064 of 1997 - Text Amendment Relating to Procurement0 97-1
0 97-26
SALT LAKE CITY ORDINANCE
No. 64 of 1997
(Procurement)
AN ORDINANCE REPEALING CHAPTER 3.24 AND CHAPTER 3.28, AND
REENACTING CHAPTER 3.24, SALT LAKE CITY CODE, RELATING TO
PROCUREMENT.
Be it ordained by the City Council of Salt Lake City, Utah:
SECTION 1. That Chapter 3.24 and Chapter 3.28, Salt Lake City Code, be,
and the same hereby are, repealed.
SECTION 2. That Chapter 3.24, Salt Lake City Code, be, and the same
hereby is, reenacted to read as follows:
Chapter 3.24
3.24.010
3.24.020
3.24.030
3.24.040
3.24.050
3.24.060
3.24.070
3.24.080
3.24.090
3.24.100
3.24.110
3.24.120
3.24.130
3.24.140
3.24.150
3.24.160
3.24.170
3.24.180
3.24.190
3.24.200
3.24.210
PROCUREMENT
Purpose.
Application.
Definitions.
Authorized official.
Delegations of authority.
General requirements.
General powers.
Specifications.
Sealed bid requirements.
Competitive sealed proposal requirements.
Evaluation.
Contracts.
Conflict of interest.
Small purchases.
Cooperative purchasing.
Waivers.
Exemptions.
Compliance with other law.
Requirements imposed on construction.
Construction contracting and management methods.
Procurement protests.
3.24.220
3.24.230
3.24.240
3.24.250
Procurement protest decisions and appeals.
Remedies for illegal solicitations.
Suspension or debarment.
Authority to resolve conflicts.
Article
General Provisions
3.24.010 Purpose.
The purposes and policies of this chapter are:
A. to establish procurement processes that are fair and equitable to the
city and other persons;
B. to allow the city to meet procurement needs in a simple, flexible and
timely manner; and
C. to allow the city to obtain supplies and services that are economical,
of the quality specified by the city, and best suited to meet the city's needs.
3.24.020 Application.
A. This chapter applies to all city procurement processes or contracts
initiated after [effective date], 1997
B. This chapter does not apply to the procurement of real property or any
permanent interest in real property.
3.24.030 Definitions.
As used in this chapter:
A. "Bid," "proposal" or "offer" means an offer to perform.
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B. "Bid package" means all documents, whether attached or incorporated
by reference, used for soliciting sealed bids, such as a notice, bid form, form
contract, specifications and similar documents.
C. "Bidder" means a person who submits a bid.
D. "Chief procurement officer" means the city employee designated
pursuant to Section 3.24.040(A) of this code, or any successor to that section.
E. "City engineer" means the city employee designated pursuant to
Section 2.08.080(B) of this code, or any successor to that section.
F. "Construction" means the process of building, renovating, altering,
improving or repairing any city building or public work, but does not include the
routine operation or maintenance, or minor repair of, existing city property.
G. "Construction -related supplies and services" means all supplies and
services put to use in the process of construction, including professional services
related to construction.
H. "Division" means any division of a city department, or any other
agency or subdivision of the city.
I. "Offer," "bid" or "proposal" means an offer to perform.
J. "Offeror" means a person who submits a proposal, a response to a
request for qualifications, a quote, a bid, or any other offer or submission.
K. "Operational supplies and services" means all supplies and services put
to use in connection with managing and operating the city, including professional
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services. Operational supplies and services does not include construction -related
supplies and services.
L. "Person" means any individual, group of individuals, entity, group of
entities, business, agency, club, committee, union or other organization or
organizations, not including the city or any of its employees, officers, departments
or divisions.
M. "Procurement" means buying, purchasing, renting, leasing, leasing
with an option to purchase, or otherwise acquiring any supplies or services, and all
related acquisition processes.
N. "Procurement official" means the chief procurement officer or city
engineer, or a city employee who is authorized to act in the capacity of a
procurement official as specifically delegated in the procurement rules.
O. "Procurement rules" means the administrative rules, policies, executive
orders or other rules adopted by the Mayor in accordance with Section
3.24.040(A)(2) of this code, or any successor to that section.
P. "Professional services" means those services that are provided by a
person skilled in the practice of a learned or technical discipline. Providers of
professional services often require prolonged and specialized intellectual training,
and profess attainments in special knowledge as distinguished from mere skills.
Disciplines may include, without limitation, accounting, auditing, architecture, court
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reporting, engineering, experts in a specialized field, finance, law, materials testing,
medicine, planning, surveying, and others.
Q. "Proposal," "bid" or "offer" means an offer to perform.
R. "Proposal package" means all documents, whether attached or
incorporated by reference, used for soliciting a proposal, response to a request for
qualifications, or other proposal or offer to perform city work, and may include such
documents as a notice, scope of work, form contract or other documents.
S. "Request for proposals" means soliciting to receive sealed proposals.
T. "Request for qualifications" means soliciting to receive statements
describing the qualifications of potential bidders or offerors.
U. "Responsible bidder" or "responsible offeror" means a person who has
the capability in all respects to fully perform the contract requirements, and who
has the integrity, capacity and reliability which will assure good faith performance.
V. "Responsive bidder" or " responsive offeror" means a person who has
submitted a bid or offer that conforms in all material respects to the bid package,
proposal package, or other request.
W. "Services" means the furnishing of labor, time, or effort by any
person, and includes professional services.
X. "Supplies" means all property, including equipment, materials and
printing, but excludes land or a permanent interest in land.
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Article II
Procurement Authority
3.24.040 Authorized official.
A. The mayor shall designate a chief procurement officer, who shall be a
person with demonstrated ability in public or comparable private procurement, and
who shall serve as the city's officer for the purchase of operational supplies and
services except as assigned in this code to other departments or divisions. The
chief procurement officer shall have the authority to review all actions taken by the
city with respect to the procurement of operational supplies and services, and to
determine appropriate procurement actions. In addition, the chief procurement
officer shall have the following duties:
1. Procure or supervise the procurement of all operational supplies and
services needed by the city or any of its departments or divisions in accordance
with this chapter; and
2. Propose rules for adoption by the mayor to govern the management
and operation of the city's purchasing function for all kinds of supplies and
services, except that rules relating to construction -related supplies and services
shall be proposed by the city engineer, and shall be approved by both the city
engineer and the chief procurement officer prior to adoption by the mayor.
B. The city engineer is the city's officer for the purchase of construction -
related supplies and services except as assigned in this code to other departments
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or divisions. The city engineer shall have the authority to review all actions taken
by the city with respect to the procurement of construction -related supplies and
services, and to determine appropriate procurement actions. In addition, the city
engineer shall have the following duties under this chapter:
1. Procure or supervise the procurement of construction -related supplies
and services needed by the city or any of its departments or divisions in accordance
with this chapter; and
2. Propose rules relating to the management and operation of the city's
purchasing function for construction -related supplies and services, which shall be
approved by both the city engineer and the chief procurement officer prior to
adoption by the mayor.
3.24.050 Delegations of authority.
With the approval of the mayor, the chief procurement officer and the city
engineer, in their respective areas of authority, may each delegate in writing any
authority granted under this chapter to designees, or to any department or division,
as each shall deem prudent and appropriate. They may also make delegations of
authority in case of emergency, absence or incapacity as each shall deem prudent
and appropriate.
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Article III
Source Selection and Contract Formation
3.24.060 General Requirements.
A. City procurement shall provide for the interest of the city, and shall be
consistent with fair and equitable practices.
B. No contract or purchase shall be subdivided to avoid the requirements
of this chapter.
C. The procurement rules may prescribe additional requirements
consistent with the requirements of this chapter for bidding, proposals, and other
procurement matters.
3.24.070 General Powers.
The city may take any action with respect to procurement that is in the best
interest of the city, including the following:
A. Reject any bid, proposal or other offer or submission from a bidder or
offeror who is in a position that is adverse to the city in a present, pending or
threatened litigation, administrative proceeding, dispute resolution process or similar
process relating to a city procurement or contract, or relating to any other matter
relevant to the procurement.
B. Reject any bid, proposal or other offer or submission where the same
is determined to be nonresponsive, or where the bidder or offeror is determined to
be nonresponsible under criteria established in the procurement rules. The City may
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also notify any person of potential nonresponsibility, and may reject the bid, or
other offer or submission of any person so notified unless that person demonstrates
to the city's satisfaction that the concerns indicated in the city's notice have been
resolved.
C. Reject all bids, proposals or other offers or submissions, or reject parts
of all bids, proposals or other offers or submissions, when the city's interest will be
served thereby.
D. Waive or modify requirements within a particular bid process, proposal
or other solicitation process when advantageous to the city, and when consistent
with mandatory applicable legal requirements and fair and equitable practices.
E. Impose reasonable fees or forfeitable deposits for providing city
materials or services in connection with a procurement process.
F. Employ all solicitation means appropriate to effectively procure
supplies and services so long as such means are not in conflict with the
requirements of this chapter. Such means may include requiring prequalifications,
maintaining lists of bidders or offerors; soliciting in phases, steps or stages; multiple
awards; multi -step sealed bidding; notice or solicitation by phone, fax, mail or
computer system; requiring demonstrations of competence; creating special
processes to meet the needs of a particular procurement; and other means.
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3.24.080 Specifications.
A. The city or any of its departments or divisions may prepare, file or
amend specifications, requisitions or quantity estimates for supplies and services in
the manner prescribed in the procurement rules.
B. A procurement official shall have authority to revise specifications,
requisitions or estimates as to quantity, quality or estimated cost.
C. All specifications shall seek to promote overall economy and best use
for the purposes intended and encourage appropriate competition in satisfying the
city's needs.
3.24.090 Sealed bid requirements.
A. Contracts shall be awarded by competitive sealed bidding except as
otherwise permitted or provided by this chapter.
B. The city may prequalify bidders using a request for qualifications or
other process. Notice of such process shall be made public, and such process shall
be conducted, in a manner permitted by the procurement rules. The city, in its sole
discretion, shall determine which applicants are best qualified to submit a bid.
C. Competitive sealed bidding shall, at a minimum, include the following:
1. Notice of a call for bids shall be made public in a manner permitted by
the procurement rules at a reasonable time prior to the time set for bid opening.
The bid package will state requirements to which the bidder must respond.
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2. No bids delivered to the city after the time established in the notice
shall be considered. Timely sealed bids shall be opened publicly in a manner
permitted by the procurement rules at the time and place for bid opening
established in the notice, and a record of each bid shall be retained.
3. Bids shall be evaluated based on the requirements set forth in the
city's invitation, and as provided in this chapter.
4. Bids shall be accepted without alteration or condition except as
permitted by the procurement rules. However, no alteration prejudicial to the
interest of the city shall be permitted.
5. Any award shall be made in writing to the lowest responsive and
responsible bidder whose bid meets or exceeds the requirements of the city's bid
package, and meets the requirements of this chapter.
3.24.100 Competitive sealed proposal requirements.
A. Contracts for professional services shall be awarded by competitive
sealed proposal, except as otherwise permitted by this chapter.
B. Competitive sealed proposals may be used for any procurement when
determined to be beneficial to the city by a procurement official in consultation with
the procuring department or division.
C. The city may prequalify offerors using a request for qualifications or
other process. Notice of such process shall be made public, and such process shall
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be conducted, in a manner permitted by the procurement rules. The city, in its sole
discretion, shall determine which applicants are best qualified to submit a proposal.
D. Competitive sealed proposals shall, at a minimum, include the
following:
1. Notice of a request for proposals shall be made public in a manner
permitted by the procurement rules at a reasonable time prior to the time when
proposals are due. The proposal package shall state the criteria which an offeror's
submission must address in order to be considered by the city.
2. No submission delivered to the city after the time established in the
notice shall be considered. Timely submissions shall be opened so as to avoid
disclosure of contents to competing offerors during the process of negotiation, and
a record of each shall be retained.
3. Submissions shall be evaluated based on the criteria set forth in the
city's request, and as provided in this chapter. The procurement rules shall include
guidance for evaluating proposals and conducting discussions with offerors, and
shall provide for the formation of a panel to evaluate and advise regarding all
submissions. Submissions may be evaluated on the basis of ability to perform the
work, with price to be established by negotiation.
4. Offerors under consideration shall be given fair and equal treatment
with respect to opportunity for discussion and revision of proposals, and revisions
may be permitted after submissions and before the contract is awarded for the
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purpose of obtaining best and final offers. No proposal information shall be
disclosed to competing offerors prior to award.
5. Any award shall be made by the department director, city council, or
other authority responsible for making a determination to the responsive and
responsible offeror whose proposal is determined in writing to be the most
advantageous to the city based on the criteria for evaluation and the requirements
of this chapter.
3.24.110 Evaluation.
In addition to the requirements or criteria contained in a bid package or
proposal package, or contained in other solicitation documents, any bid, proposal or
other offer or submission may be evaluated in accordance with the following:
A. The procurement rules may state criteria by which any submission
may be evaluated.
B. The city may inspect, test and otherwise evaluate any equipment,
goods, supplies, services, products, plants, places of business or other items used
in or subject to a city procurement process or city contract. The city may reject
any supply, service or other item in connection with such inspection, test or
evaluation.
C. A written determination of nonresponsibility of a bidder or offeror shall
be made in accordance with the procurement rules. The unreasonable failure of a
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bidder or offeror to promptly supply information in connection with an inquiry with
respect to responsibility may be grounds for a determination of nonresponsibility.
3.24.120 Contracts.
A. The city may use any type of contract permitted by law that will
promote the best interests of the city.
B. The procurement rules may provide requirements for modifying,
renewing and extending procurement -related contracts.
C. Performance under a city contract may be evaluated at any time. Any
appropriate methods may be used in such an evaluation, and the city may reject
any unsatisfactory performance.
D. Notwithstanding any other provision of this chapter 3.24, all contracts
shall meet the requirements of chapter 25 of this title 3.
3.24.130 Conflict of interest.
A. In addition to all federal, state and local requirements, the procurement
rules may impose additional requirements relating to ethical conduct and conflicts
of interest in city procurement activities.
B. After an appropriate review, any contract which is found to have been
entered in connection with a violation of ethics or conflict of interest requirements
shall be voidable at the city's option. If such a contract is not declared void, a
written statement of the reasons for retaining the contract shall be placed in the
contract file.
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3.24.140 Small purchases.
A. Small purchases of supplies and services are most effectively made
using minimal procurement processes. In the procurement rules, the chief
procurement officer and city engineer, in their respective areas of authority, may
define small purchases in various areas of procurement by establishing maximum
dollar amounts for these purchases. The procurement rules shall prescribe minimal
and expeditious processes to use when making these purchases.
B. Minimal or insignificant purchases of supplies and services are most
effectively made without using solicitation processes. In the procurement rules, the
chief procurement officer and city engineer, in their respective areas of authority,
may define these purchases by establishing maximum dollar amounts for these
purchases. The procurement rules shall establish minimal operational procedures
to control and account for these purchases.
3.24.150 Cooperative purchasing.
It is the policy of the city to maximize public benefits and minimize costs,
which results are often served by joint purchasing. The chief procurement officer
and city engineer may and are encouraged to join with other units of government in
cooperative purchasing when the interests of the city would be served thereby.
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3.24.160 Waivers.
A. A procurement official may waive a procurement process required
under this chapter for the reasons set forth below. Such waiver shall be approved
in advance by the chief procurement officer for operational supplies and services, or
by the city engineer for construction -related supplies and services, except in case of
an emergency. Waivers are permissible when:
1. Supplies or services are available from a sole source, or a solicitation
process would be unlikely to produce competition;
2. A particular supply or service is beneficial to the city in order to match
or service existing equipment or facilities;
3. The city needs services of a very specialized nature or in connection
with confidential matters, and procurement processes would not be beneficial to
obtaining them;
4. A waiver would be in the best interest of the city or the convenience
of the public;
5. There is an emergency or unforseen condition, or a threat to public
health, welfare, convenience or safety, as defined in the procurement rules. Such
procurements shall be made with as much competition as practicable under the
circumstances.
B. The mayor, with cause specified in writing, may waive any or all of
the requirements of this chapter for specific contracts.
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C. For contracts made within the scope of the city council's legislative
authority, the city council may, with cause specified in writing, waive any or all of
the requirements of this chapter for specific contracts.
D. A written basis for any waiver made under this section shall be placed
in the procurement file, and written notice thereof shall be delivered to the chief
procurement officer in connection with the procurement of operational supplies and
services, or the city engineer in connection with the procurement of construction -
related supplies and services.
E. Notwithstanding any provision of this chapter 3.24 to the contrary, no
waiver made under this chapter shall violate any mandatory applicable federal, state
or local law or regulation.
3.24.170 Exemptions.
The following are exempt from the requirements of this chapter:
A. Any matter that is exempt from procurement requirements under state
or federal law.
B. Contracts for the following:
1. Contracts with another governmental entity or agency that are
solicited in accordance with the rules or requirements of that entity or agency.
2. Contracts for expert witnesses, advisors or outside counsel for the city
attorney's office.
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3. Contracts for special investigatory or similar services or supplies for
the police department where confidentiality is necessary, if approved by the mayor
upon recommendation from the chief procurement officer.
C. With the approval of the mayor, and when not in conflict with state or
federal law, the chief procurement officer or city engineer, in their respective areas
of authority, may exempt an enterprise fund from the requirements of all or any
part of this chapter in the procurement rules.
D. With the approval of the mayor, and when not in conflict with state
or federal law, the chief procurement officer and city engineer, in their respective
areas of authority, may each exempt a type or class of procurement from any or all
of the requirements of this chapter in the procurement rules when that exemption is
in the best interest of the city, and competitive processes would not be of benefit
to the city.
E. When granting a concession in which a person makes use of city
property to provide goods or services to the public, or arrangements of similar
nature, the city shall make use of this chapter to the extent determined to be
practicable by a procurement official in order to provide for the desired concession
or arrangements on terms most beneficial to the city.
3.24.180 Compliance with other law.
Nothing in this chapter shall prevent compliance with any mandatory
applicable federal, state or local law or regulation, or the terms and conditions of
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any grant, gift or bequest that are mandatory, applicable and otherwise consistent
with law, and the city shall comply with the same.
Article IV
Additional Construction -Related Requirements
3.24.190 Requirements imposed on construction.
In addition to all other requirements of this chapter, the procurement of
construction -related supplies and services shall comply with the requirements of
mandatory applicable federal, state and local law.
3.24.200 Construction contracting and management methods.
The procurement rules shall provide for as many alternative methods of
construction contracting and management as determined to be practical. The
procurement official may select the methods appropriate for a particular project.
Article V
Protests and Remedies
3.24.210 Procurement protests.
A. A bidder or offeror may protest in connection with a procurement.
Such protest shall be delivered to the procurement official having responsibilities for
the procurement in question.
B. All protests must be in writing, and must specify the nature and
factual basis of the protest with sufficient detail to permit review.
C. Protests shall be submitted prior to the opening of bids or the closing
date for proposals unless the protestor did not know and could not have known of
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the facts giving rise to the protest prior to such time. In such a case, the protest
shall be submitted within five working days after the protestor knows or should
have known of the facts giving rise thereto.
D. The procurement official may determine that a protest is without
merit, and in such a case, the City may proceed with the procurement and award.
If a protest must be reviewed to determine whether it has merit, the city shall not
proceed further with the procurement or award until all administrative remedies
have been exhausted, or until the procurement official, after consultation with the
procuring department or division, makes a written determination that the award of
the contract without delay is necessary to protect substantial interests of the city.
E. Notwithstanding any provision of this chapter 3.24 to the contrary,
the chief procurement officer may establish in the procurement rules a minimal
process, if any, to review protests of small purchases, and such process need not
provide for an appeal of such review.
3.24.220 Procurement Protest decisions and appeals.
A. The procurement official shall consider and decide protests in
accordance with the procurement rules. The decision shall be final and conclusive
unless appealed as provided under this section.
B. A bidder or offeror may appeal the written decision of the
procurement official by specifying in writing the nature and factual basis of the
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appeal with sufficient detail to permit review. The written appeal shall be delivered
within the time permitted and in the manner specified in the procurement rules.
C. A timely written appeal shall be reviewed and decided as specified in
the procurement rules. Prior decisions by administrative officials shall not be final
or conclusive when a matter is reviewed on appeal. An appeal shall be resolved by
a written decision, and the determination of an issue of fact shall be final and
conclusive unless arbitrary and capricious or clearly erroneous. Any appeal
withdrawn before a decision is made shall be withdrawn with prejudice unless the
city consents otherwise.
D. At the discretion of the procurement official, the city may impose
reasonable charges to pay the expenses incurred by the city to consider a protest or
appeal.
3.24.230 Remedies for illegal solicitations.
A. Prior to bid opening or the closing date for proposals, if the
procurement official, after consultation with the city attorney, determines that a
solicitation is in violation of law, then the solicitation will be canceled, and any
subsequent solicitation shall be made in accordance with law.
B. If after an award it is determined that a solicitation or award was in
violation of law, the contract may be ratified and affirmed if the person awarded
the contract has not acted fraudulently or in bad faith, and if doing so is in the best
interest of the city. The contract may also be terminated, and the person awarded
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the contract shall be compensated for actual expenses reasonably incurred prior to
termination, plus a reasonable profit for the same. If the person awarded the
contract has acted fraudulently or in bad faith, the contract may be declared null
and void; or the contract may be ratified and affirmed, if such action is in the best
interest of the city and without prejudice to the city's rights to any appropriate
damages.
3.24.240 Suspension or debarment.
A procurement official may suspend or debar any person as follows:
A. At the discretion of the procurement official, the city may issue a
temporary suspension to any person who is directly or indirectly associated with
city procurement processes or contracts in the manner provided in the procurement
rules. A temporary suspension shall allow the city to examine the circumstances
when the city has reason to believe that there has been a material violation of a
process, legal requirement or contract, or where circumstances raise concerns for
the city's interest. The city shall give notice of the temporary suspension to the
affected person, and shall specify any terms applicable to the temporary
suspension. In connection with the temporary suspension, the city may conduct an
investigation, require the correction of any violation, initiate further action under
this section, and take all other actions appropriate to protect the city and resolve
the matter.
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B. At the discretion of the procurement official, the city may issue a
suspension pending the outcome of legal processes to any person who is directly or
indirectly associated with city procurement processes or contracts in the manner
provided in the procurement rules. This suspension may be issued when the person
is the subject of an indictment for an activity which has bearing on procurement,
contract or ethical matters; when the person is adverse to the city in a litigation,
administrative hearing, dispute resolution process, or similar process; or when legal
processes raise concern for the city's interest. A suspension pending the outcome
of legal processes may remain in effect until after a trial, appeal period, or other
process to obtain final resolution.
C. With cause shown, the city may suspend any person from direct or
indirect participation in city procurement processes and contracts for any
appropriate period of time as provided in the procurement rules. The rules shall
provide for notice to the affected person and a reasonable opportunity to be heard.
A suspension may be by agreement with the affected person. The city shall state
in writing any conditions which the suspended person must demonstrate to the city
before the suspension will be removed.
D. With cause shown, the city may debar any person from direct or
indirect participation in city procurement processes and contracts for any
appropriate period of time which is not less than three years in the manner provided
in the procurement rules. The rules shall provide for notice to the affected person
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and a reasonable opportunity to be heard. The city shall state in writing any
conditions which the debarred person must demonstrate to the city before the
debarment will be removed.
3.24.250 Authority to resolve conflicts.
When not in conflict with this chapter, a procurement official has authority to
settle and resolve controversies relating to procurement processes, contracts,
suspensions and debarments.
SECTION 3. Effective Date. This Ordinance shall become effective on the
date of its first publication.
Passed by the City Council of Salt Lake City, Utah, this 14th day of
October , 1997.
A TEST AND COUNTERSIGN:
EF DEPUTY CITY ' EC • RDER
Transmitted to the Mayor on October 15, 1997
Mayor's Action: xxx Approved Vetoed
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EST AND COUNTERSIGN:
Bill No:
Publish
t
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