REPORT TO THE CITY COUNCIL
FROM: BRIAN BARR, Director
General Services Department
BY: MELISSA PERALES, Purchasing Manager
General Services Department, Purchasing Division
SUBJECT
Title
***RESOLUTION - Establishing procedures for appeals in the competitive bidding process and rescinding Resolution 2003-129 (Subject to Mayor’s Veto)
Body
RECOMMENDATION
Staff recommends Council adopt a resolution establishing updated procedures for appeals in the competitive bidding process and rescinding Resolution 2003-129.
EXECUTIVE SUMMARY
On April 29, 2003, Council adopted Resolution 2003-129, establishing procedures for appeals in the competitive bidding process. The proposed resolution rescinds Resolution 2003-129 in its entirety and adopts updated procedures to align with current legal requirements, the Fresno Municipal Code, City Charter, and the City’s existing procurement practices. The updates provide clarity, improve consistency, and support the efficient administration of the City’s competitive bidding process.
BACKGROUND
On April 29, 2003, Council adopted Resolution 2003-129, establishing procedures for appeals in the competitive bidding process. The resolution has remained in place for over two decades without updates and no longer reflects current legal requirements or the City’s established procurement practices.
The proposed resolution rescinds Resolution 2003-129 and replaces it with updated procedures that are consistent with current legal requirements, the Fresno Municipal Code, City Charter, and current industry standards. A key update is the removal of appeal rights related to non-responsive determinations. Under the proposed changes, appeals are limited to determinations of bidder responsibility. This aligns with legal requirements and standard public procurement practices, which distinguish between responsiveness and responsibility.
The distinction between responsiveness and responsibility is critical for determining whether a hearing is required in California. If a bid is found non-responsive for failing to conform to the technical requirements of the solicitation, it is subject to the discretionary authority of the City and a hearing is not required. However, because a non-responsibility determination (e.g., poor past performance, lack of integrity, or inability to perform) can damage a contractor's professional reputation, California Supreme Courts have held that due process requires a hearing. As such, a hearing for a non-responsibility determination cannot be waived or denied by the City, and the City would follow the attached updated resolution for procedural purposes.
The proposed approach is consistent with practices used by other California public agencies including the Cities of San Diego, Los Angeles, Campbell, and Santa Cruz, which limit formal appeal rights to responsibility determinations and do not provide appeal processes for non-responsive bids. This alignment ensures the City’s procedures are consistent with peer agencies and recognized procurement standards.
For all non-responsive findings, the City will continue to follow the existing administrative review process. Prior to finalizing any non-responsive determination, the Purchasing Division will submit the finding to the City Attorney’s Office for review. If the City Attorney’s Office approves the finding, the City Manager will review and approve the determination before it is finalized. The affected bidder will be notified of the non-responsive finding in writing.
Overall, the updated resolution provides clearer direction, improves consistency in the application of procurement rules, and supports a more efficient and legally defensible competitive bidding process.
ENVIRONMENTAL FINDING
Adoption of this resolution is not a project as defined by the California Environmental Quality Act.
LOCAL PREFERENCE
Local preference is not applicable for adoption of this resolution.
FISCAL IMPACT
There will be no fiscal impact associated with the recommended action.
Attachments:
Resolution: Establishing updated procedures for appeals in the competitive bidding process and rescinding Resolution 2003-129