitation document issued to a minimum of 3 suppliers CPO CPO
Goods,Services and Construction $60,001-$120,000 Invitational Competition Solicitation document issued to a minimum of 3 suppliers by the CPO CPO
Procurement Section
Goods,Services and Construction $120,001 or more Dpen Competition Solicitation document publicly posted by the Procurement Section. CPO CPO
Establish Standing Offer or Qualified Any value Dpen Competition Solicitation document publicly posted by the Procurement Section CPO CPO
Supplier Roster
Goods,Services or Construction underthe $30,001-$120,000 Non-Competitive or Contract awarded directly to a supplier without competition or bids solicited CPO CPO
circumstances included in Schedule"C". Limited Competition from a limited number of suppliers in place of an Open Competition
Goods,Services or Construction underthe $120,001 or more Non-Competitive or Contract awarded directly to a supplier without competition or bids solicited COUNCIL CPO
circumstances included in Schedule"C". Limited Competition from a limited number of suppliers in place of an Open Competition
Note 1: All described methods must be conducted in accordance with applicable procurement procedures and protocols under the City's Procurement Procedures and Protocols.
Note 2:The need for an executed agreement,in addition to the issuance of a PO,is determined in accordance with the City's Procurement Procedures and Protocols.
Note 3:CPO-Chief Procurement Officer is head of the City's Procurement Section or designate.
14
SCHEDULE"C"
NON-STANDARD PROCUREMENTS
Goods,services and construction may only be acquired through a non-standard procurement process
under the following circumstances:
1. Where a standard procurement process conducted in accordance with this By-law and applicable
procedures and protocols has not resulted in the receipt of any bids.
2. Where only one supplier is able to meet the requirements of a procurement in order to:
a) ensure compatibility with existing products;or
b) recognize exclusive rights,such as exclusive licenses,copyright and patent rights;or
C) maintain specialized products that must be maintained by the manufacturer or its
representative.
3. Where there is an absence of competition for technical reasons and the goods or services can only
be supplied by one particular supplier and no alternative or substitute exists.
4. The procurement is for additional deliverables by the original supplier of the goods or services that
were not included in the initial procurement if a change of supplier for such additional goods or
services:
a) cannot be made for economic or technical reasons such as requirements of
interchangeability or interoperability with existing equipment,software,services or
installations procured under the initial procurement;and
b) would cause significant inconvenience or substantial duplication of costs for the City.
5. For the procurement of services in the fields of financial services, health services,social services,
legal services; and for the services of expert witnesses or factual witnesses used in court or legal
proceedings;
6. For the procurement of goods or services relating to matters of a confidential or privileged nature
where the disclosure of those matters through an open competition could reasonably be expected
to compromise government confidentiality and/or security,cause economic disruption or otherwise
be contrary to the public interest;
7. For the procurement of goods or services or construction from a public body or a non-profit
organization.
8. For the procurement of goods under exceptionally advantageous circumstances such as bankruptcy
or receivership,but not for routine purchases.
9. Unforeseeable events have resulted in a situation where extreme urgency exists and the goods or
services could not be obtained in time through Standard Procurement.
10. For the procurement of a prototype of a first good or service to be developed in the course of and
for a particular contract for research, experiment, study or original development, but not for any
subsequent purchases.
it. For the procurement of goods, services and construction that is financed primarily from donations
that are subject to conditions that are inconsistent with a standard procurement process conducted
in accordance with this By-law and applicable procedures and protocols.
12. For the procurement of goods or services under the provisions of a warranty or guarantee held in
respect of the original work;
13. A contract to be awarded to the winner of a design contest and the contest was organized in a fair
and transparent manner and was advertised by publicly posted notice and participants were judged
by an independent jury;
14. The procurement of a particular brand of goods or services that are intended solely for resale to the
public and no other brand meets the City's program objectives nor is the brand available from any
other source;
15. Another organization is funding the procurement and the City has determined that the supplier and
the terms and conditions of the proposed contract are beneficial to the City;
16. The procurement is otherwise exempt from Open Competition requirements under all applicable
trade agreements and it is in the best interests of the City to proceed with a non-standard
procurement.
16
SCHEDULE"D"
STATEMENT OF ETHICS FOR PROCUREMENT
Goal:To ensure ethical,professional and accountable procurement.
All employees authorized to purchase Goods, Services and/or Construction on behalf of the City must
adhere to the following principles.
a) Open and Honest Dealings with Everyone who is Involved in the Purchasing Process.
Procurement activities must be open and accountable.This includes all businesses with
which this City contracts or from which it purchases Goods,Services and/or Construction,as well
as all members of our staff and of the public who utilize the services of the Procurement Section.
b) Fair and Impartial Award Recommendations for All Contracts and Tenders.Contracting and
purchasing activities must be fair,transparent and conducted with a view to obtaining the
best value for public money. This means that City Staff do not extend preferential treatment to
any vendor,including local companies.Not only is it against the law,it is not good business practice,
since it limits fair and open competition for all vendors and is therefore a detriment to obtaining the
best possible value for each tax dollar.
C) An Irreproachable Standard of Personal Integrity on the Part of All Those Designated as
Purchasing Representatives for This City.Individuals involved with procurement activities must
act,and be seen to act, with integrity and professionalism. Honesty,care and due diligence must
be integral to all procurement activities within and between the organization, suppliers and other
stakeholders. Respect must be demonstrated for each other and for the environment. Confidential
information must be safeguarded. Participants must not engage in any activity that may create,or
appear to create, a conflict of interest, such as accepting gifts or favours, providing preferential
treatment,or publicly endorsing suppliers or products.
d) Cooperation with Other Public Agencies in Order to Obtain the Best Possible Value for Every
Tax Dollar. This City is a member of a cooperative purchasing group made up of several public
agencies,this group pools its expertise and resources in order to practice good value analysis and
to purchase Goods,Services and/or Construction in volume and save tax dollars.
16