(a) Any municipality may use competitive sealed proposals to purchase goods and services rather than competitive sealed bids when the municipal governing body, acting under the restrictions and requirements of this section and a procurementcode adopted by the governing body, determines that the use of competitive sealed bidding is either not practicable or not advantageous to the municipality. In actual emergencies caused by unforeseen circumstances, such as natural or human-made disasters, delays by contractors, delays in transportation, or unanticipated volume of work, purchases through competitive sealed proposals may be made without specific authorizing action of the municipal governing body. A record of any emergency purchase shall be made by the person or body authorizing the emergency purchase, specifying the amount paid, the items and services purchased, from whom the purchase was made, and the nature of the emergency. A report of the emergency purchase through competitive sealed proposals containing all relevant information shall be made as soon as possible by the person or body authorizing the purchase to the municipal governing body.
Terms Used In Tennessee Code 12-3-1207
Code: includes the Tennessee Code and all amendments and revisions to the code and all additions and supplements to the code. See Tennessee Code 1-3-105
Contract: A legal written agreement that becomes binding when signed.
Contract: means any duly authorized and legally binding written agreement for the procurement of goods and services. See Tennessee Code 12-3-201
Goods: means all personal property, including, but not limited to, supplies, equipment, materials, printing, and insurance. See Tennessee Code 12-3-201
Person: includes a corporation, firm, company or association. See Tennessee Code 1-3-105
Procurement: means buying, purchasing, renting, leasing, or otherwise acquiring of any goods or services. See Tennessee Code 12-3-201
Record: means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in a perceivable form. See Tennessee Code 1-3-105
Respondent: includes a "bidder" or "proposer" that is a natural person or legal entity that has properly registered as required by the state. See Tennessee Code 12-3-201
Responsible: means a person who has the capacity in all respects to perform fully the contract requirements, as well as the integrity and reliability, which will assure good faith performance. See Tennessee Code 12-3-201
Services: means all services and agreements obligating the state, except services for highway and road improvements governed by title 54 and design and construction services governed by title 4, chapter 15. See Tennessee Code 12-3-201
Solicitation: means any type of document that invites responses and may include, by way of example, an "invitation to bid" a "request for proposal" or a "competitive negotiation". See Tennessee Code 12-3-201
State: when applied to the different parts of the United States, includes the District of Columbia and the several territories of the United States. See Tennessee Code 1-3-105
(b) In the decision to use competitive sealed proposals, the governing body shall follow a procurement code, which shall be adopted by the municipality by ordinance before purchases may be made under this section. The code shall contain criteria for purchasing through competitive sealed proposals and procedures consistent with this section.(c) The procurement code shall provide that competitive sealed proposals may be used only when qualifications, experience, or competence are more important than price in making the purchase and:
(1) When there is more than one (1) solution to a purchasing issue and the competitive sealed proposals will assist in choosing the best solution; or(2) When there is no readily identifiable solution to a purchasing issue and the competitive sealed proposals will assist in identifying one (1) or more solutions.(d) The municipal technical advisory service of the University of Tennessee’s institute for public service, in conjunction with the comptroller of the treasury’s office, shall develop a model procurement code that may be adopted by any municipality to guide the governing body and purchasing agent in making purchases through requests for competitive sealed proposals. The model procurement code shall contain provisions allowing an aggrieved respondent to protest the intended award to another respondent if the protest is filed within seven (7) calendar days after the intended award is announced. The protest shall be filed with and decided by the municipal governing body.(e) Adequate public notice of the request for competitive sealed proposals shall be given in the same manner provided for competitive sealed bids.(f) Competitive sealed proposals must be opened in a manner that avoids disclosure of the contents to competing respondents during the negotiation. The proposals and all related materials must be open for public inspection after the intent to award the contract to a particular respondent is announced.(g) The request for competitive sealed proposals must state the relative importance of price and other evaluation factors.(h) As provided in the request for competitive sealed proposals and in the procurement code, interviews, presentations, demonstrations and discussions, either oral or in writing, or both, may be conducted for clarification to assure full understanding of, and responsiveness to, the solicitation requirements with the one (1) or more responsible respondents who submit proposals determined by the purchasing agent to be reasonably susceptible of being selected. The respondents must be accorded fair and equal treatment with respect to an opportunity for an interview, presentation, demonstration, discussion, or revision of proposals, and revisions may be permitted after submission and before the intent to award to a particular respondent is announced to obtain the best and final offers. In conducting interviews, presentations, demonstrations, or discussions, the purchasing agent and other municipal personnel shall not disclose to a respondent during the negotiations information derived from proposals submitted by competing respondents.(i) The award shall be made to the responsible respondent whose proposal the governing body determines is the most advantageous to the municipality, taking into consideration price and the evaluation factors set out in the request for competitive sealed proposals. No other factor may be used in the evaluation. The purchasing agent shall place in the contract file a statement containing the basis on which the award was made.(j)(1) A governmental utility board shall have the same rights and be subject to the same restrictions and requirements as apply to a municipal governing body under this section. The governmental utility board shall adopt a procurement code by resolution before purchases may be made under this section.(2) For purposes of subdivision (j)(1), a “governmental utility board” includes a board of public utilities created under title 7, chapter 52, and shall also include any other county, metropolitan government or municipal utility board or supervisory body created by private act, home rule charter or local ordinance or resolution.(3) Nothing in this subsection (j) shall otherwise modify or impair any limitations on the contracting power of the governmental utility boards as the powers may exist under applicable law.(k) The board of commissioners of a utility district created pursuant to title 7, chapter 82, or any public or private act by the general assembly, has the same rights and is subject to the same restrictions and requirements as apply to a municipal governing body under this section. The board of commissioners of a utility district shall adopt a purchasing policy pursuant to title 7, chapter 82, part 8, that contains criteria for purchasing through competitive sealed proposals and procedures consistent with this section before purchases may be made under this section.(l) For the purposes of this section, “procurement code” has the same meaning as “purchasing policy” as described in § 7-82-801, for utility districts.
