ORDINANCE 6.05
Sponsor: Councilor Tracy,
Ordinance Committee
Public Hearing Dates: __
First reading: 01/04/21
Referred to: Ordinance Committee
Rules suspended and placed in all stages of passage:
Second reading: 01/10/22
Action: adopted
Date: 01/10/22
Signed by Mayor: 01/27/22
Published: 02/02/22
Effective: 02/23/22
It is hereby Ordained by the City Council of the City of Burlington as follows:
That Chapter 21, Offenses & Miscellaneous Provisions, Article V, Prequalification of Construction Contractors, of the Code of Ordinances of the City of Burlington be and hereby is amended by amending Sections 21-68, 21-70, 21-73, 21-76 and 21-77 thereof to read as follows:
ARTICLE V. PREQUALIFICATION OF CONSTRUCTION CONTRACTORS
21-67 Policy.
It is the policy of the City of Burlington to let contracts for city construction projects only to contractors and subcontractors that demonstrate they are responsible contractors as defined in this article.
21-68 Definitions.
As used in this article, the following terms shall be defined as follows:
(12) Construction contract. An agreement with the City of Burlington to provide labor and related materials, for any construction, rehabilitation, alteration, conversion, extension, or repair of buildings, highways, or other improvements to real property within the city for a governmentcity funded project, which shall include all projects carried out by a City department.
(23) Construction contractor. Any person or persons, firm, partnership, corporation or other legal entity, or combination thereof who submits a bid for or enters into construction contracts that are awarded in the city for a governmentcity-funded project.
(34) Subcontractor. Any person or persons, firm, partnership, corporation or other legal entity, or any combination thereof, who enters into a contract or agreement with a construction contractor to perform a portion of a governmentcity-funded project. This term also includes any person or persons, firm, partnership, corporation or other legal entity, or any combination thereof, who enters into a contract or agreement with another subcontractor.
(45) Construction employee. Any individual employed or permitted to work by a construction contractor or subcontractor on a governmentcity-funded project.
(56) Contracting authority. Any department, board or council of the city or any person, agency or entity which enters into a construction contract on behalf of a governmentcity-funded project.
(61) CityGovernment-funded project. Any construction project which involves any city funds and the execution of construction contracts by a department, board or council of the city, or those construction projects financed by tax-exempt bonds issued by the Burlington Community Development Corporation, in which the total project cost is one hundred thousand dollars ($100,000.00) or more.
(7) Responsible contractors. Responsible contractors are those contractors and subcontractors who have demonstrated to the city that they are financially responsible, have experience suggesting that they have the ability to perform governmentcity-funded projects responsibly, have demonstrated that they are responsible employers, and have demonstrated that they have fair subcontractor relations, or that they perform all work with their own forces. Once determined to be a responsible contractor by the City, a contractor must continue to demonstrate these qualities during the duration of the City funded project. However, they will not need to submit another prequalification application for the next twelve (12) months to submit a bid or proposal to the City. After the twelve (12) period, they will need to submit another prequalification application.
21-69 Prequalification requirement; bidding process.
The contracting authority shall include a prequalification requirement as a part of the bidding process for a construction contract for any covered governmentcity-funded project.
21-70 Prequalification application.
The clerk/treasurer of the City of Burlington is authorized and directed to develop, and amend as needed, a construction contractor prequalification application form which shall be used to determine whether each contractor or subcontractor applying to work on a governmentcity-funded project is a responsible contractor.
21-71 Financially responsible.
The contracting authority shall consider the following criteria to determine whether the applicant is financially responsible:
(a) Whether the applicant has a stable financial condition and the level of financial capability of the applicant;
(b) Whether the applicant has sufficient bonding capacity with respect to its application to participate in the governmentcity-funded project;
(c) Whether the applicant has sufficient liability insurance with respect to its application to participate in the governmentcity-funded project.
21-72 Experience; record.
The contracting authority shall consider the following criteria to determine whether the applicant has a record of experience suggesting that the applicant has the ability to complete construction projects responsibly:
(a) Any debarments, civil or criminal prosecutions against the applicant for violations of the anti-trust laws, unfair competition laws, or fraud within the last five (5) years;
(b) A list of projects completed, or in progress by the applicant within the last five (5) years;
(c) A list of any projects commenced, but not finished, by the applicant within the last five (5) years;
(d) A list of not less than three (3) customer references for the applicant; and
(e) A list of the applicant's key personnel, together with a description of their professional backgrounds.
21-73 Employment practices.
The contracting authority shall determine whether the applicant is a responsible employer by, taking into account the following criteria:
(a) Whether the wages paid and benefits extended to employees are consistent with the wages and fringe benefits customarily paid and extended for comparable work in the local market by reviewing the average wages paid in the past year by the contractor or subcontractor and comparing those wages and benefits to the Davis Bacon Wage and Fringe Benefits rates as set by the U.S. Department of Labor plus an escalator of fifteen (15) percent. However, when the U.S. Department of Labor issues new Davis Bacon Wage and Fringe Benefit rates for construction projects subsequent to the enactment of this ordinance, the fifteen (15) percent escalator shall not apply to that type of construction project set by the current Vermont State Construction Prevailing Wage Rate Schedule applicable to the Burlington area;
(b) Whether the applicant has a record of compliance or noncompliance with employment discrimination laws, labor laws or the city's Women in Construction Trades Ordinance;
(bc) Whether the applicant has a responsible company safety program in place;
(cd) Whether the applicant's OSHA incidence rate for reported injuries is reasonable; and
(de) Whether the applicant has provided a certificate demonstrating that it provides workers compensation insurance for its employees.; and
(e) Whether the applicant certifies that its workers are properly classified as employees or independent contractors for purposes of workplace provisions such as workers' compensation insurance coverage, unemployment benefits, social security and income tax withholding, and the Affordable Care Act.
21-74 Fair subcontractor relations.
The contracting authority shall determine whether the contractor has a record of fair subcontractor relations, or in the alternative, has demonstrated that it performs all its work with its own forces, taking into consideration whether the contractor has a record of promptly and fairly meeting its payment obligations to subcontractors.
21-76 Implementation; exception.
(a) No contract for a governmentcity funded project shall be let to any contractor or subcontractor unless the contractor or subcontractor has been found qualified to be a responsible contractor pursuant to the terms of this article.
(b) Notwithstanding the above, the prequalification requirement shall not apply to subcontractors on a governmentcity funded project where the total value of the work to be performed by that subcontractor is the lesser of seven 25 percent of the contract value or one hundred thousand five hundred dollars ($7100,5000.00) or less.
21-77 Enforcement.
(a) Any contractor or subcontractor who files false or materially misleading information in connection with an application or request for information pursuant to the provisions of this article or does not maintain their status as responsible contractors during construction of the governmentcity funded project as set forth in the approved prequalification application shall be deemed to be in violation of this article.
(b) A violation of this article shall be a civil offense subject to a civil penalty of from fifty dollars ($50.00) to five hundred dollars ($500.00). All law enforcement officers are authorized to issue a municipal complaint for a violation of this article. Each day any violation of any provision of this article shall continue shall constitute a separate violation.
(c) Any contractor or subcontractor who violates this article shall be barred from performing any government funded project for a period of two (2) years from the date of the finding by the contracting authority.
(b) A violation of this article shall result in, at the sole discretion of the City, one or more of the following sanctions;
(1) After no more than 60 days to provide an opportunity to correct, cessation of work on the project until compliance is obtained;
(2) Withholding of payment due under any contract or subcontract until compliance is obtained;
(3) Permanent removal from any further work on the project;
(4) A civil penalty of from fifty dollars ($50.00) to five hundred dollars ($500.00). All law enforcement officers are authorized to issue a municipal complaint for a violation of this article. Each day any violation of any provision of this article shall continue shall constitute a separate violation.
(c) In addition to the sanctions outlined above, a proposer, general bidder or contractor shall be equally liable for the violations of its subcontractor. Any contractor or subcontractor that has been determined by the City or by any court or agency to have violated any of the obligations set forth in this article shall be barred from performing any work on any city-funded projects for six months for a first violation, three years for a second violation and permanently for a third violation. The names of all contractors or subcontractors that are found to be in violation of this ordinance shall be disclosed to the public.
21-78 Severability.
If any part or parts or application of any part of this article is held invalid, such holding shall not affect the validity of the remaining parts of this article.
21-79 Reserved.
* Material stricken out deleted.
** Material underlined added.Ordinances 2021/Chapter 21, Offenses & Miscellaneous Provisions—Article V. Prequalification of Construction Contractors—Sections 21-68, 21-70, 21-73, 21-76 And 21-77—Responsible Contractors
Date: 1/10/22