The Fresno Unified School District Purchasing Department is committed to supporting our schools. We will:

• Make all purchasing decisions based on what is in the best interest of the students.
• Ensure that all purchases are made in a visibly fair, open, and ethical manner consistent with the law and rulings of the courts.
• Help the schools reach their academic goals by procuring quality goods and services in a timely and efficient manner.
• Utilize best practice procurement methods to ensure that the district meets its financial responsibilities to the public by leveraging the district’s buying power.
• Provide guidance and training related to the district’s purchasing policies and procedures

Principles: Integrity in Your Decisions and Actions, Value for Your Employer, Loyalty to Your Profession
Standards of Ethical supply management conduct:

All FUSD Personnel must comply with the Districts Code of Conduct/Conflict of Interest policy as established by
the Board of Education. Board Policy 4040, Board Policy Exhibit 4040

The Purchasing Department makes all purchases in accordance with the State of
California Ed. Code and the Public Contract Code. There’s also reference to the Code of
Federal Regulations. The State Superintendent of Public Instruction annually adjusts
for inflation the bid threshold specified in PCC Section 20111(a) for equipment,
materials, supplies, and/or services not construction services.
Requisitions submitted for equipment, materials, supplies, and/or services not
construction services in excess of the Annual Adjustment to Bid Threshold (Public Contract
Code 20111); or construction improvements in excess of $220,000, require that the formal
bid process be followed (PCC 20111, 22032c).

The mechanical function of procurement may be delegated. However, under law, the Governing Board has the sole authority and responsibility for all purchase contracts of the district, and this authority and responsibility cannot be delegated.

The duties of purchasing for Board approval should be centralized under the Director of Purchasing.

 The Purchasing Department shall conduct or supervise all purchase transactions for the District.

The Director of Purchasing shall be familiar with and perform all his/her activities within the limitations prescribed by law, legal opinions, and in accordance with Board policies.

Four fundamental functions of the Purchasing Department are as follows:

1. Buy the proper product for the purpose required.

2. Have the product available when needed.

3. Buy the proper amount of the product.

4. Pay the proper price.

Budget appropriation shall be established before purchase orders and/or contracts are executed. Funds shall be encumbered upon execution of purchase orders and/or contract.

Every transaction between a buyer and seller involving the transfer of property shall be by purchase order or formal contract.

Purchase orders and other purchase obligations shall be signed by the Executive Director of Purchasing or his/her designee.

Specifications governing materials are a joint responsibility of the educational and business divisions. In the procurement of the required materials, the Director of Purchasing shall ensure that the materials procured will meet the needs of the educational program.

General specifications for required materials is the responsibility of each using department; however, the Purchasing Department may question the quality and kind of material requested and should make recommendations relative to safety, health, economy, substitute materials, considering life cycle cost analysis and guaranteed buy-back or disposal value.

EC 17604 Delegation of powers to agents; approval or ratification of contracts by governing board

EC 17605 Delegation of authority to purchase supplies and equipment

Fresno Unified Board Policy 3312 requires Vendor to be Equal Opportunity Employers Contractors (all Vendor including supply companies, service providers etc.) agree to as follows:

(1)  The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin. Such action shall include, but not be limited to the following:

Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause.
 

(2)  The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.

(3)   The contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee’s essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the contractor’s legal duty to furnish information.

(4)   The contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers’ representatives of the contractor’s commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.

(5)   The contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor.

(6)   The contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.

(7)    In the event of the contractor’s noncompliance with the nondiscrimination clauses of this contract or with any of the said rules, regulations, or orders, this contract may be canceled, terminated, or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.

(8)   Q1QThe contractor will include the portion of the sentence immediately preceding paragraph (1) and the provisions of paragraphs (1) through (8) in every subcontract or purchase ord5er unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or Vendor. The contractor will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance:

Provided, however, that in the event a contractor becomes involved in, or is threatened with, litigation with a subcontractor or Vendor as a result of such direction by the administering agency, the contractor may request the United States to enter into such litigation to protect the interests of the United States.

The applicant further agrees that it will be bound by the above equal opportunity clause with respect to its own employment practices when it participates in federally assisted construction work: Provided, That if the applicant so participating is a State or local government, the above equal opportunity clause is not applicable to any agency, instrumentality or subdivision of such government which does not participate in work on or under the contract.

The applicant agrees that it will assist and cooperate actively with the administering agency and the Secretary of Labor in obtaining the compliance of contractors and subcontractors with the equal opportunity clause and the rules, regulations, and relevant orders of the Secretary of Labor, that it will furnish the administering agency and the Secretary of Labor such information as they may require for the supervision of such compliance, and that it will otherwise assist the administering agency in the discharge of the agency’s primary responsibility for securing compliance.

The applicant further agrees that it will refrain from entering into any contract or contract modification subject to Executive Order 11246 of September 24, 1965, with a contractor debarred from, or who has not demonstrated eligibility for, Government contracts and federally assisted construction contracts pursuant to the Executive Order and will carry out such sanctions and penalties for violation of the equal opportunity clause as may be imposed upon contractors and sub contractors by the administering agency or the Secretary of Labor pursuant to Part II, Subpart D of the Executive Order. In addition, the applicant agrees that if it fails or refuses to comply with these undertakings, the administering agency may take any or all of the following actions: Cancel, terminate, or suspend in whole or in part this grant (contract, loan, insurance, guarantee); refrain from extending any further assistance to the applicant under the program with respect to which the failure or refund occurred until satisfactory assurance of future compliance has been received from such applicant; and refer the case to the Department of Justice for appropriate legal proceedings.

The Federal Bid Threshold is $250,000, however federal procurement also requires us to follow the more stringent limit. Therefore, in California we must use our state threshold. California’s Bid Threshold is updated annually by the State Superintendent of Schools (Public Contract Code 20111).

By adoption of Resolution Number 24-52 06/12/2024, Fresno Unified School District, pursuant to 2 C.F.R. section 200.320, self-certifies the micro-purchase threshold to $50,000.

Overview

To provide our District staff with an understanding of what requirements govern the process of making procurement decisions in regard to expenditures that are funded by Federal monies. Procedures are in place to comply with District Board Policy, Education Code, 2 CFR 200 Federal regulations, and Civil/Public Code.

Code of Ethics In corroboration with Board Policy 4219.21 Code of Ethics, individuals involved in procurement responsibilities must do so free from conflict of interest. Uniform Guidance 2 CFR 200.318(c) (1) states that no employee, officer, or agent of the District shall participate in, nor attempt to influence the selection, award, or administration of a contract if any real or apparent conflict of interest exists. Please refer to Board Policy 4219.21 Code of Ethics for application of ethical behavior, identification of conflict of interest, and procedures for reporting unethical behavior.

Procedures

In corroboration with Board Policy 3230, purchases that utilize federal grant funds (excluding construction and public works projects) require special attention. See list below to help identify if the purchase is funded by a federal program. As a rule of thumb, any Resource code between 3000 and 5999 identify federal programs, see table below. The Purchasing Department shall comply with the following standards (2 CFR 200.317-200.326 & Appendix II of Part 200) in the procurement of federally funded goods and services.

In the new Uniform Guidance, there are five general standards:

·          Micro-purchases: Less than $50,000 ($2,000 for purchases subject to the Davis-Bacon Act)

o         No competitive quotes required.

o         Distribute purchases equally among qualified suppliers. (to the extent practicable)

·          Small purchases: Between $50,001 and formal bid threshold

o         Rate quotes must be obtained from three sources)

o         Quotes can be obtained from suppliers or from public websites.

·          Sealed bids: More than formal bid threshold(Preferred for construction projects)

o         Two or more qualified bidders willing and able to compete effectively for business.

o         Publicly advertised and a complete, adequate, and realistic specification/description is available.

o         Lowest bidder for the fixed price (lump sum or unit cost) is awarded primarily on price.

·          Competitive proposals: More than $250,000

o         Written policy for conducting technical evaluations of reviewing proposals is made public to Vendor that are interested.

o         Most advantages bid wins, price and other factors are considered.

The technique of competitive proposals is normally conducted with more than one source submitting an offer, and either a fixed price or cost-reimbursement type contract is awarded. It is generally used when conditions are not appropriate for the use of sealed bids. If this method is used, the following requirements apply:

1.        Requests for proposals must be publicized and identify all evaluation factors and their relative importance. Any response to publicized requests for proposals must be considered to the maximum extent practical.

2.        Proposals must be solicited from an adequate number of qualified sources; and

3.        Contracts must be awarded to the responsible firm whose proposal is mos t advantageous to the program, with price and other factors considered.

Sole Source: Any amount, must meet one of the following four requirements and AR 3323

o   Good/Service is only available from single source.

o   Only one source can provide the good/service in the time frame required.

o   Written pre-approval from the Federal awarding agency.

o   Competition is deemed inadequate, after solicitation attempts through one of the other methods.

Sole Source Procurements AR 3323

The purchasing department shall not make any procurements under the sole source doctrine unless the following three conditions are met.

·        A detailed recommendation for “Sole Source Procurement” is submitted by the Executive Director of Purchasing to the full Board of Education for approval prior to the actual procurement.

·        The Associate Superintendent/C.F.O. concurs with the recommendation of the Executive Director of Purchasing.

·        The full Board of Education, by unanimous vote, approves the use of the “Sole Source” procurement.

The sole source doctrine, if approved by the full Board of Education, shall be limited to circumstances such as:

a.      Only a single service or produce is available

b.     Services are offered by a government-regulated monopoly

c.      Contract is for an experimental or unique product

NOTE: This exception is construed narrowly and will be analyzed carefully prior the purchase of products or equipment without bids, under a Board of Education approved “Sole Source” authorization.

·        Any purchase of $25,000.00 or more requires verification through the System for Award Management (www.sam.gov) that the supplier is not excluded or disqualified by the federal government.

·        Whenever a discrepancy exists between these procedures and government codes, code prevails.

Special Note: The District may use competitive proposal procedures for qualifications-based procurement of architectural/engineering (A/E) professional services whereby competitors’ qualifications are evaluated, and the most qualified competitor is selected, subject to negotiation of fair and reasonable compensation. The method, where price is not used as a selection factor, can only be used in procurement of A/E professional services. It cannot be used to purchase other types of services though A/E firms are a potential source to perform the proposed effort.

Public Projects (Public Code Contract 22032)

The Authority to award public projects less than $220,000 is delegated to the Executive Director of Purchasing.

1.      Public projects of $75,000 or less may be performed by the employees of a public agency by force account, by negotiated contract, or by purchase order.

2.      Public projects of $220,000 or less may be let to contract by informal procedures.

3.      Public projects of more than $220,000 shall be let to contract by formal bidding procedure. Public projects include construction, reconstruction, erection, alteration, renovation, improvement, painting, repainting, demolition, and repair work involving a District owned, leased, or operated facility. (Public Contract Code 22002)

Goods and Services

The amount by which contracts shall be competitively bid shall escalate automatically based upon the annual adjustment by the Superintendent of Public Instruction.

Competitive bids shall be sought through advertisement for contracts exceeding threshold for the following: (Public Contract Code 20111)

1.  The purchase, rent or lease of equipment, material, or supplies.

2.  Services, not including construction services, professional services or advice, and insurance services. (Government Code 53060)

3.  Repairs, including maintenance that is not a public project.

Transportation AR 3311

1.      The district shall secure bids for any transportation service expenditure of more than $10,000 when contemplating that such a contract may be made with a person or corporation other than a common carrier, municipally owned transit system or a parent/guardian of students are to be transported. The district may let this contract to other than the lowest bidder. (Education Code 39801.5)

Delegation of Powers

The governing board of any school district may execute any powers delegated by law to it or to the district of which it is the governing board and shall discharge any duty imposed by law upon it or upon the district of which it is the governing board and may delegate to an officer or employee of the district any of those powers or duties. The governing board, however, retains ultimate responsibility over the performance of those powers or duties so delegated.

“Section 35161 suggests that the governing board may delegate its powers without any limitations to the officers or employees of a school district. The Education Code, however, places limitations on the delegation of powers or duties pertaining to contracting or purchasing of supplies, materials, apparatus, equipment and services.” (Carreon, Shipley, Polito, Freiman, Rem, Romano, de Sousa, 2020)

 EC 17604. Delegation of Powers specific to Public Works

Wherever in this code the power to contract is invested in the governing board of the school district or any member thereof, the power may by a majority vote of the board be delegated to its district superintendent, or to any persons that he or she may designate, or if there be no district superintendent then to any other officer or employee of the district that the board may designate. The delegation of power may be limited as to time, money or subject matter or may be a blanket authorization in advance of its exercise, all as the governing board may direct.  However, no contract made pursuant to the delegation and authorization shall be valid or constitute an enforceable obligation against the district unless and until the same shall have been approved or ratified by the governing board, the approval or ratification to be evidenced by a motion of the board duly passed and adopted. In the event of malfeasance in office, the school district official invested by the governing board with the power of contract shall be personally liable to the school district employing him or her for any and all moneys of the district paid out as a result of the malfeasance.

(Added by Stats. 1996, Ch. 277, Sec. 3. Effective January 1, 1997. Operative January 1, 1998.)

The Purchasing Process

The procurement of supplies, materials, equipment, and services are centralized in the Purchasing Department under the Executive Director of Purchasing. Fresno Unified School District also utilizes a centralized warehouse for receiving of most supplies and equipment; the purchase order will list where Vendor are to deliver requested supplies and equipment. As required by funding source and applicable dollar amount thresholds, commodities are procured by using an informal or formal bid process

Vendor Purchase Order Verification Policy

To ensure the integrity of our procurement process and maintain proper internal controls, all vendors conducting business with Fresno Unified School District must adhere to the following Purchase Order (PO) policy:

1. PO Verification Requirement
   Before allowing any product or service to be charged to Fresno Unified School District, vendors must verify the existence of an approved Purchase Order issued by our company. No product or service may be provided without confirmation of a valid PO number.
2. PO Presentation at Point of Sale
   All sales representatives and personnel responsible for processing transactions must request and record the PO number provided by the purchasing party. The PO number must be clearly notated on all sales documentation, including receipts, packing slips, and internal sales systems.
3. Invoice Requirements
   A valid PO number must be included on all invoices submitted to Fresno Unified School District for payment. Invoices received without a PO number will be considered invalid and returned unpaid until corrected.
4. Unauthorized Charges
   Any invoice that lacks a corresponding PO or fails to comply with this policy may be rejected and subject to non-payment. Continued failure to comply may result in a review of the vendor’s eligibility to continue supplying goods or services to  Fresno Unified School District.

The District Vendor Debarment procedure may be implemented when it is not in the best interest of the District to continue doing business with a Vendor.

1. A request to debar a Vendor may be filed in writing with the Executive Director of Purchasing.

2. The Executive Director of Purchasing will convene a meeting with the Vendor to attempt to resolve the issue(s).

3. In the event the issue(s) is not resolved, the debarment action will be referred to the Superintendent or his designee, normally the Chief Financial Officer.

4. Should the issue(s) not be resolved at this level; it shall be referred to the Board along with all documentation regarding the debarment action.

The causes for debarment or suspension shall include, but are not limited to, any or all of the following:

·   Violating any federal, state, or local law, ordinance, regulation, or District policy, in the performance of a contract.

·   Willfully, or egregiously failing to perform in accordance with the terms and requirements of a contract/purchase order. Such actions shall include deliberate failure without good cause to perform in accordance with the specifications or within the time frame provided in the contract and/or a record of nonperformance or unsatisfactory performance in accordance with the terms of one or more contracts.

·   Intentionally providing false or misleading information, or willfully omitting substantive information on an application, in a bid/proposal, contract submittals, or in correspondence or communication to the District.

·   Colluding with others to restrain competition or fix prices.

·   Attempting to obtain information, by whatever means, related to a bid/proposal submitted by a competitor in response to a procurement solicitation in order to obtain an unfair advantage prior to a contract award.

·   Contacting proposal/bid evaluators or any other person who may have influence over the award regarding a bid or proposal under consideration, without authorization from the Purchasing Department, for the purpose of influencing the award of a contract.

Giving gifts, (other than incidental advertising items), meals, or trips to a District employee intending to provide a personal benefit to that employee and not a benefit to the District as a whole with the intent to influence the award of a contract.

Debarment shall be for a period commensurate with the seriousness of the Vendor’s actions and causes for debarment. Debarment affects all divisions or other organizational units of the Vendor unless the debarment decision is limited by its terms to specific divisions or organizational units. When appropriate the debarment may also include individual’s principals and may extend to other organizations, present or future, owned and or operated by the individual. Vendors debarred are excluded from receiving contracts, and the District will not solicit offers from, award contracts to, or consent to subcontracts with these Vendor.

Notwithstanding the debarment or proposed debarment of a Vendor, contracts, or subcontracts in existence at the time a Vendor is debarred may continue unless cancelled pursuant to the cancellation clause of the contract. Ordering activities may continue against existing contracts in the absence of cancellation. However, contracts with debarred Vendor may not be renewed or otherwise extended.

A debarred Vendor shall apply for reinstatement (after the debarment period) prior to bidding for any District business. Vendor may be required to submit evidence which supports the Vendor has performed as a responsible Vendor to other agencies or companies during the suspension period for similar scope of work/business.

Visiting or contacting any school site. Vendor who intend to sell directly to students will not be approved.

Vendor that have been approved by Purchasing must also obtain the Principal’s permission prior to visiting a campus.

CONTRACTOR, at CONTRACTOR’S expense, shall obtain and maintain insurance at all times during the prosecution of the Contract, in companies and through agencies approved by the DISTRICT and with limits not less than those stated hereinafter.

Acceptance of the Certificates of Insurance shall not relieve or decrease the liability of the CONTRACTOR.

Certificates of Insurance shall be originally signed by an authorized representative and shall be submitted in duplicate and shall contain transcripts from the policies authenticated by the proper office of the insurer evidencing, in particular, those insured, the extent of the insurance, the location of and the operation to which the insurance applies and thirty (30) day NOTICE OF CANCELLATION of the policy. Policy shall read “SHOULD ANY OF THE ABO E-DESCRIBED POLICIES BE CANCELLED BEFORE THE

EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED”.

All of CONTRACTOR’S insurance policies shall name the FRESNO UNIFIED SCHOOL DISTRICT and its employees and agents, as additional insured. Certificates of Insurance must have attached Additional Insured Endorsement (Insurance Services Officer form CG2010). Such policy of insurance shall be endorsed so that the CONTRACTOR’S insurance shall be primary, and no contribution shall be required of the DISTRICT.

Insurance coverages shall not be less than the following:

Workers’ Compensation in accordance with the provisions of Section 3700 of the Labor Code. CONTRACTOR shall sign and file with DISTRICT the following certificate prior to performing the work under this contract: “I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for Workers’ Compensation or to undertake self-insurance in accordance with the provisions of that Code, and I will comply with those provisions before commencing the performance of the work of this contract.” The form for this certificate is included as a part of the Contract Documents.

Comprehensive General Liability coverage must be written on an occurrence, as opposed to claims made basis, with policy limits of no less than $4,000,000 CSL (combined single limit), BI (bodily injury) and PD (property damage) and include coverage for Premises – operations, Contractual liability, Products, and Completed operations.

Comprehensive Auto Liability insurance with limits of not less than $2,000,000 CSL, BI and PD

Builder’s Risk Insurance. Prior to commencement of work, CONTRACTOR shall submit certificates evidencing that it has obtained, for the period of the Contract, Builder’s Risk Completed insurance coverage upon the entire project, which is the subject of this Contract, including work completed or in progress.

Independent Contractor Agreements

Insurance. Without limiting “Contractor” indemnification, it is agreed that “Contractor” shall secure and maintain in force during the term of this Agreement a Commercial General Liability policy (Contractual liability included) utilizing an occurrence policy form, with limits of not less than two million ($2,000,000) dollars per occurrence, four million ($4,000,000) annual aggregate limits.

Business automobile Liability Insurance shall be maintained for owned, scheduled, non-owned or hired automobiles with a combined single limit not less than two million ($2,000,000) dollars per occurrence. In the event “Contractor” is working with students individually or providing professional services to students, “Contractor” shall maintain a policy providing coverage for sexual molestation and/or abuse claims. In the event that “Contractor’s” Commercial General liability policy excludes coverage for sexual molestation and/or abuse claims

shall be required to procure a separate or supplemental policy providing such coverage.

The limits of coverage for the abuse and molestation policy shall be not less than $2,000,000 per claim and $4,000,000 aggregate.

If any of the required policies provide coverage on a claims-made basis, then the following shall apply.

1)  The retroactive date must be shown and must be before the date of the contract or the beginning of contract work.

2)  Insurance must be maintained, and evidence of insurance must be provided for at least five (5) years after completion of the contract work.

3)  If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a retroactive date prior to the contract effective date, the Contractor must purchase “extended reporting” coverage for a minimum of five (5) years after completion of work. Self-insured retentions must be declared to and approved by District.

The District may require “Contractor” to provide proof of ability to pay losses and related investigations, claims administration and defense expenses within the retention. The policy shall provide, or be Vendorsed to provide, that the self-insured retention may be satisfied by either the named insured or the District. The District shall be named as an additional insured on the policies by separate Vendorsement. A Certificate of Insurance and Vendorsements shall be attached to the Agreement as proof of insurance.

The “Contractor” policy shall provide that it is primary such that insurance maintained by the District, if any, shall be excess and not co-primary. “Contractor” shall produce the policy for District, upon request.

Delivery of Insurance Documents

Insurance Certificates shall include the Accord and Endorsements.

They must note Fresno Unified School District, 4498 N. Brawley, Fresno, CA 93722 as additional insured.

The Food Services Department is responsible for the procurement of goods and services including food products to provide healthy and nutritious meals to over 75,000 students.

Food Services Staff including the Food Services Director, Nutritionist, and Buyer are required to adhere to The Buy American Provision: Section 1.04(d) of the William F. Goodling Child Nutrition Reauthorization Act of 1998.

Each formal and informal solicitation for food products is required to include the following Buy American Provision language. In addition, Food Service staff will adhere to the guidelines listed below during the duration of the established Vendor contract.

The Buy American Provision (Required in all formal and informal solicitations)

As a sponsor of the School Nutrition Programs, the District will consider only applicable products which comply with the requirements of the “Buy American” Act.

The Buy American Provision: Section 1.04(d) of the William F. Goodling Child Nutrition Reauthorization Act of 1998 requires that schools and institutions participating in the School Nutrition Programs in the contiguous United States to purchase, to the maximum extent practicable, domestic commodities or products for the use in meals served under the programs.

Section 104(d) of the William F. Goodling Child Nutrition Reauthorization Act of 1998 (Public Law 105-336) added a provision, Section 12(n) to the NSLA (42 USC 1760(n)), requires school food

authorities (SFAs) to purchase, to the maximum extent practicable, domestic commodity or product. Section 12(n) of the NSLA defines “domestic commodity or product” as an agricultural commodity that is produced in the United States and a food product that is processed in the United States using substantial agricultural commodities that are produced in the United States as provided in 7 CFR Part 210.21(d).

“Substantial” means that over 51 percent of the final processed product consists of agricultural commodities that were grown domestically. Products from Guam, American Samoa, Virgin Islands, Puerto Rico, and the Northern Mariana Islands are allowed under this provision as territories of the United States. It is the District’s intent to strictly adhere to this policy.

Any Bidder intending to provide products produced or grown in a foreign country must include such information on their bid submission. Failure to include such information in the bid submission may result in product rejection at the Vendor’s expense.

Fresno Unified School District encourages products specification submitted for bid to be 100% domestically grown and processed products.

Fresno Unified School District will monitor contractor performance as required in 2 CFR Part 200.318(b), formerly in 7 CFR Part 3016.36(b)(2), to ensure that contractor(s) perform in accordance with the terms, conditions, and specifications of their contracts or purchase orders. This will be accomplished by ensuring the product label designates the United States, or its territories, as the country of origin.

Contractor(s) is required to list the country of origin for products in all bid documentation submitted along with receipts and invoices.

The District may impose penalties, including contract termination, if contractor(s) Are not able to comply with the Buy American provision.

Exceptions to the Buy American Provision should be used as a last resort; however, An alternative or exception may be approved upon request. To be considered for the alternative or exception, the request must be submitted in writing to the Food Service Director a minimum of 10 days in advance of delivery.

The request must include the:

1.      Alternative substitute (s) that are domestic and meet the required specifications:

o   Price of the domestic food alternative substitute; and

o   Availability of the domestic alternative substitute in relation to the quantity ordered.

2.      Reason for exception: limited/lack of availability or price (include price):

o   Price of the domestic food product; and

o   Price of the non-domestic product that meets the required specification of the domestic product.

The contractor(s) are required to examine product packaging as the Nutrition Labeling and Education Act of 1990 mandates that the country of origin for both domestic and imported food products be identified on the product labels to ensure compliance with the Buy American Provision.

The District requires that suppliers certify the percentage of U.S. content in products supplied to us on the Bid Pricing Sheet.

If you are unable or unwilling to make such certification, we will not purchase from you. (FUSD May 9, 2017)

Guidelines and Goals

This policy shall serve as a point of reference and provide guidance, to procurement processes initiated by the District in meeting its food service and nutritional goals, in conjunction with the District’s Purchasing Procedures.

This policy shall not supersede the scoring criteria for individual procurement process. This policy shall pertain to all local food and farm products.

The goal of the Food Services Department is to increase local food procurement incrementally by 3-5 percent each year.

This policy intends to ensure that there is increase community confidence in, and an accountability framework through which the Nutrition Department staff align its Farm to School Procurement Policy in meeting its food service and nutritional goals, in conjunction with the Buy American Act.

This policy intends to ensure compliance by Nutrition Services Department staff with all relevant legislative requirements, codes of practice, policies, procedures, and any other requirements.

This policy is intended to ensure that there are appropriate, open, and transparent public reporting processes in place.

This policy is intended to ensure that there are efforts to developing conducive partnerships.

Geographic Preference

Vendor responses with production sites located within a 250-mile distance from the District Nutrition Center shall be considered local.

Geographic preference may be one of the criteria assigned point value within the scoring rubric for procurement processes initiated by the District.

Vendor responses with production sites located within area defined as local may receive additional scoring during a procurement process.

Vendor responses with production sites located within Fresno County may receive additional scoring during a procurement process.

The District may solicit Vendor proposals requesting items be delivered within a 24–48-hour period upon harvest and/or processing.

Vendor responses including a 24–48-hour delivery upon harvest and/or processing may receive additional scoring during a procurement process.

The District’s goal is to increase, annually, the percentage of local food products it purchases.

Supply Chain Preference

Vendor responses demonstrating that small- and medium-sized operations constitute at least 5 percent of its supply in their proposals may receive additional scoring during a procurement process.

The District defines a small-sized operation as one that generates between $1,000 and

$250,000 in gross annual sales.

The District defines a medium-sized operation as one that generates up to $1 million in gross annual sales.

Educational Opportunities Preference

Vendor responses demonstrating a commitment to engage in the educational experience of the District’s students may receive additional scoring during a procurement process.

Examples of the District’s preferred student educational engagement activities include same-day field trips to operation facilities, classroom visits, student taste tests, nutrition education, etc.

Federal Micro-Purchase Threshold

The District’s goal is to increase, annually, the percentage of contracts awarded to responsive and responsible Vendor with proposals equal to or below the Federal micro- purchase threshold as determined by Federal Acquisition Regulation.

Micro-Purchase contracts intend to support small operations’ participation in the District’s Nutrition Services Department procurement process.

Micro-Purchase contracts intend to support the inclusion of seasonal and multicultural items in the District’s Nutrition Services Department programs to meet nutritional goals.

The District’s preference is to contact responsive and responsible Vendor offering local products.

Small Purchase Threshold

Please reference the District’s Purchasing Limits procedure for the current small purchase threshold.

The District’s goal is to, at a minimum; maintain the current annual percentage of contracts awarded to responsive and responsible Vendor with proposals within the District’s small purchase threshold.

Small Purchase contracts intend to support small- and medium-sized operations’ participation in the District’s Nutrition Services Department procurement process and programs to meet nutritional goals.

Forward Contracting

The District may solicit proposals from responsive and responsible Vendor for food products in advance of their harvest and delivery.

Contracts shall be competitively procured based on their respective threshold amount.

Procurement Process Training and Outreach

The District shall provide a workshop at least once a year to review its Nutrition Services Department procurement process with prospective Vendor.

The District shall secure the attendance of at least ten (10) representatives of small- and medium-sized operations at each workshop.

The District shall provide a step-by-step guide for securing a procurement contract with its Nutrition Services Department at every threshold amount.

This guide(s) shall be available in at least two (2) languages other than English.

The District shall actively circulate this guide(s) with prospective Vendor within area defined as local.

Donors may access the Gift Proposal Form from the District Home Page  Gift Proposal Form to self-submit a donation to their desired Program.

Gifts and Monetary Donations raised from Fundraisers do not require a Gift Proposal Form to be submitted.

For assistance, please call District Purchasing Department, Teri Prieto 559-457-3465

Note:

• Gifts require Program and District staff approval before donation can be accepted.

Fresno Unified School District Procureware System

Bids will be accepted in the format noted in bid package or quote documents.

We extend a warm welcome to those wishing to do business with the Fresno Unified School District

(FUSD or the “District”). It is our goal to make our relationship friendly and mutually rewarding. Our principal objective is to acquire goods and services at a fair and reasonable price. We are constantly seeking new sources and welcome your participation. Formal bids are solicited through newspaper advertisement and bids are publicly opened on the date and time indicated.

Procureware (the District’s online procurement portal.)

Please contact the Buyer listed on the bid if you have questions concerning the bid

specifications or to obtain a printed copy of the bid. Only the FUSD Purchasing Buyer is authorized to answer questions regarding bid specifications. If the Buyer cannot answer your questions an addendum will be issued. Only written Addenda shall be binding. Any information you obtain from the end user will not be legally binding and can be cause for your bid being rejected.

For the purpose of securing bids the governing board of a school district shall publish at least once a week for two weeks in some newspaper of general circulation published in the district, or if there is no such paper, then in some newspaper of general circulation, circulated in the county, and may post on the district’s Web site or through an electronic portal, a notice calling for bids, stating the work to be done or materials or supplies to be furnished and the time when and the place and the Web site where bids will be opened. Whether or not bids are opened exactly at the time fixed in the public notice for opening bids, a bid shall not be received after that time. The governing board of the district may accept a bid that was submitted either electronically or on paper.

(Amended by Stats. 2004, Ch. 739, Sec. 1. Effective January 1, 2005.)

All requests for Publication of Advertisement must be submitted to the Purchasing Department.

Any Vendor who chooses to register his/her company acknowledges FUSD is not obligated to notify the Vendor of all bid solicitations within his/her registered commodity. Vendor shall rely on official notification in the City of Fresno local paper for formal bid solicitations.

Please use the Instructions for Vendor Registration. Bids will be accepted in the format noted in bid package or quote documents.

 PCC 22037 Notice inviting formal bids shall state the time and place for the receiving and opening of sealed bids and distinctly describe the project. The notice shall be published at least 14 calendar days before the date of opening the bids in a newspaper of general circulation, printed and published in the jurisdiction of the public agency; or, if there is no newspaper printed and published within the jurisdiction of the public agency, in a newspaper of general circulation which is circulated within the jurisdiction of the public agency, or, if there is no newspaper which is circulated within the jurisdiction of the public agency, publication shall be by posting the notice in at least three places within the jurisdiction of the public agency as have been designated by ordinance or regulation of the public agency as places for the posting of its notices. The notice inviting formal bids shall also be sent electronically, if available, by either facsimile or electronic mail and mailed to all construction trade journals specified in Section 22036. The notice shall be sent at least 15 calendar days before the date of opening the bids. In addition to notice required by this section, the public agency may give such other notice as it deems

proper.(Amended by Stats. 2010, Ch. 62, Sec. 1. (AB 2184) Effective January 1, 2011.)

“A determination of whether a bidder is “responsible” is a question of fact within the exercise of reasonable discretion by the governing board. However, prior to awarding a contract pursuant to competitive bidding to other than the lowest monetary bidder, a public body must notify the low monetary bidder of any evidence reflecting upon its responsibility received from others or adduced by independent investigation and afford that bidder an opportunity to rebut such adverse evidence and to present evidence that it is qualified to perform the contract.

Inglewood-Los Angeles County Civic Center Authority v. Superior Court of Los Angeles County, supra, 7 Cal. 3d 861 at 871. Where the staff recommendation or board intention is to reject the low bidder as a non-responsible bidder, the low bidder should be notified of the evidence reflecting upon its responsibility and be afforded an opportunity to present information to the public body and have the public body consider that information before the final decision is made to award the contract to another bidder.

Due process does not, however, compel a quasi-judicial proceeding prior to rejection of the low monetary bidder as a non-responsible bidder. Ibid.

Recent case law has blurred the line between responsiveness and responsibility. In Great West Contractors, Inc. v. Irvine Unified School District (2010) 187 Cal.App.4th 1425, the bid instructions asked if the contractor had ever been licensed under any name or license number other than the ones given, to which the contractor answered “no”. The District determined this response to be false and rejected the bid on the grounds that it was nonresponsive. According to the Court, the issue was one of responsibility of the bidder, who was therefore entitled to a hearing. The case generally holds that if a bid answers all questions and nothing is inaccurate or in violation of the bid specifications on its face, then any challenge to the accuracy or truthfulness of the information in the bid is not really a matter of responsiveness, but rather a matter of responsibility. Although the Great West Court noted the possibility that a determination of nonresponsiveness could be based on something outside the bid documents, it also observed that no published case had ever reached that conclusion. Therefore, if any outside information is necessary to establish the accuracy or inaccuracy of a bid response, there is risk to deeming the bid nonresponsive rather than non-responsible.” (Carreon, Shipley, Polito, Freiman, Rem, Romano, de Sousa, 2020)

1.             The Executive Director of Purchasing shall be responsible for analyzing bids and shall determine that the equipment and/or supplies selected meet the specifications. The Executive Director of Purchasing may select a product which exceeds the specifications, but its price may not exceed that of a product which meets them. All considerations should include the life cycle cost of items and guaranteed buy-back or disposal value.

The FUSD Purchasing Department adheres to the Council of Greater City Schools formula to track and report our savings.

Total savings from formal sealed bid competition – savings/cost avoidance is calculated as the difference between the average of all bids and the low bid.

Total savings from formal sealed negotiated proposals – savings/cost avoidance is calculated as the difference between the initial proposal and the final proposal prices.

When all considerations of a bid are equal, the award shall be handled as follows:

a.  Single Item Bid. Equal bids shall be awarded by drawing except that preference shall be given to local firms. A local firm is defined as one established in the county with normal wholesale or retail outlets, a stock of merchandise (not necessarily related to bid), not less than one clerk, delivery system or a combination of the above factors.

b. Multiple Item Bid. Equal multiple bids shall be awarded to the firm submitting the aggregate of lowest prices on that bid, except that preference shall be given to local firms.

c.  Equal aggregate bids between either all local or all out-of-town firms shall be awarded by:

1)  award of the items to firms submitting the lowest bids, or

2)  by a drawing, unless otherwise specified in bid

20117. Notwithstanding any other provision of law, in the event there are two or more identical lowest or highest bids, as the case may be, submitted to a school district for the purchase, sale, or lease of real property, supplies, materials, equipment, services, bonds, or the awarding of any contract, pursuant to a provision requiring competitive bidding, the governing board of any school district may determine by lot which bid shall be accepted.

(Added by Stats. 1987, Ch. 1452, Sec. 527.)

“It is also well established that a bid which substantially conforms to a call for bids may, though not strictly responsive, be accepted if the variance cannot affect the amount of the bid or give a bidder an advantage or benefit not allowed other bidders or, in other words, if the variance is inconsequential. 47 Ops.Cal.Atty.Gen. 129 (1966); see also, Ghilotti Const. Co. v. City of Richmond (1996) 45 Cal.App.4th 897. If, however, a variance from the bid requirements gives the bidder a substantial advantage over other bidders, and thereby restricts or stifles competition, it will be considered material.

In determining whether a specific noncompliance constitutes a substantial and hence nonwaivable irregularity, the courts have applied two criteria first, whether the effect of a waiver would be to deprive the municipality of its assurance that the contract will be entered into, performed and guaranteed according to its specified requirements, and second, whether it is of such a nature that its waiver would adversely affect competitive bidding by placing a bidder in a position of advantage over other bidders or by otherwise undermining the necessary common standard of competition. 10 McQuillin, Municipal Corporations (3d ed.) § 29.65.

The following defects cannot be waived: (a) failure to issue a notice inviting bids; (b) failure to comply exactly with the publication requirements; and (c) failure of the bidder to submit a bid which substantially conforms to the call for bids. Lack of the bidder’s signature on the bid form itself is waivable when the bid is complete in all other respects and contains the bidder’s signature on other pages of the bid documents so that it is clear that the bidder is bound to enter into and perform the contract. Menefee v. County of Fresno (1985) 163 Cal. App. 3d 1175. Your attorney may conclude that the failure to submit a bid bond may be waived and will not prevent the board from awarding the contract so long as (1) prior to the opening of the bids, the bidder had in good faith incurred the expense of providing the bid security and all related obligations so as not to have obtained a competitive advantage over other bidders and (2) remedied the defect prior to award of the contract. Cameron v. City of Escondido (1956) 138 Cal. App. 2d 311. Also, the lack of the contractor’s signature on the performance bond or payment bond may be waived if signed before the award. C. Gandahl Lumber Co. v. Thompson (1928) 205 Cal. 354; Pacific M. & T. Company v. Bonding and Insurance Co. (1923) 192 Cal. 278. ” (Carreon, Shipley, Polito, Freiman, Rem, Romano, de Sousa, 2020)

Even where the statutory provisions setting forth the mode of contracting are silent as to the right to reject all bids, the courts will recognize that right where the invitation for bids contains an express reservation of the right to reject all bids. Laurent v. City and County of San Francisco (1950) 99 Cal. App. 2d 707. Where a public body has expressly reserved the right to reject all bids, it may do so for any reason and at any time before it accepts a bid, and the courts will not interfere with the exercise of that right however arbitrary or capricious. Universal By-Products, Inc. v. City of Modesto, (1974) 43 Cal. App. 3d 145; see also Stanley-Taylor Co. v. Board of Supervisors (1902) 135 Cal. 486; Charles L. Harney, Inc. v. Durkee (1951) 107 Cal. App. 2d 570; Laurent v. San Francisco, supra, 99 Cal. App. 2d 707; Baldwin-Lima-Hamilton Corp. v. Superior Court of San Francisco, supra, 208 Cal. App. 3d 803. Where the power to reject all bids is reserved, no right exists in the lowest bidder to compel the acceptance of its bid by a writ of mandate. Rubino v. Lolli, supra, 10 Cal. App. 3d 1059; Charles L. Harney, Inc. v. Durkee, supra, 107 Cal. App. 2d at 580.

This district review procedure must be followed by any bidder who believes that a bid award recommendation is not consistent with district regulations, the bid specifications, or in compliance with law.

Formal Bid/Proposal Protest Procedure

1.  Protest on a bid must be filed in writing with the Executive Director of Purchasing within two working days after receipt of the bid tabulation and its recommendations are sent to the bidders. Failure to file a timely bid protest shall constitute a bidder’s waiver of the right to have the bid award reviewed.

2.  The Executive Director of Purchasing will convene a meeting with the review requester to attempt to resolve the problem.

3.  In the event the protest is not resolved, the protest will be referred to the Superintendent or his designer, normally the Chief Financial Officer.

4.  Should the protest not be resolved at this level; it shall be referred to the Board along with all documentation regarding the protest and the responses at each level.

5.  The Board will not act upon a protest until each of the proceeding steps has been exhausted.

Informal Bid/Proposal Protest Procedure

1.  Protest on a bid must be filed in writing with the Executive Director of Purchasing within two working days after receipt of the bid summary and its recommendations are sent to the bidders. Failure to file a timely bid protest shall constitute a bidder’s waiver of the right to have the bid award reviewed.

2.  The Executive Director of Purchasing will convene a meeting with the review requester to attempt to resolve the problem.

3.  The Executive Director of Purchasing’s decision is final for informal bids.

A Bid Tabulation is a summary of the bids received. Bid Tabulations can be found in the procedure once staff has provided an award recommendation.

Bid Tabulations will be made available with the Bid Agenda.

RFP (Request for Proposal) notes and summary will be made available after the Board Award.

A Bid Tabulation is a summary of the bids received.

• Bid Tabulations can be found in Procureware once staff has provided an award recommendation.  
• Bid Tabulations will be made available with the Bid Agenda.
• RFP (Request for Proposal) notes and scores will be made available after the Board Award.

Continuing contracts for work to be done, services to be performed, or for apparatus or equipment to be furnished, sold, built, installed, or repaired for the district, or for materials or supplies to be furnished or sold to the district may be made with an accepted Vendor as follows: for work or services, or for apparatus or equipment, not to exceed five years; for materials or supplies, not to exceed three years.

(Added by Stats. 1996, Ch. 277, Sec. 3. Effective January 1, 1997. Operative January 1, 1998.)

The legislative body of any public or municipal corporation or district may contract with and employ any persons for the furnishing to the corporation or district special services and advice in financial, economic, accounting, engineering, legal, or administrative matters if such persons are specially trained and experienced and competent to perform the special services required.

The authority herein given to contract shall include the right of the legislative body of the corporation or district to contract for the issuance and preparation of payroll checks.

The legislative body of the corporation or district may pay from any available funds such compensation to such persons as it deems proper for the services rendered. (Amended by Stats. 1968, Ch. 1384.)

Assembly Bill 5 (AB 5), which went into effect on January 1, 2020, created a presumption in favor of employee classification and requires employers to prove all three criteria in a three- part test in order to establish classification of a worker as an independent contractor. Prior to AB 5, the employee vs. independent contractor determination was made using a multi-factor totality of the circumstances test. Now, subject to some exceptions, this determination is made pursuant to a three part ”ABC Test” which more often than not leads businesses and agencies to classify a worker as an employee. The ABC Test under AB 5 is as follows:

A person providing labor or services for renumeration shall be considered an employee rather than an independent contractor unless the hiring entity demonstrates that all of the following conditions are met :

The person is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact.

The person performs work that is outside the usual course of the hiring entity’s business.

The person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed. (Labor Code section 2750.3.)

This section of the Labor Code also lists multiple professions and types of employment that are specifically exempted from the ABC Test – when such an exemption applies, the old, multi-factor totality of the circumstances test is typically required in its place.

School districts typically rely on independent contractors to provide a variety of necessary services – including translation services, speech and language therapy, and occupational therapy services and specialized transportation. However, under the new ABC Test such workers may arguably fall under the definition of “employee” and cannot be classified as an independent contractor.” Unfortunately, most districts do not have the resources to bring each and every such worker on as an employee, so school districts, and their attorneys, must work to find ways to legitimately and legally classify these workers as independent contractors, even under the ABC Test and protect districts from potential employment classification challenges under the new law. The following is a list of strategies and considerations a school district may discuss with counsel for use in supporting its independent contractor classifications:

Evaluate current independent contractor agreements and discern whether the individual employed meets the ABC Test;

Ensure the district is not classifying individuals who conduct work in the district’s usual course of business as independent contractors;

Consider contracting with third party agencies or other businesses that properly classify their employees instead of contracting with independent contractors directly for these services. In some instances these contracts may be structured so as to meet the “business to business” exception under AB 5, which permits employment classifications to be evaluated based on the totality of the circumstances test under the Borello Factors.

Work with counsel to include indemnification provisions in contracts with other agencies or businesses that require the district be indemnified in the case of misclassification by a third party.

Additionally, certain federal law requirements, such as those contained in the Individuals with Disabilities Education Act “IDEA” that require school districts to pay for and provide some qualifying students with an independent educational evaluator, which by definition cannot be a district employee, are clearly in conflict with AB 5 and may raise issues of federal preemption.

The language within AB 5 does not lend itself to application to public entities such as school districts. As such, the law is surrounded by controversy and leaves open many questions with regard to how the legislature intended it be applied and enforced against school districts. AB 5 is currently subject to multiple lawsuits and thus, it is likely changes to the law are forthcoming. We recommend districts contact their legal counsel for additional information about strategy to ensure compliance and limit risk.

Only the Executive Director of Purchasing may issue a Letter of Intent.

Letters of intent From: The Institute for Supply Management Task 1-A-4 Manage the preparation and/or issuance of contracts/purchase orders/agreements.

A) Purpose — The ISM Glossary defines a letter of intent (LOI) as a pre-contractual document used to express expectation of contract formation in the future. When properly drafted, the LOI should create no binding obligation on either party. The letter of intent anticipates that it will be superseded by subsequent documentation containing the same terms and conditions along with additional terms and conditions. The purpose of a letter of intent is to gain time prior to the issuance of a more complete contract or purchase order. Situations where a letter of intent may be used include the following:

·        Reserving a place “in line” for standard equipment when the formal purchase document approval system may require more time.

·        Basing volume discounts on future business without giving a firm order for the whole quantity (note that prices are usually renegotiated if actual volume does not satisfy the discount structure).

·        Encouraging a seller to stock items of interest to the organization.

·        Providing the supplier with evidence to secure bonding.

B)   Types — There are two types of letters of intent: binding and nonbinding. The distinction depends primarily on the language used in the letter.

1.0  Binding      The supply management professional may be bound by a letter of intent, even if he or she does not wish to be, unless steps are taken to prevent this. For example, if both parties sign a memorandum confirming negotiations or agreement in principle, they would likely be bound by contract unless the memorandum clearly and explicitly states that neither party intends to be bound and that the memo is not intended to be a contract. The same is true of minutes of negotiation meetings, as the parties can be held to have a contract for the points on which they have already agreed. Indeed, a memo of agreement or negotiations that is expressly made conditional on legal approval may be viewed as a contract on the premise that legal points not specifically approved by an organization’s lawyer may be clarified by default provisions in the law. Any letter of intent given as authorization to begin producing goods or the like certainly will be regarded as binding.

2.0  Nonbinding       If a letter of intent is to be nonbinding, it must include an explicit and clear statement to that effect, with the understanding that such a letter cannot be binding on one party and nonbinding on the other.

A letter of intent between the parties without authority to bind their organizations would typically be held as nonbinding if it contains a condition of approval by management or other authority. However, one must take care that the party truly does not have such authority and that there is no precedent of having treated prior, similar letters as binding, in which case the party may be considered to have “apparent authority.”

The best practice is to have the letter spell out, in simple language, whether the parties intend it to be binding.

(a)   Members of the Legislature, state, county, district, judicial district, and city officers or employees shall not be financially interested in any contract made by them in their official capacity, or by any body or board of which they are members. Nor shall state, county, district, judicial district, and city officers or employees be purchasers at any sale or Vendor at any purchase made by them in their official capacity.

(b)   An individual shall not aid or abet a Member of the Legislature or a state, county, district, judicial district, or city officer or employee in violating subdivision (a).

(c)    As used in this article, “district” means any agency of the state formed pursuant to general law or special act, for the local performance of governmental or proprietary functions within limited boundaries.

(Amended by Stats. 2014, Ch. 483, Sec. 1. (SB 952) Effective January 1, 2015.)

“Recent case law has extended Section 1090’s coverage to private consultants, so that such consultants cannot be financially interested in a contract that they participated in making. See Davis v. Fresno Unified School District (2015) 237 Cal.App.4th 261; McGee v. Balfour Beatty Construction (2016) 247 Cal.App.4th 235; California Taxpayers Action Network v. Taber Construction, Inc. (2017) 12 Cal.App.5th 115;Strategic Concepts, LLC v. Beverly Hills Unified School Dist., 23 Cal.App.5th 163 (2018). Based on these cases, there is a potential conflict of interest where a contractor provides preconstruction or consulting services to school districts related to a project and is subsequently awarded a contract to implement the project. In 2017, the California Supreme Court also held that an independent contractor can be criminally liable for a conflict of interest under Government Code section 1090. People v. Superior Court (Sahlolbei) (2017) 3 Cal.5th 230.

The principle behind Government Code section 1090 is that no person can faithfully serve two masters. Stockton Plumbing & Supply v. Wheeler (1924) 68 Cal. App. 592; see also Thomson v. Call (1985) 38 Cal. 3d 633, 637. Government Code section 1090’s purpose is to ensure a public officer’s or employee’s absolute loyalty and undivided allegiance to the best interests of the public entity, and to remove all direct and indirect influence of an interested officer or employee and to discourage deliberate dishonesty. Fraser-Yamor Agency, Inc. v. County of Del Norte (1977) 68 Cal. App. 3d 201, 215.” (Carreon, Shipley, Polito, Freiman, Rem, Romano, de Sousa, 2020)

A local agency may require a bid for a public works contract to include prices for items that may be added to, or deducted from, the scope of work in the contract for which the bid is being submitted. Whenever additive or deductive items are included in a bid, the bid solicitation shall specify which one of the following methods will be used to determine the lowest bid. In the absence of a specification, only the method provided by subdivision (a) will be used:

(a)   The lowest bid shall be the lowest bid price on the base contract without consideration of the prices on the additive or deductive items.

(b)   The lowest bid shall be the lowest total of the bid prices on the base contract and those additive or deductive items that were specifically identified in the bid solicitation as being used for the purpose of determining the lowest bid price.

(c)    The lowest bid shall be the lowest total of the bid prices on the base contract and those additive or deductive items that when taken in order from a specifically identified list of those items in the solicitation, and added to, or subtracted from, the base contract, are less than, or equal to, a funding amount publicly disclosed by the local agency before the first bid is opened.

(d)   The lowest bid shall be determined in a manner that prevents any information that would identify any of the bidders or proposed subcontractors or suppliers from being revealed to the public entity before the ranking of all bidders from lowest to highest has been determined.

A responsible bidder who submitted the lowest bid as determined by this section shall be awarded the contract, if it is awarded. This section does not preclude the local agency from adding to or deducting from the contract any of the additive or deductive items after the lowest responsible bidder has been determined.

(e)   Nothing in this section shall preclude the prequalification of subcontractors. (Amended by Stats. 2003, Ch. 62, Sec. 243. Effective January 1, 2004.) Determine award by announcement of budget

Determine award by blind bid

(a) (1) The governing board of any school district, in accordance with any requirement established by that governing board pursuant to subdivision (a) of Section 2000, shall let any contracts involving an expenditure of more than fifty thousand dollars ($50,000) for any of the following:

(A) The purchase of equipment, materials, or supplies to be furnished, sold, or leased to the district.

(B) Services, except construction services.

(C) Repairs, including maintenance as defined in Section 20115, that are not a public project as defined in subdivision (c) of Section 22002.

(2) The governing board shall let the contract to the lowest responsible bidder who shall give security as the board requires, or else reject all bids.

(b) (1) The governing board shall let any contract for a public project, as defined in subdivision (c) of Section 22002, involving an expenditure of fifteen thousand dollars ($15,000) or more, to the lowest responsible bidder who shall give security as the board requires, or else reject all bids. All bids for construction work shall be presented under sealed cover, and shall be accompanied by one of the following forms of bidder’s security:

(A) Cash.

(B) A cashier’s check made payable to the school district.

(C) A certified check made payable to the school district.

(D) A bidder’s bond executed by an admitted surety insurer, made payable to the school district.

(2) Upon award to the lowest bidder, the security of an unsuccessful bidder shall be returned in a reasonable period, but in no event shall that security be held by the school district beyond 60 days from the time the award is made.

(c) Procurement bid solicitations and awards made by a school district approved to operate at least one federal nonprofit child nutrition program for purchases in support of those programs shall be consistent with the federal procurement standards in Sections 200.318 to 200.326, inclusive, of Part 200 of Title 2 of the Code of Federal Regulations. These awards shall be given to the most responsive and responsible party. The price shall be the primary consideration, but not the only determining factor.

(d) This section applies to all equipment, materials, or supplies, whether patented or otherwise, and to contracts awarded pursuant to subdivision (a) of Section 2000. This section shall not apply to professional services or advice, insurance services, or any other purchase or service otherwise exempt from this section, or to any work done by day labor or by force account pursuant to Section 20114.

(e) Commencing January 1, 1997, the Superintendent of Public Instruction shall annually adjust the dollar amounts specified in subdivision (a) to reflect the percentage change in the annual average value of the Implicit Price Deflator for State and Local Government Purchases of Goods and Services for the United States, as published by the United States Department of Commerce for the 12-month period ending in the prior fiscal year. The annual adjustments shall be rounded to the nearest one hundred dollars ($100).

(Amended by Stats. 2017, Ch. 395, Sec. 1. (SB 544) Effective January 1, 2018.)

https://www.cde.ca.gov/fg/ac/co/

(a)     In an emergency when any repairs, alterations, work, or improvement is necessary to any facility of public schools to permit the continuance of existing school classes, or to avoid danger to life or property, the board may, by unanimous vote, with the approval of the county superintendent of schools, do either of the following:

(1)     Make a contract in writing or otherwise on behalf of the district for the performance of labor and furnishing of materials or supplies for the purpose without advertising for or inviting bids.

(2)     Notwithstanding Section 20114, authorize the use of day labor or force account for the purpose.

(b)     Nothing in this section shall eliminate the need for any bonds or security otherwise required by law.

(Amended by Stats. 1995, Ch. 897, Sec. 2. Effective January 1, 1996.)

 CUPCCAA allows flexibility in cases of emergency and when repair or replacements are necessary to permit the continued conduct of a public agency’s operations or services. For the purposes of the Public Contract Code, an “emergency” is defined at Section 1102 as “a sudden, unexpected occurrence that poses a clear and imminent danger, requiring immediate action to prevent or mitigate the loss or impairment of life, health, property, or essential public services.” The Act sets forth in Section 22035(a) how a governing body should proceed in case of emergency repairs or replacements. This section states:

 In cases of emergency when repair or replacements are necessary, the governing body may proceed at once to replace or repair any public facility without adopting plans, specifications, strain sheets, or working details, or giving notice for bids to let contracts. The work may be done by day labor under the direction of the

governing body, by contractor, or by a combination of the two. Section 22050 et seq., provides the emergency contract procedures to be followed in these cases

Fresno Unified School District follows CUPCCAA and subject to Public Contract Code sections 22035 and 22050, et seq. In the case of an emergency, the CUPCCAA district may, by four-fifths vote of its governing body, repair or replace a public facility, take any directly related and immediate action required by that emergency, and procure the necessary equipment, services, and supplies for those purposes, without giving notice for bids to let contracts. Pub. Contract Code, § 22050(a)(1).

The Board must make a finding, based on substantial evidence set forth in the minutes of the meeting, that the emergency will not permit a delay to allow for a competitive solicitation for bids, and that action was necessary to respond to the emergency. Pub. Contract Code, § 22050(a)(2).

The Board may also delegate the authority to order any action authorized in the case of an emergency pursuant to Public Contract Code section 22050(a)(1), by resolution and a four-fifths vote. Pub. Contract Code, § 22050(b).

Limit on in-house work-orders PCC 20114.

(a)    In each school district, the governing board may make repairs, alterations, additions, or painting, repainting, or decorating upon school buildings, repair or build apparatus or equipment, make improvements on the school grounds, erect new buildings, and perform maintenance as defined in Section 20115 by day labor, or by force account, whenever the total number of hours on the job does not exceed 350 hours. Moreover, in any school district having an average daily attendance of 35,000 or greater, the governing board may, in addition, make repairs to school buildings, grounds, apparatus, or equipment, including painting or repainting, and perform maintenance, as defined in Section 20115, by day labor or by force account whenever the total number of hours on the job does not exceed 750 hours, or when the cost of material does not exceed twenty-one thousand dollars ($21,000).

(b)    For purposes of this section, day labor shall include the use of maintenance personnel employed on a permanent or temporary basis.

(Amended by Stats. 1995, Ch. 897, Sec. 3. Effective January 1, 1996.)

Definition of Maintenance / Clarification on Painting PCC 20115.

For purposes of Section 20114, “maintenance” means routine, recurring, and usual work for the preservation, protection, and keeping of any publicly owned or publicly operated facility for its intended purposes in a safe and continually usable condition for which it was designed, improved, constructed, altered, or repaired. “Facility” means any plant, building, structure, ground facility, utility system, or real property.

This definition of “maintenance” expressly includes, but is not limited to: carpentry, electrical, plumbing, glazing, and other craftwork designed consistent with the definition set forth above to preserve the facility in a safe, efficient, and continually usable condition for which it was intended, including repairs, cleaning, and other operations on machinery and other equipment permanently attached to the building or realty as fixtures.

This definition does not include, among other types of work, janitorial or custodial services and protection of the sort provided by guards or other security forces.

It is the intent of the Legislature that this definition does not include painting, repainting, or decorating other than touchup, but instead it is the intent of the Legislature that such activities be controlled directly by the provisions of Section 20114.

(Added by Stats. 1982, Ch. 465, Sec. 11.)

Informal bidding may be used on work, projects, services, or purchases that cost up to the limits set forth in this article. For the purpose of securing informal bids, the board shall publish annually in a newspaper of general circulation published in the district, or if there is no such newspaper, then in some newspaper in general circulation in the county, a notice inviting contractors to register to be notified of future informal bidding projects. All contractors included on the informal bidding list shall be given notice of all informal bid projects in any manner the district deems appropriate.

(Amended by Stats. 1995, Ch. 897, Sec. 4. Effective January 1, 1996.)

“In Advance Medical Diagnostic Laboratories v. County of Los Angeles (1976) 58 Cal. App. 3d 263, a county purchasing agent issued various suborders below the $100,000 limit and thereby avoided competitive bidding by falling within the exception of Government Code section 25502.5 which permits county purchasing agents to engage in contracts for the county as long as the estimated aggregate cost of the contract does not exceed $100,000. (Note, effective January 1, 2019 the limit has been increased to $200,000.) The Court of Appeal at the time held that the test of the agreements’ validity as far as the $100,000 limit was concerned, was not the estimated cost of the individual suborders but the estimated cost of the total project. Thus, the project at issue was not within the Government Code section 25502.5 exception.

 A project may however be split into several trade-oriented contracts in order to keep project costs low provided the competitive bidding requirement has been met. 57 Op. Att’y Gen. 417 (1974). Also, contracts for related school improvements have been held to be individual contracts in instances where each contract was decided on separately and independent of others. Brown v. Bozeman (1934) 138 Cal. App. 133.” (Carreon, Shipley, Polito, Freiman, Rem, Romano, de Sousa, 2020)

•       State (DGS), Federal (GSA), or Cooperative “piggyback” contracts (20118)

•       Emergencies (may only be declared by the Board) (20113)

•       Energy Conservation services (GC 4217.12)

•       Instructional materials (20118.3)

•       Perishable food (EC 38083)

•       Professional services (GC 53060)

•       Waste Management Services (PRC 40059)

•       Sole Source “School districts may enter into joint powers agreements to establish a Joint Powers Agency (“JPA”) to purchase equipment, materials, and supplies. (Govt. Code § 6500, et seq., 15 Op. Att’y Gen. 108 (1950)) The governing board of each public agency to be a member of the JPA must approve the formation of the JPA. The agreement should include the relationship between the public agencies, the manner in which it will purchase equipment, materials and supplies, and how costs will be shared among the member districts.

Exceptions. 

• Technology (subject to formal procurement but can accept any of the three lowest bids) (20118.1)
• “Public Policy” Exception.

The purposes of competitive bidding statutes are to secure economy in the construction of public works and the expenditures of public funds for materials and supplies needed by public bodies; to protect the public from collusive contracts; to exclude favoritism and corruption and to promote competition among bidders so as to ensure that all public contracts are secured at the lowest cost to taxpayers. 64 Am.Jur. 2d, Public Works and Contracts, 37.However, where competitive bidding proposals do not produce an advantage, a statute requiring competitive bidding does not apply. The law in California on this point holds that where competitive bidding works an incongruity and is unavailing as affecting the final result, or where it does not produce any advantage or it is practically impossible to obtain what is required and observe such forms, then competitive bidding may be dispensed with; for example, competitive bidding is not required in a case of a sole supplier of a needed commodity. See Los Angeles Gas & Electric Corp. v. Los Angeles (1922) 188 Cal. 307 ; Los Angeles Dredging Co. v. Long Beach (1930)

210 Cal. 348; Hodgeman v. San Diego (1942) 53 Cal. App. 2d 610; County of Riverside v. Whitlock (1972) 22 Cal. App. 3d 863. Competitive bidding statutes should not be construed so as to defeat their purpose or impede public business.

In Graydon v. Pasadena Redevelopment Agency (1980) 104 Cal. App. 3d 631, the court Discussed the situations in which exceptions to competitive bidding have been upheld as follows:

This principle has been held applicable in California decisions in a variety of situations involving both the purchase of services and products and the construction of public improvements and buildings where it has appeared that competitive bidding would be incongruous or would not result in any advantage to the public entity in efforts to contract for the greatest public benefit. It has also been applied in fact situations in which the government entity has entered into contracts for personal services depending upon a peculiar skill or ability (Kennedy v. Ross, supra, 28 Cal.2d 569;9 San Francisco v. Boyd, supra, 17 Cal.2d 606;10 Miller v. Boyle, supra, 43 Cal.App. 39);11 contracts for the purchase of patented products (Hodgeman v. City of San Diego (1942) 53 Cal. App. 2d 610);12 contracts for the provision of services or the construction of public improvements by a government regulated monopoly (Los Angeles G. & E. Corp. v. Los Angeles, supra, 188 Cal. 307;13 County of Riverside v. Whitlock, supra, 22 Cal.App.3d683);14 contracts for experimental or unique products and/or services (Hiller v. City of Los Angeles, supra, 197 Cal.App.2d 685);15 and actions or contracts for the acquisition or disposition of property for a particular use and with a special value to one person (Orange County Water Dist. v. Bennett, supra, 156 Cal.App.2d 745;16 Meaking v. Steveland, Inc., supra, 68 Cal.App.32d 49017).” (Carreon, Shipley, Polito, Freiman, Rem, Romano, de Sousa, 2020)

Notwithstanding Sections 20111and 20112, the governing board of any school district, without advertising for bids, if the board has determined it to be in the best interests of the district, may authorize by contract, lease, requisition, or purchase order, any public corporation or agency, including any county, city, town, or district, to lease data-processing equipment, purchase materials, supplies, equipment, automotive vehicles, tractors, and other personal property for the district in the manner in which the public corporation or agency is authorized by law to make the leases or purchases from a Vendor. Upon receipt of the personal property, if the property complies with the specifications set forth in the contract, lease, requisition, or purchase order, the school district may draw a warrant in favor of the public corporation or agency for the amount of the approved invoice, including the reasonable costs to the public corporation or agency for furnishing the services incidental to the lease or purchase of the personal property, or the school district may make payment directly to the Vendor.

Alternatively, if there is an existing contract between a public corporation or agency and a Vendor for the lease or purchase of the personal property, a school district may authorize the lease or purchase of personal property directly from the Vendor by contract, lease, requisition, or purchase order and make payment to the Vendor under the same terms that are available to the public corporation or agency under the contract.(Amended by Stats. 2006, Ch. 730, Sec. 19.75. Effective January 1, 2007.)

The governing board of any school district may purchase supplementary textbooks, library books, educational films, audiovisual materials, test materials, workbooks, instructional computer software packages, or periodicals in any amount needed for the operation of the schools of the district without taking estimates or advertising for bids.

This section shall become operative January 1, 1989, and is declaratory of existing law and practice.

(Amended by Stats. 1990, Ch. 439, Sec. 1.)

(a)   If any change or alteration of a contract governed by Article 3 (commencing with Section 17595) of Chapter 5 of Part 10.5 of the Education Code is ordered by the governing board of the district, the change or alteration shall be specified in writing and the cost agreed upon between the governing board and the contractor. The board may authorize the contractor to proceed with performance of the change or alteration, without the formality of securing bids, if the cost so agreed upon does not exceed the greater of the following:

(1)   The amount specified in Section 20111 or 20114, whichever is applicable to the original contract.

(2)   Ten percent of the original contract price.

(b)   The governing board of any school district, or of two or more school districts governed by governing boards of identical personnel, having an average daily attendance of 400,000 or more as shown by the annual report of the county superintendent of schools for the preceding year, may also authorize any change or alteration of a contract for reconstruction or rehabilitation work, other than for the construction of new buildings or other new structures, if the cost of the change or alteration is in excess of the limitations in paragraphs (1) and (2) of subdivision (a) but does not exceed 25 percent of the original contract price, without the formality of securing bids, and the change or alteration is a necessary and integral part of the work under the contract and the taking of bids would delay the completion of the contract. Changes exceeding 15 percent of the original contract price shall be approved by an affirmative vote of not less than 75 percent of the members of the governing board.

(Amended by Stats. 2006, Ch. 538, Sec. 540. Effective January 1, 2007.)

“The opinion of most lawyers is that Public Contract Code section 20118.4/20659 extends to contracts for materials or supplies. Public Contract Code section 20118.4/20659 by its terms refers to Public Contract Code section 20111/20651, which governs contracts for materials or supplies in addition to contracts for public projects and construction work. Additionally, the Public Contract Code makes the change order provision applicable to portions of the Education Code that pertain to various types of contracts, including some for materials or supplies.

Based on Public Contract Code section 20118.4/20659, it is possible to increase or decrease the cost of a bid after the contract is awarded because of changes which arise during the course of the contract. These changes are limited to the applicable bid limit or, in the larger contracts, to ten percent of the original contract price, whichever is greater. These limits, according to the California Attorney General, “appear to be inserted to ensure that substantial changes are not made which would, in effect, constitute the making of a new contract.” 73 Op. Att’y Gen. 423 (1990). Thus, the change order provision allows districts to negotiate changes to a contract provided that the contract is not materially altered by the change so as to create a new project which should be separately bid.” (Carreon, Shipley, Polito, Freiman, Rem, Romano, de Sousa, 2020)

The Board of Education adopted Resolution A-10 on January 8, 2014, making Fresno Unified subject to the benefits of the expedited project delivery method.

CUPCCAA

 The California Uniform Public Construction Cost Accounting Act (CUPCCAA) is under the umbrella of the CUPCCAA Commission and provides for alternative bidding procedures pursuant to PCC 22000 – 22045 when an agency performs public project work by contract:

(a)  Public projects of $60,000 or less may be performed by negotiated contract or by purchase order (PCC22032(a)).

(b)  Public projects of $200,000 or less may be let to contract by the informal procedures set forth in the Act (PCC22032(b)).

(c)  Public projects of more than $200,000 shall be let to contract by formal bidding procedures (PCC22032(c))

CUPCCAA Contractors List

·        In accordance with PCC 22034, DISTRICT will maintain a list of registered CONTRACTORS. DISTRICT may either: (a) email notices to required construction trade journals; and or (b) email notices to all CONTRACTORS for services registered under.

·        To be added to the “CUPCCAA Contractors List,” please complete your company’s registration on Procureware, the District’s online bidding portal.

Bids will be accepted in the format noted in bid package or quote documents.

NOTICE TO CONTRACTORS

 FRESNO UNIFIED IS INVITING CONTRACTORS TO JOIN THEIR BIDDERS LIST PER SECTION 22034 OF THE PUBLIC CONTRACT CODE

The Fresno Unified School District has elected to become subject to the California Uniform Public Construction Cost Accounting Act. In accordance with PCC 22034, the district invites all licensed contractors to submit information for inclusion on the district’s Contractors List for the 2022 calendar year.

This notice informs contractors of the information required so the district may directly notify contractors of bid opportunities. Contractors may register directly online from the district’s purchasing portal Procureware https:// fresnousdpurchasing.procureware.com/home

Contractors who have already registered on Procureware, please login to your profile and update your information such as insurance certificates or new contact information.

Publication dates: December 23, 2021, December 30, 2021

General Conditions and General Requirements Div 00/01

The District’s General Conditions and Requirements applicable to bidding projects between $25,001 and $60,000 may be downloaded below. (Divisions 00 and 01 are not contained in the Formal Quotes forms, but the form references this location for bidders to access.)

CUPCCAA FAQ

(c) If no bids are received through the formal or informal procedure, the project may be performed by the employees of the public agency by force account, or negotiated contract without further complying with this article.

(Amended by Stats. 2003, Ch. 296, Sec. 29. Effective January 1, 2004.)

(a)   A public entity shall require a person that submits a bid or proposal to, or otherwise proposes to enter into or renew a contract with, a public entity with respect to a contract for goods or services of one million dollars ($1,000,000) or more to certify, at the time the bid is submitted or the contract is renewed, that the person is not identified on a list created pursuant to subdivision (b) of Section 2203 as a person engaging in investment activities in Iran described in subdivision (a) of Section 2202.5, or as a person described in subdivision (b) of Section 2202.5, as applicable. A state agency shall submit the certification information to the Department of General Services.

(b)   A public entity shall not require a person that submits a bid or proposal to, or otherwise proposes to enter into a contract with, the public entity with respect to a contract for goods or services of one million dollars ($1,000,000) or more to certify that the person is not identified on a list created pursuant to subdivision (b) of Section 2203 as a person engaging in investment activities in Iran described in subdivision (a) of Section 2202.5, or as a person described in subdivision (b) of Section 2202.5, as applicable, if the person has been permitted to submit a bid or proposal to the public entity pursuant to subdivision (c) or (d) of Section 2203.

(c)    (1) Subject to paragraph (2), the certification requirement described in subdivision (a) applies on and after June 1, 2011.

(2) A person that is a financial institution shall not be required to certify as provided in subdivision (a) until July 1, 2011. For any subsequent list created pursuant to subdivision (b) of Section 2203, a person that is a financial institution shall not be required to certify with respect to that subsequent list until 30 days after that list becomes available, but shall certify with respect to the immediately prior list for those 30 days.

(Added by Stats. 2010, Ch. 573, Sec. 1. (AB 1650) Effective January 1, 2011. Conditionally inoperative as prescribed by Stats. 2010, Ch. 573, Sec. 2.)

(a)   The Legislature finds and declares that it is the intent of this section to encourage contractors and manufacturers to develop and implement new and ingenious materials, products, and services that function as well, in all essential respects, as materials, products, and services that are required by a contract, but at a lower cost to taxpayers.

(b)   No agency of the state, nor any political subdivision, municipal corporation, or district, nor any public officer or person charged with the letting of contracts for the construction, alteration, or repair of public works, shall draft or cause to be drafted specifications for bids, in connection with the construction, alteration, or repair of public works, (1) in a manner that limits the bidding, directly or indirectly, to any one specific concern, or (2) calling for a designated material, product, thing, or service by specific brand or trade name unless the specification is followed by the words “or equal” so that bidders may furnish any equal material, product, thing, or service. In applying this section, the specifying agency shall, if aware of an equal product manufactured in this state, name that product in the specification. Specifications shall provide a period of time prior to or after, or prior to and after, the award of the contract for submission of data substantiating a request for a substitution of “an equal” item. If no time period is specified, data may be submitted any time within 35 days after the award of the contract.

(c)    Subdivision (b) is not applicable if the awarding authority, or its designee, makes a finding that is described in the invitation for bids or request for proposals that a particular material, product, thing, or service is designated by specific brand or trade name for any of the following purposes:

(1)   In order that a field test or experiment may be made to determine the product’s suitability for future use.

(2)   In order to match other products in use on a particular public improvement either completed or in the course of completion.

(3)      In order to obtain a necessary item that is only available from one source.

(4)      (A) In order to respond to an emergency declared by a local agency, but only if the declaration is approved by a four-fifths vote of the governing board of the local agency issuing the invitation for bid or request for proposals.

(B) In order to respond to an emergency declared by the state, a state agency, or political subdivision of the state, but only if the facts setting forth the reasons for the finding of the emergency are contained in the public records of the authority issuing the invitation for bid or request for proposals.

(Amended by Stats. 2009, Ch. 132, Sec. 1. (AB 1086) Effective January 1, 2010.)

“Because the principles involved are the same, your attorney may conclude that while Public Contract Code section 3400 does not apply to the letting of contracts for the purchase of equipment, a court would likely consider its standard reasonable for the purchase of equipment subject to competitive bidding requirements.” (Carreon, Shipley, Polito, Freiman, Rem, Romano, de Sousa, 2020)

Standardization Documents

Exhibit A-1 Standardization List by Manufacturer Products_Equipment.pdf Exhibit A-2 Standardization List by Parts_Components.pdf

Standardization Agenda_Resolution 18-08.pdf

20118.1. The governing board of any school district may contract with an acceptable party who is one of the three lowest responsible bidders for the procurement or maintenance, or both, of electronic data-processing systems and supporting software in any manner the board deems appropriate.

(Added by Stats. 1987, Ch. 1452, Sec. 529.)

(a)   Due to the highly specialized and unique nature of technology, telecommunications, related equipment, software, and services, because products and materials of that nature are undergoing rapid technological changes, and in order to allow for the introduction of new technological changes into the operations of the school district, it is in the public’s best interest to allow a school district to consider, in addition to price, factors such as Vendor financing, performance reliability, standardization, life-cycle costs, delivery timetables, support logistics, the broadest possible range of competing products and materials available, fitness of purchase, manufacturer’s warranties, and similar factors in the award of contracts for technology, telecommunications, related equipment, software, and services.

(b)   This section applies only to a school district’s procurement of computers, software, telecommunications equipment, microwave equipment, and other related electronic equipment and apparatus. This section does not apply to contracts for construction or for the procurement of any product that is available in substantial quantities to the general public.

(c)    Notwithstanding Section 20118.1, a school district may, after a finding is made by the governing board that a particular procurement qualifies under subdivision (b), authorize the procurement of the product through competitive negotiation as described in subdivision (d).

(d)   For purposes of this section, competitive negotiation includes, but is not limited to, all of the following requirements:

(1)   A request for proposals shall be prepared and submitted to an adequate number of qualified sources, as determined by the school district, to permit reasonable competition consistent with the nature and requirement of the procurement.

(2)   Notice of the request for proposals shall be published at least twice in a newspaper of general circulation, at least 10 days before the date for receipt of the proposals.

(3)   The school district shall make every effort to generate the maximum feasible number of proposals from qualified sources and shall make a finding to that effect before proceeding to negotiate if only a single response to the request for proposals is received.

(4)        The request for proposals shall identify all significant evaluation factors, including price, and their relative importance.

(5)        The school district shall provide reasonable procedures for the technical evaluation of the proposals received, the identification of qualified sources, and the selection for the award of the contract.

(6)        Award shall be made to the qualified bidder whose proposal meets the evaluation standards and will be most advantageous to the school district with price and all other factors considered.

(7)        If award is not made to the bidder whose proposal contains the lowest price, the school district shall make a finding setting forth the basis for the award.

(e)        The school district, at its discretion, may reject all proposals and request new proposals.

(f)         Provisions in any contract concerning utilization of small business enterprises, that are in accordance with the request for proposals, shall not be subject to negotiation with the successful proposer.

(Added by Stats. 2005, Ch. 509, Sec. 1. Effective January 1, 2006.)

The RFP must identify all significant evaluation factors and their relative importance. In addition to price, evaluation factors may include Vendor financing, performance reliability, standardization, life-cycle costs, delivery timetables, support logistics, the broadest possible range of competing products and materials available, fitness of purchase, manufacturer’s warranties, and similar factors.

“School districts are allowed to hire a construction manager (“CM”) to assist with the district’s management of a construction project if the district does not have any employees who possess adequate experience. Ed. Code § 17070.98. This usually occurs with large or complex projects, or an entire construction program funded by a bond. Districts typically issue a Request for Proposal and hire a CM pursuant to the procedures in Government Code section 4525, et seq. (to the extent applicable). The CM merely acts as an agent for the school district and as an extension of the district’s staff – the contractor, not the CM, is directly at risk for the project finishing on time or under budget. The CM must be a licensed general contractor, architect, or engineer. (Gov.

Code §§ 4525(e) and 4529.5; and 78 Op.Atty.Gen. 48.)” (Carreon, Shipley, Polito, Freiman, Rem, Romano, de Sousa, 2020)

17250.10. (a) The Legislature finds and declares that the design-build method of project delivery, using a best value procurement methodology, has been authorized for various agencies that have reported benefits from those projects, including reduced project costs, expedited project completion, and design features that are not achievable through the traditional design- bid-build method.

(b)  It is the intent of the Legislature that:

(1)  This chapter provide general authorization for school districts to use the design-build method for projects.

(2)  This chapter shall not be deemed to express a preference for the design-build method over other procurement methodologies.

(Repealed (in Sec. 1) and added by Stats. 2015, Ch. 752, Sec. 2. (AB 1358) Effective January 1,

2016. Section operative July 1, 2016, pursuant to Section 17250.50. 

Bid security is required for construction bids.

PCC 20111(b). The governing board shall let any contract for a public project, as defined in subdivision (c) of Section 22002, involving an expenditure of fifteen thousand dollars ($15,000) or more, to the lowest responsible bidder who shall give security as the board requires, or else reject all bids. All bids for construction work shall be presented under sealed cover and shall be accompanied by one of the following forms of bidder’s security:

(1) Cash

(2) A cashier’s check made payable to the school district.

(3) A certified check made payable to the school district.      

(4) A bidder’s bond executed by an admitted surety insurer, made payable to the school district. Upon an award to the lowest bidder, the security of an unsuccessful bidder shall be returned in a reasonable period of time, but in no event shall that security be held by the school district beyond 60 days from the time the award is made.

PREQUALIFICATION FOR PUBLIC WORKS PROJECTS IN EXCESS OF $1 MILLION DOLLARS, PURSUANT TO SECTION 20111.6 OF THE PUBLIC CONTRACT CODE

Prequalification application is required to be completed through: Quality Bidders (Pursuant to Resolution 23-76, 6/21/2023)

Notification of which projects are subject to prequalification will be included in the applicable bid documents.

In accordance with Section 20111.6 (AB 1565) of the Public Contract Code, All Bidders performing as both a Prime Contractor and General Contractor (A or B license), or an Electrical, Mechanical, and Plumbing Contractor (as a prime contractor or subcontractor) involving projected project total in excess of one million dollars ($1,000,000) must be prequalified prior to submitting bids.

Prime Contractor and Subcontractor for prequalification purpose are defined in accordance with PCC Section 4113: the word “subcontractor” shall mean a contractor, who contracts directly with the prime contractor. “Prime contractor” shall mean the contractor who contracts directly with the awarding authority.

For projects subject to prequalification, Electrical, Mechanical, and Plumbing contractors are contractors pursuant to Section 7058 of the Business and Professions Code holding a C-4, C-7, C-10, C-16, C-20, C-34, C-36, C-38, C-42, C-43, or C-46 license.

1.     Contractors may verify their prequalification status by reviewing their prequalification expiration date noted in their company’s Procureware profile (the District’s online procurement portal.)

2.     For projects out to bid and subject to prequalification:

3.     Bidders may submit a completed prequalification application during the bidding process. A submittal deadline will be included in bid documents.

4.     A notification of all prequalified bidders will be made available via addendum at least five (5) business days prior to the date fixed for receipt of bids.

·        Prequalified bidders will remain valid for one (1) calendar year following the date prequalified, except that the District reserves the right during that calendar year to suspend or rescind the prequalification ratings based on subsequently learned information and after giving notice of the proposed action to the Contractor and an opportunity for a hearing consistent with the hearing procedures described in the Prequalification Policy and Instructions manual.

·        District reserves the right to reject bids as “non-responsive” for any of the following reasons:

1.     Prime Contractor is not on the prequalified Contractors List.

2.     Prime Contractor listed an Electrical, Mechanical, or Plumbing Subcontractor not on the prequalified Contractors List.

Section 20111.6

(b) If the governing board of the school district enters into a contract meeting the criteria of subdivision (a), then the governing board of the school district shall require that prospective bidders for a construction contract complete and submit to the governing board of the school district a standardized prequalification questionnaire and financial statement. The questionnaire and financial statement shall be verified under oath by the bidder in the manner in which civil pleadings in civil actions are verified. The questionnaires and financial statements are not public records and shall not be open to public inspection.

(c) The governing board of the school district shall adopt and apply a uniform system of rating bidders on the basis of the completed questionnaires and financial statements. This system shall also apply to a person, firm, or corporation that constructs a building described in Section 17406 or 17407 of the Education Code.

(d) The questionnaire and financial statement described in subdivision (b), and the uniform system of rating bidders described in subdivision (c), shall cover, at a minimum, the issues covered by the standardized questionnaire and model guidelines for rating bidders developed by the Department of Industrial Relations pursuant to subdivision (a) of Section 20101.

(e) Each prospective bidder shall be furnished by the school district letting the contract with a standardized proposal form that, when completed and executed, shall be submitted as his or her bid. Bids not presented on the forms so furnished shall be disregarded.

(f) A proposal form required pursuant to subdivision (e) shall not be accepted from any person or other entity that is required to submit a completed questionnaire and financial statement for prequalification pursuant to subdivision (b) or from any person or other entity that uses a subcontractor that is required to submit a completed questionnaire and financial statement for prequalification pursuant to subdivision (b), but has not done so at least 10 business days before the date fixed for the public opening of sealed bids or has not been prequalified for at least five business days before that date. The school district may require the completed questionnaire and financial statement for prequalification to be submitted more than 10 business days before the fixed date for the public opening of sealed bids. The school district may also require the prequalification more than five business days before the fixed date.

(g) (1) The governing board of the school district may establish a process for prequalifying prospective bidders pursuant to this section on a quarterly or annual basis and a prequalification pursuant to this process shall be valid for one calendar year following the date of initial prequalification.

(2) The governing board of the school district shall establish a process to prequalify a person, firm, or corporation, including, but not limited to, the prime contractor and, if used, an electrical, mechanical, and plumbing subcontractor, to construct a building described in Section 17406 or 17407 of the Education Code on a quarterly or annual basis. A prequalification pursuant to this process shall be valid for one calendar year following the date of initial prequalification.

(h) This section does not preclude the governing board of the school district from prequalifying or disqualifying a subcontractor of any specialty classification described in Section 7058 of the Business and Professions Code.

(i) For purposes of this section, bidders shall include both of the following:

(1) A prime contractor, as defined in Section 4113, that is either of the following:

(A) A general engineering contractor described in Section 7056 of the Business and Professions Code.

(B) A general building contractor described in Section 7057 of the Business and Professions Code.

(2) If utilized, each electrical, mechanical, and plumbing contractor, whether as a prime contractor or as a subcontractor, as defined in Section 4113.

(j) If a public project covered by this section includes electrical, mechanical, or plumbing components that will be performed by electrical, mechanical, or plumbing contractors, a list of prequalified general contractors and electrical, mechanical, and plumbing subcontractors shall be made available by the school district to all bidders at least five business days before the dates fixed for the public opening of sealed bids. The school district may require the list to be made available more than five business days before the fixed dates for the public opening of sealed bids.

(k) For purposes of this section, electrical, mechanical, and plumbing subcontractors are contractors licensed pursuant to Section 7058 of the Business and Professions Code, specifically contractors holding C-4, C-7, C-10, C-16, C-20, C-34, C-36, C-38, C-42, C-43, and C-46 licenses, pursuant to regulations of the Contractors’ State License Board.

(l) This section does not apply to a school district with an average daily attendance of less than 2,500.

(m) (1) This section applies only to contracts awarded on or after January 1, 2014.

(2) The amendments made to this section by Chapter 408 of the Statutes of 2014 apply only to contracts awarded on or after January 1, 2015.

(Amended by Stats. 2018, Ch. 534, Sec. 1. (AB 2031) Effective January 1, 2019.)

CALIFORNIA SENATE BILL 854

Senate Bill 854, signed into law June 20, 2014, became effective immediately. It established a new public works contractor registration program which will collect fees to fund compliance monitoring and enforcement, determine prevailing wage and public works coverage, and hear enforcement appeals.

All contractors and subcontractors intending to bid or perform work on public works projects will be required to register, and annually renew, online for the program. 

No bid can be accepted, nor any contract or subcontract entered into nor purchase order issued without proof that the contractor or subcontractor is registered. Effective July 1, 2017, Small Project Exemption Contractors who work exclusively on small public works projects are not required to register as a public works contractor or file electronic certified payroll reports for those projects. Contractors are still required to maintain certified payroll records on a continuous basis and provide them to the Labor Commissioner’s Office upon request. Additionally, awarding agencies are not required to submit the notice of contract award through DIR’s PWC-100 system on projects that fall within the small project exemption.

The small project exemption applies for all public works projects that do not exceed:

·        $25,000 for new construction, alteration, installation, demolition, or repair

·        $15,000 for maintenance

Public works refers to construction, alteration, demolition, installation, or repair work (including maintenance) done under contract and paid by public funds. For a more detailed explanation of public works projects, refer to California Labor Code 1720 -1720.6. If the services you are providing the District, or may provide the District in the future, fall under the definition of “public works,” please ensure you are registered with the DIR.

You can access tutorials for registration and submitting certified payroll to the DIR.

If you have questions regarding the internal procedures for Fresno Unified School District, as they relate to this new statute, please contact the Purchasing Department at (559) 457-3588.

(a)     Notwithstanding any other provision of law, each county, city, district, or other local governmental agency may determine all of the following:

(1)     Aspects of solid waste handling which are of local concern, including, but not limited to, frequency of collection, means of collection and transportation, level of services, charges and fees, and nature, location, and extent of providing solid waste handling services.

(2)     Whether the services are to be provided by means of nonexclusive franchise, contract, license, permit, or otherwise, either with or without competitive bidding, or if, in the opinion of its governing body, the public health, safety, and well-being so require, by partially exclusive or wholly exclusive franchise, contract, license, permit, or otherwise, either with or without competitive bidding. The authority to provide solid waste handling services may be granted under terms and conditions prescribed by the governing body of the local governmental agency by resolution or ordinance.

(b)     Nothing in this division modifies or abrogates in any manner either of the following:

(1)     Any franchise previously granted or extended by any county or other local governmental agency.

(2)     Any contract, license, or any permit to collect solid waste previously granted or extended by a city, county, or a city and county.

(Amended by Stats. 1990, Ch. 1355, Sec. 1. Effective September 27, 1990.)

4217.10 To help implement the policy set forth in Section 25008 of the Public Resources Code, and to extend that policy to facilities of local governments, public agencies may develop energy conservation, cogeneration, and alternate energy supply sources at the facilities of public agencies in accordance with this chapter.

(Added by Stats. 1983, Ch. 868, Sec. 1.)

4217.11. The following terms, whenever used in this chapter, have the meanings given in this section, except where the context clearly indicates otherwise:

(a)   “Alternate energy equipment” means equipment for the production or conversion of energy from alternate sources as its primary fuel source, such as solar, biomass, wind, geothermal, hydroelectricity under 30 megawatts, remote natural gas of less than one billion cubic feet estimated reserves per mile from an existing gas gathering line, natural gas containing 850 or fewer British Thermal Units per standard cubic foot, or any other source of energy, the efficient use of which will reduce the use of fossil or nuclear fuels.

(b)   “Cogeneration equipment” means equipment for cogeneration, as defined in Section

216.6 of the Public Utilities Code.

(c)    “Conservation measures” means equipment, maintenance, load management techniques and equipment, or other measures to reduce energy use or make for a more efficient use of energy.

(d)   “Conservation services” means the electrical, thermal, or other energy savings resulting from conservation measures, which shall be treated as a supply of such energy.

(e)   “Energy conservation facility” means alternate energy equipment, cogeneration equipment, or conservation measures located in public buildings or on land owned by public agencies.

(f)    “Energy service contract” means a contract entered into by a public agency with any person, pursuant to which the person will provide electrical or thermal energy or conservation services to a public agency from an energy conservation facility.

(g)   “Facility financing contract” means a contract entered into by a public agency with any person whereby the person provides financing for an energy conservation facility in exchange for repayment of the financing and all costs and expenses related thereto by the public agency. A facility financing contract may provide for the person with whom the public agency contracts to provide any combination of feasibility studies for, and design and construction of, all or part of the energy conservation facility in addition to the financing and other related services, and may provide for an installment sale purchase, another form of purchase, or amortized lease of the energy conservation facility by the public agency.

(h)    “Facility ground lease” means a lease of all, or any portion of, land or a public building owned by, or under lease to, a public agency to a person in conjunction with an energy service contract or a facility financing contract. A facility ground lease may include, in addition to the land on which energy conservation facilities will be located, easements, rights-of-way, licenses, and rights of access, for the construction, use, or ownership by the person of the facility and all related utility lines not owned or controlled by the interconnecting utility, and offsite improvements related thereto. A facility ground lease may also include the addition or improvement of utility lines and equipment owned by the interconnecting utility which are necessary to permit interconnection between that utility and an energy conservation facility.

(i)      “Person” means, but is not limited to, any individual, company, corporation, partnership, limited liability company, public agency, association, proprietorship, trust, joint venture, or other entity or group of entities.

(j)      “Public agency” means the state, a county, city and county, city, district, community college district, school district, joint powers authority or other entity designated or created by a political subdivision relating to energy development projects, and any other political subdivision or public corporation in the state.

(k)    “Public building” includes any structure, building, facility, or work which a public agency is authorized to construct or use, and automobile parking lots, landscaping, and other facilities, including furnishings and equipment, incidental to the use of any structure, building, facility, or work, and also includes the site thereof, and any easements, rights-of-way appurtenant thereto, or necessary for its full use.

(Amended by Stats. 2006, Ch. 198, Sec. 2. Effective January 1, 2007.)

4217.12.  (a) Notwithstanding any other provision of law, a public agency may enter into an energy service contract and any necessarily related facility ground lease on terms that its governing body determines are in the best interests of the public agency if the determination is made at a regularly scheduled public hearing, public notice of which is given at least two weeks in advance, and if the governing body finds:

(1) That the anticipated cost to the public agency for thermal or electrical energy or conservation services provided by the energy conservation facility under the contract will be less than the anticipated marginal cost to the public agency of thermal, electrical, or other energy that would have been consumed by the public agency in the absence of those purchases.

(2) That the difference, if any, between the fair rental value for the real property subject to the facility ground lease and the agreed rent, is anticipated to be offset by below-market energy purchases or other benefits provided under the energy service contract.

(b) State agency heads may make these findings without holding a public hearing.

(Amended by Stats. 1998, Ch. 328, Sec. 7. Effective August 21, 1998.)

4217.13.  Notwithstanding any other provision of law, a public agency may enter into a facility financing contract and a facility ground lease on terms that its governing body determines are in the best interest of the public agency if the determination is made at a regularly scheduled public hearing, public notice of which is given at least two weeks in advance, and if the governing body finds that funds for the repayment of the financing or the cost of design, construction, and operation of the energy conservation facility, or both, as required by the contract, are projected to be available from revenues resulting from sales of electricity or thermal energy from the facility or from funding that otherwise would have been used for purchase of electrical, thermal, or other energy required by the public agency in the absence of the energy conservation facility, or both. State agency heads may make these findings without holding a public hearing.

(Amended by Stats. 1998, Ch. 328, Sec. 8. Effective August 21, 1998.)

4217.14.  Notwithstanding any other provision of law, the public agency may enter into contracts for the sale of electricity, electrical generating capacity, or thermal energy produced by the energy conservation facility at such rates and on such terms as are approved by its governing body. Any such contract may provide for a commitment of firm electrical capacity.

(Added by Stats. 1983, Ch. 868, Sec. 1.)

4217.15.  The public agency may, but is not required to, base the findings required under Sections 4217.12 and 4217.13 on projections for electrical and thermal energy rates from the following sources:

(a) The public utility which provides thermal or electrical energy to the public agency.

(b) The Public Utilities Commission.

(c) The State Energy Resources Conservation and Development Commission.

(d) The projections used by the Department of General Services for evaluating the feasibility of energy conservation facilities at state facilities located within the same public utility service area as the public agency.

(Added by Stats. 1983, Ch. 868, Sec. 1.)

4217.16.  Prior to awarding or entering into an agreement or lease, the public agency may request proposals from qualified persons. After evaluating the proposals, the public agency may award the contract on the basis of the experience of the contractor, the type of technology employed by the contractor, the cost to the local agency, and any other relevant considerations. The public agency may utilize the pool of qualified energy service companies established pursuant to Section 388 of the Public Utilities Code and the procedures contained in that section in awarding the contract.

(Amended by Stats. 1998, Ch. 328, Sec. 9. Effective August 21, 1998.)

4217.17.  This chapter does not limit the authority of any public agency to construct energy conservation projects or to enter into other leases or contracts relating to the financing construction, operation, or use of alternate energy type facilities in any manner authorized under existing law. This chapter shall not be construed to abrogate Section 14671.6.

(Amended by Stats. 1998, Ch. 328, Sec. 10. Effective August 21, 1998.)

4217.18.  The provisions of this chapter shall be construed to provide the greatest possible flexibility to public agencies in structuring agreements entered into hereunder so that economic benefits may be maximized and financing and other costs associated with the design and construction of alternate energy projects may be minimized. To this end, public agencies and the entities with whom they contract under this chapter should have great latitude in characterizing components of energy conservation facilities as personal or real property and in granting security interests in leasehold interests and components of the alternate energy facilities to project lenders.

(Added by Stats. 1983, Ch. 868, Sec. 1.)

Vendor Debarment Procedure

The District Vendor Debarment procedure may be implemented when it is not in the best interest of the District to continue doing business with a Vendor.

1. A request to debar a Vendor may be filed in writing with the Executive Director of Purchasing.

2. The Executive Director of Purchasing will convene a meeting with the Vendor to attempt to resolve the issue(s).

3. In the event the issue(s) is not resolved, the debarment action will be referred to the Superintendent or his designer, normally the Chief Financial Officer.

4. Should the issue(s) not be resolved at this level; it shall be referred to the Board along with all documentation regarding the debarment action.

The causes for debarment or suspension shall include, but are not limited to, any or all the following:

• Violating any federal, state, or local law, ordinance, regulation, or District policy, in the performance of a contract.
• Willfully, or egregiously failing to perform in accordance with the terms and requirements of a contract/purchase order. Such actions shall include deliberate failure without good cause to perform in accordance with the specifications or within the time frame provided in the contract and/or a record of nonperformance or unsatisfactory performance in accordance with the terms of one or more contracts.
• Intentionally providing false or misleading information, or willfully omitting substantive information on an application, in a bid/proposal, contract submittals, or in correspondence or communication to the District.
• Colluding with others to restrain competition or fix prices.
• Attempting to obtain information, by whatever means, related to a bid/proposal submitted by a competitor in response to a procurement solicitation to obtain an unfair advantage prior to a contract award.
• Contacting proposal/bid evaluators or any other person who may have influence over the award regarding a bid or proposal under consideration, without authorization from the Purchasing Department, for the purpose of influencing the award of a contract.
• Giving gifts, (other than incidental advertising items), meals, or trips to a District employee intended to provide a personal benefit to that employee and not a benefit to the District with the intent to influence the award of a contract.
• Debarment shall be for a period commensurate with the seriousness of the Vendor’s actions and causes for debarment.

Debarment affects all divisions or other organizational units of the Vendor unless the debarment decision is limited by its terms to specific divisions or organizational units. When appropriate the debarment may also include individual’s principles and may extend to other organizations, present or future, owned and or operated by the individual. Vendor debarred are excluded from receiving contracts, and the District will not solicit offers from, award contracts to, or consent to subcontracts with these Vendor.

Notwithstanding the debarment or proposed debarment of a Vendor, contracts, or subcontracts in existence at the time a Vendor is debarred may continue unless cancelled pursuant to the cancellation clause of the contract. Ordering activities may continue against existing contracts in the absence of cancellation. However, contracts with debarred Vendor may not be renewed or otherwise extended.

A debarred Vendor shall apply for reinstatement (after the debarment period) prior to bidding for any District business.  Vendor may be required to submit evidence which supports the Vendor has performed as a responsible Vendor to other agencies or companies during the suspension period for similar scope of work/business.

In order to procure the service at the lowest possible figure consistent with proper and satisfactory service, the governing board shall, whenever an expenditure of more than ten thousand dollars ($10,000) is involved, secure bids pursuant to Sections 20111 and 20112 of the Public Contract Code whenever it is contemplated that a contract may be made with a person or corporation other than a common carrier or a municipally owned transit system or a parent or guardian of the pupils to be transported. The governing board may let the contract for the service to other than the lowest bidder. (Added by Stats. 1999, Ch. 646, Sec. 14. Effective January 1, 2000.)

“A “municipally owned transit system” is defined as a transit system owned by a city, or by a district created by Public Utilities Code sections 24501, et seq. Ed. Code, § 39800. Although the statute provides that the governing board may let the contract to other than the lowest bidder, the courts have held that it does not authorize a district to accept a higher bid for the same services and comparable acceptability. Educational & Recreational Services, Inc. v. Pasadena Unified Sch. Dist. (1977) 65 Cal. App. 3d 775. By using these words, the Legislature gave the district the right to use judgment and discretion in awarding the contract and did not bind it to accepting the lowest bidder provided it first determined that the prevailing bidder could supply the better service under the enunciated standard. Id. at p. 782. A district cannot act arbitrarily and, if the award of a contract is challenged, must be able to demonstrate the factors that establish that the prevailing bidder could supply the better service. Id. at p.783.” (Carreon, Shipley, Polito, Freiman, Rem, Romano, de Sousa, 2020)

EC 39803.

(a) If a continuing contract for the furnishing of transportation of pupils in school districts to and from school is made it shall be made for a term not to exceed five years. A contract is renewable at the option of the school district and the party contracting to provide transportation services, jointly, at the end of the term of the contract. The contract as renewed shall include all of the terms and conditions of the previous contract, including any provisions increasing rates based on increased costs.

Notwithstanding any other provisions of law to the contrary, a continuing contract executed under the provisions of this section may be negotiated annually within the contract period when economic factors indicate negotiation is necessary to maintain an equitable pricing structure. Renegotiation is subject to the approval of both contracting parties.

(Added by Stats. 1999, Ch. 646, Sec. 14. Effective January 1, 2000.)

The RFQ is used to “pre-qualify” firms for a project or known opportunity.

The Purchasing Department will create the RFQ package noting the requirements for qualifying. The package shall include the typical required forms Non-collusion, Student safety, etc. RFQ will be formally solicited.

Upon the deadline of the RFQ submissions, the following steps will occur:

·        Evaluation committee will review and score each package.

·        Purchasing will tabulate the scores.

·        Recommendation for qualifying firms

·        Submit Agenda Item

Listing only the Vendor who is being recommended as qualified.

·        Board of Ed Approval of Qualified list

·        Notification of Board action to Qualified.

Now that a qualified list is established, the following may occur.

·        Issue a Request for Proposal (RFP), inviting only the qualified to submit a proposal.

The proposals may be submitted in the form of a quote.

If Federal Funds are used, a minimum of 3 quotes (from the qualified firms) must be submitted as back up for the PO.

·        If the RFQ did not include a master agreement, an Independent Contract Agreement will need to be issued. The RFQ document outlines agreement process, terms and conditions which are authorized with the approval of the RFQ.

A term price agreement or requirements contract commits the district to buying a particular good or service from designated Vendor, in exchange for a volume discount and preferred status service. Term Price Agreements are a valuable tool used to provide high quality goods and services, at a competitive price, with timely delivery. Purchasing can issue purchase orders quickly since the price for goods or services is negotiated (or competitively bid) prior to the requisition being entered and fixed for a set period of time.

When the school or department enters a requisition, the chosen Vendor may be changed to a Vendor with an existing price agreement.

Any construction or alteration to a school, must be approved through the District Facility Modification Form:

·        Executive Director of Purchasing

·        Director of Maintenance Services

·        Assistant Superintendent of Facilities

If approved, the PTA or other group would donate the funds to the District and District staff would handle the project.

Thus, ensuring all applicable Public Works laws are followed.

Student Body payments for services need to go through the District system on an RQS, using the budget number established for Student Body. The District will pay the invoice and then bill the Student Body account for the expense. By using this process, the District, and not the Student Body, will be responsible for providing a 1099 to the Vendor

Visiting or contacting any school site. Vendor who intend to sell directly to students will not be approved.

Vendor that have been approved by Purchasing must also obtain the Principal’s permission prior to visiting a campus.

Fresno Unified School District generally does not approve fundraisers for non-FUSD programs.

On rare occasions the District will participate with outside organizations when it is in the best interest of the community and our students.

Request to raise funds for outside organizations should be sent to the FUSD Public Information Officer.

Pursuant to Administrative Regulation 3313.4 Access to Teachers, neither agents nor salespersons shall be permitted to discuss business propositions of any nature with teachers or students on the school premises while classes are in session. At times, representatives of textbook publishers and school furnishing supply houses may be exempted from this prohibition by authorization of the Superintendent.

The District’s Wellness Policy discourages the sale of candy as a fundraiser.

All playground equipment located on District property must comply with guidelines established by the US. Consumer Product Safety Commission and State and Federal requirements for safety.

In order to ensure that all playground equipment meets the minimum construction and safety requirement ALL playground equipment must have approval from the Maintenance Department and the Purchasing Department prior to ordering. This includes items that will be funded by Parents Clubs, Student Body Associations, or other non-District sources.

AR 3290 Parent/Guardian-Constructed Playground Equipment

 Administrative guidelines for parent/guardian-constructed playground equipment shall conform to the following procedure:

 1.  The Chief Financial Officer shall establish a recreation equipment committee: the chairperson of which shall be the Director of Purchasing.

 2.  The function of the recreation equipment committee shall include the following:

 a.  Establish minimum safety requirements for proposed projects.

 b.  Review plans and specifications for proposed projects.

 c.  Make recommendations to the Assistant Superintendent, Operational Services for approval of projects.

 d.  Certify completion and authorize child use.

 3.  Proposed construction projects approved by the committee and undertaken by parents/guardians shall be financed in their entirety by the parent/guardian group. Any request for district assistance must be made and approved or denied prior to initiation of construction.

 4.  Upon completion, the parents/guardians’ group shall, in writing, convey ownership and control thereof to the district.

See also PTA paying for work at School Site

Gift card purchases are not authorized/allowed.

In accordance with the California Constitution Article 16, as a subdivision of the state and publicly funded entity, the District does not authorize the gifting of funds or things of value to individuals.

CALIFORNIA CONSTITUTION – CONS

ARTICLE     I PUBLIC FINANCE SECTION 1 – SEC. 23

( Article 16 heading amended Nov. 5, 1974, by Prop. 8. Res.Ch. 70, 1974. )

 SEC. 6.

The Legislature shall have no power to give or to lend, or to authorize the giving or lending, of the credit of the State, or of any county, city and county, city, township or other political corporation or subdivision of the State now existing, or that may be hereafter established, in aid of or to any person, association, or corporation, whether municipal or otherwise, or to pledge the credit thereof, in any manner whatever, for the payment of the liabilities of any individual, association, municipal or other corporation whatever; nor shall it have power to make any gift or authorize the making of any gift, of any public money or thing of value to any individual, municipal or other corporation whatever; provided, that nothing in this section shall prevent the Legislature granting aid pursuant to Section 3 of Article     I; and it shall not have power to authorize the State, or any political subdivision thereof, to subscribe for stock, or to become a stockholder in any corporation whatever; provided, further, that irrigation districts for the purpose of acquiring the control of any entire international water system necessary for its use and purposes, a part of which is situated in the United States, and a part thereof in a foreign country, may in the manner authorized by law, acquire the stock of any foreign corporation which is the owner of, or which holds the title to the part of such system situated in a foreign country; provided, further, that irrigation districts for the purpose of acquiring water and water rights and other property necessary for their uses and purposes, may acquire and hold the stock of corporations, domestic or foreign, owning waters, water rights, canals, waterworks, franchises or concessions subject to the same obligations and liabilities as are imposed by law upon all other stockholders in such corporation; and

Provided, further, that this section shall not prohibit any county, city and county, city, township, or other political corporation or subdivision of the State from joining with other such agencies in providing for the payment of workers’ compensation, unemployment compensation, tort liability, or public liability losses incurred by such agencies, by entry into an insurance pooling arrangement under a joint exercise of powers agreement, or by membership in such publicly-owned nonprofit corporation or other public agency as may be authorized by the Legislature; and

Provided, further, that nothing contained in this Constitution shall prohibit the use of state money or credit, in aiding veterans who served in the military or naval service of the United States during the time of war, in the acquisition of, or payments for, (1) farms or homes, or in projects of land settlement or in the development of such farms or homes or land settlement projects for the benefit of such veterans, or (2) any business, land or any interest therein, buildings, supplies, equipment, machinery, or tools, to be used by the veteran in pursuing a gainful occupation; and

Provided, further, that nothing contained in this Constitution shall prohibit the State, or any county, city and county, city, township, or other political corporation or subdivision of the State from providing aid or assistance to persons, if found to be in the public interest, for the purpose of clearing debris, natural materials, and wreckage from privately owned lands and waters deposited thereon or therein during a period of a major disaster or emergency, in either case declared by the President. In such case, the public entity shall be indemnified by the recipient from the award of any claim against the public entity arising from the rendering of such aid or assistance. Such aid or assistance must be eligible for federal reimbursement for the cost thereof.

And provided, still further, that notwithstanding the restrictions contained in this Constitution, the treasurer of any city, county, or city and county shall have power and the duty to make such temporary transfers from the funds in custody as may be necessary to provide funds for meeting the obligations incurred for maintenance purposes by any city, county, city and county, district, or other political subdivision whose funds are in custody and are paid out solely through the treasurer’s office. Such temporary transfer of funds to any political subdivision shall be made only upon resolution adopted by the governing body of the city, county, or city and county directing the treasurer of such city, county, or city and county to make such temporary transfer. Such temporary transfer of funds to any political subdivision shall not exceed 85 percent of the anticipated revenues accruing to such political subdivision, shall not be made prior to the first day of the fiscal year nor after the last Monday in April of the current fiscal year, and shall be replaced from the revenues accruing to such political subdivision before any other obligation of such political subdivision is met from such revenue.(Sec. 6 amended Nov. 2, 1982, by Prop. 8. Res.Ch. 60, 1982.)

EXCEPTIONS

a. Expenditures/disbursements for public purpose.

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