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Resolution No. 21-05 CITY OF TIGARD, OREGON TIGARD LOCAL CONTRACT REVIEW BOARD RESOLUTION NO. 21-0S- A RESOLUTION AMENDING THE CITY OF TIGARD PUBLIC CONTRACTING RULES.# 4 SQ waae,d WHEREAS; the City of Tigard's Public Contracting Rules, adopted pursuant to Tigard Municipal Code 2.46, provide for the processes and procedures of public contracting in the City; and WHEREAS, Oregon Revised Statute 279B.085 allows the Local Contract Review Board (Board) to exempt certain classes of contracts from competitive bidding if conditions have been met; and WHEREAS, the Board wishes to exempt the following general classes of contracts from competitive bidding, as further described in the attached findings: USPS services, legal services, performance art and artwork, conference registration, contracts associated with grant agreements, and contracts for which a long-term relationship is necessary; and WHEREAS, pursuant to state statute, the City has adopted findings justifying the exemptions and published the findings in the Daily Journal of Commerce on January 25,2021. NOW,THEREFORE,BE IT RESOLVED by the Tigard Local Contract Review Board that: SECTION 1: The City's Public Contracting Rules are amended as shown in the attached Exhibit B. SECTION 2: The exemptions are supported by the findings attached as Exhibit A. SECTION 3: This resolution is effective immediately upon passage. PASSED: This ` h day of I;`eellru 14+�r.L 2021. a� Mayor-City of Tigard ATTEST: City Recorder-City of Tigard RESOLUTION NO.21-0$� Page 1 EXHIBIT A City of Tigard — Public Contracting Rules New Class Special Procurement/Exemption Findings 10.022—US POSTAL SERVICE 1. The City may directly purchase without a competitive solicitation process, permits and postage meters, pre-stamped postcards, establish on-going postage accounts, and other similar items from the US Postal Service. 2. By their very nature, postal service products and materials are protected for the use by the US Postal Service. Most products are established and regulated under federal law. 3. This Class Special Procurement/Exemption will not encourage favoritism or substantially diminish competition in the awarding of City contracts, as required by ORS 279B. With the owner of the products and materials being a branch of the US government, there is no true competition and the competitive bidding process will not lower the price of the products and materials as the production and distribution of such materials is controlled by the US Postal Service and may only be used through that source. 4. Since the City has no control over the type of products and materials used and they can only be used with the US Postal Service, the acquisition of such contracts cannot practicably be realized by using other purchasing methods. 10.062—LEGAL SERVICES 1. The City may directly purchase,without a competitive solicitation process, services related to the provision of legal advice to the City and other legal services. Legal services are determined largely based on qualifications of a particular firm or attorney for the matter at issue, often with an urgent need that does not allow for a lengthy solicitation process. Due to rules limiting a firm's ability to represent a potential client that could be adverse to another client,the number of firms that represent local governments are sometimes limited. This means that for some specialty practices, there may be only a few attorneys in the state with the expertise in the subject and interest in representing the City. Additionally, an ongoing relationship with a firm or attomey may be advantageous to the City by reducing the time the attorney spends getting acquainted with the facts or project, thereby ultimately reducing the cost to the City in the long- term. 2. Services such as those provided by a court reporter, or copy service are often selected by another j person. In order to receive the benefit of the contractor's work, such as deposition transcripts or photocopies, the City has no choice but to purchase from that same vendor. A similar situation arises when a mediator, referee or court appointed individual is selected either by a court or by joint agreement between the City and another party in an effort to resolve a claim or dispute asserted by or against the City, regardless of whether litigation has been filed. In such a situation the City has either no choice in the selection of the person when it is mandated by the 1 court, an arbitrator, or other person with similar authority. Similarly, there are situations where the City and another parry must mutually agree to hire a specific individual, such as a mediator in order to resolve an ongoing legal issue. In the absence of mutual agreement, the proposed mediation, arbitration or other proceeding will likely not occur. As a result, the City will be unable to use such informal methods to resolve a dispute and will be required to use more formal,and more expensive,legal proceedings. 3. This Class Special Procurement/Exemption will not encourage favoritism and competition will not be substantially diminished. The selection of a person by the court or person with similar authority means the City had no say in the selection process. The selection of a person by mutual agreement also means the City does not have unfettered control of the selection process. Similarly, the City will enjoy substantial cost savings by proceeding in this fashion because it permits the City to resolve disputes informally without resort to a more expensive and more formal legal process. For selection of legal services, due to the small pool of qualified attorneys willing to represent a local government, competition will not be diminished because the process is already determined by experience, qualifications, and potential for conflicts, making it not conductive to a competitive process. 10.064—PERFORMANCE ART AND ARTWORK 1. The City may enter into a direct contract with an artist(s) for a painting, sculpture, mixed media artwork,vocal performance,instrumental performance, dance performance without competitive solicitation. 2. This Class Special Procurement/Exemption will not substantially diminish competition because art is of a creative nature and therefore uniquely offered from a sole provider. The City requires specific types of artwork for its parks and public buildings that identify with the surrounding community. The library,parks and community service programs require performance art as part of the program curriculum. 3. By their nature artists and performers have a unique style that fit within a specific category. The requirements of ORS 279B are not feasible in meeting what the City desires for a specific circumstance in promoting community services or the public interest. 10.066—SEMINAR,TRAINING REGISTRATION AND CONFERENCE FEES 1. The City is able to directly purchase seminar registrations, training sessions and conference fees from a single source for attendance by City staff. 2. Such seminars, training and conferences are often unique in their content, are proprietary by nature,and organized,produced,or controlled by a sole provider. 3. Due to the limited competition and unique nature of these seminars, training and conference fees, it is unlikely that this Class Special Procurement/Exemption will encourage favoritism or substantially diminish competition in the awarding of City contracts, as required by ORS 279B. Because competition is limited or nonexistent for seminar, training registrations and conference fees, the City will incur substantial cost savings by directly contracting with the organization 2 i rather than incurring the cost of advertising for bids or proposals when the price would be the same as if the City directly contracted. 10.068—GOODS, SERVICES OR EQUIPMENT REQUIRED BY GRANT AGREEMENTS 1. The City frequently enters into grant agreements in which the other party provides the City with financial and other assistance. 2. As a condition of receiving a grant, the City may be contractually bound to purchase specific goods and services, including, but not limited to, goods identified by brand name. If the City does not comply with grant terms and conditions, including the purchase of specific goods and services, the City may lose the funding or assistance provided by the grant. 3. Purchasing specific items required by a grant will not encourage favoritism or substantially diminish competition in the awarding of City contracts, as required by ORS 279B because the City is not the entity that determines what items to procure. In addition, this will result in i substantial cost savings to the City because the City will not incur the cost of advertising and competitive bidding in a situation where the City has no real option as to what to purchase. 70.012—SELECTION BY NEGOTIATION 1. Occasionally the City needs to maintain its long-term association with a particular contractor, when the work is not project driven but requires a relationship of knowledge and trust. Examples of such work include legal services, insurance brokerage/agent of record services, medical services, financial audit and other audit services, services of a financial advisor, services of an investment advisor,bond counsel services,and banking services. 2. This Class Special Procurement/Exemption will not encourage favoritism or substantially diminish competition in the awarding of City contracts, as required by ORS 27913. From time to time the City will issue a formal solicitation based upon a particular industry best practice. For example, best practice deems that financial auditor should not perform audit services to a particular entity beyond 10 years. Staff with specific expertise can dictate when a new solicitation is issued based upon their knowledge of the industry best practice. 3. This Class Special Procurement/Exemption substantially promotes the public interest by continuing a relationship of a unique nature in that the contractor has certain knowledge and expertise of the City that incorporating a new contractor at an inopportune time would cause risk and hardship to city operations. Examples,include but are not limited to the following: Audit Services - • The first year of audit services with a new contractor takes a greater amount of work as the audit firm learns the City's systems and processes, • Additional staff time is needed for education of policies and internal controls with considerable time spent on background and orientation, documentation and reporting requirements. 3 I i • Added resources are needed in the first year in order pull data for the audit request list, thereafter this largely becomes a maintenance. Banking Services— • Integration with existing systems takes considerable time and resources, depending on how many systems need to be integrated. • Setting up City payroll requires a concerted effort and additional resources for ACH and Direct Deposit. • Utility Billing, Police, Library and Public Works merchant transaction transition period could be impactful and requires forethought and significant planning with multiple departments/stakeholders. Financial Advisor— • Bringing on a new financial advisor in the middle of a long-term project is not advantageous as there is significant time and resources required to bring a new contractor up speed causing a time delay in the project schedule. Legal Services - • It is most advantageous for the City to keep the same bond counsel throughout the life of a project as frequent advising is needed of the terms and conditions of the official statement or master declaration associated with a bond issuance. • Matters involving litigation may last for several years, which may not have been anticipated when the attorney was first selected. It is not practical to change attorneys partway through a litigated case, so the ongoing relationship would be essential to the continuity of the case. • Past competitive selection processes for the City's municipal prosecutor have only resulted in one prospective contractor. Given the importance of maintaining continuity in that position as an important part of the City's municipal court function, and the lack of alternative proposers, it is in the public interest to not require a competitive process for this position. i, i 4 EXHIBIT B CITY OF TIGARD— LOCAL CONTRACT REVIEW BOARD PUBLIC CONTRACTING RULES February 2021 PCR 5.000—MISCELLANEOUS *****NO CHANGE***** PCR 10.000—COMPETITIVE PROCESS REQUIRED EXEMPTIONS 10.022 US POSTAL SERVICE The City may directly purchase without a competitive solicitation process, permits and postage meters,pre-stamped postcards, establish on-going postage accounts, etc. from the US Postal Service. 10.062 LEGAL SERVICES The City may directly purchase without competitive solicitation, services related providing legal advice to the City and other services integral to the provision of legal services. All requests for contracted legal services need to be approved by the City Attorney before any agreement is made. 10.064 PERFORMANCE ART AND ARTWORK The City may enter into a contract for performance art or artwork when the City is purchasing a creative product, such as,but not limited to: a painting, sculpture,mixed media artwork,vocal performance,instrumental performance, or dance performance. 10.066 SEMINAR,TRAINING REGISTRATION AND CONFERENCE FEES The City may directly purchase seminar registrations and training sessions fees for attendance of City employees or officials at seminars,conferences and training courses hosted by outside entities. 10.068 GOODS, SERVICES OR EQUIPMENT REQUIRED BY GRANT AGREEMENTS The City may directly purchase,without a competitive solicitation process,goods, services or equipment when they are required to be purchased from a specific source or when a specific brand name is required, and no competition is otherwise available. PCR 15.000-PRICE AGREEMENTS *****NO CHANGE***** PCR 20.000-BRAND NAMES OR MARKS *****NO CHANGE***** 1 PCR 25.000—MINORITY OWNED.WOMAN OWNED EMERGING SMALL BUSINESSES AND SERVICE-DISABLED VETERAN OWNED BUSINESSES *****NO CHANGE***** PCR 30.000-FORMAL COMPETITIVE PROCESSES *****NO CHANGE***** PCR 40.035 -CONTRACT CANCELLATION PROCEDURES *****NO CHANGE***** PCR 50.000–WAIVER OF SECURITY(BID. PERFORMANCE AND PAYMENT BONDS) (Also see PCR 30.055) *****NO CHANGE***** PCR 60.000-PROPERTY DISPOSITION *****NO CHANGE***** PCR 70.000 -PERSONAL SERVICES CONTRACTS 70.012 SELECTION BY NEGOTIATION The City may procure professional services through direct negotiation when the nature of the work is not projectdrivenbut requires an ongoing,long-term relationship of knowledge and trust. Examples of such work include legal services,insurance brokerage/agent of record services, medical services, financial audit and other audit services, services of a financial advisor, services of an investment advisor,bond counsel services, and banking services. PCR 80.000 -EMERGENCY CONTRACTS, SPECIFIC EXEMPTION REOUIREMENTS,BOARD EXCEPTION,PROCEDURES,TEMPORARY EXEMPTIONS *****NO CHANGE***** 2 PCR 90.000-RECYCLABLE, RECYCLED,AND SUSTAINABLE PURCHASING GUIDELINES *****NO CHANGE***** 3 EXHIBIT B CITY OF TIGARD— LOCAL CONTRACT REVIEW BOARD PUBLIC CONTRACTING RULES February 2021 PCR 5.000—MISCELLANEOUS *****NO CHANGE***** PCR 10.000—COMPETITIVE PROCESS REQUIRED, EXEMPTIONS 10.022 US POSTAL SERVICE The City may directly purchase without a competitive solicitation process,permits and postage meters,pre-stamped postcards,establish on-going postage accounts, etc. from the US Postal Service. 10.062 LEGAL SERVICES The City may directly purchase without competitive solicitation, services related providing legal advice to the City and other services integral to the provision of legal services. All requests for contracted legal services need to be approved by the City Attorney before any agreement is made. 10.064 PERFORMANCE ART AND ARTWORK The City may enter into a contract for performance art or artwork when the City is purchasing a creative product, such as,but not limited to: a painting, sculpture,mixed media artwork,vocal performance,instrumental performance, or dance performance. 10.066 SEMINAR,TRAINING REGISTRATION AND CONFERENCE FEES The City may directly purchase seminar registrations and training sessions fees for attendance of City employees or officials at seminars,conferences and training courses hosted by outside entities. 10.068 GOODS, SERVICES OR EQUIPMENT REQUIRED BY GRANT AGREEMENTS The City may directly purchase,without a competitive solicitation process,goods, services or equipment when they are required to be purchased from a specific source or when a specific brand name is required,and no competition is otherwise available. PCR 15.000-PRICE AGREEMENTS *****NO CHANGE***** PCR 20.000-BRAND NAMES OR MARKS *****NO CHANGE***** 1 PCR 25.000—MINORITY OWNED,WOMAN OWNED,EMERGING SMALL BUSINESSES AND SERVICE-DISABLED VETERAN OWNED BUSINESSES *****NO CHANGE***** PCR 30.000-FORMAT.COMPETITIVE PROCESSES *****NO CHANGE***** PCR 40.035- CONTRACT CANCELLATION PROCEDURES *****NO CHANGE***** PCR 50.000—WAIVER OF SECURITY(BID,PERFORMANCE AND PAYMENT BONDS) (Also see PCR 30.055) *****NO CHANGE***** PCR 60.000 -PROPERTY DISPOSITION *****NO CHANGE***** PCR 70.000 -PERSONAL SERVICES CONTRACTS 70.012 SELECTION BY NEGOTIATION The City may procure professional services through direct negotiation when the nature of the work is not project-driven but requires an ongoing,long-term relationship of knowledge and trust. Examples of such work include legal services,insurance brokerage/agent of record services,medical services, financial audit and other audit services, services of a financial advisor, services of an investment advisor,bond counsel services,and banking services. PCR 80.000 -EMERGENCY CONTRACTS,• SPECIFIC EXEMPTION REQUIREMENTS;BOARD EXCEPTION;PROCEDURES,TEMPORARY EXEMPTIONS *****NO CHANGE***** 2 i I PCR 90.000-RECYCLABLE RECYCLED,AND SUSTAINABLE PURCHASING GUIDELINES *****NO CHANGE***** 3