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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