Ordinance No. 87-59 CITY OF TIGARD, OREGON
CITY COUNCIL ACTING AS THE LOCAL CONTRACT REVIEW BOARD
f' ORDINANCE NO. 87-•-,�
k AN ORDINANCE REPEALING ORDINANCE NO. 85-06 AND ADOPTING RULES OF THE CITY OF
TIGARD LOCAL CONTRACT REVIEW BOARD FOR THE. AWARDING OF PUBLIC CONTRACTS, AND
DECLARING AN EMERGENCY.
WHEREAS, the 1983 Oregon Legislature enacted legislation calling upon the
Attorney General to prepare and maintain model rules of procedures for
Contract Review Boards; and
WHEREAS, the Tigard City Council and Local Contract Review Board finds it
necessary and desirable to modify the City's Rules to be in conformance with
the Attorney General's model; and
WHEREAS, there were pages inadvertently deleted from Ordinance No. 85-06 at
the time of its adoption which the Local Contract Review Board finds necessary
to include for the consistent implemention of Board policy.
NOW, 'THEREFORE, THE CITY OF TIGARD ORDAINS AS FOLLOWS:
Section 1 : The Tigard City Council, acting as the ;.oval Contract ReviewBoard, does hereby repeal Ordinance No. 85-06 in its entirety and adopts the
attached "Exhibit A" as the new Local Contract Review Board Rules which is
consistent with the Attorney General's model rules.
Section 2: The Tigard City Council, acting as the Local Contract Review
Board, further directs the City Recorder to file this document and any future
revisions with the Washington County Board of Commissioners per ORS 279.055.
Section 3 : This ordinance is necessary for the immediate preservation of the
public health, safety and welfare in order to establish rules consistent with
the rules of the State Public Contract Review Board and model rules as
prepared by the Attorney General to reduce the potential for costly litigation
and an emergency is hereby declared to exist and this ordinance shall be in
full force and effect immediately union its passage by the Council, approval by
the Mayor, and posting by the City Recorder.
PASSED: By0'tis n ,�,tL_ vote of all Council members present after being
r'ea; by numb r and title only, this �r._..Gl day of
1987.
XCil�yRecorder — City of Tigard
APPROVED: This day of /1JDu y ��.�- 1987.
ezw
Mayor — City of Tigard
APPRPVED AS TO F
ity Attorne
OR NANCE NO. 87--.,52
0698F/lw
"EXHIBIT A"
CITY OF TIGARD
f LOCAL CONTRACT REVIEW BOARD RULES
The following administrative rules (AR) have been adopted by the City Council
acting as the Local Contract Review Board and are effective November 2, 1967.
These rules have been adopted pursuant to the authority granted to the Board
by Ordinance No. 85--05. The rules shall apply to all contracting, purchasing
and selling of property or professional services by the City of Tigard.
TABLE OF CONTENTS
10.000 Contracts Exempt From Competitive Bidding And Requirements Contracts
10.010 Exemptions and Definitions
10.015 Exemption of Contracts Under Certain Dollar Amounts
10.020 Contracts for Price R.^••u7-,ted itc: s
10.025 Copyrighted Materials
10.030 Library Aggregate Purchases -- Library Periodicals
10.035 Advertising Contracts
t 10.040 Equipment Maintenance Repair and Overhaul
10.045 Purchases of Used Personal Property
10.050 Purchases Under Established Requirements Contracts
10.055 Gasoline, Diesel Fuel, Heating Oil, Lubricants and Asphalts
10.060 Requirements Contracts
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10.065 Investment Contracts
10.070 Insurance Contracts
10.075 Employee Benefit Insurance
10.080 Data and Word Processing Contracts
10.081 Telecommunications Systems Contracts
10.082 Telecommunications Services and Equipment
10.083 Office Copier Purchases
10.085 Single Seller of Product Required
10.090 Contract Amendments
10.100 Affirmative Action Contracts
10.105 Life Cycle Cost Analysis
10.110 Request for Proposal
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� 20.000 Prand Names Or Marks
» 20.010 Specification of Particular Brand Names or Products
20.020 Copyrighted Materials
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20,030 Single Manufacturer or, Compatible Products
� 20.040 Product Prequali[ioatiun
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30.000 Public Bidding_Procedures
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� 30.002 Definitiuno
� 3O.OV5 Competitive Bidding
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� 30.018 Bid Documents
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� 30.015 Public Notice
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l 30.028 Bid Preparation
� 30.025 Bidder Prequalifioation
� 30.030 Bidder Submissions
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, 30.085 Bid Security
30.040 Pre-Bid Conferences
30.045 Brand Name Products
30.050 Protest of Bid Specifications
30.055 Addenda to Bid Documents
/ 30.000 Pre-Opening Modification or Withdrawal of Bids
30.065 Receipt, Opening' and Recording of Bids
30.070 Late Bids, Lmte Withdrawals' and Late MOdifioationo
30.075 Mistakes in Bids
30.080 Time for Acceptance
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30.085 Extension of rime for Acceptance of Bid
30.090 Bid Evaluation and Award
' 80.095 Low Tie Bids
30.100 Rejection of Individual Rids or Proposals
30.105 Negotiation with Bidders Prohibited
` 30.110 Bidder Disqualification
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30.115 Cancellation of Invitations to Bid
30.120 Disposition of Bids or Proposals if Bid Cancelled `
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30.1�� Documentation of Award
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30.130 Foreign Contractor
30.135 Availability of Award Decisions - Contract Retention
30.140 Performance Security
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30.145 Right to Audit Records
30.150 Right to inspect Plant
30. 155 Contract Cancellation Procp.!uren
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40 Public Improvement Contracts
40.000 Application
40.005 Competitive Bidding
40.010 Public Notices
40.015 Bid Evaluation and Award
48.020 Contract Cancellation Procedures
40.025 Retainage
40.030 Progress Payments
40.035 Final Inspection
40.040 Final Estimate and Final Payment
40.045 Claims for Unpaid Labnr, or Supplies
50.000 Waiver Of Security Bid And Performance Bond
50.010 Bid Security Requirements
50.020 Contracts Under $18'000
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60.000 Property Disposition
60.010 Auction Salon of Personal Property
60.015 Sales of Personal Property
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' 60.020 Liquidation Sales of Personal Property
60.025 Donations of Peroumxl Property
70.000 Personal Services Contract
70.010 Personal Services Contracts
00.000 Procedures
80.010 Rules Of Procedure
^ 00.015 Meetings
80.020 Reports
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80.025 Notice Of Rule Amendment, Adoption, Repeal
^' 80.0-0 Meeting Agenda
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90.000 Emergency Contracts Specific Exemption Requests; Board Exertion
Procedures, Temporary Exc tions.
90.010 Emergency Contracts
90.015 Specific Exemptions
90.020 Brand Name Or Mark Exemptions
90.025 Conditions Of Brand Name Exemptions
90.030 Notice Of Application
90.035 Board Nearing
90.040 Temporary Rules Exemptions
90.045 Unanimous Consent Calendar
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TTGARD LOCAL CONTRACT 11- &! BOARDADMINIS'TRA'TIVE RULES
f AR 10.000 CONTRACTS EXEMPT FROM COMPETITIVE BIDDING AND REQUIREMENTS
CONTRACTS.
10.010 Exemptions Rncl Uafinitions. All public. contracts shall be based
upon coiupetitive bidding except the following:
a. Contracts made with other public agencies or the federal
government.
b. Contracts which are exclusively for personal services as
kefined in Section 70:000. Such contracts may include
incidental materials such as written reports, architectural
or- engineering renderings and similar supplemental materials.
c, Contracts specifically exempt under these rules:
10.015 Exemption Of Contracts Under, Certain Dollar Amounts
10.020 Contracts For Price Regulated Items
10.025 Copyrighted Materials
10.03(' Library aggregate Purchases
10.035 Advertising Contracts
10.040 Equipment Maintenance Repair Arid Overhaul
10.045 Purchase of Used Personal Property
10.050 Purchases Under Established Requirements Contracts
10.055 Gasoline, Diesel Fuel, Heating Oil, Lubricants
And Asphalt
10.060 Requirements Contracts
( 10.065 Investment Contracts
10.070 Insurance Contracts
10.075 Employee Benefit Insurance
10.080 Data and Word Processing Contracts
10.081 Telecommunications Systems Contracts
10.OG2 Telecommunications Services and Equipment
10.083 Office Copier Purchases
t. 10.0185 Single Seller Contracts
10.090 Contract Amendments (Including Change Orders
And Extra Work)
10. 100 Affirmative Action Contracts _
10.105 Life Cycle Cost Analysis
10.110 Request for Proposal
d. As used in this section:
(1) "Board" means the City of Tigard Local Contract Review
Board.
(2) "City" or "The City" means Tigard, Oregon.
(3) "Competitive bidding" means the solicitation by the City
of competitive offers which follow the formal process
for advertising, bid and bid opening required by ORS
Chapter 279, and applicable rules of the City of Tigard
Local Contract Review Board;
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(4) "Competitive quotes" means the solicitation of offers by
the City from competing vendors. The solicitation may
be by advertisement or• by the City initiating a request
/ to vendors to make an offer. The solicitation and the
t offer may be in writing or• oral.
(5) "Invitation to bid" means the solicitation of
competitive offers in which specification, price and
delivery (or, project completion) will be the predominant
award criteria.
(6) "personal property" means everything subject to
ownership which is riot real property and has
exchangeable value.
(7) "price agreement" means the same as requirements
contract defined above.
(6) "Request for proposal" means the solicitation of
competitive proposals, or offers, to be used as a basis
for• makr_na am acquisition, or• entering into a contract
when specification and price will not necessarily be the
predominant award criteria,
(9) "Requirements contract" means an agreement in which the
vender agrees to supply all the purchaser's requirements
that arise for an item or items within a specified time
period. i
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(10) "Service" means work performed to meet a demand,
especially work that is not connected with manufacturing j
a product.
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(11) "Service contract means a contract that calls primarily 1
for a contractor's time and effort rather than for an
end product. s
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10.015 Exemption of Contracts Under Certain dollar Amounts
1. The City may, in its discretion, let public coria acts riot t:a --
exceed $15,000 for the purchase of goods, materials, supplies and i
services without formal competitive bidding, if the City has
.±e+ voLned that the awarding of the contract without formal
competitive bidding will result in cost savings and the following
conditions are complied with:
a. The contract is for a single project, and is not a component
of or related to any other project.
b. When the amount of the contract does not exceed $1,000, the
City should, where feasible, obtain competitive quotes
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c. When the amount of the contract is more than $1,000, but less
than $15,000, the City shall, obtain a minimum of three
competitive quotes. The City shall keep a written record of
f the source and amount of the quotes received. If three
�. quotes are not available, a lesser number will suffice
provided that a written record is made of the effort to
obtain the quotes.
2.. The City may, in its discretion, let public contracts for trade
related projects, i.e. , construction, maintenance, repair, or
similar labor and materials contracts without formal competitive
bidding if the City has determined that the awarding of the
contract without formal competitive bidding will result in cost
savings and the following conditions are complied with:
a. The contract is for a single project, and is not a component
of or related to any other project;
b. When the amount of the contract does not exceed $1,000, the
City should, where feasible, obtain competitive quotes;
C. When the amount of the contract is more than $1,000, but less
than $10,000, except as provided in subsector (d) thp city
shall obtain a minimum of three competitive quotes. The City
shall keep a written record of the souree and amount of the
quotes received. If three quotes are not available, a lesser
number- will suffice provided that a written record is made of
the effort to obtain the quotes.
l d. When the contract is for maintenance or repair of roads,
highways or parking lots and is more than $10,000, but less
than $25,000, the City may let the contract without formal
competitive bidding if a minimum of "hree competitive quotes
are obtained. The City shall keep a written record of the
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source and amount of the quotes received. If three quotes
are not available, a lesser number will suffice provided a
written record is invade of the effort to obtain the quotes.
F 10.020 Contracts For Price Regulated Iteills
The City may, without competitive bidding, contract for the ---
purchase of goods or- services where the rata or price for the
goods or services being purchased is established by federal,
state or local regulatory authority.
10.025 Co righted Materials
If the contract is for the purchase of copyrighted materials and
there is only one supplier available for such goods, the City may
contract for the purchase of the goods without competitive
bidding.
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10.030 Library Agaregate Purchases LibraryP,friodical�
a. Purchases of library materials for the City library pursuant
to the exemption rule, AR 10.015, are exempt from the $20,000
aggregate restriction of that rule.
b. Purchases for the library of subscriptions for periodicals
including journals, magazines, and similar publications may
be made without competitive bidding.
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10.035 Advertising Contracts
The City may purchase advertising without competitive bidding.
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Such contracts shall be awarded in the manner provided by ORS
2%9.051.
10.040 epair And Overhaul
1. Contracts for equipment maintenance, repair, or overhaul may be
let 1,ithnut competitive bidding, subject to the following
conditions:
a. The services and/or parts required are unknown and the cost
cannot be determined without extensive preliminary
dismantling or- testing; or,
b. The services and/or parts required are for sophisticated
equipment for which specially trained personnel are required
and such personnel are available from only one source.
2. If the contract exceeds $10,000, the City shall document in its
procurement file the reasons why competitive bids or quotes were
deemed to be impractical.
10.045 Purchase4 of k)sed Personal Property
Public contracting agencies may purchase used personal property
for $10,000 or less without competitive bidding if the agency has
determined that the direct purchase without competitive bidding ;
will result in cost savings. For purchases of used personal
property over $10,000, three competitive quotes shall be �
obtained. if three quotes are not available, a written record
must be made of the attempt to obtain quotes.
lu.05Q Purchases Established Undera1ah14shed Requirements Contracts
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1. When the price of goods and services has been established by a ,
requirements contractpursuant to AR 10.060, the City may
purchase the goods and services from the supplier without
subsequent competitive bidding,
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2. The City may use the requirements contract entered into by
another public contracting agency when a formal interagency
agreement exists between the City and the other agency.
10.055 Gasoline, Diesel Fuer Heating Oil, Lubricants Arid Asphalts
The City may, without formal competitive bidding, purchase
gasoline, diesel fuel, heating oil, lubricants, and asphalts
subject to the following conditions:
a. Prior to selection of the contractor, the Purchasing Agent
seeks competitive quotes from a majority of vendors in the
area;
b. The City makes its purchase from the least expensive source,
and
c. The City retains written justification for the purchase made.
10.060 Requirements Contracts
1. The City may enter into requirements contracts whereby it is
agread to purchase requirements or an anticipated need at a
predetermined price Nrrvidin-, the following conditions are
complied with:
a. The contract must be let by competitive bidding pursuant to
the requirements of Chapter 279, Oregon Revised Statutes and
applicable rules of the City's Local Contract Review Board.
b. The term of the contract including renewals does not exceed
three years.
10.065 Investment Contracts
The City may, without competitive bidding, contract for- the
#' purpose of the investment of public funds or the borrowing .of
funds by the City when such investment or- borrowing is contracted
pursuant to duly enacted statute, ordinance, charter or
constitution.
10.070 Insurance Contracts —
1. Contracts for insurance where either the annual or aggregate
premium exceeds $5,000 must be let by formal competitive bidding
or by one of the following procedures,
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a. Agent of Record: The City may appoint a licensed insurance
agent ("agent of record") to perform insurance services in
connection with more than one insurance contract. Among the
services to be provided is the securing of competitive
proposals from insurance carriers for all coverages for which
the agent of record is given responsibility:
i Prior to the selection of an agent of record, the City
Purchasing Agent shall make reasonable efforts to inform
known insurance agents in the competitive market area
that it is considering such selection. These efforts
s;Iall include a public advertisement in at least one
newspaper of general circulation in the area. The
advertisement shall generally describe the nature of the
insurance that the City will require. If the amount, of
the annual premium for insurance other' than employee
benefits insurance is likely to exceed $10,000 per year,
such novice shall also include a public advertisement in
at least one insurance trade publication of general
circulation in the state.
ii An agent's appointment shall riot exceed a period of three
years, but the same agent(s) may be selected in a
stafAsequeni pedr`iuu. Agents must giaaiify th.c wPp.v3�......;2r1..
prior to each period as if each appointment period were
+-he first.
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iii In selecting an agent of record, the City shall select r
the agent(s) most likely to perform the most cost
effective services.
b. Specific Proposals For Insurance Contracts: The City may
solicit proposals from licensed insurance agents for the
purpose of acquiring specific insurance contracts subject to
the following conditions:
i The City shall make reasonable efforts to inform known
insurance agents in the competitive market area of the
subject matter of the contract, and to solicit proposals
for ..d. the anry rc � ion with
I ass N�'u � _ny �..� z_.,a rc,rf»irpc_, in connection 1 M_ _
that contract. Such efforts shall include public
advertisements in at least one newspaper of general
circulation in the area. If the amount of annual premium
for insurance other than employee benefits insurance is
likely to exceed $10,000 per year, such notice shall also ►
include a public advertisement in at least one insurance
trade publication of general circulation in the'state.
ii The City shall select an agent on the basis of the most
competitive offer considering coverage, premium cost, and °
service to be provided.
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10.075 Employee Benefit Insurance
The City may purchase employee benefit insurance without
/ competitive bidding.
10.080 Data and Word Processing Contracts
1. Contracts for acquisition of data and .;cord processing hardware
and systems software may be let using alternative competitive
procurement methods subject to the following conditions;
a. If the contract amount does not exceed $15,000, the City
shall, as a minimum, follow informal competitive procurement
methods. Prior to selection of a vendor, reasonable efforts
will be made to solicit proposals from three or more
vendors. Justification of award shall be documented and
become a public record of the agency.
b. If i. .e contract amount excoeds $15,000, the City may use the
request for proposal process (AR 10. 110) and shall solicit
written proposals. Solicitations shall be requested from
appropriate vendors appearing on lists compiled by the agency
or by advertising in an appropriate trade publication of
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7 ulatiam hen eglulre'd by statute, ..rhe Cii- gF,all
document the evaluation and award process, which will be part
of the public record justifying the award.
C. If the amount of the contract exceeds $500,000, in addition
to the requirements of subsection (1)(b) of this rule, the
City shall:
(1) Provide an opportunity for vendors to review requirements
and, prior to submitting proposals, comment on any
specifications which they feel limit competition;
(2) Provide that residual values be considered only if they
are clearly ascertainable; and
(3) Provide that cost of conversion will be minimized by the
agency. vendors competing in this category of
procurement shall be given the opportunity to review the
evaluation of their proposal before final management
review and selection. If there is less than a 1%
difference between the performance/cost ratio of the
highest ranked proposals, appropriate consideration must
be given to the procurement of equipment which will
encourage competition.
10.081 Telecommunications Systems Contracts
1. Contracts for acquisition of telecommunications system hardware
and software may be let using alternate competitive procurement
methods subject to the following conditions:
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a, If the contract amount does riot exceed $15,000, the City
shall as a minimum obtain competitive quotes, Prior to
selection of a vendor reasonable efforts will be made to
solicit proposals from three or more. vendors, Justification
of award shall be documented and become a public record of
the agency.
b. If the contract amount exceeds $15,000, the City may use the
request-for-proposal process (AR 10.110) and shall solicit
written proposals, Solicitations shall be requested from
appropr•.iate vendors appearing on lists compiled by the agency
or• by advertising in an appropriate trade publication of
general circulation when required by statute,
2.. The telecommunications solicitation authorized in subsection 1(b)
shall:
a. State the contractual requirements in the solicitation
document:
b. State the evaluation criteria to be applied in awarding the
contract and the roles of any evaluation committee. Criteria
that would be used to identify the proposal that best meets
the public contracting agency's needs may include, but are
not limited to cost, quality, service, coi-apatibility, product:
reliability, operating efficiency, and expansion potential:
C. State the provisions made for vendors to comment on any
specifications which they feel limit competition,
10.082 Telecommunications Services and Eriu:i meat i
1. The City may continue the existing telecommunications services �
and equipment after January 1, 1984 from the current provider, or
the appropriate AT&T company assigned such ser•vir_e or product
area under the divestiture orders of United States v Western
Electric Co• , et a1. , No. 82-0192,_ The District- Court, District
of Columbia, 1983.
2. Any new ty-pe o - service or equipment or any major replacement of � -
existing services or equipment where the rate is not established i
by federal, state, or local regulatory authority shall be
acquired by competitive procurement. r
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3. This rule is intended to provide an orderly transition period,
The rule is automatically repealed on July 1, 1986. €
16,O83 Office Copier Purchases
1. The City may enter into multiple price agreements or requirements
contracts for either the purchase or lease of office copying
equipment, Except for this multiple award exemption, such
agreements shall otherwise conform to the requirements of AR
10,060,
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^ 2. In exercising this exemption the City shall fully consider the
operating capabilities, limitations and onat of each brand or,
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model and select that brand which will produoa +hm bu:t
� combination of performmnce and cost per copy for each application.
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10.085 Single, Geller Of Product Required
Subject to all requirements of HR 20.010, the City may purchase
without competitive bidding if there is only one xeller or a
product of the quality required, or if the efficient utilization
of existing equipment or supplies requires specification of a
compatible product for which there in only one seller.
/ 10.090 Contract Amendments (Including Chanqe Orders And Extr-�� Worj�
1. Any contract amendment for additional work including change
orders, extra work' field orders, or other change in the original
specifications which increases the original contract price, may
be made with the contractor without competitive bidding subject
to the following conditions:
a. The original contract was let by competitive bidding' unit
prices or bid alternates were provided that established the
cost fur- additional work, and a binding obligation exists on
the partieo ccuering Ithe term, and cen ditiuns cF the
additional work; or
b. The amount of the aggregate coot increase resulting from all
amendments shall not exceed zO% of the initial contract, or-
20%
r2O% of the initial contract when the initial contract in for
- a face amount riot exceeding $100'000. Amendments made
pursuant to section (a) of this rule are not included in
computing the aggregate amount under this section.
�Contracts
1. Public rnntn^oto may be awarded without competitive bidding �
pursuant to * specific Affirmative Action plan. affirmative �
Action in a program designed to insure equal opportunity in
employment and business for persons otherwise disadvantaged by
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reason of race' nnlvr' religion' sex, national origin, age' or
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physical or mental handicap, including, but not limited to,
personnel practices of contractors, "set—aside programs" and
minority business enterprises.
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10.105 Life Cycle-Cost Analysis
1. In determining the lowest responsible bidder, in the award of a
contract, the City may use the concept of life cycle costing if
it complies with section (2) of this rule. As used in this rule,
life cycle costing means determining the cost of a product for
its useful life.
2. The City shall follow the following procedures:
a. Prior to the time of writing specifications for the product,
the City shall identify those factors which will have cost
implications over the life of the product.
b. The Invitation to Bid shall set out clearly the factors and
methodology to be used in life cycle cost adjustments.
c. At or after the formal bid opening; the results of life cycle
costing adjustments shall be applied to the base bid, and the
bidder whose total bid results in the lowest ownership cost,
taking into account the life cycle costing adjustments, shall
be considered the lowest responsible bidder.
10.110 Request for Proposal
1. Public contracting agencies may, at their discretion, use
request—for--proposal competitive procurement methods subject to
the following conditions:
y a. Contractual requirements are stated clearly in the
solicitation document.
b. Evaluation criteria to be applied in awarding the contract
and the role of an evaluation committee are stated clearly in
the solicitation document.
(1) Criteria used to identify the proposal that best meets
the public contr-acting needs may -include but are not
limited to cost, quality, service, compatibility, product
reliability, operating efficiency and expansion potential.
c. Solicitation document clearly states all complaint processes
and remedies available.
d. Solicitation document states the provisions made for vendors
to comment on any specifications which they feel limit
competition.`
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AR 20.000 BRAND NAMES OR MARKS
20.010 Specification Of Particular Brand Names Or Products
Specifications for public contracts shall not expressly or
implicitly require any product of any particular manufacturer or
seller except pursuant to an exemption under AR 20.020
(Copyrighted Materials), 2.0.030 (Single Manufacturer Or
Compatible Products), or 20.040 (Product Prequalification).
If there is no other practical method of specification, the City
may designate a particular brand name, make or product "or
equal", but this practice should be avoided whenever possible.
20.020 Copyrighted Materials
The City may specify a specific copyrighted product. This
exemption does not include patented or trade mark goods.
20.030 Single Manufacturer Or Compatible Products
1, If there is only one manufacturer or seller of a product of the
quality required, or if the required product is data processing
equipment which will be used for research where there are
requirements for exchange of software and data with other
research establishments, or if the efficient utilization of the
existing equipment or supplies requires a compatible product of a
particular manufacturer or seller-, a public contracting agency
may specify such particular product subject to the following
conditions:
a. Thi product is selected on the basis of the most cc,�ipetitive
offer considering quality and cost. The term 'cost' includes
not only the product price but also other items of expense
such as costs related to quality of ron"nrai,_.n. --
b. Prior to awarding the contract, the City has made reasorable
effort to notify known vendors of competing or comparable
products of the intended specifications and invited such
vendors to submit competing proposals. If the purchase does
not exceed $15,000, such notice and invitation may be
informal. If the amount of the purchase exceeds $15,000,
such notice shall include advertisement in at least one
newspaper of general circulation in the area where the
contract is to be performed and shall be timely to allow
competing vendors a reasonable opportunity to make proposals.
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2. if the amount of the purchase exceeds $15,000 and is not also
pursuant to the data processing exemption, AR 10.060,
Purchasing Agent shall document its action in the bid file. Such
r documentation shall include:
a. A brief description of the proposed contract or contracts.
b. A detailed description of the reasons why the product and/or
seller was selected and any competing products and/or sellers
that were rejected. The description shall also includev�e
efforts taken by the Purchasing Agent to notify
and te
proposals from competing vendors.
3. If the City intends to make several purchases of the product of a
particular- manufacturer, or seller, for a period not to exceed two
in the documentation required by
years, it may so stag'-
paragraphs (1)(b) and (2), and such documentation shall be
sufficient notice as to subsequent Purchases.
20.040 product prequalification
1, When it is impractical to create specific desi gchar pe fo man y
specifications for a type of- product to be. p
may specify a list of approved products by reference to
particul�" manufacturers or sellers in accordance with the
following product prequalification procedure:
a. The Purchasing Agent has made reasonable efforts to notify
known manufacturer's or vendors of competitive products of its
intention to accept applications for inclusion in its list of
` prequalified products. Notification shall include
advertisement
in a trade journal of statewide distribution
when possible. In lieu of advertising, the City may notify
vendors and manufacturers appearingan the appropriate list
,�,.„,• 'vie s of the State
Maintained Uy l ilC l?CF/v l 41.ivi.4
of Oregon.
b. i'he City permits application for prequalification of similar
products up to 15 days prior to advertisement- for bids on the
product.
2• If an application for inclusion in a list of prequalified
products is denied, or an existing prequalification revoked, the
Purchasing Agent shall notify the applicant in writing. The
applicant may appeal to the Board for a review of the denial or
revocation in the same manner as an appeal of disqualification or
denial provided in AR 30.110(5).
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;1
AR 30.000 PUBLIC BIDDING PROCEDURES
,+ 30.002 Definitions
l For purposes of these rules the following definitions apply:
1. "Addenda to the Bid Documents" means additions or changes to the
bid documents defined as addenda shall be labeled as such and
distributed in accordance with these rules;
2.. "Bid" mains a co+npetiti.ve offer- in which price, delivery (or
project completion) and conformance to specification will be the
predominant award criteria. Bid also includes a proposal when
authorized by the public contract review entity where a
solicitation of competitive proposals or offers is utilized for
procurement when specification and price will riot necessarily be 4
the predominant award criteria;
3. "Bid Closing" means the date and time announced as the deadline
for the receipt of bids;
4. "Bid Opening" means the date, time and place set for opening of -
competitive bids;
5. "Bid Sample" means a representative specimen of the item that
i will be available in response to the bid;
® 6. "Bidding Period" means tie span of time between the date of the
invitation to bid and the time and date set for receipt of bids.
( A minimum of fourteen (14) calendar days shall be provided,
unless a shorter time is deemed necessary in the public interest
for a particular procurement;
i
„4�na the document authorizing an
7 "Contract Release urae4 --__"
additional purchase on an existing requirements contract. -
44�- .
S. Descriptive Literature" means materials submitted by prospective
vendors to provide information concerning the products available
in response to the bid;
9. "Lowest Responsible Bidder" means the lowest bidder who has 4
substantially complied with all prescribed public bidding
procedures and requirements and who has not been disqualified by
the public contracting agency under ORS 279.037. (ORS F
279.029(1));
30.005 r nmmnotitiye Biddin !
Contracts issued by the City shall be awarded by competitive
bidding except as otherwise exempted under the provisions :>f ORS
279.015, 279.053, 279.056, or- under AR 10.000 of these rules.
- 17 -
3-.010 Bid Documents
1. The Bid Documents Shall Include the Following:
concerning the bid
the
a. Instructionstime and date set for-
submission
and information to bidcier•s
submission r'equir'ements, includingto
ss ros ycal f info natiorr,ich bids are
opening of bids, the addre
to be delivered, and any othe K
�rchase descr•iptiun, specifications. ;
b, Where applicable, the p " ins ection and acceptance
delivery
or, per
schedule, p i
requirements, and special evaluation factors;
The contract terms and conditions, including warranty and
C. Tr uirements, as applicable; and �
bonding or other, bid security req �€
d, All addenda issued by the City.
I
2, Determination of Contractual Terms and Conditions.
contractual `
I dete rminO the L
a. The City is authorized
to
M,� rnnc3ltlnrl5 of solicitations and
provisions, ansa d su
�• ",Y,s are
contracts. provided such provisions, terms and Coriu�I=--•-
not contrary to statutory or regulatory requirements.
3. Terms and Conditions Applicable to public Contracts.
uirement in OR
1:n addition to the Oregon preference req terms and
a' the City shall establish standard ORS �
279.021(1), le as prescribed by
conditions including those applicab
279.310 to ORS 279.575:
(1) payment of laborers and material men; cnntr•ibutions to
cident Fund; liens and withholding taxes
Industrial Ac
(ORS 279.312);
(2) payment of claims by public-0ii ."-4c-r% (.ORS 2/9.314);
(3) Hours of labor (ORS 279.316 and 279.338);
(4)
Environmental and natural resources regulations (ORS
279.318);
5 payment for medical care and attention to employees (ORS
279.320);
Voluntary ter;nination of the contract (ORS 279.326);
u
(6) ORS 279,3'L8 •- Zjy.3s�);
(7) Suspension of the work (
(8)
Maximum hours and overtime (ORS 279.334):
(9) Claims for overtime (ORS 279.336);
- 18 --
'a
(..Oj Ove-time requirement for local governments (ORS 279.340
anc 279.342);
C (11) Prevailing wage rates (ORS 279.348 - 279.365);
(112) Retainage (ORS 279.400 -- 279.430 and ORS 279.575);
(13) Contractor's bond (ORS 2.79.526 and 279.536);
i
t
(14) Notice of claim (ORS 279.528);
4
(15) Labor and material liens (ORS 279.538); {
(16) liability in absence of bond (ORS 279.542);
(17) Progress payments (ORS 279.575).
i
b. Such ter-ins and conditions shall become an integral part of
each contract.
4. Special 'Perms and Conditions.
The City may also establish special terms and conditions
applicable to specified categories of contracts. Any special
terms and conditions shall be included in the bid documents and
become an integral part of those contracts.
5. Compliance and Exceptions to Terms and Conditions.
L a. Bidders shall be responsible for noting the terms and
conditions included as applicable to each set of bid s'
documents. ;
y
b. By signing and returning the bid proposal form, the bidder is
acknowledging acceptance of and the intent to abide by the
terms and conditions.
c, Any exrpptions to the terms and conditions must be clearly
stated in writing by the bidder, in the signed returned
proposal. The city reserves the right to reject any bid
which takes exception to the terms and conditions.
Exceptions to the terms and conditions become contractual r
obligations only upon written acceptance by the City.
E'
Commentary
Tn compiia;we with 'the provisions of ORS 279.318, the following j
is a list of federal, state and local agencies of which the Owner
has knowledge that have enacted ordinances or- regulations dealing ?
with the prevention of environmental pollution and the
preservation of natural resources that may affect the performance
of the contract:
}
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s _ -
Federal Agencies:
Agriculture, Department of Forest Service
Soil Conservation Service
Defense, Department of Army Corps of Engineers
Environmental Protection AGency
Interior, Department of
Bureau of Sport Fisheries and Wildlife
Bureau of Outdoor Recreation
Bureau of Land Management
Bureau of Indian Affairs
Bureau of Reclamation
Labor, Department of
Occupational Safety and Health Administration
Transportation, Department of
Coast Guard
Federal Highway Administration
State Agencies:
Agriculture, Department of
Environmental Quality, Department of
Fish and Wildlife, Department of
Forestry, Department of
i Geology and Mineral Industries, Department of
Human Resources, Department of
Land Conservation and Development Commission
Soil and Water Conservation Commission
State Engineer --
State Land Board
Water Resources Board
Local Agencies:
City Council
County Court
County Commissioners, Board or-
Port
rPort Districts
Metropolitan Service Districts
County Service Districts
Sanitary Districts
Water Districts
Fire Protection Districts
30.015 Public Notice
1. Distribution. Bid documents and notices of the availability of
bid documents shall be mailed or otherwise furnished to a
sufficient number of bidders for the purpose of securing
competition. Notice of availability shall indicate where, when,
y - 20 -
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and for how long the bid documents may be obtained; generally
describe the supply, service or construction desired; and may
contain other appropriate information. The public agency may
charge a fee or require a deposit: for the bid documents.
2. Advertising.
a. Unless exempted every forma] solicitation of bids shall bck
advertised. An advertisement for bids shall be published at
least once in at least one newspaper of general circulation
in the area where the contract is to be performed and in as
many additional issues and publications as the public agency
may determine to be necessary or desirable to ensure
competition.
b. All -advertisements for- bids shall state:
(1) The date and time after which bids will not be received
which date shall not; be less than five (5) days after
the date of the last publication of the advertisement.
(2) The date that prequalification applications must be
filed if prequotlification is a requirement;
(3) The character of the work to be done or the items to be
purchased;
(4) The office where specifications may be seen;
J
(5) The name and title of the person designated to receive
bids;
(6) The date, time, and place that bids will be publicly
opened.
3. Posting of Bid Advert-4--c-::tent. A copy of each bid advertisement -
shall be posted at the business office of the City. Bidders may
obtain a copy upon request.
30.020 Bid Preparation
Bid Preparation Instructions
1 Bids shall be typed or prepared in ink and shall be signed in ink
by the bidder or an authorized representative of the bidder.
2. Bids shall be made on the bid form provided.
3. Alterations or erasures, if any, shall be initialed in ink by the
person signing the bid.
4. Bids shall contain a fully executed bid package, including all
required documents and descriptive literature.
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30.025 Bidder Prequalification
The City may require mandatory prequalification of bidders on
(
forms prescribed by the Purchasing Agent. When prequalif-ication
is required by the bid documents as a condition for bidding, the
City shall not consider the bid(s) of any prospective bidder who
is not prequalified in accordance with the City's adopted rules
and regulations.
If a bidder is currently prequalified by either the State
Department of Transportation or the State Department of General
Services to perform contracts, the bidder shall be equitably
presumed qualified to perform similar work for other public
agencies. (ORS 279.047).
30.030 Bidder Submissions
1. Bid Samples and Descriptive Literature. Bid samples or
descriptive literature may be required when it is necessary to
evaluate required characteristics of the items bid. Bid samples
will be returned in accordance with provisions contained in the
bid documents.
2. Identification of Bids. Bids shall be submitted in a sealed
envelope appropriately marked or in the envelope provided by the
City, which is applicable, to ensure proper identification and
special handling. The City shall not be responsible for the
proper identification and handling of any bids not submitted in
the designated envelope.
3. Receipt of Bid. It is the bidder's responsibility to ensure that
bids are received by the City prior to the stated bid closing
time.
30.035 Bid Security
1. Public Improvement Contracts, Bid security not: to exceed 10
percent of the base bid(s) shall be required for public
improvement contracts where the amount: of the contract exceeds
$10,000. The bid security shall be forfeited if the bidder fails
to execute se cvntr«ci promptly and Properly ii «wariieu. vita -
279.031).
2. Other Public Contracts. Bid security riot to exceed 10 percent of
the bid may be required by the City for other contracts in order
to guarantee acceptance of 'he award. This requirement shall be
stated in the bid documents
3. Contracts Under $10,000. Bid security for contracts of less than
$10,000 shall be required only in critical circumstances, so as
not to discourage competition.
4. Form of Bid Security. The following forms of bid security will
be accepted by the City;
22 ._
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a. Surety bond from a surety company authorized to do business
in the State of Oregon;
b. Cashier's check, certified check, or- savings and loan secured
check; or
c. Annual surety bond field with the City (except for public
improvements contracts).
5. Return of bid Security. The bid security of all unsuccessful
bidders shall be returned after a contract has been executed, or
all bids have been rejected. The public agency may return the
bid security of unsuccessful bidders after bid opening but prior
to award, if the return does not prejudice bid award and provided
that the security of at least the three lowest bidders is
retained pending the execution of a contract.
s�
30.040 Pre—Bid Conferences
Pre—bid conferences may be held by the City to explain the
procurement requirements or conduct site inspections. The city
may require attendance at the pre—bid conference as a condition
for bidding. Such conferences shall be announced to all
prospective bidders in the bid documents. The pre--bid conference
shalt by held within a reasonable time after the bid documents
have been issued to allow bidders to become aware of it, but
sufficiently before bid closing to allow consideration of the
conference results in preparing bids. Statements at the pre-bid
conference shall not change the bid documents unless confirmed to
all prospective bidders by means of a written addendum to the bid
documents.
30.045 Brand Name Products
1. Product Requirement by Brand Name Prohibited. Specifications for,
public contracts shall not expressly or implicitly require any
product by any brand name or mark, nor the product of any
particular manufacturer or seller except pursuant to exemptions
authorized by the rules including but not limited to: }
A. Copyrighted Materials; AR 20.010.
b. Single Seller of Product Required and Single Manufacturer or
Compatible Products; AR 20.030 and AR 10.065
3
'L:. Specification of' Particular Brand Names or PP'ode.iCT:q: FIK
20.010.
d. public agencies may identify products by brand names so long k
as "approved equal." or "or equal" is included in the bid
documents.
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is
30.050 Protest of Bid Specifications
1. Time for Submission of Protest. Protests of bid specifications
shall be presented to the City in writing in accordance with the
following timelines:
a. Public Improvement Contract — ten (10) calendar days prior, to
bid closing;
b. Other Public Contracts — five (5) calendar days prior, to bid
closing;
Such protest shall include the reasons for protest and any
proposed changes to specifications. No protest against award
because of the content of bid specifications shall be considered
after the deadline established for submitting such protest.
2. Extension of Opening Date. if any bid specification protest is
received in accordance with section (1) above, the bid opening
date may be extended if necessary to allow consideration of the
protest and issuance of any addenda to the bid documents.
3. Identification of Protest. Envelopes containing protests of bid
specifications shall be marked as follows:
Bid Specification Protest _
Bid Number or Other Identification
30.055 Addenda to Bid Documents
1. Form. Changes to bid documents shall be accomplished by
addenda. The bidder shall acknowledge receipt of all addenda
issued, either with the bid or separately prior to bid opening.
_. Distribution. Addenda shall be sent to all prospective bidders
known to have obtained the bid documents or attending any
mandatory pre—bid conferences.
3. Timeliness. Addenda shall be issued within a reasonable time
prior to bid closing to allow prospective bidders to consider
them in preparing their bids, but in no case less than 72 hours
before the bid closing. If necessary, the City may notify
prospective bidders by telegram or telephone, followed by a
confirming written addendum.
30.060 Pre—opening rjoaificatiun or wi%'iu'rawai of gids
1. - Modifications. Bids once submitted may be modified in writing
prior to the time and date set for bid closing. Any
modifications shall be prepared on the company letterhead, signed
by an authorized officer, and state that the new document
supersedes or modifies the prion bid. Telegraphic modification
shall not be accepted unless authorized in the bid documents. To
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1
ensure the integrity of the bidding process, the envelope
continuing any modifications to a bid shall be marked as follows:
Bid Modification
Bid Number or Other Identification
2. Withdrawals.
a. Bids may be withdrawn by written notification on company
letterhead signed by an authorized person and received prior
to the time and date set- fur bid closing. Bids also may be
withdrawn in person prior• to the scheduled bid closing upon
presentation of appropriate identification.
b. Unopened bids withdrawn under subsection (a) above, may be
released to the bidder, after voiding any date and time stamp
used.
c. Requests to withdraw mailed bids shall be marked as follows:
Bid Withdrawal
Bid Number or• Other Identification
3. Documentation. All documents relatir:a to, fihe modification or
withdrawal of bids shall be made a part of the appropriate bid
file.
30.065 Receipt, Opening, and Recording of._Bids
1. Receipt. Upon its receipt, each bid and modification shall be
time—stamped or marked by hand but riot opened and shall be stored
in a secure place until bid opening. If bids or modifications
are opened inadvertently or are opened prior to the time and date
set for bid opening because they were improperly identified by
the bidder, the bids or authorized modification documents shall
be re3ealod and stored for opening at the correct time. When
:.i ca., 0.1—CUPS, i]U4l,iliiicii�a Livii o 4I ox,ti �Jr6ci:uuik srlwli be pJic U"4 iiI
the bid file.
2. Opening and Recording. Bids and modifications shall be opened
publicly, at the time, date, and place designated in the bid
documents. If witnesses are present at the bid opening, and to
the extent practicable, the name of each bidder•, the bid
price(s), and such other information as considered appropriate,
aloud. on voluminous bids, the City may advise
shall be read a,.vwM. ____.._
bidders as part of the bid documents that the bid items and
prices will not be read aloud.
3. Availability. The opened bids shall be available for public
inspection prior to award except to the extent the kidder
designates trade secrets or other proprietary data to be
confidential. ORS 192.500(1)(b). The City shall verify and
- 25
determine that the confidential information claimed to be exempt
is in fact exempt from disclosure under the Oregon Public Records
Law. Material so designated shall accompany the bid and shall be
readily separable from the bid in order to facilitate public
inspection of the nonconfidential portion of the bid. Prices,
makes, model or catalog number of items offered, scheduled
delivery dates, and terms of payment shall be publicly available
regardless of any designation to the contrary.
30.070 Late Bids, late Withdrawals.and Late Modifications
1. Definition. Any bid received after the time and date set in the
bid documents for receipt of bids is late. Any request for bid
withdrawal or modification received after the time and date set
for bid closing is late.
2. Disposition. Late bids, late modification, or late withdrawals
shall not be considered.
30.075 Mistakes in Bids
1. General. Clarification or withdrawal of a bid because of an
inadvertent, nonjudgmental mistake in the bid requires careful
consideration to protect the integrity of the competitive bidding
r
system, and to assure fairness. Except as provided in this rule,
if the mistake is attributable to an error in judgment, the bid
may not be corrected. Bid correction or withdrawal by reason of
a nonjudgmental mistake is permissible but only to the extent it
is not contrary to the interest of the City or the fair treatment
t of other bidders.
2. Mistakes Discovered After Bid Closing but Before Award. This
subsection prescribes procedures to be applied in situations
where mistakes in bids are discovered after the time and date set
for bid closing but before award,
a My H,'1 r• Tnfor—m lii-11--s• 1#11mo .,:if Vi iiiuillt.ic.'a i v matters Vi form —� —
rather than substance that are evident from the bid
documents, or insignificant mistakes that can be waived or
corrected promptly without prejudice to other' bidders or the
City; that is, the informality does not affect price,
quantity, quality, delivery, or contractual conditions except
in the case of informalities involving unit price. Examples
include, but are not limited to, the failure of a bidder to:
(1) Return the number of signed bids or the number of other
documents required by the bid documents;
(2) Sign the bid form in the designated block so long as a
signature appears in the bid documents evidencing an
intent to be bound;
(3) Acknowledge receipt of an addendum to the bid documents,
u
but only if:
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26
(A) It is clear from the bid that the bidder received
the addendum and intended to be bound by its terms;
or
x._ (B) The addendum involved did net affect price,
quantity, quality, or delivery.
(b) Mistakes Where Intended Correct Bid is Evident. If the
mistake and the intended correct bid are clearly on the face
of the bid form, or can be substantiated from accompanying
documents, the City may accept the bid. Examples of mistates
that may be clearly evident on the face of the bid form are
typographical errors, errors in extending unit prices,
transposition errors, and arithmetical errors. For
discrepancies between unit prices and extended prices, unit
prices shall prevail.
(c) Mistakes Where Intended Correct Bid is Not Evident. The City
may not accept a bid in which a mistake is clearly evident on
the face of the bid form but the intended correct bid is not
clearly evident or cannot be substantiated from accompanying
documents.
30.080 Time for Acceptance
Bids shall be valid for thirty (30) days unless otherwise
specified in the bid documents.
30.085 Extension of Time for Acceptance of Bid
Notwithstanding AR 30.080, after, opening bids, the City may
request orally in writing that bidders extend the time in
writing during which the City may accept their bids. - —
m 30.090 R i d Fat i on Mnd n ird ---
1. General. The contract, if awarded, is to be awarded to the
lowest responsible bidder. Consistent with the provisions of the
bid documents, awards may be made by item, groups of items, or�
entire bid in the public interest as determined by the City. The
city reserves the right to reject any bid not in compliance with
the bid documents or all bids pursuant to ORS 279.0335 when it is
in the public interest to do so.
2. Special Requirements. The bid documents- shall set forth any
special requirements and criteria which will be used to determine
the lowest resnnnsihle bidder fun hi „d -hall -bee evaluated for any
requirementor criterion that is not disclosed in the bid
documents or City regulation.
g 3. Product Acceptability.
a. The bid documents shall set forth the evaluation criteria to
`. g{ be used in determining product acceptability. The City may
r,M
— 27
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i the nuhmixoion of bid samples, descriptive
r� � technicaldata, or other material, and may also
provide^^^~�~~~fu' accomplishing any of the following prior to award.
^ (`
inspection or testing of a
pro6uot prior
(1) Demonstration,
to award for such characteristics a quality or
workmanship;
(2) Examination of such elements as appearance, finish,
taste, or feel; or
(3) Other examinations to determine whether the product
conforms with specifications.
b' The acceptability evaluation is conducted only to determine
that m bidder's offering is acceptable as provided in the hid
duouments Any bidder's product which does not meet the
minimum 'equiremento shall be rejected. Product rejections
are not ' considered bidder disqualifications and are not
grounds for appeal under ORS 279,043.
4' Determination of Lowest Responsible Bidder. Following
determination of project acceptability as set forth in subsection
(2) if any is required, bids will be evaluated to determine which
6i4,jar nffurn the lowest ouot to the City in accordance with the
-
evaluation criteria set forth in the bid documunty. only
objectively measurable criteria which are set forth in the bid
documents shall be applied in determining the lowest responsible
bidder. Examples of such criteria include' but are not limited
to transportation uuot, onlume weighing' trade—in allowances,
'
depreciation allowances, cartage penalties' an
d ownership or life
cycle onot formulas, Evaluation factors need not be Precise
-
t to the extent poonible `
edio�oro of actual future costs; but u . m
pr
such evaluation factors shall:
m. Be reasonable estimates based upon information the City has
available concerning future use; and
b. Treat all bids equitably.
n' Recognize that public policy requires acquisitions and public
the leant uu,t
'/( ~
improvements to he accomplishedt a . ORS
� | 279.023(l).
5 Re«triotipnn Nothing in this section shall be deemed to permit `
` ' ' '^~—' bidder submitting a higher quality item than
contract award c» a ou documents if ch bidder- is not also
that designated in the bid
the lowest responsible bidder an determined under subsection (4)
of this section. Further, this section does not permit
negotiations with any bidder'
�
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30.095 Low 'Tie Bids
1. Definition. Low tie bids are low responsive bids from
responsible bidders that are identical in price, fitness,
availability and quality and which meet all the requirements and
criteria set forth in the bid documents.
2. Award.
a. Low tie bids are subject to the Oregon preference contained
in ORS 279.021(1):
"In all public contracts, the public contracting agency shall
prefer goods or services that have been manufactured or
produced in this state if price, fitness, availability and
quality are otherwise equal."
b. Low tie bids that remain tied after application of the
statutory Oregon preference shall be awarded according to the
following sequence:
(1) Preference shall be given to the bidder, whose principal
offices or headquarters are located in Oregon.
(2) Tf afi.n still remains after applying (1) above, award
shall be made by drawing lots among any tied Oregon
bidders. Such bidders shall be given notice and an
opportunity to be present when the lots are drawn.
(3) If none of the tied bidders is located in Oregon, award
of the contract shall be made by drawing lots.
30,100 Reiection of Individual Bids or Proposals
1. General. This section applies to rejections, in whole or in
part, of individual bids or proposals. In accordance with ORS
279.035, the City may reject in whole or- in part, any bid not in
compliance with all prescribed bidding procedures and
requirements. No bid shall be considered unless the bid
security, properly executed, has been submitted with the bid as
required by the bid documents.
2. Reasons for Rejection. Reasons for rejecting a bid include but
are not limited to:
a. The bidder has not prequalified under ORS 279.039, or has
been disqualified under ORS 279.037;
b. The bidder has been declared ineligible by the Commissioner
of the Bureau of Labor and Industries under ORS 279.361;
c. The bid is riot responsive, that is, it does not conform in
all material respects to bid documents or
— 29 —
dThe supply, service, or construction item offered in the bid
' is unacceptable by reason of its failure to meet the |
requirements of the bid documents or- permissible alternates !
or, other acceptability criteria set forth in the bid
�r-
documents.
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30.1{y5 Negotiat' with Bidders Prohibited
is used, the public agency shall
Unless a request fcr proposal |
not negotiate with any hidder, prior to award of a contract. }
After award of the contract, modifications to the contract shall '
be made with change orders or addenda to the contract and in
aocurdance with the exemption rules. \
30,-110fication
1 Grounds for Disqualification. As provided in ORS 279.037' the
� d � bidder disqualification:
following are grounds for �
a' The person does not have sufficient financial ability to }
perform the contract. If a bond in required to ensure
p f tract evidence that the person can
|
perf«rman»eu»etyah «»n in the amount and type required shall
�
^ acquzre m surety "''" '' |
be sufficient to establish financial ability;
\
b. The person does not have equipment available to perform the |
contract;
^ /~ c. The person Jueo no
t have key personnel available of {
sufficient experience to per-form the contract;' nr
` d. The person has repeatedly breached contractual obligations to
public --nd priva4u :ontraoting ag"ncieu. [
'
' -mak such nve,tzym^i",. as is
1 u Investigation, The ^^^' ^~y —
-� � necessary �o �erennzne whether ° p~' ^~'' is qualified
l � � rma�zun prv�p`^x
prospectivebidderfo rn vupp » ^'` "
n � " ^^^ ',~' .____ grounds
,. r�quex�e » °, ' �
, .^~,~~^^. -.-_—
a. The effective date of the disqualification and the effective
period of disqualification;
b. The grounds for disqualification from bidding; and
c. A statement of the contractor's appeal rights and -applicable
appeal deadlines.
5. Appeal of Disqualification. If a contractor wishes to appeal the
City's decision to disqualify, the contractor must notify the
City in writing within three (3) business days after receipt of
the notification. The City shall mail .its notice to the
contractor by Certified Mail -• Return Receipt Requested.
30.115 Cancellation of Invitations to Bid
1. Cancellation in the Public Interest. An invitation to bid may be
cancelled, in whole or in part, and all bids may be rejected when
it is in the public interest as determined by the city. The
reasons therefor shall be made part of the bid file.
2. Notice of Cancellation. When an invitation to bid is cancelled
prior to bid opening, notice of cancellation shall be sent to all _
holders of bid documents. When an invitation to bid is cancelled
after bid opening, notice shall be sent to those bidders who
submitted a bid. The notice of cancellation shall:
a. Identify the invitation to bid;
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b. Briefly explain the reason for cancellation; and
c. Where appropriate, explain that an opportunity will be given
to compete on any resolicitation.
30.120 Disposition of bids or Proposals if Bid Cancelled
1. Prior to Bid Opening. When an invitation for bids is cancelled
prior to bid opening, all bids received will be returned to
biuuers unopened, if submitted with a clearly visible return
address. If there is no return address on the envelope, the bid
will be opened to determine the source and then returned to
sender.
2.. After Bid Opening. When all bids are rejected, the bids received
shall be retained and become part of the City's permanent file.
30.125 Documentation of Award
1. Basis of Award. Following award, a record showing the basis for
determining the successful bidder shall be made a part of the bid
file.
2. Contents of Award Record. The record shall consist of:
31
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a. Completed bid tabulation sheet,
b. Written justification of any rejection of lower, bids.
�. 30.130 Foreign Contractor (ORS 279.021
If the amount of the contract exceeds $10,000 and the contractor
is a "foreign contractor," the contractor shall promptly report
to the Oregon Department of Revenue on forms to be provided by
the Department of Revenue the total contract price, terms of
payment, length of contract and such other information as the
Department of Revenue may require before final payment can be
received on the contract. A copy of the report shall be
forwarded to the City. The City shall satisfy itself that the
above requirements have been complied with before it issues final
payment on the contract, For the purposes of this rule, a
foreign contractor is one who is not domiciled in or registered
to do business in the State of Oregon.
30.135 Availability_ of Award Decisions — Contract Retention
1. Contract Documents. A signed purchase order, price agreemient, 0--
contract document, as applicable, shall be sent to the successful
bidder.
2. Notification to Unsuccessful Bidders. Unsuccessful bidders need
not be notified. Tabulations of awarded bids may be obtained for
a nominal charge in person or by submitting to the public agency
a written request stating the bid number and a self--addressed,
t stamped envelope,
3. Availability of Bid Files, Completed bid files shall be
available for public review at the City.
4. Copies from Bid Files. Copies of materiae from bid files, ether
than previously described tabulation sheets, may be obtained upon
payment of a reasonable copying charge.
5. Contract Retention. The following requirements on retention of
contract documents after award shall apply:
a. For all service contracts the original must be kept for, two
years after the contract has been completely executed;
b. Capital contracts must be kept permanently;
c. Goods contracts must be kept for seven years after maturity;
d. Intergovernmental and interagency agreements must be kept
permanently.
Any copies of the originals must be kept for two years after
maturity in all of the categorie$ listed above.
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30.140 Performance Security
1. Public Improvements Contract. Except in emergencies, when the
requirement may be waived pursuant to ORS 279.029(3), a
l performance bond in a sum equal to the contract price shall be
required for all public improvement contracts in excess of
$10,000.
2. Other Public Contracts, The City may require performance
security for other public contracts. Such requirements shall be
stated in the bid documents.
3. Contracts Under $10,000. Performance bonds for a contract under
$10,000 shall be utilized only in critical circumstances, so as
not to discourage competition.
4. Requirement for Surety Bond. A surety bond furnished by a surety
company authorized to do business in Oregon is the only
acceptable form of performance security unless specified in the
bid documents.
_ 'J, l lme for Subjul5tslun. Upoi, request by t1he city, the aMpar'ent
successful bidder must furnish the required performance bond
within 10 days. Prompt submittal of the performance bond is
required to ensure timely project initiation. Failure to furnish
the bond prior to the deadline shall result in rejection of the
bid, and forfeiture of bid security and award to the next lowest
esponsible bidder.
30.145 Right to Audit Records
1. Audit of Cost or Pricing Data. The City may, at reasonably times
and places, audit the books and records of any person who has
submitted cost or pricing data according to the terms of a
contract to the extent that such books and records relate to such
cost or pricing data. Any person who receives a contract, for
which cost or pricing data are required, shall maintain such
books and records that relate to such cosi or p, sing data for
three (3) years from the date of final payment under the contact,
unless a shorter period is otherwise authorized in writing.
2. Contract Audit. The City shall be entitled to audit the books
and records of a contractor or any sub,-ontractor under any
contract or subcontract to the extent that such books and records
relate to .the performance of such contract or subcontract. Such
books and records shall be maintained by the contractor for a
period of three (3) years from the date of final payment under
the prime contract and by the subcontractor- for a period of three
(3) years from the date of final payment under the subcontract,
unless a shorter period is otherwise authorized in writing
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30.150 Right to In Plant
1. Time for- Inspection. The city may, at reasonable times, inspect
f the part of the plant or place of business of a contractor, or any
't subcontractor which is related to the performance of any contract
awarded.
2. Access to Plant or Place of Business. As a condition of bidding,
bidders agree that the City may enter, a contractor's or
subcontractor's plant or place of business during normal business
hours for the following purposes: E
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a. Inspect and/or test supplies or services for acceptance by
the City pursuant to the terms of the bid;
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b. Investigate in connection with a bidder's application, a s
minority business certification, or bidder, qualification; r
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3. Contractual Provisions. Contracts may provide that the City may
inspect supplies and services at the contractor's or
subcontractor's facility and perform tests to determine whether
they conform to the bid documents, or, after award, to contract
requirements, and are therefore acceptable. S;.ich inspections and
tests shall be conducted in accordance with the ter-ins of the --
contract.
A. Procedures for Trial Use and Testing. The City may establish
operational procedures gotierning the testing and trial use of
/ equipment, materials, and the application of resulting
l information and data to specifications or procurements, f
5. Conduct of Inspections. `
a. Inspectors. Inspections or tests shall be performed so as
riot to unduly delay the work of the contractor or
subcontractor. No change of any provision of the
specifications or the contract may be required by the
inspector without written authorization of the public agency, s
unless otherwise specified in the bid documents. The
presence or absence of an inzpector shall not relieve the
contractor or, subcontractor from any requirement of the
contract.
b. Location. When an inspection is made in the plant or place
of business of a contractor or subcontractor, such contractor
or subcontractor shall provide without charge all reasonable
facilities and assistance for the safety and convenience of
the person performing the inspection or testing,
c. Time of Testing or Inspection. Inspection or testing of
supplies and services performed at the plant or place of
business of any contractor or subcontractor shall be
perforned at reasonable times during normal business hours.
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on the contractor's bond, if a notice of such claim has been
filed prior to the expiration of six (6) months following the
acceptance of the work by the City.
2. Notice of Claim. To initiate a claim against the contractor's
bond, a person should file with the Purchasing Agent a Notice of
Claim in the form and manner attached as Exhibit A.
Any notice of claim should include the following information:
a. Name and address of the claimant;
b. Name of prime contractor;
C. Title of project and contract date;
d. Name of the City;
e. Name of bonding company (may be obtained from City);
3. Response to Notice of Claim. Upon receipt of such Notice of
Claim, the City shall:
a. Send acknowledgment to claimant;
b. Send copy of notice to contractor;
C. File copy of Notice with Secretary of State.
d. File copy of Notice with bonding (surety) company .
4. Referral to Surety Company, If- the contract has been completed
and all funds disbursed to the prime contractor, the City shall
refer all claims to the surety company for resolution. The City
z shall not arrange for second payments directly to subcontractors —
or suppliers for work already paid for by the City.
5. Discretionary Payment of Claim. if the contract is still in
force, the city may, in accordance with ORS 279,314, pay a valid
L_ '1-.L...r. V.mow serv1Co-s and charge
claim to the person furnishing the
the amount of the payment against funds due or to become due to
the contractor under the contract.
Liability of Claim. If the city chooses to make such a payment
6. L y
as provided in ORS 279.314, the contractor or the contractor's
x surety shall not be relieved from obligation with respect to any
unpaid claims.
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40.045
EXHIBIT A
To: (insert name of the public, body)
NOTICE. IS HEREBY GIVEN that the undersigned, (inseri: name o.
or supplier), a (corporation, partnership, sole proprietorship, etc.), as
claimant, has a claim for (labor performed by the claimant, materials supplied
by the claimant, etc.), generally consisting of (brief- description) in the sum
of $� _ _ against the bond taken from (name of prime
centractor), as principal, and (name of bonding company), as surety, for the
• � of rirni2ct� at (name of agency), (city), Oregon,
construction of the (ti,.�. _w
said contract dated (insert date) by and between the public agency, as Agent
of the State, and (name of prime contractor), as Contractor.
(Insert a brief description of the work concerning which the bond was
taken.)
DATED this � day of � 19
8y -- —
(claimant's name and title)
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AR 50.000 WAIVER OF SECURITY BID AND PERFORMANCE BOND
50.010 Bid Security Requirements
y. The City may, in its discretion, waive the bid security
requirements of ORS 279.027 for contracts other than those for
public. improvements. (In the discretion of the Purchasing Agent
the City may accept blanket bid bonds.)
50.020 Contracts Under $10,000
The City may, in its discretion, waive the bid security
requirements of ORS 279.027 and performance bond requirements of
ORS 279.027 if the amount of the contract for the public
improvement is less than $10,000.
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A
AR 60.000 PROPERTY DISPOSITION
f
60.010 Auction Sales of Personal Property
Personal property may be sold at auction if the city
Administrator determines that the auction contemplated will
probably result in a higher net: return than if the property were
sold by competitive written bid.
60.015 Sales of Personal Proper
The City may sell personal property, including recyclable or
reclaimed materials, without formal competitive bidding if it has
determined that a negotiated sale will result in increased net
revenue and the following conditions are complied with the
following:
1. Mhen the current market value per item is deemed to be less than
$1,000, the City may establish a salli g P-1c". I;chedule and
advertise .a sale date, and yell to the first qualified buyer
meeting the sale terms; or
2. When the current value per item is deemed to exceed $1,000, the
personal property must be offered for competitive written bid and
be advertised in accordance with ORS 279.02.5, or be offered for
sale at public auction in accord knee withl ^R 60.010. if no bids
are received or if a determination is made that the market value
of the property exceeds the offer of the highest responsible
bidder, all bids may be rejected and the City may negotiate a
sale subject to the following conditions:
a. An appraisal of the market value of the property is obtained
and documented and the negotiated sale price exceeds the
market value; or
b. The sale amount exceeds the highest bid received through the
bidding ur auction process. ftm�—-
60.020 Liquidation Sales of Personal Proper
The City may sell personal property through a commercially
recognized third party liquidator if the City has determined that
a liquidation sale will result in increased net revenue and the
selection of the liquidator was conducted, as a minimum, by the
competitive request-for-proposal process governed by rule 10.110.
60.025 Donations of Personal Proper
1. The City may transfer personal property, including recyclable or
reclaimed materials, without remuneration or only nominal
remuneration without competitive bids to the following activities:
a. Another public agency; or
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b. Any sheltered workshop, work activity center or group care
home which operates under contract or agreement with, or
grant from, any state agency and which is certified to
t' receive federal surplus property; or
c. Any recognized non—profit activity which is certified to
receive federal surplus property.
2. The City may donate or sell, without competitive bids, surplus
personal property to recognized private non—profit social or
health service activities, subject to the following conditions:
a. A determination has been made that the property is riot needed
for other public purposes;
b. If the property has a current market value of $250 or more,
the donation or sale shall;
(1) Be approved by the City Administrator;
(2) Be documented by the City to be clearly in the public
interest.
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AR 70.000 PERSONAL SERVICES CONTRACT
t_
70.010 Personal Services Contracts
The City may enter into personal services contracts as provided
by 10.010(b) based upon the following:
I. The following are personal service contracts:
a. Contracts for services performed as an independent contractor
in the professional capacity, including but riot limited to
the servicos of an accountant; attorney; architectural or
land use planning consultant; physician or dentist;
registered professional engineering; appraiser or surveyor;
aerial photographer; tinier; broadcaster; or data processing
consultant.
b. Contracts for services as an artist in the performing or fine
arts, including but not limited to photographer, film-maker;
painter; weaver; sculptor.
c. Contracts for services of a specialized creative and research
oriented, noncommercial nature.
d. Contract for services as a consultant.
e. Contracts for educational and human custodial care services.
2. The following are NOT personal service contracts:
a. Contracts, even though in a professional capacity, if
predominately for a N,uuUct, e.g., a contract with a
landscape architect to design a garden is for personal
services, but a contract to design a garden and supply all
the shrubs and trees is predominately a tangible product.
b. A contract to supply labor which is a type that can generally
be done by any competent worker, e.g. , Janitorial, security
Y guard, crop spraying, laundry and landscape maintenance
service contracts.
c. ' Contracts for tr Je related activities considered to be labor
and material contracts.
d. Contracts for services of a trade-related activity, even
though a specific license is required to engage in the
activity. , Examples are repair and/or maintenance of all
types of equipment or structures.
, 47 _
AR 80.000 PROCEDURES
80,010 Rules Of Procedure
l Roberts Rules of Order, excepting that seconds will not be
required, will govern proceedings of the Board where they do riot
conflict with these rules or, statutory provisions.
80,015 Meetings
1. The applicable provisions of the Public Meetings Law shall
control the notice and character of meetings of the Board,
i
2. Meetings of the Board may be held by conference telephone call
after required public notice. The Chairperson shall conduct the
meeting using a speaker telephone attachment.
3. On urgent or perfunctory matters, the Chairperson may, by
telephone, poll the members of the Board. Electronic transcripts
of the polling calls will be made and retained. In the course of
a poll, any member may request the matter be discussed by ;
conference call or deferred to a meeting.
4. Prior to conference calls or telephone polls, the press and
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public, including persons directly interested in the subject
matter of the poll, shall be given reasonable notice uh«t they
may be present in the office of the Chairperson at the time of
the meeting or poll. -
{ 80__020 Reports
All reports required to be submitted to the Board by those rules
or statutes shall be provided to each Board member in advance of
the date the item is scheduled for review.
i
80,025 Notice Of Rule Amendment, Adoption, Repeal
Notices of amendment, adoption or repeal of rules, including
contract exemption rulings and of meetings of the Local Contract t
Review Board and the agenda of the meetings shall be sent to the
following at least seven (7) days prior to the meeting:
a. Press: The Oregonian, The Tigard Times, The Daily Journal of
Commerce.
- 48 -
b Management and Labor; Association of Oregon :Industries;
Associated General Contractors; Oregon Construction Industry f
Council; Oregon AFL—CIO, and Oregon State Building Trades
Council.
c. Any persons requesting notice in writing who show themselves
in a position to be affected by the Board's determination.
80.030 Meeting Agenda
The agenda of the meetings of the Board shall include the
following;
a. Unanimous consent calendar pursuant to AR 90.045 including a
brief description of the contract exempted and the amount of
the contract.
b. Consideration without hearing of pending applications for
exemption. The agenda will list all proposed pending
exemptions with a brief description of proposed exemptions
including the amount of the contract.
c. Consideration with hearing of pending applications for
exemption rulings.
d. Contested case hearings of appeals of disqualification or
revocation or ;requalification, including the name of the
contractor and the grounds of the proposed disqualification
or revocation or prequalificat-ion.
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AR 90.000 EMERGENCY CONTRACTS; SPECIFIC EXEMPTION REQUESTS; BOARD EXEMPTION
PROCEDURES, TEMPORARY EXEMPTIONS
~ � !90.010
^ `
l. The City Administrator may, in the Administrator-Is discretion,
authorize or let public contracts without formal competitive
bidding if an emergency exists and the emergency ounaioto of
circumstances that could not have been reasonably foreseen and
requires prommt execution of a contract to remedy the condition.
2. The City Administrator or the Administrator's representative must
declare that emergency and make detailed written findings
describing the emergency conditions necessitating prompt
execution of the contract. H copy of the findings together with
the amount of the contract and the name of the contractor shall
be immediately forwarded' by the purchasing Agent. to '--he Board.
90,015 Specific Exemptions
1. The Purchasing Agent may apply to the Board for a ruling under HR
*8.030 through 90.045 exempting a particular contract or
contracts from competitive bidding requirements of ORS 279.015
which are not otherwise exempted under those rules. The
application shall contain the following i,.yormatian: �
a. The nature of the project;
/ . b. Estimated cost of the project;
» \ '
o. H narrative description of the cost savings anticipated by
the exemption from competitive bidding and the reasons
competitive bidding would be inappropriate;
d. Proposed alternative contraction and purchasing practices to
' . be employed; and
e. The estimated date by which it would be necessary to let the
�
contract.
� u. The Board may require such additional information as it deems
necessary to determine whether a specific contract is to be
� exempt from competitive bidding.
50.020 Brand Name Or Mark...Exemption Applications,
��-
The Purchasing Agent may apply for and receive brand name or
mark exemption ruling from the Board for current and contemplated
r future puruhayeo. Applications shall contain the following
,
information:
'
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_ 50 _
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a. A brief description of the contract or contracts to be
covered. The description should include contemplated future
purchases.
tf b. The brand name, mark or product to be specified.
C. The reasons the Purchasing Agent is seeking the exemption.
90.025 Conditions Of Brand Name Exemptions
'The Board may grant exemptiuns if the following conditions are
met:
a. The exemption is riot likely to encourage favoritism in public
contracts or substantially diminish competition and will
result in cost savings.
b. There is only one manufacturer• or seller of thc, product of
the quality required, or efficient utilization of existinq
equipment or supplies requires acquisition of compatible
equipment or supplies.
c. The exemption is requested for the purchase of a particular
product to be used in an experimental project.
90.030 Notice Of Application
_ Uoon receipt of an application for an exemption ruling under AR
90.015 or AR 20.040, the Chairperson of the Board shall set the
matter• for• public hearing to receive data, views, arguments and
shall cause a notice of intention to adopt an order to be posted
in full public view in the City Hall and shall publish notice of
the intention to adopt the order in a newspaper of general
circulation at _least 7 days prior to the hearing.
90.035 Board Hearincl
The application will be placed on the Board's agenda for the next
Board meeting, and, in the exercise of discretion, the :
Chairperson may also set additional public meetings to receive
dattz, views and arguments.
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90.040 TemporarRules Exemptions
In appropriate cases, the Chairperson of the Board may grant a
temporary exemption from public bidding pending formal
consideration of a specific exemption.
90.045 Unanimous Consent Calendar
The Chairperson of the Board may, in the exercise of discretion
notify the members of the Board that an application for exemption
has been made and that if no objections are received to the
exemption from the members of the Board within seven days of the
Chairperson's notice the exemption will be considered granted by
unanimous consent and the Chairperson may in the exercise of
discretion, deem the exemption adopted as a temporary rule.
Exemptions so adopted will be placed on the Board's agenda as a
unanimous consent calendar for ratification or adoption as a
permanent rule by the Board at the next meeting of the Board.
(AB;lw/0698F)
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6. Inspection of Construction Projects, On--site inspection of
construction shall be performed in accordance with the terms of
the contract.
30.155 Contract Cancellation Procedures
i
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Grounds for Cancellation. A contract may be cancelled by the
City for any violation of the provisions of the contract. Such
provisions generally include, but are not limited to:
t
1. Standard terms and conditions included in all contracts;
2. Product or service specifications;
3. Delivery or completion requirements;
4. Contracted pricing and price escalation/de--escalation clauses.
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AR 40 PUBLIC IMPROVEMENT CONTRACTS
40.000 Alaplication_
In addition to the requirements set forth in Division 30 of these
rules the following rules apply to public improvement contracts,
40.005 Competitive Bidding 1
Public improvement contracts, if awarded, shall be awarded by the
City to the lowest responsible bidder as defined by statute
unless otherwise exempt under ORS 279.015, 279.053 or 2.79.056.
4
40.010 Public Notice s
1. Trade Newspaper Advertisement. In addition to the requirements
of AR 30.015, public improvements having an estimated coat in
excess of $50,000 shall be advertised for bids in at least one
trade newspaper of general state—wide circulation.
2. Prevailing Wage Rate Notice• if the following conditions apply,
the Glly shall Ll ll tUde in t t,QYu hl i nn1_i c0 a statement that the
o .
bidder shall comply with the requirements of the prevailing wage
law in ORS 279.350:
a. The bid must be for public works as defined in ORS 279.346(3)
which includes construction, reconstruction, major renovation
or painting of roads, highways, buildings, structures and
improvements of all types;
S 1_
Thecontract-- n_ rice for the project: exceeds $10,000; and
l
c. The project is not regulated under the Davis-.Bacon Act (40 € -----
USC 276x). (QRS 279.357).
40.015 Bid Evaluation and Award
Award of a public improvement contract shall be to the lowest
responsible bidder on the basis of total bid price. If the bid
includes unit prices and extensions for estimated quantities, the
total bid price for the purpose of comparing bids will be the
total sum computed from bid quantities and the unit prices 4
entered thereon by the bidder with due adjustments being made for
alternate items and any specified or authorized reductions,
additions or changes. In case of conflict between a unit price
and the corresponding extended amount, the unit price shall
govern.
40.020 Contract Cancellation Procedures
1. Termination Due to Circumstances Beyond the Control of the
Contractor (ORS 279.326, 279.326, 279.330, 279.332). t-
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a. Reasons for Termination. The City may, by written order or-
upon written request from the contractor, terminate the
contract or a portion thereof if arty of the following occur;
t
(1) The contractor is prevented from completing the work for
reasons beyond the control of the City;
(2) Completion of the project is beyond control of the
contractor;
(3) Or for any reason considered by the city to be in the
public interest (other than a labor dispute or reason of
any third party judicial proceeding relating to the work
other than a suit or action filed in regards to a labor
dispute). These reasons may include, but are not
necessarily limited to, non—availability of materials,
phenomenon of nature of catastrophic proportions or
intensity, executive orders of the President related to
national defense, congressional or state acts related to
funding.
b. Payment When Contract is Terminated. When the contract, or
any portion thereof, is terminated before completion of «ll
items of work in the contract, payment will be made for the
actual items of work completed ur,ier the contract, or by
mutual agreement, for items of work partially completed. No
claim for loss of anticipated profits will be allowed.
c:. Responsibility for Completed Work if Contract Terminated.
Termination of the contract or a portion thereof shall not
relieve the contractor of responsibility for the work
completed, nor shall it relieve the surety of its obligation
for arty just claims wrisinq froa, the work pz:fcrm d. ----
7 Termination of Contract for Default (ORS 279.333).
a. If the contractor should persistently or repeatedly refuse to
or fail to .supply enough properly skillsd workmen or proper
materials for the efficient execution of the project, or,
should fail to make prompt payment to ; subcontractors for
material or labor, or persistently disregard laws, ordinances
or the instruction of the City, or otherwise be guilty or a
substantial violation of any provision of the contract, then
the City without prejudice to any other right or remedy and
after giving the contractor or the surety seven (7) day's
written notice, may terminate the employment of the
contractor and take possession of the premises and of all
materials, tools and appliances thereon as well as all other
materials whether on the premises or not, on which the
contractor has received partial payment. The City may finish
the work by whatever method it may deem expedient.
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b. Required Response to Declaration of Default. If the above
action is taken, the contractor or the surety shall provide
the City with immediate and peaceful possession of all of the
materials, tools and appliances located on the premises, as
well as all other materials whether on the premises or riot,
on which the contractc.r has received any progress payment.
further, the contractor shall not be entitled to receive any
further payment until the work is completed. On the
completion of the work, determination shall be made by the
City of the total amount the contractor would have boon
entitled to receive for the work, under, the terms of the
contract, had the contractor completed the work. If the
difference between said total amount and the sum of all
amounts previously paid to the contractor, which difference
will hereinafter be called the "unpaid balance," exceeds the
expense incurred by the City in completing the work,
including expense for additional managerial and
administrative services, such excess will be paid to the
contractor, with the consent of the surety. If, instead, the
expense incurred by the City exceeds the unpaid balance, the
amount of the excess shall be paid to the City by the
coritriactor of tie suri;lty.
C. Expense of Completion. The expense incurred by the City
shall be as determined and certified by the City.
d. Refusal to Perform. In addition to and apart from the
above--mentioned right of the City to terminate the employment
of the contractor, the contract may be cancelled by the City
for- any willful failure or refusal on the part of the
contractor to perform faithfully the contact according to all
of its terms and conditions: however; in such event neither•
the contractor nor the surety shall be relieved from damages
or losses suffered by the City on account of the contractor's
breach of contract.
e. Remedies are Cumulative, The City may, at its discretion,
avail itself of any or all of the above rights or remedies
without prejudice or preclude the City from subsequently
invoking any other right or remedy set forth above or
elsewhere in the contract.
40.025 Retainaqe (ORS 279.420, .279.575
1. Retainage of Five Percent. The amount to be retained from any
given progress payment will be such that when added to the sum of
amounts previously retained will equal not more than five percent
of the value of completed work except if the contract work is 50
percent completed and the work is progressing satisfactorily, the
retainage may be reduced or eliminated on the remaining progress
payments. Any reduction or elimination of retainage shall be
allowed only upon written application of the contractor, which
application shall include written approval of the contractor's
surety; except that when the contract 'work is 97 1/2 percent
- 38 _
completed, the City may without applicattln by the contractor,
reduce the retained -amount to 100 percent of the value of the
contract work remaining to be done. If retainage has been
reduced or eliminated, the City reserves the right in protecting
its interests to reinstate at any time retainage from further
progress payments.
2. Alternatives to Cash Retainage. In lieu of cash retainage to be
held by the City, the contractor may select one of the following
options:
a. Deposit of Securities . The contractor may deposit bonds or,
securities with the City or in any bank o! trust company to
beheld for the benefit of the City. In such event, the City
shall reduce the retainage in an amount equal to the value of
the bonds and securities. This reduction in retainage will
be made in the progress payments made subsequent to the time
the contractor deposits the bonds and securities.
The value of the bonds and securities will be determined
periodically by the City based on market value, amount
retained on progress payments will be adjusted accordingly.
The bonds and securities deposited by Line contractor shall be
fully assigned to the City or be payable to the City on
demand and shall be of a character approved by the Finance
Director, including but not limited to the following:
(1) Stills, certificates, notes or• bonds of the United States.
f (2) Other obligations of the United States or its agencies.
(3) Obligations of any corporation whoiiy owned by the
Federal government.
(A) Indebtedness of the Federal National Mortgage
Association.
' (5) Time certificates of deposit or, savings acc(-
passbooks issued by a commercial bank, savings and loan
association, or mutual savings bank, duly authorized to
do business in Oregon.
(6) Corporation a� rids rated A or better by a recognized
rating service.
(7) General obligation bonds of the State of Oregon or any
political subdivision thereof.
(8) General obligation improvement warrants issued pursuant
to ORS 287.502.
(9) Irrevocable letters of credit from a bank doing business
in Oregon.
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At the time the City determines that all requirements for the
protection of the City's interest have been fulfilled, all bonds
and securities deposited as above provided will be released to
( the contractor.
b. Deposit in Interest—Bearing Accounts. Upon written request
of the contractor, the City shall deposit any amounts
withheld as retainage in an interest—bearing account in a
bank, savings bank, trust company or savings association for
the benefit of the City. Interest earned on such account
shall accrue to the contractor.
3. Recovery of Costs. If the City incurs additional costs as a
result of the exercise of any of the options for retainage
described herein, the City may recover such costs from the
contractor by reduction of the final payment-. As work on the
contract progresses, the City shall, upon request, inform the
contractor of all accrued costs.
40.030 Progress Payments (ORS 279.575
1. Request for Progress Payments. At a regular time each month, the
rnni ractor SNi 11 . i f roe+-d—A b. the .a.,.......ent i---
_, _. .. by .,� contract NV4N�IICIIVO, jIAUNJ.L
to the City a request for payment based upon an estimate of the
amount of work completed and of the value of acceptable material
to be incorporated in the completed work which has been delivered
and acceptably stored. Upon verification and approval of the
City, the sum of these values will be referred to the "value of
completed work." With these estimates as a base, a progress
payment will be made to the contractor, which progress payment
shall be equal to the value of completed work, less such amounts
as may have been previously paid, less such other amounts as may
be deductible or as may be owing and due to the City for any
cause, and less an amount to be retained in protection of the
public agency's interests.
2. Progress Payments Do Not Mears Acceptance of Work. Progress
payments shall not be construed as an acceptance or, approval of-
any part of the work covered thereby, and they shall in no manner
relieve the contractor of responsibility for defective
workmanship or material.
3. Estimates for Progress Payments. The estimates upon which
progress payments are based are not represented to be accurate
estimates, and all quantities shown therein are subject to
correction in the final estimate. If the contractor uses such
estimates as a basis for making payments to subcontractors, this
is at the contractor's own risk, and the contractor shall bear
all loss that may result.
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40.035 Final Inspection (ORS 279.575 .1
1. Notification of Completion. When the contractor determines that
all construction work on the project has been completed, the
contractor shall so notify the City in writing. The City shall
make an inspection of the project and project records within 15
days of receiving said notice. If, at such inspection, all
construction provided for and ordered under the contract is
complete and satisfactory to the public: agency, and all
certifications, bills, forms and documents have been submitted
properly, such inspection shall constitute the final inspection.
2. Instructions to Complete the Work. If, however, at any
I in part is found unsatisfactory
inspection, any work in whole o ,
or it is found that all certifications, bills, forms and
documents have not been submitted properly, the City shall within
15 days provide instructions to the contractor on outstanding
requirements to complete the project. At such time as the
contractor determines full compliance with, and the execution of
such instructions, the contractor shall notify the City in
writing. The city shall make another inspection within 15 days
after such notice and this inspection shall constitute the final
inspection provided construction work has been completed
satisfactorily.
3. Acknowledgment of Acceptance. Upon satisfactory completion of
all work required under the contract, the City shall acknowledge
acceptance of the work in writing.
( 40.040 Final Estimate and Final Payment (ORS 279.575(3)
1. Submission of Final Estimate. As soon as practicable after final
inspection of the work under the contract, if unit prices were
i
applicable, the City shall prepare a final estimate of the
quantities of the various classes of work performed. Following a I
determination of the total amount due tl•re contractor, and 3
following final acceptance of the work by the City, final payment
shall be made to the contractor. 3
2. set-off of Prior Payments. All prior partial estimates and
payments shall be subject to correction in the final estimate and f
payment. s
3. Interest, Beginning 30 days after the date of final acceptance
of the project by the City, the City shall pay to the contractor
interest at the rate established by state statute on any money
due and payable to the contractor. `
40.045 Claims far Unpaid`Labor or Supplies
1. Right of Action. As provided in ORS 279.526 a person claiming to
have supplied labor or materials for work on a public improvement
contract let by the City for which the person has not been paid
by the prime contractor or any subcontractor has a right of
action
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