LCRB Resolution No. 05-01 LOCAL CONTRACT REVIEW BOARD
CITY OF TIGARD, OREGON
RESOLUTION NO. 05- Qj-
A RESOLUTION ADOPTING REVISED PUBLIC CONTRACTING RULES, RELATED FINDINGS,
AND REVISED PURCHASING AND CONTRACTING MANUAL.
W14EREAS, the City of Tigard has previously adopted and used rules applicable to public contacting,
including rules covering procedure and rules governing exexnptio ls; and
WHEREAS, the legislature has adopted new statutes applicable to public contracting and revised rules
Have been drafted to comply with the new statutes; and
WHEREAS,the City Cowicil determines that the revised draft rules better suit the needs of the City than
the proposed Attorney General model rules; and
WHEREAS, the City of Tigard finds that there will be a future need for the City to enter into public
contracts and that it is therefore appropriate for the City to adopt Public Contacting Rules, consistent
with the state Public Contracting Code; and
WHEREAS, the City of Tigard's Purchasing and Contracting Manual will be revised to meet the
requirements established under the revised Public Contacting Rules.
NOW, THEREFORE,BE IT RESOLVED by the Tigard City Council that:
SECTION I: The City Council, as the Local Contract Review Board hereby adopts rules attached as
Exhibit A pursuant to the authority granted the Board by Tigard Municipal Code Section
2.46. These rules shall apply to all contracting, purchasing, and disposing of surplus
personal property by the City of Tigard.
SECTION 2: The Local Contact Review Board adopts the findings in support of exemptions included
in the attached Exhibit B.
SECTION 3: The model rules adopted or to be adopted by the Attorney General do not apply to
contacting for the City of Tigard.
SECTION 4: The City Council, acting as the Local Contract Review Board, hereby establishes a
revised Purchasing and Contracts Manual reflecting the new Public Contracting Rules.
1 SECTION 5 This resolution takes effect immediately upon adoption and the rules adopted under
Section 1 shall be effective as to contacts that have not been advertised or entered into
as of March 1, 2005. However, the public contracting rules in existence prior to this
resolution shall remain in effect as to any contract entered into prior to March 1, 2005 or
for which an invitation to bid or request for proposal is or has been advertised prior to
March 1,2005.
LCRB RESOLUTION NO. 05 - C4
Page 1
PASSED: Thds midday of rz `' 2005.
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Local C retract Review Board Chair—City of Tigard
ATTEST:
City Recorder -City of Tigard
LCRB RESOLUTION NO. 05 - 04
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b Exhibit A
CITY OF TIGARD
LOCAL CONTRACT REVIEW BOARD RULES
The following Public Contracting Rules (PCR) have been adopted by the City Council acting as
the Local Contract Review Board pursuant to the authority granted to the Board by Tigard
Municipal Code Section 2.46. The rules apply to all contracting, purchasing, and disposing of
personal property by the City of Tigard but do not apply to acquisition, sale or other transfer of
real property.
TABLE OF CONTENTS
10.000 COMPETITIVE PROCESS REQUIRED,EXEMPTIONS
10.010 Competitive Process, Exemptions, Definitions
10.015 Exemption of Contracts Under Certain Dollar Amounts
10.020 Contracts for Price Regulated Items
10.025 Library Periodicals
10.030 Advertising Contracts
10.035 Equipment Maintenance Repair and Overhaul
10.040 Purchases under Established Price Agreements
10.045 Gasoline, Diesel Fuel, Heating Oil, Lubricants and Asphalt
10.050 Investment Contracts
10.055 Insurance Contracts
10.060 Employee Benefit Insurance
10.065 Office Copier Purchases
10.070 Single Seller of Product
10.075 Contract Amendments(Including Change Orders and Extra Work)
10.080 Affirmative Action Contracts
10.085 Purchase Off Contract by Other Public Agencies
10.090 Oil or Hazardous Material Removal
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10.095 Contracts with Qualified Non-profit Agencies
10.100 Ammunition
. 10.105 Public Improvement Contracts Involving Design or Construction Management
10.110 Individual Exemptions
10.115 Class Exemptions
10.120 Justification of Public Improvement Contracts Awarded by Other Than
Competitive Bidding
15.000_ PRICE AGREEMENTS
15.010 Price Agreements
20.000 BRAND NAMES OR MARKS
20.010 Specification of Particular Brand Names or Products
20.015 Copyrighted Materials
20.020 Single Manufacturer or Compatible Products
20.025 Product Pre-qualification
20.030 Brand Name or Mark Exemption
25.000 EMERGING SMALL BUSINESSES
25.010 Emerging Small Businesses
25.015 Authority to Require Contracting with Emerging Small Businesses
30.000 FORMAL COMPETITIVE PROCESSES
30.010 Definitions
30.015 Competition
30.020 Eligibility to Bid on Construction Contracts
30.025 Solicitation Documents
30.030 Bids and Proposals Are Offers
30.035 Public Notice
30.04.0 Bid or Proposal Preparation
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30.045 Bidder Pre-qualification
30.050 Bidder Submissions
30.055 Bid Security
30.060 Pre-Bid or Pre-Proposat Conferences
30.065 Addenda to Solicitation Documents
30.070 Pre-Opening Modification or Withdrawal of Bids of Proposals
30.075 Receipt, Opening, and Recording of Bids and Proposals
30.080 Late Bids,Proposals,Late Withdrawals, and Late Modifications
30.085 Mistakes
30.090 Time for Acceptance
30.095 Extension of Time for Acceptance of Bid
30.100 Evaluation and Award
30.105 Life Cycle Cost Analysis
30.110 Responsibility
30.115 Responsive and Non-responsive Bids or Proposals;Acceptance and Rejection
30.120 Low Tie Bids
30.125 Rejection of Individual Bids or Proposals
30.130 Rejection of All Bids or Proposals
30.135 Protests of Award
30.140 Other Protests
30.145 Negotiation
30.150 Bidder Disqualification
30.155 Cancellation of Invitations to Bid or Requests for Proposals
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30.160 Disposition of Bids or Proposals If Bid Is Cancelled
30.165 Documentation of Award
30.170 Foreign Contractor
30.175 Contract Terms and Conditions °
30.180 Availability of Award Decisions- Contract Retention
30.185 Requests for Proposals
30.190 Performance and Payment Security
30.195 Right to Audit Records
30.200 Right to inspect Plant
30.205 Contract Cancellation and Termination Procedures
40.000 PUBLIC IMPROVEMENT CONTRACTS
40.010 Application
40.015 Competitive Bidding
40.020 First Tier Subcontractor Notice
40.025 First Tier Subcontractor Disclosure
40.030 Bid Evaluation and Award
40.035 Contract Cancellation Procedures
40.040 Retainage
40.045 Progress Payments
40.450 Final inspection
40.055 Final Estimate and Final Payment
40.060 Claims for Unpaid Labor or Supplies
40.065 Planning for Public Improvements
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40.070 Prevailing Wage Laws
50.000 WAIVER OF SECURITY BID AND PERFORMANCE BOND
50.010 Bid Security Requirements
50.015 Contracts Under$10,000
50.020 Subcontracting to Emerging Small Businesses
60.000 PROPERTY DISPOSITION
60.010 Surplus Personal Property
60.015 Auction Sales of Personal Property
60.020 Sales of Personal Property
60.025 Liquidation Sales of Personal Property
60.030 Donations of Personal Property
60.035 Trade of Personal Property '
70.000 PERSONAL SERVICES CONTRACTS
70.010 Personal Services Contracts
70.015 Screening and Selection Policy for Personal Services Contracts
70.020 Amendments
80.000 EMERGENCY CONTRACTS: SPECIFIC EXEMPTION REQUIREMENTS;
BOARD EXCEPTION• PROCEDURES; TEMPORARY EXCEPTIONS
80.010 Emergency Contracts
90.000 RECYCLABLE/RECYCLING PURCHASING GUIDELINES
90.010 Recycled Materials and Products Guidelines
90.015 Recycled Materials Preference
90.020 Recycled Materials and Products Purchasing Guidelines
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TIGARD LOCAL CONTRACT REVIEW BOARD
PUBLIC CONTRACTING RULES
PCR 10.000 - COMPETITIVE PROCESS REQUIRED, EXEMPTIONS
10.010 COMPETITIVE PROCESS,EXEMPTIONS AND DEFINITIONS
A, All public improvement contracts shall be based upon competitive bidding and all other
public contracts shall be based upon competitive bidding or competitive proposals
(collectively"formal competitive process"), except the following:
1. Contracts made with other public agencies. Contracts made with other public agencies
are not subject to these rules, except to the extent that the rules explicitly allow certain
transactions with other public agencies.
Z. Contracts which are exclusively for personal services as determined by application of
PCR 70.010. Such contracts may include incidental materials such as written reports,
architectural or engineering renderings, and similar supplemental materials.
3. Grants and contracts evidencing acceptance of donations by,the City.
4. Contracts for professional or expert witnesses or consultants relating to existing or
potential litigation or other legal matters.
5. Transfers of real property or any interest in real property.
6. Energy savings performance contracts.
7. Contracts relating to bonds, certificates of participation, and similar debt repayment
obligations, or to program loans,or to public investments..,
S. Employee benefit plans.
9. Contracts specifically exempt under the following rules:
10.015 Exemption of Contracts under Certain Dollar Amounts
10.020 Contracts for Price Regulated Items
10.025 Library Periodicals
10.030 Advertising Contracts
10.035 Equipment Maintenance Repair and Overhaul
10.040 Purchases under Established Price Agreements
10.045 Gasoline, Diesel Fuel, Heating Oil, Lubricants, and Asphalt
10.050 Investment Contracts
10.055 Insurance Contracts
10.060 Employee Benefit Insurance
10.065 Office Copier Purchases
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10.070 Single Seller of Product
10.075 Contract Amendments (Including Change Orders and Extra Work)
10.080 Affirmative Action Contracts
10.085 Purchase Off Contract by Other Public Agencies
10.090 Oil or Hazardous Material Removal
10.095 Contracts with Qualified Non-profit Agencies
10.l oo Ammunition
10.105 Public Improvement Contracts Involving Design or Construction Management
10.110 Individual Exemptions
10.115 Class Exemptions
80.010 - Emergency Contracts
B. 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 a competitive sealed bid procedure for awarding contracts
following the rules set forth in PCR 30.000.
4. "Competitive quotes" means the solicitation and receipt 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 offer may be written or oral.
5. "Invitation to Bid" means the solicitation of competitive bids in which price among those
bidders meeting specifications will be the predominant award criterion.
6. "Personal property" means everything subject to ownership which is not real property
and has exchangeable value.
7. "Price Agreement"means an agreement in which the vendor agrees to supply all goods or
services of a particular type ordered by the City within a specified time period at a
specified price and on terms specified in the price agreement.
8. "Public agency" means any federal, state or local government, or any department of any
federal, state or local government, including any local school or education City or any
special district.
9. "Request for Proposal" means the formal.solicitation of competitive written proposals to
be used as a basis for making an acquisition or entering into contract when price will not
be the predominant award criterion, following the rules set forth in Section 30.010 to
30.205.
10. "Service" means work performed to meet a demand, especially work that is not
connected with manufacturing a product.
11. "Service contract" means a contract that calls primarily for a contractor's time and effort
rather than an end product.
12. "Telecommunications Services" means the lease or rental of the use of voice and data
transmission facilities or services, or of central office services, but does not include
acquisition of switch or station equipment or acquisition or installation of wire and cable.
C. When a contract is exempt from a formai competitive process, the City shall use reasonable
efforts to ensure it is obtaining goods or services on the best terms (price, quality and other
terms). Those efforts shall normally include seeking out potential contractors and
determining price and availability by use of informal quotes or other similar methods. The
City shall not knowingly purchase goods or services if it knows that comparable goods or
services are available at lower cost on otherwise similar terms.
10.015 EXEMPTION OF CONTRACTS UNDER CERTAIN DOLLAR AMOUNTS
A. Public Contracts Other Than Public Improvements Contracts
The City may, in its discretion, enter into public contracts other than public improvements
contracts without a formal competitive process if the value of the contract does not exceed
$50,000. If this exemption is applied, the City must use either the small contract or
intermediate contract procedures set forth in Subsections C and D of this section. This
exemption does not authorize City employees or officials to enter into an agreement in excess
of their dollar authority to bind the City.
B. Public Improvements Contracts
The City may, in its discretion, enter into public improvement contracts without competitive
bidding if the value of the contract does not exceed $75,000 ($50,000 for a transportation
public improvement contract). If this exemption is applied,the City must use either the small
contract or intermediate contract procedures set forth in Subsections C and D of this section.
This exemption does.not authorize City employees or officials to enter into an agreement in
excess of their dollar authority to bind the City.
C. Small Contract Procedures
When the amount of the contract does not exceed $5,000, the City may award the contract
from any source known to the City to provide goods or services of acceptable quality at
competitive prices. The City may not knowingly use a more expensive source if the goods or
services of equivalent quality are readily available from alternate sources on the same terms
at lower prices.
D. Intermediate Contract Procedures
When the amount of the contract does not exceed $50,000, or $75,000 for a public
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improvement contract or $50,000 for a transportation public improvement contract, the City
may award the contract after seeking at least three competitive quotes or proposals.The City
shall keep a written record of the source and amount of the quotes or proposals received. If
three suppliers are not available, a lesser number of actual quotes or proposals will suffice
provided that a written record is made of the effort to obtain the quotes or proposals.
E. No Division or Fragmentation of Contracts.
A procurement of goods and/or services may not be artificially divided or fragmented to
allow use of the small or intermediate contract procedures_ However, each order of library
materials for the City library shall be considered a separate contract and may be made by
using the small contract or intermediate contract procedures if within the dollar amounts for
those procedures.
F. Amendment of Small and Intermediate Contracts
A contract awarded under the small or intermediate contract procedures may not be
amendment if the amendment would result in a total contract price that exceeds the
maximum amount for the procedure used to award the original contract.
10.020 CONTRACTS FOR PRICE REGULATED ITEMS
The City may, without formal competitive process, contract for the purchase of the goods or
services where the rate or price for the goods or services being purchased is established by
federal,state,or local regulatory authority.
10.025 LIBRARY PERIODICALS
Purchases for the library of subscriptions for periodicals including journals, magazines, and
similar publications may be made without formal competitive process. However, this provision
does not authorize the use of a higher priced source if a lower price source of acceptable quality
is known to be available.
10.030 ADVERTISING CONTRACTS
The City may purchase advertising without formal competitive process.
10.035 EQUIPMENT MAINTENANCE,REPAIR,AND OVERHAUL
Contracts for equipment maintenance, repair, or overhaul may be let without a formal
competitive process,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
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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.
The City should,where possible,use a price agreement rather than relying on this exception.
10.040 PURCHASES UNDER ESTABLISHED PRICE AGREEMENTS
When the price of goods and services has been established by a price agreement entered into by a
competitive process, the City may purchase goods and services from the supplier without a
subsequent competitive process.
10.045 GAsoua,DIESEL FUEL,HEATING OIL,LUBRICANTS AND ASPHALT
The City may, without a competitive process, purchase gasoline, heating oil, lubricants, and
asphalt subject to the following:
A. Prior to selection of the contractor, the City gets quotes from at least three vendors in the
area;
B. The City makes its purchase from the least expensive source of those providing quotes; and
C. The City retains written justification for the purchase made.
10.050 INVESTMENT CONTRACTS
The City may, without a formal competitive process, 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.
10.055 INSURANCE CONTRACTS
Contracts for insurance where either the annual or aggregate premium exceeds $5,004 must be
let by a formal competitive process or by one of the following procedures:
A. Agent of Record_
The City may appoint a licensed insurance agent ("agent of record") to perforin 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. Proposals for coverage are presented to
the City Manager or designee for approval_
1. Prior to the selection of an agent of.record, the City shall make reasonable efforts to
inform known insurance agents in the competitive market area that it is considering such
selection. These efforts shall include a public advertisement in at least one newspaper of
general circulation in the
area.
The advertisement shall generally describe the nature of
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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 notice shall also include a public advertisement in at least one insurance trade
publication of general circulation in the state.
2. An agent's appointment shall not exceed a period of 5 years, but the same agent(s) may
be selected in a subsequent period. Agents must qualify the appointments. prior to each
period as if each appointment period were the first.
3. In selecting an agent of record, the City shall select the agent(s) most likely to perform
the most cost effective services at a level of competence acceptable to the City.
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:
1. 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
providing the services required in connection with 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 investment in at
least one insurance trade publication of general circulation in the state:
2. The City shall select an agent on the basis of the most competitive offer considering
coverage,premium cost, and service to be provided.
10,060 EMPLOYEE BENEFIT INSURANCE
The City may purchase employee benefit insurance without formal competitive process.
10.065 OFFICE COPIER PURCHASES
A. The City may enter into contracts for the purchase or lease of photocopiers without formal
competitive process.
B. In exercising this exemption, the City shall consider the operating capabilities, limitations,
and cost of each brand or model as well as cost and select the brand and vendor that will
produce the best combination of performance and cost per copy for Each application.
10.070 SINGLE SELLER OF PRODUCT OR SERVICE
A. General
The City may purchase without a formal competitive process if there is only one seller of a
product or service of the quality required, or if the efficient utilization of existing equipment
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or supplies requires specification of a compatible product for which there is only one seller,
The determination of a sole source must be based on written findings as required by ORS
279B.075. A sole source contract may be awarded only after approval of the findings by the
City Manager or acting, interim or temporary City Manager. To the extent reasonably
practical, the City shall negotiate with single sellers to obtain the best possible contract terms
for the City.
B. Telecommunications Services
The City may award a contract for telecommunications services without a formal competitive
process if it determines that no competition exists among services suppliers. In determining
whether competition exists,the City may consider the following factors:
1. The extent to which alternative providers exist in the relevant geographic and service
market. The relevant market will vary from service category to service category and
cannot be predetermined in advance.
2. The extent to which alternative services offered are comparable or substitutable in
technology, service provided, and performance. For example, if the City's requirement is
for digital services,analog services are not comparable or substitutable.
3. The extent to which alternative providers can respond to the City's interests in
consistency and continuity of services throughout its service area, volume discounts, and
centralized management. The City must document for the record its findings on these
factors or any other factors used in determining whether competition exists. In
developing its findings, the City may solicit information by any means, including
informal discussions or correspondence or through a formal Request for Information.
C. Developer Provision of Public Improvements
At times, private developers provide public improvements for the City as required by.a
condition of land use approval or as required by a development agreement with the City.The
developer in those circumstances is conclusively deemed to be a sole source for the provision
of the public improvements, without the need for findings. No competitive process is
required to enter into a development agreement that includes the provision of public services
by a developer or for a developer to provide and the City to accept public improvements as
required by a condition of approval.
10,075 CONTRACT AMENDMENTS(INCLUDING CHANGE ORDERS AND EXTRA WORK)
A 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 a formal competitive process subject to the following
conditions:
A. The original contract was let by formal competitive process, and the contract documents
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included unit prices or bid alternates were provided that provide a basis for determining the
cost for additional work, and a binding obligation exists on the parties covering the terms and
conditions of the additional work;or
B. The amount of the aggregate cost increase resulting from all amendments does not exceed
25% of the initial contract. Amendments made pursuant to Section A of this rule are not
.included in computing the aggregate amount under this section. The LCRB may, at its sole
discretion,approve amendments exceeding the 25%aggregate total if the Board finds it to be
in the public's best interest to do so.
10.Q80 AFFIRMATIVE ACTION CONTRACT'S
A. Public contracts may be awarded without a formal competitive process pursuant to a specific
Affirmative Action plan. Affirmative Action is a program designed to insure equal
opportunity in employment and business for persons otherwise disadvantaged by reason of
race, color, religion, sex, national origin, age, or physical or mental handicap, including but
not limited to, personnel practices of contractors, "set-aside" programs, and minority
business enterprises. These rules shall not be construed to prohibit engaging in practices
designed to promote affirmative action goals and policies.
B. In carrying out the affirmative action policy, by appropriate ordinance, resolution or
administrative rule, the City may limit competitive bidding on a public contract for
procurement of goods and services or on any public contract estimated to cost$50,000 or less
to contracting entities owned or controlled by persons described in Subsection A of this
section.
10.085 PURCHASE OFF CONTRACT BY OTHER PUBLIC AGENCIES
A. The City may purchase any good or service without a formal competitive process if the good
or service is purchased from a bidder that has been awarded a contract for the same good or
service, whether by a. requirements contract or by individual contract by another public
agency through its public contract purchasing procedures if
1. The original contract was awarded by a competitive bid or proposal process or pursuant
to an exemption equivalent to an exemption provided by these rules.
2. The contract allows other public agency usage of the contract. A contract that does not
prohibit other public agency usage of the contract shall be deemed to allow other public
agency use,unless the agency that awarded the contract objects to the use.
3. The purchase is on the same terms, or terms which are no less favorable to the City in all
material respects, as the contract awarded by the public agency.
B. A purchase under the Oregon Cooperative Purchasing Program or any similar federal or
regional program, including the Electronic Government Act of 2002 (10 USC 381)shall be
considered an exempt purchase under this exemption.
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10.090 OIL OR HAZARDOUS MATERIAL REMOVAL
A. The City may enter into public contracts without a formal competitive process'when ordered
to clean up oil or hazardous waste pursuant to the authority granted the Department of
Environmental Quality (DEQ) under ORS Chapter 466, especially ORS 466.605 through
466.680, and this order necessitates the prompt establishment and performance of the
contract in order to comply with the statutes regarding spill or release of oil or hazardous.
material that has created an emergency condition. in exercising its authority under this
exemption,the City shall:
1. To the extent reasonable under the circumstances, encourage competition by attempting
to make informal solicitations or to obtain informal quotes from potential suppliers of
goods or services.
2. Make written findings describing the circumstances requiring cleanup or a copy of the
DEQ order ordering such cleanup.
3. Record the measures taken under Subsection 1 of this section to encourage competition,
the amount of the quotes or proposals obtained, if any, and the reason for selection the
contractor selected.
S. The City shall not contract pursuant to this exemption in the absence of an order from DEQ
to clean up a site with a time limitation that would not permit hiring a contractor under the
usual formal competitive process procedures.
10.095 CONTRACTS WITH QUALIFIED NON-PROFIT AGENCIES
The-City may enter into contracts with qualified non-profit agencies providing employment for
disabled individuals under ORS. 279.835 to 279.855 without a competitive process. The City
shall contract with such agencies when required by law. To the extent competition exists among
qualified non-profit agencies, the City shall select the qualified non-profit agency offering the
lowest price for an acceptable level of service.
10.100 AMMUNITION
The City may enter into contracts for the purchase of lethal and non-lethal ammunition, both for
service and for training,without a formal competitive process.
10.1.05 PUBLIC IMPROVEMENT CONTRACTS INVOLVING DESIGN OR CONSTRUCTION
MANAGEMENT
The City may enter into public improvement contracts without competitive bidding if the
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contracts involve design or construction management or require expertise beyond normal
construction work. Unless exempt under some other exemption, a competitive proposal process
must be used.One of the following specific processes shall be
followed:
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A. Construction Man er/General Contractor
The City may select a person or firm to act as a Construction Manager/General Contractor
(CM/GC)to construct public improvements by means of a competitive proposal process.
1. A CMIGC performs specified Construction Manager services in addition to traditional
General Contractor services. A CWGC contract shall require full performance within a
negotiated Guaranteed Maximum Price (GMP). The basis for payment shall be
reimbursable direct costs plus a fee constituting full payment for work and services
rendered,which together shall not exceed the GMP.
2. The solicitation documents shall include.
a. A description of the evaluation process and criteria. The criteria may include cost,
quality, experience,availability,commitment to timely completion, and other factors.
b. The process to be followed for establishing the guaranteed maximum price.
c. A description of the circumstances under which any of the following activities may
be authorized and undertaken for compensation prior to establishing the GMP, but
only after unit prices are established:
1. Early procurement of materials and supplies;
2. Early release of bid packages for such things as site development;and
3. Other advance work related to critical components of the project.
3. The contract documents shall include:
a. A description of the method by which the CM/GC shall competitively select
contractors and subcontractors.
b. Either the maximum guaranteed price or a process for establishing a guaranteed
maximum price.
c. A description of the situations in which the CM/GC may perform the work of the
improvement without subcontracting, including any requirement that the CM/GC
compete with others to do the work and the work that the CM/GC may perform
directly without a competitive process.
d. The standards or factors. under which changes or additional work that warrants an
increase in the GMP, as well as criteria for decreasing the GMP. The GMP shall not
be increased without a concomitant increase to the scope of the GMP.
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e. The disposition of any cost savings resulting from completion of the work below the
GMP, including the CMIGC share, if any, in those cost savings. Normally, the cost
savings should accrue to the City.
£ The items or categories of items are eligible for cost reimbursement within the GMP.
g. A provision for a final audit adjustment and process.
h. A fee that is inclusive of profit, overhead and all other indirect or non-reimbursable
costs. Costs determined to be included within the fee should be expressly defined
wherever possible. The fee, first expressed as a proposed percentage of all
reimbursable costs, shall be identified during and become an element of the selection
process. It shall subsequently be expressed as a fixed amount when the GMP is
established.
L Any economic incentives, the specific criteria that apply and their relationship to
other financial elements of the Contract(including the GMP).
B. Desim-Build Contracts
1. A design-build contract is one in which a single entity designs and constructs a public
improvement. Design build contracts shall only be used if City staff has the expertise and
experience to administer a design-build contract. The design-build process may be used
to:
a. Obtain through a Design-Build team, engineering design, plan preparation, value
engineering, construction engineering, construction, quality control and required
documentation as a fully integrated function with a single point of responsibility;
b. Integrate value engineering suggestions into the design phase, as the construction
contractor joins the project team early with design responsibilities under a team
approach,with the potential of reducing contract changes;
c. Reduce the risk of design flaws, misunderstandings and conflicts inherent in
construction contractors building from designs in which they have had no opportunity
for input,with the potential of reducing contract claims;
d. Shorten project time as construction activity (early submittals, mobilization,
subcontracting and advance work) commences prior to completion of a "biddable"
design, or where a design solution is still required(as in complex or phased projects);
or
e. Obtain innovative design solutions through the collaboration of the contractor and
design team,which would not otherwise be possible if the contractor had not yet been
selected.
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2. If a design-build contractor is not an Oregon licensed design professional, the design-
build contractor shall disclose in its proposal that it is not an Oregon licensed design
professional and identify the Oregon licensed design professional(s) who will provide
design services.
3. A design-build contractor awarded a contract shall provide additional security as required
by ORS 279C.380(1)(a). The obligation is not intended to be a substitute for professional
liability insurance,and does not include errors and omissions or latent defects coverage.
4. The level or type of design services required must be clearly defined within the
solicitation documents and contract, along with a description of the level or type of any
design services previously performed for the project. The services to be performed shall
be clearly delineated as either design specifications or performance standards.
5. The contract shall clearly identify the liability of design professionals, shall include
requirements for professional liability insurance, and shall clearly identify the extent of
any indemnity or warranty-
C. Other Public Improvement Contracts Where Qualfty Is An Issue
In many situations, including those projects that require a higher than normal level of
expertise or skill, quality of the final product may be important beyond meeting minimum
specifications. In those situations, the City may use a request for proposal process, provided
that the cost factor constitutes at least 75% percent of the total evaluation score, In scoring
the cost factor, the proposer submitting the lowest cost amount shall receive the maximum
possible score for the cost factor, and the scores of the other proposers shall be reduced by
the percentage by which their cost exceeded the lowest cost. For example, if the maximum
score for the cost factor is 80, the lowest cost proposer would get a score of 80. A proposer
with a cost that is 10 percent higher would have the score reduced by 10 percent(8 points),to
72.
10.110 INDMDUAL ExEMPTiONs
A. The City may exempt a particular contract or contracts from formal competitive process
requirements which are not otherwise exempted under these rules. The City shall prepare an
application for an individual exemption containing the following information:
1. The nature of the project;
2. Estimated cost of the project;
3. A narrative description of the cost savings anticipated by the exemption from the formal
competitive process and the reasons the formal competitive process would be
inappropriate;
4. Proposed alternative contracting and purchasing practices to be employed; and
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i
5. The estimated date by which it would be.necessary to let the contract.
B. The Board may require such additional information as it deems necessary to determine
whether a specific contract is to be exempt from the formal competitive process.
C. The Board shall hold a public hearing and adopt findings justifying the individual exemption.
The findings shall at a minimum address include the findings required35 bORS 7pro e85(3)
for contracts other than public improvements or O public
ment
contracts.
A Notification of the public hearing shall be published in a newspaper of general circulation in
the City a minimum of 14 days prior to the hearing.Notification shall be published in a trade
newspaper of general circulation in the state if required by the Public Contracting Code.
E. The notice shall state that the public hearing is for the purpose of taking comments on the
City's draft findings for an exemption from the formal competitive process requirement. At
the time of the notice, copies of the draft findings shall be made available to the public. At
the option of the City, the notice may describe the process by which the findings are finally
adopted and may indicate the opportunity for any fiukher public comment.
F. At the public hearing, the City shall offer an opportunity for any interested party to appear
and present comment.
G. If the City is required to act promptly due to circumstances beyond its control that do not
constitute an emergency, notification of the public hearing can be published simultaneously
with the City's solicitation of contractors for the alternative public contracting method, as
long as responses to the solicitation are due at least five days after the meeting and approval
of the findings.
10,115 CLASS EXEMPTIONS
A. The Board may exempt certain public contracts or classes of public contracts from the formal
competitive process requirements by amending these rules upon approval of the following
findings:
1. It is unlikely that such exemption will encourage favoritism in the awarding of public
contracts or substantially diminish competition for public contracts;
2. The awarding of public contracts pursuant to the exemption will result in substantial cost
savings to the City. In making such findings, the Board may consider the type, cost,
amount of the contract, number of persons available to bid, and such other factors as may
be deemed appropriate; and
3. The exemption otherwise substantially supports the public interest in a way that could not
be achieved under existing rules.
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_....._
B. The Board shall adopt a class,exemption only after a duly noticed public hearing. riling. The
notice,of the hearing shall be posted in full public view in the City Hall and published in a
newspaper of general circulation at least 14 days prior to the hearing. If the exemption
involves a public improvement, the notice shall also be published in a trade publication of
statewide circulation.
10.120 JUSTIFICATION OF PUBLIC IMPROVEMENT CONTRACTS AWARDED OTHER
THAN BY COMPETITIVE BIDDING
Upon completion of and final payment for any public improvement contract in excess of
$100,000 for which the City did not use the competitive bidding process, the'City shall prepare
and deliver to the Local Contract Review Board an evaluation of the public improvement project.
The evaluation shall include but not be limited to:.
A. The actual project cost as compared with original project estimates.
B. The amount of any guaranteed maximum price.
C. The number of project change orders issued.
D. A narrative description of successes and failures during the design, engineering and
construction of the project.
E. An objective assessment of the use of the alternative contracting process as compared to the
findings required by ORS 279C.335.
Evaluations required by this section shall be made available for public inspection and shall be
completed within 30 days of acceptance of the project.
PCR 15.000 - PRICE AGREEMENTS
15.010 PRICE AGREEMENTS
The City may enter into price agreements providing the following conditions are met:
A. The contract is awarded by a formal competitive process.
�I B. The term of the contract including renewals does not exceed 5 years.
- 15.015 MULTIPLE PRICE AGREEMENTS PERMITTED
The City may enter into price agreements with more than one supplier for the same goods or
services.
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PCR 20.000 -BRAND NAVIES OR MARKS
20.010 SPECIFICATION OF PARTICULAR BRAND NAMES OR PRODUCTS
A. Specifications for public contracts shall not expressly or implicitly require any product of any
particular manufacturer or seller except pursuant to an exemption under PCR 20.015
(Copyrighted Materials), 20.020 (Single Manufacturer or Compatible Products), 20.025
(Product Pre-qualification),or 20.030(Brand Name or Mark Exemption Applications).
B. 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.
20.015 COPYRIGHTED MATERIALS
The City may specify a specific copyrighted product. This exemption does not include patented
or trade mark goods.
20.020 SINGLE MANUFACTURER OR COMPATIBLE PRODUCTS
A. 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,the City may specify such particular product subject to the
following conditions:
1. The product is selected on the basis of the most competitive 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 conversion.
2. Prior to awarding the contract, the City has made reasonable effort to notify known
vendors of competing or comparable products of the intended specifications and invited
such vendors to submit competing proposals.
3. If the purchase does not exceed$50,000, such notice and invitation may be informal.
4. If the amount of the purchase exceeds$50,000, 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.
B. If the amount of the purchase exceeds $50,000, the City shall document its actions in the bid
file. Such documentation shall include:
1. A brief description of the proposed contract or contracts.
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2. 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 include
the efforts taken by the City to notify and invite proposals from competing vendors.
C. If the City intends to make several purchases of the product of a particular manufacturer or
seller for,a period not to exceed 2 years, it may so state in the documentation required by
subsection(1)(b) and(2) of this rule, and such documentation shall be sufficient notice as to
subsequent purchases.
20.025 PRODUCT PRE-QUALIFICATION
A. When it is impractical to create specific design or performance specification for a type of
product to be purchased, the City may specify a list of approved products by reference to
particular manufacturers or sellers according to the following product pre-qualification
procedure:
1. The City has made reasonable efforts to notify known manufacturers or vendors of
competitive products of its intention to accept applications for inclusion in its list of pre-
qualified 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 appearing on the appropriate list maintained by the Department of
General Services of the State of Oregon.
2. The City permits application for pre-qualification of similar products up to 15 days prior
to advertisement for bids on the product.
B. If an application for inclusion in a list of pre-qualified products is denied, or an existing pre-
qualification revoked, the City 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 PCR'30.150.
20.030 BRAND NAME OR MARK EXEMPTION
A. The City may apply for and receive a brand name or mark exemption ruling from the Board
for current and contemplated future purchases. Applications shall contain the following
information:
1. A brief description of the contract or contracts to be covered. The description should
include contemplated future purchases.
2. The brand name,mark or product to be specified.
3. The reasons the City is seeking the exemption.
.B. The Board may grant brand name or mark exemptions only if either of the following
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conditions are met:
1. The exemption is not likely to encourage favoritism in public contracts or substantially
diminish competition and will result in cost savings.
2. There is only one manufacturer or seller of the product of the quality required,.or efficient
utilization of existing equipment or supplies requires acquisition of compatible equipment
or supplies.
PCR 25.000 - EMERGING SMALL BUSINESSES
25.010 EMERGING SMALL BUSINESSES
It is-the policy of the City to provide opportunities for available contracts to emerging small
business and to cooperate with the State or Oregon Advocate for Minority, Women and
Emerging Small Business to determine the best means by which to make such opportunities
available.
25.015 AUTHORITY TO REQUIRE SUBCONTRACTING WITH EMERGING SMALL
BUSINESSES
The City may, in solicitation documents, require that,some portion of the work,to be performed
or some portion of the materials to be provided be provided by a certified emerging small
business and establish other requirements authorized by ORS 2'79A.105_
PCR 30.000 - FORMAL COMPETITIVE PROCESSES
30.010 DEFINITIONS
For purposes of this chapter,the following definitions apply:
A. "Addenda to the Bid Documents" means additions or changes to the bid documents defined
as addenda shall be labeled as such and distributed according to these rules.
B. "Bid"means an offer submitted in response to an invitation to bid.
C. "Bid Closing"means the date and time announced as the deadline for the receipt of bids.
D. "Bid Opening"means the date,time and place set for opening of bids.
E. `Bid Sample" means a representative specimen of the item that will be available in response
to the bid.
F. `Bidder"is a person who submits a bid in response to the City's invitation to bid.
G. "Bidding Period" means the span of time between the date of the invitation to bid and the
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time and date set for receipt of bids. A minimum of 14 calendar days shall be provided,
unless a shorter time is deemed necessary in the public interest for a particular procurement.
H. "Contract" means the written agreement, including the City's solicitation document and the
accepted portions of a'bid or proposal, between the City and the contractor describing the
work to be done and the obligations of the parties. Depending upon the goods and services
being procured, the City may use "contract" as meaning a purchase order, price agreement,
or other contract document in addition to the City's solicitation document and the accepted
portions of a bid or proposal. If the contract is for a public improvement, the"contract" may
consist of the City's solicitation document, including any addenda., the general and special
conditions governing the work, the accepted portions of the bid or proposal, the performance
and payment bond(if required),plans, technical specifications, approved show drawings,and
any contract amendments, including approved change orders.
L "Contract Price" means the total of the awarded bid or proposal amount, including any
approved alternates and any fully executed change orders or amendments.
J. "Contract Release Order" means the document authorizing an additional purchase on an
existing requirement contract.
K. "Contractor" means the individual, firm, or corporation awarded the public contract to
furnish the City the goods, services, or work procured in the City's solicitation.
L. "Descriptive Literature" means materials submitted by prospective vendors to provide
information concerning the products available in response to the bid.
M. "Facsimile" or "fax" means the electronic equipment that communicates and reproduces both
printed and handwritten material. If used in conjunction with a reference to a document; i.e.,
facsimile bid, the term refers to a document (in the example given, a bid) that has been
transmitted to and received by the City via facsimile.
N. "Lowest Responsible Bidder" means the lowest bidder who has 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 279.029(1)).
O. "Proposer" is a person who submits a proposal in response to the City's Request for
Proposals.
P. "Solicitation Document" means an Invitation to Bid or Request for Proposals which included
all documents, whether attached or incorporated by reference, utilized for soliciting bids or
proposals.
Q. "Specifications" means any description of the physical or functional characteristics or of the
nature of a supply, service, or construction item. Specifications may include a description of
any requirement for inspecting, testing, or preparing a supply, service, or construction item
for delivery and the quantities or qualities of materials to be furnished under the contract.
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Specifications generally will state the result to be obtained and may, on occasion, describe
the method and manner of doing the work to be performed. Specifications may be
incorporated by reference and/or through attachment to the contract.
30.010 COMPETITION
A. Contracts issued by the City shall be awarded by formal competitive process except as
otherwise exempted under the Oregon Public Contracting Code or these rules.
B. It is the policy of the City to encourage public contracting competition that supports openness
and impartiality in the maximum extent possible.
C. The City finds that:
1. Competition exists not only in.prices, but in the technical competence of suppliers, in
their ability to make timely deliveries,. and in the quality and performance of their
products and services and that a balance must exist between performance competition and
price competition.
2. The nature of effective competition varies with the product or service being procured and,
that while competitive sealed bids are a common method of procurement, it is not always
the most advantageous, practical or cost-effective method of source selection. The cost
of the selection process must be considered—a costly selection process is not appropriate
for contracts with a low dollar value.
3. Meaningful competition can be achieved through a variety of methods when procuring
products or services. The methods include but are not limited to:
a. Price competition as represented by the initial or acquisition price;
b. Competition as represented by price and performance evaluations of the competing
items and suppliers;
c. Competition as represented by the evaluation of the capabilities of bidders or
proposers to perform needed services;
d. Competition as represented by evaluation of the capabilities of the bidders and
proposers to perform the services followed by a negotiation on price;
e. Competition as represented by another method of procurement that is reasonably
calculated to satisfy the City's needs.
D. All public contracts shall be made under conditions that foster or reflect competition among a
sufficient number of potential suppliers that offer a wide spectrum of products and services
and that represent a broad marketplace. Fostering competition shall be reflected in:
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1. Writing specifications and procurement documents in a simple and easy to read format;
2. Searching for new sources of supply;
3. Attempting to make solicitation documents simple and inviting;
4. Everyday courtesy shown to prospective suppliers and contractors; and
5. The way information on contracting opportunities is provided to suppliers including but
not limited to advertisement in publications of general circulation or in trade publications
and any other reasonable methods that encourage competition.
E. The City may evaluate every aspect of competition in its efforts to purchase products or
services, choose the appropriate solicitation.process, or award contracts according to the
criteria described herein and arrive at offers that represent optimal value to the City. .
30.020 ELIGIBILITY TO BID ON CONSTRUCTION CONTRACTS
A person shall not submit a bid or proposal to work as a construction contractor unless that
person is first registered with the Construction Contractors Board or licensed by the State
Landscape Contractor's Board as required by ORS 671.530. Bids from persons who fail to
comply with this requirement shall be deemed non-responsive and be rejected.
30.025 SOLICITATION DOCUMENTS
Solicitation documents shall include the following:
A. instructions and information to bidders or, proposers concerning the submission
requirements, including the time and date set for opening, the name, address and title of the
person designated to receive bids and a contact person, if different, a statement the bid or
proposal must be physically received by the City by the deadline and any other special
information relating to bid submission. The bid deadline shall be at least seven days after the
first publication of notice and 5 days after the last publication of notice.
B. The date that pre-qualification applications must be filed if pre-qualification is a requirement.
C. The character of the work to be done or the items to be purchased, including, as applicable:
specifications, delivery or performance schedule, inspection and acceptance requirements,
and special evaluation factors;
D. The office where any additional information, including additional specifications, may be
reviewed or obtained;
E. For bids --- the contract terms and conditions, including warranty and bonding or other
security requirements, as applicable. For proposals, a list of contract terms required by the
City,a list of additional issues to be included in the contract,and a list of issues for which the
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A
proposer is expected to propose contract terms.
F. That the solicitation may be cancelled or that any or all bids may be rejected for not
complying with all prescribed procedures and requirements;
G. That any and all bids may be rejected for good cause on a finding that it is in the public
interest to do so;
H. In invitations to bid,a statement whether the bidders is a resident bidder;
L That a contractor must be licensed for asbestos abatement under ORS 468A.710, if
applicable;
J. That no bid or proposal for construction shall be received or considered by the City unless .
the bidder or proposer is registered with the Construction Contractors Board, as required by
OAS Chapter 701 or licensed by the State Landscape Contractors Board, as required by ORS
671.530;
K. If bid or proposal security is required, a description of the security required;
L. A description of any performance and payment bonding requirements;
M. For proposals, a description of the manner in which proposals will be evaluated and the
relevant value of each evaluation factor, including price. If a multi-tierd process is used, that
process will be described, including the process for protesting the decision at any stage of the
process;
N. If applicable, a statement that no bid will be considered unless the bid contains a statement
that the bidder will comply with ORS 279C.840 or 40 USC 276a; and
O. All addenda issued by the City.
30.030 BIDS AND PROPOSALS ARE OFFERS
A. Bids and proposals constitute an offer to enter into a contract which, if accepted by the City,
shall bind the bidder or proposer to a contract unless the bid or proposal is withdrawn prior to
opening.
B. The bid or proposal shall constitute a"firm offer"unless bidders or proposers are specifically
authorized to take exceptions or to leave terms open to negotiation by the invitation to bid or
request for proposals. However, nothing in this provision prohibits the City from negotiating
with a bidder or proposer to the full extent allowed by state law. Unless expressly authorized
by the solicitation documents or these rules, bidders or proposers shall not make their bids or
proposals contingent upon the City's acceptance of specifications or contractual terms that
conflict with or are in addition to those advertised in the solicitation documents.
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30.035 PUBLIC NoncE
A. Distribution
Solicitation documents or notices of the availability of bid documents shall be mailed to
likely bidders and proposers, placed on the Oregon Department of Administrative Service's
electronic procurement system known as the "Vendor Information Program," or otherwise
furnished to a sufficient number of bidders or proposers for the purpose of securing
competitive bids or proposals. Notice of availability shall indicate where, when, and for how
long the bid/proposal documents may be obtained. The City many charge a fee for the bid
documents.
B. Advertising
1: Every formal solicitation.of bids or proposals shall be advertised. An advertisement for
bids or proposals shall be published at least once in at least one newspaper of general
circulation in the City and in as many additional issues and publications as the City may
determine to be necessary or desirable to ensure competition. If for a construction
contract in excess of$75,000 ($50,000 for a transportation public improvement contract),
notice shall be published in at least one trade newspaper of general statewide circulation.
The City shall endeavor to provide information concerning bids and proposals on its
website and may post information on other databases.
2. All advertisements for bids or proposals shall state:
a. 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;
b. The date that pre-qualification applications must be filed if pre-qualification is a
requirement;
c. The work to be done or the items to be purchased;
d. The office where additional documentation, including specifications, specifications
may be reviewed or obtained;
e. The name,title, and address of the person designated to receive bids;
f. The date,time,and place that bids or proposals will be opened;
g. If for a public improvement, whether the prevailing wage provisions of ORS
279C.800 to 279C.870 or the Davis-Bacon Act(40 USC 276a)apply.
C. Postin of bid or pMposal advertisement
A copy of each bid or proposal advertisement shall be posted at the business office of the
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City. Bidders or proposers may obtain a copy upon request.
30.040 BID OR PROPOSAL PREPARATION
Bid and Proposal Preparation Instructions:
A. Except as otherwise allowed, as applicable, bids and proposals shall be typed or prepared in
ink and shall be signed in ink by the submitter or an authorized representative. The City will
not accept facsimile bids or signatures.
B. Bids and proposals shall be trade on the bid farms provided unless otherwise instructed in
the solicitation document.
C. Alterations or erasures,if any, shall be initialed in ink by the person signing the bid.
D. Bids and proposals shall include all required documents and descriptive literature.
30.045 BIDDERPRE-QUALIFICATION
The City may require mandatory pre-qualification of bidders on forms prescribed in the bid
document. When pre-qualification 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 pre-qualified. The
City shall determine qualifications within 30 days of receipt of an application for
prequaiification. In determining responsibility of the applicant, the City shall consider only the
criteria listed in ORS 279B.110(2). City may have a separate pre-qualification process.
If a bidder is currently pre-qualified by either the State Department of Transportation or the State
Department of Administrative Services to perforin contracts, the bidder shall be 'presumed
qualified to perform similar work for the City.
30.050 BIDAER SUBMISSIONS
A. Samples and Descriptive Literature
Samples or descriptive literature may be required when it is necessary to evaluate required
characteristics of an item. Samples may be returned in accordance with provisions contained
in the bid documents.
B. Identification of Bids and Proposals
Bids and proposals shall be submitted in a sealed envelope appropriately marked to ensure
proper identification and special handling. The City shall not be responsible for the proper
identification and handling of any bid not submitted in the designated manner or format to
the required delivery point. The City may refuse to accept or may reject any bid or proposal
not properly sealed or marked.
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C. Receipt of Bid or Proposal
It is the submitter's responsibility to ensure that bids or proposals are received by the City at
the required delivery point prior to the stated bid or proposal closing time regardless of the
method used to submit or transmit them.
30.055 BID SECUMV
A. Public Improvement Contracts
Bid security not to exceed 10 percent of the base bid(sj 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 the contract promptly and properly if awarded.
B. Other Public Contracts
Bid security not to exceed 10 percent of the bid may be required by the City for other
contracts in order to guarantee acceptance of the award. This requirement shall be stated in
the bid documents.
C. Contracts Under$10,000
Bid security for contracts of less that$10,000 shall be required only in critical circumstances
so as not to discourage competition.
D. Form of Bid Security
The following forms of bid security will be accepted by the City:
1. Surety bond from surety company authorized to do business in the State of Oregon;
2. Cashier's check,certified check, or savings and loan secured check; or
3. Annual surety bond filed with the City(except for public improvement contracts).
E. 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 City 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.
F. Security for Proposals
If contracts are to be awarded based on competitive proposals, the City may, in its discretion,
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require proposal security on the same terms as the bid security described in this section.
Proposal security shall normally be required for any public improvement contract to be
awarded by a proposal process.
30.060 PRE-BID OR PRE-PROPOSAL CONFERENCES
Pre-bid or pre-proposal conferences may be held by the City to explain the City's requirements,
conduct site inspections, or otherwise supplement or clarify information. The City may require
attendance at the conference as a condition for bidding or submitting a proposal. The
conferences shall be announced in the solicitation documents. The conference shall be held
within a reasonable time after the solicitation documents have been issued but sufficiently before
bid closing to allow consideration of the conference results in preparing submittals. Statements
at the conference shall not change the solicitation documents unless confirmed to all prospective
bidders or proposers by means of a written addendum to the solicitation documents.
30.065 ADDENDA TO SOLICITATION DOCUMENTS
A. Form
Changes to solicitation documents shall be accomplished by addenda. The bidder or
proposer shall acknowledge receipt of all addenda issued, either with the bid or proposal or
separately prior to opening. A solicitation may be delayed or suspended by addendum if in
the best interest of the City.
B. Distribution
Addenda shall be sent to all prospective bidders or proposers known to have obtained the
solicitation documents or attended any mandatory conferences.
C. Timeliness
1, Addenda shall be issued within a reasonable time prior to bid closing to allow
consideration prior to submittal of the bid or proposal, but in no case less than 72 hours .
before the submittal deadline. If necessary, the City may notify prospective bidders or
proposers by telegram, telephonic facsimile (fax),'e-mail, or telephone. If telephone is
used,the City shall confirm the oral notice with a written addendum.
2. In its discretion, the City may extend the closing date and time to allow prospective
bidders or proposers to analyze and adjust to changes made by Addenda. The City shall
notify prospective bidders or proposers of new closing date and time either in the
Addendum or in writing accompanying the Addendum.
D. Addenda to Multi-Tier RFPs
If a multi-tier process is used to evaluate proposals, the City may issue addenda applicable to
any-tier of the process at least 5 days before starting that tier of the process. If the City does
31
issue such addenda, amended or supplemental proposals may be submitted before the next
tier of the process is started.
30.070 PRE-OPENING MODIFICATION OR WITHDRAWAL OF BIDS OR PROPOSALS
A. Modifications
Bids or proposals 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 prior bid or
proposal. To ensure the integrity of the process, the envelope containing any modifications
to a bid or proposal shall be marked as follows:
Bid(or Proposal)Modification
Bid Number or Other Ident jication
B. Withdrawals
1. Bids or proposals may be withdrawn by written notification on company letterhead
signed by an authorized person and received prior to the time and date set for closing.
Bids or proposals also may be withdrawn in person prior to the scheduled closing upon
presentation of appropriate identification.
2. Unopened bids or proposals withdrawn under subsection(a)above may be released to the
bidder after voiding any date and time stamp used.
3. Requests to withdraw mailed bids or proposals shall be marked as follows:
Bid(or Proposal) Withdrawal
Bid(or Proposal)Number.or Other Ident leation
C. Documentation
All documents relating to the modification or withdrawal of bids or proposals shall be made a
part of the appropriate bid file.
30.075 RECEIPT,OPENING,AND RECORDING OF BIDS AND PROPOSALS
A. Receip
Upon receipt, each bid, proposal, and modification shall be time-stamped or marked by hand
but not opened and shall be stored in a secure place until opening. If bids, proposals, or
modifications are opened inadvertently or are opened prior to the time and date set for
opening because they were improperly identified, the bids, .proposals, or authorized
modification documents shall be resealed and stored for opening at the correct time. When
'this occurs, documentation of the procedure shall be placed in the file.
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B. 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,
shall be read aloud. On voluminous bids the City may advise bidders as part of the bid
documents that the bid items and prices will not be read aloud.
Proposals may be opened at any time after the deadline for submittal of proposals. A
summary sheet providing basic information about each proposal shall be prepared.
C. Availabili
Opened bids shall be available for public inspection prior to award except to the extent the
bidder designates trade secrets or other proprietary data to be confidential (ORS 192.501(2)).
Proposals shall not be available for public inspection until after a contract is awarded and
entered into. The City shall verify and 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 or proposal
in order to facilitate public inspection of the non-confidential portion of the bid or proposal.
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.
D. Notice of Intent to Award
The City shall provide notice of intent to award to each person that has submittedra bid or
proposal. The notice shall state the date, time and location of the bid award decision. The
notice shall include the name of the person or entity that staff recommends the contract be
awarded to. The notice shall include any bid comparisons sheets or proposal comparison
sheets.
30.080 LATE BIDS,PROPOSALS,WrramAWALS,AND MODIFICATIONS
Any bid, proposal, withdrawal, or modification received after the deadline for submission set in
the solicitation documents is late and shall not be considered. The City may use any watch or
clock to determine the time and the determination of the City employee or officer receiving the
bids as to whether a bid, proposal, withdrawal, or modification is late shall be final and not
subject to challenge.
30.085 MISTAKES
A. General
Under extraordinary circumstances, a bid or proposal may be withdrawn after the deadline
for submittal because of an.inadvertent nonjudgmental mistake. If the mistake is attributable
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to an error in judgment, the bid or proposal may not be withdrawn or corrected. Correction
or withdrawal by reason of nonjudgmental mistake is permissible but only to the extent it is
not contrary to the interest of the City or the fair treatment of other bidders or proposers.
B. Mistakes Discovered after Bid Closing but before Award
This section applies to situations where mistakes in bids are discovered after the submission
deadline but before award.
1. Minor informalities
Minor informalities are matters of 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 prices. Examples include, but are not limited to, the failure
of a bidder to:
a. Return the number of signed bids or number of other documents required,by the bid
documents
b. Sign the bid form in the designated block so long the bid documents evidence an
intent to be bound; or
c. Acknowledge receipt of an addendum to the bid documents,but only if:
1. It is clear from the bid that the bidder received the addendum and intended to be
bound by its terms; or
2. The addendum involved did not affect price,quantity, quality,or delivery.
C. 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
mistakes 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. Mistakes that are
clearly evident on the face of the bid form or proposal document also may include instances
in which the intended correct bid or proposal item is made clearly evident by simple
arithmetic calculations. For example,a missing unit price may be established by dividing the
total bid or proposal item by the quantity of units for that item, and'a mussing or incorrect
total bid or proposal price for an item may be established by multiplying the unit price by the
quantity when those figures are available on the bid or proposal. For discrepancies between
unit prices and extended prices, unit prices shall normally prevail.
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D. 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.
30.090 TIME FOR ACCEPTANCE
Bids shall be valid and binding offers for 30 days from the deadline to submit bids unless
otherwise specified in the bid documents. Proposals shall be binding and valid offers for 60 days
from the date of the submittal deadline.
30.095 EXTENSION OF TIME FOR ACCEPTANCE OF BID OR PROPOSALS
The City may request orally or in writing that bidders or proposers extend the time in which the
City may accept their offers.
30.100 EVALUATION AND AWARD
A. General
The contract, if awarded.; is to be awarded to the lowest responsive and responsible bidder or
the best responsive and responsible proposer. Consistent with the provisions of the
solicitation documents and in the public interest as determined by the City, awards may be
made by item, groups of items, or entire bid or proposal. The City reserves the right to reject
any bid or proposal not in compliance with the solicitation documents or with state law, City
Code, or these rules. The City reserves the right to reject any or all bids or proposals upon a
finding by the City that it is in the public interest to do so.
B. Special Requirements
1. Solicitation documents shall set forth any special requirements and criteria that will be
used to determine the lowest responsible bidder. No bid shall be evaluated for any
requirement or criterion that is not disclosed in the bid documents or City regulation.
2. In determining the lowest responsible bidder, the City shall, for the purpose of awarding
the contract, add a percent increase on the bid of a non-resident bidder equal to the
percent, if any, or of the preference give to that bidder in the state in which the bidder
resides.
3. The City may rely on a list provided for by the Oregon Department of Administrative
Services pursuant to ORS 279.029(3) for preference provided for by-this section.
C. Product Acceptability
1. The solicitation documents shall set forth the evaluation criteria to be used in determining
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product acceptability. The City may require the submission of samples, descriptive
literature, technical data, or other material, and may also provide for accomplishing any
of the following prior to award.
a. Demonstration, inspection, or testing of a product prior to award for such
characteristics as quality or workmanship;
b. Examination of such elements as appearance, finish,taste,or feel; or
c. Other examinations to determine whether the product conforms to specifications.
2. The acceptability evaluation is conducted only to determine that a bidder's offering is
acceptable as provided in the bid documents. Any bidder's product, which does not meet
the minimum requirements shall be rejected.
D. Determination of Lowest Responsive and Responsible Bidder
Following determination of product acceptability as set forth in subsection C, if applicable,
bids will be evaluated to determine which bidder offers the lowest cost to the City in
accordance with the evaluation criteria set forth in the bid documents. 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 cost, volume weighing, trade-in allowances, depreciation allowances, cartage
penalties, and ownership or life cycle cost formulas. Evaluation factors need not be precise
predictors of actual future costs,but to the extent possible, such evaluation factors:
1. Are reasonable estimates based upon information the City has available concerning future
use;
2. Treat all bids equitably;and
3. Recognize that public policy requires acquisitions and public improvements to be
accomplished at the least cost.
The City shall take into account any preferences provided by these rules in determining the
lowest bid.
E. Determination of Best Res onsive and Responsible Proposer
Proposals will be evaluated to determine which proposer offers the best solutiom to the City
in accordance with the evaluation criteria set forth in the solicitation documents. Only the
criteria set forth in the solicitation documents shall be applied. The criteria shall be as
objective as possible. Examples of evaluation criteria may include, but are not limited.to,
cost, quality, service, compatibility, product reliability, operating efficiency, expansion
potential, performance history on other private and public contracts, experience of key
personnel, adequacy of equipment and/or physical. plan, financial wherewithal, sources of
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supply, references and warranty provisions. Evaluation factors need not be precise predictors
of actual future costs and performance, but to the extent possible, such evaluation factors
shall:
1. Be reasonable estimates based on information available to the City;
2. Treat all proposals equitably;
3. To the extent that the proposal involves a public improvement, recognize that public
policy requires public improvements to be accomplished at the least cost.
F. In evaluating proposals,the City may use any of the following methods:
1. An award based solely on an evaluation of the written proposals;
2. Discussions with a number of proposers leading to a best and final offer from each
proposer and an evaluation of the best and final offers;
3. An award based on the written.proposals and interview performance;
4. Serial negotiations, staring with the highest ranked proposer;
5. Competitive simultaneous negotiations;
6. A multi-tiered process, with some number of proposer being eliminated at each stage of
the process;
7. A multi-stage process, with a qualifications determination at the first stage of the process,
followed by cost considerations; or
S. Any other method or combination of methods designed to best serve the needs of the City
and its taxpayers.
The solicitation document shall describe the process to be followed.
G. No Assignment or Transfer of Contract Rights
Unless an express provision of the public contract otherwise provides, the contractor shall not
assign; sell or transfer rights, nor delegate responsibilities, under public contract, either in
whole or in part, without first obtaining the City's prior written consent. Unless otherwise
agreed by the City in writing, such consent shall not relieve the contractor of any obligations
under a public contract, and any assignee or transferee shall be considered the agent of the
contract and bound to abide by all provisions of the public contract. Except in the event of a
novation, if the City consents in writing to an assignment, sale, or transfer of the contractor's
rights and responsibilities, the contractor and its surety, if any, shall remain ultimately liable
to the City for complete performance of the public contract as if no such assignment, sale, or
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transfer had occurred.
30.105 LIFE CYCLE COST ANALYSIS
A. 'In determining the lowest responsible bidder, in the award of a contract,the City may use the
cycle costing. As used in this rule,life cycle costing means determining the cost of a product
for its useful life.
B. The City shall follow these procedures:
1. At 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 and which, for evaluation
purposes,will be used to adjust the bid or proposal price of the product.
2. The solicitation documents shall set out clearly the factors and methodology to be used Mi
life cycle cost adjustments.
3. The results of life cycle costing adjustments shall be applied to the bid or proposal price
of the product(s) offered The bid or proposal that results in the lowest overall ownership
cost, taking into account the life cycle costing adjustments, shall be considered the lowest
bid or best proposal for purposes of bid or proposal price evaluation.
30.110 RESPONSIBILITY
A. A responsible bidder or proposer is one who has:
1. Adequate financial resources to perform the contract, or the ability to obtain such
resources. The City shall require acceptable evidence of the bidder's or proposer's ability
to provide or obtain the required financial resources. Acceptable evidence normally
consists of, but is not limited to, current and recent balance sheets; income statements;
cash flow statements; and/or a performance bond from an acceptable surety in an amount
equal to the bid or proposal price. Such evidence may also include a commitment of
specific arrangement that will be in existence at the time of contract award to rent,
purchase,or otherwise acquire the needed facilities, equipment, or other resources;
2. The ability to comply with the required or proposed delivery or performing schedule,
taking into consideration all existing commercial and public business commitments;
3. A satisfactory performance record. A bidder or proposer who is, or recently has been,
seriously deficient in contract performance shall be presumed to be non-responsible,
unless the City determines that the circumstances were properly beyond the contractor's
control or that the contractor has taken appropriate corrective action. Record of failure to
perform acceptably is strong evidence of non-responsibility. The City shall consider the
number of contracts involved and-the extent of the deficiency of each in making this
evaluation. In addition, the City.may consider whether the bidder's performance history
demonstrates responsibility as defined in ORS 200.005(11)and 200.045(3);
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4. Key personnel available of sufficient experience, as determined by the City, to perform
the contracts;
5. The necessary organization, experience, accounting and operational controls, and
technical skills, or the ability to obtain these skills and abilities as required to
satisfactorily perform the contract. These may include, as appropriate, such elements as.
production control procedures, property control systems, and quality assurance measures
applicable to materials to be produced or services to be performed by the bidder and its
proposed subcontractor(s);
6. The necessary production, construction, and technical equipment and facilities, or the
ability to obtain them;
7. A satisfactory record of integrity; and
8. Is otherwise qualified and eligible to receive award under applicable laws and
regulations.
B. The City has the right,prior to awarding any public contract,to make such investigation as is
necessary to determine whether a bidder or proposer is responsible. This investigation may
include, but is not limited to:
l.. An inquiry into the responsibility of proposed subcontractors and suppliers.
Z. Requiring a bidder or proposer to demonstrate its financial ability to perform the contract
as provided in subsection A.1 of this rule. In exercising this right, the City shall notify
the apparent successful bidder or proposer in writing to submit such documentation as the
City deems necessary to complete a thorough evaluation of financial ability.
3. By submitting a bid or proposal, a bidder or proposer authorizes the City to request any
credit report information the City deems necessary to investigate and evaluate financial ,
responsibility to perform the contract(s).
C. Failure of a bidder or proposer to promptly supply information requested by the City during
its responsibility investigation shall be grounds for a finding of non-responsibility.
D. Only bids and proposals from responsible bidders or proposers, as defined in this rule, shall
be eligible for contract award. Bid or proposals from non-responsible bidders or proposers
shall be rejected as provided in PCR 30.E 15.
30.115 RESPQNswE AND NON-RESPONSIVE BIDS OR PROPOSALS; ACCEPTANCE AND
REJECTION
A. A "responsive bid or proposal" is one that complies in all material aspects with the
solicitation documents and with all prescribed public bidding procedures'and requirements.
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B. A"non-responsive bid or proposal" is one which:
1. Omits, or is unclear as to the price and the price cannot be determined in the bid or
proposal documents;
2. Offers goods or services of a quality or quantity inferior to that requested in the
solicitation documents;
3. Does not meet the delivery date requirements specified in the solicitation documents;
4. Takes exception to the terms and conditions of the solicitation documents other than as
allowed by these rules or the solicitation documents;
5. Is conditional upon the City's acceptance of terms and conditions.difference from those
contained in solicitation documents, except as allowed by these rules or the solicitation
documents;or
6. Contains a deviation which, if the bid or proposal were accepted, would give the bidder
or proposer a substantial advantage or benefit not shared by other bidders or proposers to
the solicitation documents.
C. The City shall accept, and consider for award, only those bids or proposals, which are
responsive as defined in this rule. Non-responsive bids. or proposals shall be rejected, as
provided in PCR 30.115.
30.120 Low TIE Bins
A. 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.
B. Award
1. If low tie bids are received, a preference shall be given to goods and services that have been
manufactured or produced in Oregon.
Z. If the bids remain tied after application of the Subsection 1, preference shall be given to the
bidder whose principal offices or headquarters are located in Oregon.
3. If the bids remain tied after application of Subsections 1 and 2, the 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.
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4. if there are no Oregon bidders after application of subsections 1 and 2, award of the'contract
shall be made by drawing lots.
30.125 REJECTION OF INDIVIDUAL BIDS OR PROPOSALS
A. General
This section applies to rejections, in whole or in part, of individual bids or proposals. The
City may reject in whole or in part, any bid not in compliance with all prescribed bidding
procedures and requirements, and may reject for good cause any bid or proposal upon a
written finding of the City that it is in the public interest to do so. No bid shall be considered
unless the bid security, properly executed, has been submitted with the bid as required by the
bid documents.
B. Reasons for Rejection
Reasons for rejecting a bid or proposal include but are not limited to:
1. The submitter has not pre-qualified when pre-qualification is required or has been
disqualified;
2. The submitter has been declared ineligible by the Commissioner of the Bureau of Labor
and Industries under ORS 279.361;
3. The bid or proposal is non-responsive, that it does not conform in.all material respects to
bid documents or requirements, including all prescribed public procurement.procedures
and requirements;
4. The supply, service,or construction item offered in the bid or proposal is unacceptable by
reason of its failure to meet the requirements of the solicitation documents or permissible`
alternates or other acceptability criteria set forth in the solicitation documents;
5. The submitter is not capable of satisfying the terms and conditions of the public contract
in a timely manner due to financial incapacity;inability to obtain bonding, loss of license,
or other objective cause;
6. The submitter within the last 5 years has been found, in a civil, criminal, or
administrative proceeding, to have committed fraud, misrepresentation, price-rigging,
unlawful anti-competitive conduct, or similar behavior;
7. The submitter has been determined responsible. (i.e., adjudicated by a court, or as
determined iii writing by the City agency in the case of a public contract) for more than
one breach of a public or private contract or contracts in the last 3 calendar years before
the scheduled date of the bid opening;
8. The security has not been submitted or properly executed as required by the solicitation
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documents;
9. When applicable, the bidder has not met the emerging small business, disadvantaged
business, minority business, and women business enterprise requirements, if any,
established by the City, and has not made a good faith effort to comply with the
requirements prior to the time bids are opened;
10. The submitter failed to certify in accordance with Section D of this rule;
11. Other circumstances of the particular bid, proposal, or submitter. (including submitter's
subcontractors) indicate that acceptance of the bid or proposal would impair the integrity
of the selection process or result in an imprudent contract by the City; or
12. The contractor has discriminated against subcontractors because the subcontractor is a
minority,women or emerging small business enterprise certified under ORS 200.055.
C. Form of Business Enti
The corporate or business form of bidders or proposers shall be subject to scrutiny, so that
previously disqualified bidders or proposers, or their officers and directors, may not by
subterfuge, change of apparent ownership, or other adjustments in formal appearance, avoid
application of this rule.
D. Non-discrimination Certification
The bidder or proposer shall certify as part of the bid that the contractor has not
discriminated against subcontractors because the subcontractor is certified as a minority,
women,or emerging small business enterprise.
30.130 REJECTION OF ALL BIDS OR PROPOSALS
A. Bid Rejection
All bids or proposals may be rejected for good cause upon a written finding by the City that it
is in the public interest to do so. Notification of rejection of all bids or proposals, along with
the good cause justification and finding of public interest shall be sent to all that submitted a
bid or proposal.
B. Rejection Criteria
Reasons for rejecting all bids or proposals include but are not limited to:
1. An error in the solicitation documents, including its terms, conditions, or specifications
that unnecessarily restricted competition for the public contract;
2. The price, quality, or performance presented by the lowest or best responsible bidder or
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proposer is, in the City's opinion, too. costly or of insufficient quality to justify
acceptance of the bid or proposal. This criterion may be satisfied evidence that the same
goods or services can be obtained otherwise for less cost;
3. Misconduct, error, or ambiguous or misleading provisions in the bid documents or
process threaten the fairness and integrity of the competitive process; or
4. Causes other than legitimate market forces threaten the integrity of the competitive
procurement process. These causes include, but are not limited to,those that tend to limit
competition such as restrictions on competition, collusion, corruption, unlawful anti-
competitive conduct, and inadvertent or intentional errors in the bid documents.
30.135 PROTESTS OF AWARD
A. Purpose
Adversely affected or aggrieved bidders or proposers must exhaust all avenues of
administrative review and relief before seeking judicial review of and decision by the City
under the Public Contracting Code or these rules.
B. Notice of Award
The written notice of award of the contract shall constitute a final decision by the City to
award the contract if no written protest of the notice of award is filed with the City within
seven calendar days of the notice of award or such other period as provided in the City's
solicitation. If a protest is timely filed, the notice of award is a final decision of the City
upon issuance of a written decision denying the protest and affirming the award. The notice
of award and any written decision on a protest shall be sent to every bidder or proposer who
provided an address.
C. Right to Protest
Any actual bidder or proposer who is adversely affected or aggrieved by the City's notice of
award of the contract to another bidder or proposer on the same solicitation shall have seven
calendar days after notice of award to submit to the City a written protest of the notice of
award or such other time as provided in the solicitation documents. The written protest shall
specify the grounds upon which the protest is based. In order to be adversely affected or
aggrieved, a bidder or proposer must itself claim to be eligible for award of the contract as
the lowest responsible bidder or best proposer and must be next in line for award; i.e., the
protester must claim that all lower bidders or better proposers are ineligible for award
because they are non-responsive or non-responsible. The City shall not entertain a protest
submitted after the time period established in this rule or such different period as may be
provided in the City's solicitation.
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D. Authority to Resolve Protests
The City Manager, or designee, shall have the authority to settle or resolve a written protest
submitted under section E of this rule.
E. Decision
If the protest isnot settled or resolved by mutual agreement, the City Manager, or designee,
shall promptly issue a written opinion on the protest. If the opinion denies the protest,
judicial review of this decision will be available if provided for by statute. If the City
Manager or designee determines that there is good cause for the protest, the matter shall be
submitted to the Board for further action. The decision of the Board on a protest shall be
final. Both the protestor and the person to whom the contract was awarded shall have a right
to present arguments to the Board.
30.140 PROTESTS OTHER DIAN NOTICE OF AWARD
A. A protest may be filed to contest the adoption or amendment of these rules, adoption of a
class or contract specific exemption, solicitation documents (including specifications and
contract terms), or the process used in,the solicitation. The protest must be filed with the
City Buyer within 7 days of the adoption or amendment of rules or exemptions, the
publication of solicitation documents, or other action being protested. Grounds for protest
are limited to:
1. That the City acted contrary to law;
2. That the City's actions unnecessarily restrict competition;or
3. That the City has improperly specified a brand name.
B. The protest must include:
1. Sufficient information to identify the solicitation;
2. The grounds for the protest;
3. Evidence or supporting information;and
4. The relief sought.
C. The City Manager.shall, if possible, issue a written decision on the protest under this section
at least three days before any bid or proposal opening that could be affected by the protest.
D. A bidder or proposer who does not protest a proposed contract term included in the
solicitation documents must accept the contract term as included in the solicitation
documents.
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L if protest of a solicitation is timely received, the opening date may be extended if necessary
to allow consideration for the protest and issuance of any addenda to the solicitation
documents.
F. Envelopes containing protests of solicitation specifications shall be marked as follows:
Spec f cation Protest
Bid or Proposal Number or Other Identification
30.145 NEGOTIATION
A. Negotiation with Bidders
If a project is competitively bid and all responsive bids from responsible bidders exceed the
City's cost estimate, the City may negotiate with the lowest responsive, responsible bidder,
prior to awarding the contract, in order to solicit value engineering and other options to
attempt to bring the project with the agency's cost estimate.
1. A negotiation with the lowest responsive, responsible bidder pursuant to this paragraph
shall not result in the award of the contract to that bidder if the scope of the project is
significantly changed from the original bid proposal.
2 Notwithstanding any other provision of law, the records of a bidder used in contract
negotiation pursuant to this paragraph are not subject to public inspection until after the
negotiated contract has been awarded or the negotiation process has been terminated.
B. Negotiation with ProRoosers
The City may negotiate with proposers after proposal opening in order to try to reach the best
possible contract for the City. Proposals may be revised in the course of negotiations for the
best offer, provided that any revision is not so extensive as to be unfair to other proposers
who do not have the opportunity to negotiate.
30.150 BIDDER DISQUALIFICATION
A. Definitions-As used in this rule:
1. "Disqualification" means the debarment, exclusion or suspension of a person from right
to submit bids or proposals in response to the City's solicitations for a reasonable,
specified period of time named in the order of disqualification. A contractor or vendor so
debarred, excluded or suspended,is disqualified.
2. "Person" means an individual, partnership, or corporation. Disqualification attaches to
and follows the individual, so that an individual who is a partner in a partnership or an
officer or principal in a corporation which is disqualified may not re-form the business
45
entity as a way of avoiding the disqualification.
B. Grounds for bid-specific disqualification include:
1. The person does not have sufficient financial ability to perform the contract. If a bond is
required to ensure performance of a contract, evidence that the person can acquire a
surety bond in the amount and type required shall be sufficient to establish financial
ability;
2.• The person does not have equipment available to perform the contract;
3. The person does not have key personnel available of sufficient experience to perform the
contract;or
.4. The person has repeatedly breached contractual obligations to public and private
contracting agencies.
5. The person has discriminated against a subcontractor because the subcontractor is a
minority,women,or emerging small business enterprise certified under ORS 200.055.
6. The person has engaged in conduct prohibited by ORS 200.075, including:
a. If the person has entered into any agreement representing that a disadvantaged,
minority, women or emerging small business enterprise, certified pursuant to ORS
200.055, will be performing or supplying materials under a public improvement
contract without the knowledge and consent of the certified enterprise;
b. if the person exercises management and decision making control over the internal
operations, as defined by ORS 200.075(1)(b), of any certified disadvantaged,'
minority,women or emerging small business enterprise;
c. If the person uses a disadvantaged, minority, women or emerging small business
enterprise to perform contracting services or provide supplies under a public
improvement contract to meet an established DBE/MBEIWBEIESB goal, when the
enterprise does not perform a commercially useful function, as define by ORS
200.075(3), in performing its obligations under the contract.
C. Debarment
A prospective bidder or proposer may be debarred from consideration for an award for a
period of up to three years if convicted of a criminal offense relating to a.public contract;
convicted of acrime involving dishonesty (as provided in QRS 279B.130(2)(b), convicted
under antitrust statutes, has violated a contract and debarment for violation was listed in the
contract terms,or failure to carry workers compensation or unemployment insurance.
Debarment shall be by written decision explaining the reasons for the debarment and
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explaining appeal rights. Appeals shall be provides under ORS 279B.425. Any appeal must
be filed with the City Buyer within three days*after receipt of the notice of debarment.
D. Investi ation
The City may make such investigation as is necessary to determine whether a person is
qualified. If a bidder or prospective bidder fails to supply information promptly as requested
by the City, such failure is grounds for disqualification.
E. Notice of Disqualification
The bidder or prospective bidder.will be notified in writing by personal service or certified
mail of the City's decision to disqualify the person from bidding with the City. The notice
shall contain:
1. The effective date of the disqualification and the effective period of disqualification;
2. The grounds for disqualification from bidding; and
3. A statement of the contractor's appeal rights and applicable appeal deadlines.
F. A eal of Disqualification
If a contractor wishes to appeal the City's decision to disqualify, the contractor must notify
the City in writing within three business days after receipt of the notification. The City shall
mail its notice to the contractor by Certified Mail Return Receipt Requested, if not personally
served. Appeals shall be conducted under the procedures and standards of ORS 279C.445
and 279C.450_ A protest of a denial, revocation, or revision of a prequalification shall be
filed within three business days after receipt of notice of the decision. On receipt of the
protest, a hearing shall be set before the Board and the hearing shall be held and the decision
issued within 30 days of receipt of the protest. The Board will consider the action de novo,
based on applicable standards. If the denial is upheld, the person filing the protest shall
reimburse the City for costs of processing the protest.
30.155 CANCELLATION OF INVITATIONS TO BID OR REQUEsTs FOR PROPOSALS
A. Cancellation in the Public Interest
An invitation to bid or request for proposal may be canceled, in whole or in part, and all bids
.received may be rejected when it is in the public interest as determined by the City. The
reasons therefore shall be made part of the file.
B. Notice of Cancellation
When an invitation to bid or request for proposal is canceled prior to the submission
deadline, notice of cancellation shall be sent to all known holders of the documents. When
47
an invitation to bid or request for proposals is canceled after deadline for submission, notice
shall be sent to those who submitted a bid or proposal. The notice of cancellation shall:
1. Identify the specification documents;
2. Briefly explain the reason for cancellation;and
3. Where appropriate, explain that an opportunity will be given to compete on any re-
solicitation.
30.160 DISPOSITION OF BIDS OR PROPOSALS IN EVENT OF CANCELLATION
A. Prior to Bid O enin
When an invitation for bids or request for proposals is canceled prior to opening of the bids
or proposals, all submissions will.be returned unopened, if submitted with a clearly visible
return address. If there is no return address on the envelope, the submissions will be opened
to determine the source and then returned to sender.
B. After O enin
When all bids or proposals are rejected, those received shall be retained and become part of
the City's permanent file.
30,165 DOCUMENTATION OF AWARD
A. Basis of Award
Following award, a record showing the basis for determining the successful bidder shall be
made a part of the file.
B. Contents of Award Record
The record shall consist of:
1. Completed bid tabulation sheet; or
2. Completed proposal evaluations; and
3. Written justification of any rejection of lower bids; or
4. Written explanation for any rejection of proposals for failing to meet mandatory
requirements of the Request for Proposals.
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30.170 FOREIGN CONTRACTOR
If the amount of the contract exceeds $10,000 and the contract was awarded to a "nonresident
bidder", the contractor shall promptly report to the Oregon Department of Revenue on forrns to
be provided by the Department of Revenue the total contract price, terms of payment, length of
contract and such other information as the Department of Revenue may require before final
payment can be received on the contract. A copy of the report shall be forwarded to the City.
The City shall satisfy itself that the above requirements have been complied with before it issues
final payment on the contract. For the purposes of this rule, a foreign contractor is one who is
not domiciled in or registered to do business in the State of Oregon.
30.175 CONTRACT TERMS AND CONDITIONS
A. Required Terms and Conditions
The City shall establish standard terms and conditions for contracts. Contracts shall include
provisions relating to the following, if applicable. For those provisions referring to statutes,
the contract language shall comply with and implement the statutes.
1. Payment of laborers and material suppliers; contributions to Industrial Accident Fund;
liens and withholding taxes,and drug testing(ORS 27913.220,279C.505);
2. Payment of claims by public officers, payments to first tier subcontractors and claims by
labor and materials suppliers (ORS 279C.515),
3. Hours of labor(ORS 279$.020,279B.235,279C.520,279C.540);
4. Environmental and natural resources regulations(279B.525);
5. Payment for medical care, compliance with or exemption from workers compensation
laws(ORS 279B.230, 279C.530);
6. Prevailing wage rates(OAS 279C.830);
7. Salvaging, recycling, composting or mulching yard waste material, and salvage and
recycling of construction and demolition debris (ORS 279B.225,270C.510);
S. Certification by contractor of compliance with the Oregon tax laws according to ORS
305.385;
9. Certification by contractor of nondiscrimination as to relations with subcontractors (ORS
279A.110);
10. Inclusion of provisions in contracts with subcontractors, as required by ORS 279C.580;
11. Progress payments and retainage;
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12. Bonding requirements(performance and payment bonds); and
13. Any other requirement imposed by federal or state law, regulation, role or ordinance,
which is applicable to the contract.
B. The City may develop and require contract provisions relating to the following:
1. Termination of the contract;
2. Suspension of the work;
3. Labor and materials liens;
4. Liability in absence of bond;
5. Use of recovered resources and recycled and recyclable materials, including paper, oils,
and tires;
6. Any other term to further the City's and the public interest.
C. Terms and Conditions Applicable to Construction Contracts
In cases where the contract calls for work as described in ORS 701.005(2) (i.e.; construction
work),the contracts shall contain:
1. Certification by the "contractor" that the contractor is registered with the Construction
Contractors Board according to ORS 701.435 to 701.055, unless prohibited by federal
regulations.
2. Certification by the contractor that all subcontractors performing work as described in
ORS 701.005(2) will be registered with the Construction Contractors Board according to
ORS 701.035 to 701.055 before the subcontractors commence work under this contractor.
D. S12ecial Terms 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.
E. Corn liance and Exceptions to Terms and Conditions
1. Bidders and proposers shall be responsible for noting the terms and conditions included
applicable to each set of solicitation documents.
2. By submitting a bid or proposal, the bidder or proposer acknowledges acceptance of and
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the intent to abide by the terms and conditions specified in the invitation to bid or request
for proposals and agrees to enter into a contract consistent with state public contracting
law requirements. Submission of a bid or proposal without objection to provisions listed
in the form contract included in the solicitation documents constitutes an offer to enter
into a contract on those terms and no negotiation of those terms is permitted after the
contract award.
3. The City has the right to reject any bid or proposal that takes exception to specifications
or to contract terms unless the right to take exception is expressly granted in the
Invitation to Bid or Request for Proposals. Bids or proposals which take exception to the
specifications or contract terms, or which are made contingent upon the City's acceptance
of different or additional specifications or terms, may be rejected because they are not
responsible to the Invitation to Bid or the Request for Proposals.
4. Any exceptions to any proposed terms and conditions must be clearly stated in writing by
the bidder or proposer in the signed bid or proposal. The City reserves the right to reject
or accept any bid or proposal that takes exception to the terms and conditions, but must
take into account any objections in comparing the bid or proposal to other bids or
proposals. Exceptions to the terms and conditions become contractual obligations only
upon written acceptance by the City.
F. Comrnental
The following is a list of federal, state, and local agencies of which the City 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
contracts:
FEDERAL AGENCIES'
Agriculture
Department of Forest Service
Soil Conservation Service
Defense
Department of Army Corps of Engineers
Energy
Department of Federal Energy Regulatory Commission
Environmental Protection Agency
Department of Health and Human Services
Housing and Urban Development
Department of Solar Energy Conservation Bank
Interior,Department of
Bureau of Sports Fisheries and Wildlife
Bureau of Outdoor Recreation
Bureau of Land Management
Bureau of Mines
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Bureau of Indian Affairs
Bureau of Reclamation
Geological Survey
Minerals Management Service
Labor, Department of
Mine Safety and Health Administration
Occupational Safety and Health Administration
Transportation,Department of
Coast Guard
Federal Highway Administration
Water Resources Council
STATE AGENCIES'
Administrative Services,Department of
Agriculture,Department of
Columbia River Gorge Commission
Consumer&Business Services,Department of Oregon Occupational Safety&Health
Division
Energy,Department of
Environmental Quality, Department of
Fish and Wildlife,Department of
Forestry, Department of
Geology and Mineral Industries, Department of
Human Resources, Department of
Land Conservation and Development Commission
Parks and Recreation,Department of
Soil and Water Conservation Commission
State Engineer
State Land Board
Water Resources Board
LOCAL AGENCIES:
City Council
County Court
County Commissioners,Board of
Port Districts
Metropolitan Services Districts
County Service Districts
Sanitary Districts
Water Districts
Fire Protection Districts
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30.150 AVAILABILITY OF AWARD DECISIONS--CONTRACT RETENTION
A. Contract Documents
A signed purchase order, agreement, or contract, as applicable, shall be executed with the
person to whom the contract is awarded.
B. Notification to Unsuccessful Bidders
Unsuccessful bidders and proposers will be provided with the notice of award. Tabulations
of awarded bids may be obtained for a nominal charge in person or by submitting to the City
a written request stating the bid number and a self-addressed, stamped envelope.
C. Availabitily of Files
Completed files, other than confidential materials, shall be available for public review at the
City.
D. Copies from Files
Copies of material from files, other than previously described tabulation sheets, may be
obtained upon payment of a reasonable copying charge.,
E. Contract Retention
The following requirements on retention of contract documents after award shall apply:
1. For all service contracts the original must be kept for six (6) years after the contract has
been completely executed;
2. Capital improvement contracts must be kept a minimum of 10 years after substantial
completion;
3. Goods contracts must be kept for six(6)years after maturity;
4. Intergovernmental and interagency agreements must be kept a minimum of 10 years after
substantial completion; and
5. Other purchasing related documents should be retained according to City retention
schedules;
Any copies of the originals must be kept for two (2) years after maturity in all of the
categories listed above.
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30.185 REQUESTS FOR PROPOSALS
A. The City may use the request for proposal process for any contract for which price is not the
sole factor for awarding the contract. When the City uses a request for proposal, the
solicitation document shall state:
1. The necessary contract terms;
2. The evaluation criteria to be applied in awarding the contract and the rale of an
evaluation committee, if any;
3. The criteria for awarding the contract, which may include but are not limited to cost,
quality, service, experience, expertise, compatibility, product reliability, operating
efficiency,and expansion potential;
4. Complaint processes and remedies available;
5. The provisions made for vendors to comment on any specifications that they believe limit
competition.; and
G. The location where sealed written proposals are to be submitted and the date and deadline
for submittal.
B. All requests for proposals shall be published at least once in a newspaper, journal, trade
publication or similar periodical. In deciding where to advertise,the City shall consider what
publication is most likely to be read by qualified proposers.
C. The City may establish an ad hoc proposal review committee to evaluate any proposal and
a may provide for an interview of selected proposers as part of the evaluation process. Any
use of a proposal review committee or interview process shall be detailed in the request for
proposals.
30.194 PERFORMANCE AND PAYMENT SECURITY
A. Public Improvements Contract
Except in emergencies, when the requirement may be waived, or unless the requirement is
exempted under these rules, all persons entering into public improvements contracts with the
City will be required to provide:
1. A performance bond in a sum equal to the contract price, and
2. A payment bond in a sum equal to the contract price.
Public improvement contracts of$10,000 or less are exempt from the bond requirements.
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B. Other Public Contracts
The City may require performance security for other public contracts. Such requirements
shall be stated in the solicitation documents.
C. 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.
D. 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 otherwise specified in the solicitation.
documents.
E. Time for Submission
Upon request by the City, the apparent successful bidder or proposer must furnish the
required performance bond within ten days of contract award. 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 or proposal, forfeiture of bid security,
and award to the next lowest responsible bidder or next highest-scoring proposer .
F. Claims on Pa ments Bonds
Claims on payment bonds shall comply with ORS 279C600 to 279C.625 and Section 40.060.
30.1.95 RIGHT To AUDIT RECORDS
b
A. Records Maintenance;Access
Contractors and subcontractors shall maintain all fiscal records relating to public contracts in
accordance with generally accepted accounting principles. In addition, contractors and
subcontractors shall maintain any other records necessary to clearly document (i) their
performance and (ii) any claims arising from or relating to their performance under a public
contract. Contractors and subcontractors shall make .all records pertaining to' their
performance and any claims under a public contract accessible to the City at reasonable times
and places, regardless whether litigation has been filed as to such claims.
B. Audit of Cost or PjEjq&Dpta
The City may, at reasonable 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
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to such cost or pricing data for three (3) years from the date of final payment under the
contract, unless a shorter period is otherwise authorized in writing.
C. Contract Audit
The City shall be entitled to inspect, examine, copy, and audit the books and records of a
contractor or any subcontractor 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 subcontract for a period of three (3) years
from the date of final payment under the subcontract, or until the conclusion of any audit,
controversy or litigation arising out of or related to the contract, whichever date is later,
unless a shorter period is otherwise authorized in writing.
30.200 RIGHT TO INSPECT PLANT
A. Time for Ins ection
The City may, at.reasonable times, inspect the part of the plant or place of business of a
contractor or any subcontractor that is related to the performance of any contract awarded.
B. 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:
1. inspect and/or test supplies or services for acceptance by the City pursuant to the terms of
the bid;or
2. Investigate in connection with a bidder's application, a minority business certification, or
bidder disqualification.
C. 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. Such
inspections and tests shall be conducted in accordance with the terms of the contract.
D. Procedures for Trial Use and Testin
The City may establish operational procedures governing the testing and trial use of
equipment, materials, and the application of resulting information and data to specifications
or procurements.
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E. Conduct of Inspections
1. Inspectors
Inspections or tests shall be performed so as not 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 City,
unless otherwise specified in the solicitation documents. The presence or absence of an
inspector shall not relieve the contractor or subcontractor from any requirement of the
contract.
2. 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.
3. 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 performed at reasonable times during normal
business hours.
F. Inspection of Construction Projects
On-site inspection of construction shall be performed in accordance with the terms of the
contract.
30.205 CONTRACT CANCELLATION AND TERMINATION PROCEDURES
A. A contract may be canceled by the City for any violation of the provisions of the contract or
for violation of the certification of non-discrimination against minority, women, and
emerging small business enterprises.
B. The City may terminate any contract if insufficient funds are appropriated to complete the
contract.
C. No cancellation of a public contract shall, unless limited by the terms .of the particular
contract, restrict or abrogate any other remedy available to the City that is provided either by
law or under the particular contract.
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D. The City shall provide the contractor written notice of the grounds for cancellation or
termination and of its intention to cancel the contract or terminate the contractor's
performance. If the contractor provided a performance and payment bond, the.surety shall
also be provided with a copy of the notice of contract cancellation or contractor termination.
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The notice shall include the effective date of the intended cancellation or termination, the
grounds for cancellation or termination and notice of the amount of time(if any) in which the
City will permit the contractor to correct the failure to perform. The public contract may
provide contract cancellation or contractor termination procedures that are different from or
in addition to,those provided in this rule.
E. If the contractor has provided a performance and payment bond, the City may afford the
contractor's surety the opportunity, upon the surety's receipt of a contractor termination
notice, to provide a substitute contractor to complete performance of the contract.
Performance by the substitute contractor shall be rendered pursuant to all material provisions
of the original contract, including the provisions of the performance and payment bond.
Such substitute performance does not involve the award of a new public contract and shall
not be subject to competitive procurement requirements.
PCR 40.000 - PUBLIC YWROVEMENT CONTRACTS
40.010 APPLICATION
In addition to the requirements set forth in Section 30 of these rules, the following rules apply to
public improvement contracts. The requirements in Section 40 are intended to be
complementary to those in Section 30, with the rules in Section 40 supplementing the Section 30
requirements,where necessary,to meet the City's needs when administering contracts for public
improvements. °
40.015 COMPETITrvE BIDDING
Except as otherwise specifically permitted by these rules, public improvement contracts shall be
awarded by competitive bidding. If the public improvement contract includes design aspects, the
City may award the contract by a competitive proposal process.
40.020 FIRST TIER SUBCONTRACTOR NOTICE
If the public improvement contract may be for more than $100,000, the solicitation documents
must provide notice that the contractors must disclose first-tier subcontractors who will furnish
labor or materials greater than five percent of the total bid or $15,000, whichever is greater, or
$350,000 regardless of the percentage.of the total bid within four working hours after the
deadline for bid submission. The disclosure must state the name of each subcontractor and the
category of work the subcontractor will perform.
40.025 FIRST TIER SUBCONTRACTOR DISCLOSURE
A. Bidders for public contracts with a value of more than $100,000 must submit a first-tier
contractor disclosure sheet within 2 hours of the deadline for submitting a bid. The
disclosure sheet must list all first-tier subcontractors who will furnish labor or materials
greater than five percent of the total bid or $15,000, whichever is greater, or $350,000
regardless of the percentage of the total bid. The disclosure must state the name of each
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subcontractor, the category of work the subcontractor will perform and the dollar value of
each subcontract. If no first-tier subcontractor meets the threshold level for disclosure and
the bid price is more than $100,000, the disclosure sheet must still be submitted with the
information that no subcontractors meet the threshold level for disclosure.
B. Bid and proposals for public improvement contracts with a value of greater than$100,000 for
which a first-tier subcontractor disclosure is not submitted within four hours of the submittal
deadline shall be considered non-responsive.
C. The closing for submission of bids subject to first-tier subcontractor disclosure shall be on
Tuesday, Wednesday or Thursday between 2 and 5 pm.
D. First tier subcontractors may be substituted if only in compliance with ORS 279C.585.
E. The City may.require first-tier subcontractor disclosure in any invitation to bid, even if
disclosure is not otherwise required by statute or these rules.
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40.030 BID EVALUATION AND AWARD
A. General
Unless exempted by these rules, a public improvement contract, if awarded, is to be awarded
to the lowest,responsive and responsible bidder.
B. Special Re uirements
The solicitation documents shall set forth any special requirements and criteria,which will be
used to determine the lowest, responsive and responsible bidder. No bid shall be evaluated
for any requirement or criterion that is not disclosed in the solicitation documents or City
regulation.
C. Bid Evaluation and Award
The evaluation format for competitive bid pricing can be lump sum, unit price, or a
combination of the two.
1. Lump sum
If the bid foram includes a lump sum base bid, plus additive or deductive alternates, the
total bid price, for the purpose of comparing bids, shall be the total sum computed from
adding or deducting alternates, as selected by the City, to the base bid. If the alternates,
or if the City has selected no additive or deductive alternates for award, bids shall be
compared on the basis of lump sum prices, or lump sum base bid prices, as applicable.
2. Unit 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 multiplying the
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bidder, with due adjustments being made for additive or deductive alternates, if any,.
selected for. award. Note: In case of a conflict between a unit price and the
corresponding extended amount,the unit price shall govern.
3. Combination Lump Sum and Unit Price
The City shall select a combination of factors for purposes of bid evaluation and contract
award and use the methods described in(a)and(b)to compute and compare bids.
D. Proposal Evaluation and Award
If a selection method other than competitive bids is authorized by these rules for a public
improvement, proposals will be evaluated to determine which proposer offers the best
solution to the City in accordance with the evaluation criteria set forth in the solicitation
documents and in the City's rules. The solicitation evaluation criteria may include, but are
not limited to, cosi, quality, relevant experience, service, performance history on other
private and public contracts, experience and availability of key personnel, adequacy of
equipment and physical plant, financial wherewithal, sources of supply, and references.
Evaluation factors need not be precise predictors of actual future costs and performance, but,
to the extent possible, such evaluation factors shall:
1. Be reasonable estimates based on information available to the City;
2. Treat all proposals equitably;
3. Recognize that public policy requires acquisitions and public improvements. to be
accomplished at the least cost.
E. No assignment or transfer of contract rights
A contractor shall not assign, sell, or transfer rights, nor delegate responsibilities under a
public contract either in whole or in part, without first obtaining the City's prior written
consent. Such written consent shall not relieve a contractor of any obligations under a public
contract, and any transferee shall be considered the agent of the contractor and bound to
abide by all provisions of the public contract. Except in the event of a novation, if the City
consents in writing to an assignment, sale, or transfer of the contractor's rights. and
responsibilities, the contractor shall remain ultimately liable to the City for complete
performance of the public contract as if on such assignment,sale, or transfer had occurred.
40.035 CONTRACT CANCELLATION PROCEDURES
A. Termination Due to Circumstances Be and the Control of the Contractor
1. Reasons for Termination
The City may, in its sole discretion, by written order or upon written request from the
contractor,terminate the contract or a portion thereof if any of the following occur:
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a. The contractor is prevented from completing the work for reasons beyond the control
of the City;
b. Completion of the project is beyond the control of the contractor;
c. 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;
d. Any third parry judicial proceeding relating to the work other than a suit or action
filed in regards to a labor dispute;
e. if the circumstances or conditions are such that it is impracticable within a reasonable
time to proceed with a substantial portion of the public works;
f The City does not have funds budgeted or available to complete the contract; or
g. Any other reason allowed as a basis for termination under the contract.
2. Pa meat When Contract is Terminated
When the contract, or any portion thereof, is terminated before completion of all items of
work in the contract,payment will be made for the actual items of work completed under
the contract, or by mutual agreement, for items of work partially completed. No claim
for loss of anticipated profits will be allowed.
3. Responsibilfty for Com leted 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
any claims arising from the work performed.
B. Termination of Contract for Default
1. Declaration of Default
The City may, after giving the contractor or the surety seven (7) days' written notice and
an opportunity to cure deficient performance, terminate the contractor's performance for
any reasonable cause, including but not limited to those set forth in subsection 2(a)(1) to
(6) of this rule. Upon such termination, the City may immediately 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.
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The agency may finish the work by whatever method it may deem expedient.
a. If the contractor should persistently or repeatedly refuse to or fail to supply an
adequate number of properly skilled workers or proper materials for the efficient
execution of the project;or
b. If the contractor 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 of a substantial violation of any provision of the contract; or
c. If the Contractor should voluntarily or involuntarily seek protection under the U.S.
Bankruptcy Code and its Debtor in Possession or Trustee for the estate fails to assume
the contract within a reasonable time; or
d. If the contractor should make a general assignment for the benefit of the contractor's
creditors;or
e. If a receiver should be appointed on.account of the contractor's insolvency; or
f. If the contractor is otherwise in material breach of any part of the contract.
2. 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 not, on which
contractor 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 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 contractor or the surety.
3. Expense of Completion
The expense incurred by the City shall be as determined and certified by the City.
4. Substitution of Contractor
As provided in PCR 30.205, termination of the contractor and substitution of another
contractor to complete the work does not constitute the award of a new public contract
and shall not be subject to the provisions of ORS 279.005 to 279.111.
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5. 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 canceled by the City for any willful
failure or refusal on the part of the contractor to perform faithfully the contract 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.
6.4 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.
40.440 RETAINAGE
A. RetaiuMe of Five Percent
The City will retain amounts from progress payments so that the total value of all amounts
retained will not exceed 5 percent of the value of completed work. If the contract work is 50
percent completed and the work is progressing satisfactorily, the retainage may be reduced
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 97-112
percent completed, the City may without application 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.
B. Alternatives to Cash Retain e
In lieu of cash retainage to be held by the City,the contractor may select one of the following
options:
1. Deposit of Securities
The contractor may deposit bonds or securities with the City or in any bank or trust
company to be held 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 and the
amount retained on progress payments will be adjusted accordingly. The bonds and
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securities deposited by the 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:
a. Bills,certificates, notes or bonds of the United States.
b. Other obligations of the United States or its agencies.
c. Obligations of any corporation wholly owned by the Federal Government.
d. Indebtedness of the Federal National Mortgage Association.
e. Time certificates of deposit or savings account passbooks issued by a commercial
bank, savings and loan association, or mutual savings bank, duly authorized to do
business in Oregon.
f. Corporation bonds rated A or better by a recognized rating service.
g. General obligation bonds of the State of Oregon or any political subdivision thereof.
h. General obligation improvement warrants issued pursuant to ORS 287.502.
i. Irrevocable letters of credit from a bank doing business in Oregon.
At the time the City determines that all requirements for the protection of the City's
interest has been fulfilled, all bonds and securities deposited as above provided will be
released to the contractor.
2. 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. The City may, at its discretion, allow the contractor to deposit a surety bond in a form
acceptable to the City in lieu of all or a portion of funds retained to be retained. The
contractor shall accept like bonds from subcontractors and suppliers when the City allows
surety bonds for retainage.
C. RecoveLy 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.
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40.045 PROGRESS PAYMENTS
A. Request for Progress Payments
At a regular time each month, the contractor shall, if required by the contract documents,
submit 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 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 City's interests.
B. Progress Pg1ments Do Not Constitute 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.
C. Estimates for Progess Pa ents
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.
40.050 FINAL INSPECTION
A. Notification of Com letion
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 fifteen (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 City, and all certifications, bills, forms, and documents have been
submitted properly,such inspection shall constitute the final inspection.
B. Instructions to Com lete the Work
If, however, at any inspection, any work in whole or in part is found unsatisfactory, or it is
found that all certifications, bills, forms, and documents have not been submitted properly,
the City shall within fifteen (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
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in writing. The City shall make another inspection within fifteen(15)days after such notice,
and this inspection shall constitute the final inspection provided construction work has been
completed satisfactorily.
C. Acknowledgment of Acce Lance
Upon satisfactory completion of all work required under the contract, the City shall
acknowledge acceptance of the work in writing.
40.055 FINAL ESTIMATE AND FINAL PAYMENT
A. Submission of Final Estimate
As soon as practicable after final inspection-of the work under the contract, if unit prices
were applicable, the City shall prepare a final estimate of the quantities of the various classes
of work performed. Following a determination of the total amount due the contractor, and
following final acceptance of the work by the City, final payment shall be made to the
contractor.
B. Set-off of Prior Pa eats
All.prior partial estimates and payments shall be subject to correction in the final estimate
and payment.
C. 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. Interest shall also be payable on any interim payments that are
more than 30 days overdue. No interest shall be assessed against retainage or other amount
lawfully withheld by the City.
40.060 CLAIMS FOR UNPAID LABOR OR SUPPLIES
A. Right of Action_
A person claiming to have supplied labor or materials for work on a public improvement
contract led by the City for which the person has not been paid by the prime contractor or any
subcontractor, has a right of action on the contractor's payment bond. This right arises if the
person has not been paid in full and has given written notice of a claim within 120 days of
last providing labor or finvishing materials, or within 150 days of providing labor or
furnishing materials if the claim is for a required contribution to a fund of any employee
benefit plan.
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B. Notice of Claim
1. To initiate a claim against the contractor's bond, a person should file a Notice of Claim in
the form and manner attached as PCR 40.061 - Exhibit A. Such notice must be given to
the contractor and the City.
2. Any notice of claim should include the following information:
a. Name and address of the claimant;
b. Name of prime contractor; r
c. Title of project and contract date;
d. Name of the City;
e. Name of bonding company(may be obtained from City); and
f. Name of contractor or subcontractor to whom labor or material supplied.
C. Resppnse to Notice of Claim
Upon receipt of such Notice of Claim,the City shall:
1. Send an acknowledgment to claimant;
2. Send a copy of the notice to the prime contractor;and
3. File a copy of the Notice with the bonding(surety) company.
D. Referral to Surely Com an
If the contract has been completed and all funds disbursed to the prime contractor, all claims
shall be referred to the surety company for resolution. The City shall not arrange for second
payments directly to subcontractors or suppliers for work already paid for by the City.
E. Discretionary Payment of Claim
If the contract is still in force, the City may pay a valid claim to the person furnishing the
labor or services and charge the amount of the payment against funds due or to become due
to the contractor under the contract.
F. Liab&y of Claim
If the City chooses to make a payment as provided in Subsection E, the contractor or the
contractor's surety shall not be relieved from obligation with respect to any unpaid claims.
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40,061 EXHIBIT A.
To: (insert name of the public body)
NOTICE IS HEREBY GIVEN that the undersigned, (insert name of subcontractor 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 payment bond taken
from (name of prime contractor), as principal, and(name of bonding company if known), as
surety,for the construction of the (title or description of project). The material or labor was
supplied to (name of contractor).
(Insert a brief description of the work concerning which the bond was taken)
DATED this day of , 20_
By
(claimant's name)
40.065 PLANNING FOR PUBLIC IMPROVEMENTS
The City will prepare a file with the Commissioner of the Bureau of Labor and Industries a list of
planned public°improvements at least 30 days before adoption of the City's budget and otherwise
comply with ORS 279C.305.
40.070 PREVAILING WAGE LAws
Contractors shall comply with prevailing wage laws (ORS 279C.800 to 279C.870 or the Davis-
Bacon Act, 40 US 276a)if applicable.
PCR 50.000 WAIVER OF SECURITY (BID, PERFORMANCE AND
PAYMENT BONDS) (Also see PCR 30.055)
50.010 BID SECURITY REQUIREMENTS
The City shall require bid security unless an exception under the Public Contracting Code or
these rules apply. The City may, in its discretion, waive bid security requirements,for contracts
other than those for public improvements. In its discretion, the City may accept blanket bid
bonds. The City may require proposal security bonds.
50.015 CONTRACTS UNDER$10,000
The City may, in its discretion, waive the bid security and performance bond requirements if the
amount of the contract is less than$10,000.
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50.020 EMERGING SMALL BUSINESS CONTRACTS UNDER$100,000
A. The City may, in-its discretion, waive bid security requirements and performance bond
requirements when the public improvement project:
1. Has estimated direct construction costs not exceeding$100,000;
2. Is being undertaken through a program where the bidders are drawn exclusively from a
list of certified Emerging Small Businesses maintained by the Advocate of Minority,
Women and Emerging Small Business;and
3. The City has been provided funds by the legislature for the purpose of assisting Emerging.
Small Businesses.
B. The City may waive bid security requirements and/or performance bond requirements under
the following conditions_'
1. There exists an emerging small business account or like source of funds containing an
unexpended and unobligated balance;
2. The City has authority to encumber and make payments from the account; and
3. The City encumbers an amount in the account to cover the total cost of each project
wherein the bid security and/or the performance bond is waived.
PCR 60.000 - PROPERTY DISPOSITION
60.010 SURPLUS PERSONAL PROPERTY
A. Personal property owned by the City and under the dollar value of$500 may be disposed of
with the approval of any department head or the City Manager. Personal property that
exceeds that dollar value may be disposed of only after being declared surplus by the City
Manager. The method of disposal will be determined based on condition, value, demand,
and/or use.
B. Personal property may be declared surplus by the City Manager or designee if it is scheduled
for replacement in an adopted budget or it is no longer necessary to provide City services.
60.01$ AUCTION SALES OF PERSONAL PROPERTY
Personal property may be sold at auction if the City determines that an auction will probably
result in the best net return for the City. Auctions that are widely publicized, including internet
auctions, do not require notice by the City.
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60.020 SALES OF PERSONAL PROPERTY
A. When the current market value per item is estimated to be more than $25,000, the personal
property must be offered for competitive bid and be advertised in a newspaper of general
circulation in the City. The City at its discretion may choose between seated written bids or a
public auction. 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:
1. An appraisal of the market value of the property is obtained and documented, and the
negotiated sale price exceeds the market value; or
2. The sale amount exceeds the highest bid received through the bidding or auction process.
B. The City may sell personal property by a negotiated sale if the value of the property is
estimated to be less than$25,000 and the City has determined that a sale without competitive
bidding will result in at least as much net revenue as would a competitive bidding process.
The City shall endeavor to get as many quotes as is reasonable under the circumstances
(normally at least three) and shall negotiate to maximize the proceeds for the City.
60.025 LIQUIDATION SALES OF PERSONAL PROPERTY
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 by the competitive request for proposal process under
these rules.
50.030 DONATIONS OF-PERSONAL PROPERTY
A. The City may transfer personal property,including recyclable or reclaimed materials, without
remuneration or only nominal remuneration without competitive bids to the following
entities:
1. Another public agency;
2. 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
receive federal surplus property;or
3. Any recognized non-profit activity,which is certified to receive federal surplus property.
B. 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:
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1. A determination has been made that the property is not needed for other public purposes;
and
2. if the property has a current market value of$500 or more,the donation or sale shall:
a. Be approved by the City Manager or designee;and
b. Be documented by the City to be clearly in the public interest.
C. The City shall maintain a record of all transfers, donations, or sales authorized by sections A
and B of this rule.
60.035 TRADE OF PERSONAL PROPERTY
The City may trade personal property owned by the City to other government agencies or to
other entities provided the following conditions apply:
A. Trades to other government agencies are exempt from public bidding by PCR 10.010A.1;
however,such trades must be approved by the City Manager.
B. Trades of personal property with parties other than government agencies must proceed as
follows:
1. The market value of both the item to be traded and the. item requested must be
documented.
2. The proposal to trade an item for another item must be made available'to an adequate
number of potential vendors to encourage competition.
3. Such trades must be approved by the City Manager.
PCR 70.000 - PERSONAL SERVICES CONTRACTS
70.010 PERSONA.SERVICES CONTRACTS
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A. Personal service contracts are not "public contracts" subject to formal competitive process
under the Oregon Public Contracting Code. This rule describes a method for distinguishing
between personal service contracts and public contracts, particularly service contracts, and
provides examples of contracts or classes of contracts which are or are not personal service
contracts.
B. The determination whether a contract is a public contracts or a personal service contract shall
be based on the following:
1. Whether the City has developed or is reasonably able to develop reasonably adequate
design and/or performance specifications and whether selecting a contractor on the basis
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of lowest price and meeting minimum specifications would likely meet the City's needs.
if the tasks to be performed can reasonably performed based solely on compliance with
minimum specifications, then the tasks should be performed pursuant to a public contract
awarded by a competitive.bidding process. Conversely, if the City is reasonably unable
to develop adequate design and/or performance specifications but must instead have the
assistance of the contractor's training, knowledge, and expertise to develop a scope of
work statement and selecting the contractor on the basis of lowest price would be
unlikely to meet the City's needs, then the tasks would most appropriately be performed
under a personal service contract.
2. Whether selecting the contractor on the basis of qualifications rather than lowest price
will result in the City obtaining the best value for its money.
3. A personal service contract is appropriate-where the contract is awarded primarily on the
basis of the contractor's qualifications, including but not limited to, such criteria as
experience, training, knowledge, and expertise,.technical skill, creativity, artistic ability,
performance history, and demonstrated ability to exercise sound professional judgment.
Price will be a.secondary criterion for awarding a personal service contract.
4. A personal service contract is not appropriate where price is or should be the primary or a
major selection criterion.
C. Personal service contracts may include,but are not limited to,the following:
1. Contracts for services performed as an independent contractor in the professional
capacity, including but not limited to the services of an accountant; attorney;architectural
or land use planning consultant; physician or dentist; registered professional engineer;
appraiser or surveyor; aerial photographer;timber cruiser; broadcaster; or data processing
consultant.
2. Contracts for such services as an artist in the performing of fine arts, including but not
limited to photographer,filmmaker;painter; weaver;or sculptor.
3. Contracts for services of a specialized creative and research oriented, noncommercial
nature.
4. Contracts for services of a specialized creative and research oriented, noncommercial
nature.
5. Contracts for educational and human custodial care services.
D. The following are NOT personal service contracts:
1. Contracts, even though in a professional capacity, if predominately for a product, 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
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product.
2. A service contract, including a contract with a temporary service or personnel agency, to
supply labor which is of a type that can generally be done by any competent worker, e.g.,
data entry, key punch, janitorial, security guard, crowd management, crop spraying,
laundry,and landscape maintenance service contracts
3. Contracts for trade related activities considered to be labor and material contracts.
4. Contracts for services of a trade-related activity, to accomplish routine, continuing, and
necessary functions, 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.
70.015 SCREENING AND SELECTION POLICY FOR PERSONAL SERVICES CONTRACTS
It is the City's policy to select as expeditiously as possible the best qualified consultant available,
consistent with financial considerations. The selection procedures in this section shall be used to
select the personal services. contractors, except where ORS 279C.110(2) requires a different
procedure. The selections procedures do not apply to the appointment or hiring of City officials
and employees, to employment or services contracts with City officials and employees (except if
providing services outside the scope of employment or official duties), or to collective
bargaining agreements.
A. Formal Selection Procedure
This procedure shall be used for personal service contracts when the total cost of the contract
exceeds$50,000. The City may elect to use the Formal Selection Procedure for any personal
service contract, regardless of price.
l.. Announcement
The City will make at least one public announcement of its need for personal services in
an appropriate trade periodical or newspaper of general circulation. The announcement
shall include a description of the proposed project, the scope of the services required,
project completion dates, and a description of any special requirements, if present_ The
announcement shall invite qualified prospective contractors to indicate to the requesting
department their interest in performing the services required. The announcement will
specify a closing date by which the statement must be received by the, appropriate
department.
2. Application
Prospective contractors must submit a statement which describes their capabilities,
credentials, and performance data sufficient to establish their qualification for the project.
S
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3. Initial Screening
The Department Head or designee shall evaluate the qualifications of all applicants
responding to the announcement by the closing date and select from among the
respondents a minimum of three prospective contractors whose statements evidence the
highest level of qualification. Should fewer than three (3) statements be received, then
each prospective contractor submitting statements that meet the minimum qualifications
will be interviewed.
4. Final Selection Procedure
a Interviews
The Department Head or designee will hold discussions with the finalists selected for
initial screening. Applicant capability, experience, and compensation requirements
shall determine the department's final selection. The interviews may be in person or
by phone.
b. Award of Contracts
The Department Head or designee shall make a recommendation to the Board for
award of the contract based on the written materials and the interview evaluation.
The designee may be a committee.
B. Informal Selection Procedure
1. This procedure may be used when the estimated fee to the contractor does riot exceed
$50,000.
Z. The department will contact a minimum of three (3)prospective contractors with which it
has had previous successful experience or which are known by the department to be
qualified to offer the sought-after services. A projected fee will be requested and a
selection made by the Department Head or designee based upon the consultant's
capability, experience,project approach,and compensation requirements.
C. Direct Appointment Procedure
1. A qualified consultant may be appointed directly from the City's current list of
consultants, another public contracting agency's current list of consultants pursuant to an
interagency or intergoverrunental agreement entered into in accordance with ORS
Chapter 190; or from consultants offering the necessary services that the City reasonably
can locate. Direct appointment procedure may be used when:
a. The consultant's estimated fee does not exceed$1.0,000;or
b. When the project consists of work that has been substantially described, planned, or
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otherwise previously studied or rendered in an earlier departmental contract,provided
that the original selection procedure used for the project was a formal procedure and
the consultant's estimated fee does not exceed$50,000-
2. A direct appointment shall be competitive to the extent practicable and may be based on
the consultant's availability, capabilities, staffing experience, compensation requirements
and the project's location.
D. Emergency Appointment Procedure
Nothing in the rule shall be inferred to prohibit or otherwise impede the Department Head's
or designee's right to make direct consultant appointments when conditions require a prompt
action to protect life or property. In such instances, the recommended appointment and a
written description of the conditions requiring the use of this appointment procedure shall be
submitted by the Department Head or designee to the City Manager or designee for action.
The City Manager or designee will determine if an emergency exists, declare the emergency,
and when appropriate,approve the appointment.
E. Responsible-Parties' Actions
1. Professional Consultants
Submit qualifications, credentials, and performance data relating to their capabilities to
the appropriate division in response to project announcement.
2. Division/Department
a. Determine that the work on a project requires the services of a consultant.
b. Announce project as required by this section.
c.. Request the City Manager's approval of the required actions_
d. Determine appropriate selection/appointment procedure.
e. Select consultanticandidates as specified under this mile.
f Interview the top candidates and make the final selection.
g. Execute contracts and awards to consultants,with the City Manager's prior approval.
h. Maintain a file on the selection process, including:
1. The method and copy of the announcement.
2. The names of firms/individuals and cost estimates considered.
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3. A justification of need for the contract.
4. The basis for selection.
5. The means by which rates were established.
6. How reasonableness of price was determined.
7. A copy of the resulting contract.
3. City Manager
a. Approves each project's scope and budget as necessary.
b. Makes direct and emergency appointments as required.
c. Approves/disapproves Personal Services Contract and all subsequent amendments
unless the amount of the contract requires the Board's approval.
70.020 AMENDMENTS
Amendments for additional work on personal service contracts shall be permitted only if the City
requests additional work of the same type. Any such amendment may not exceed 25% of the
original contract value. if an additional personal services contract is to be awarded for work
related to an existing personal service contract, the total value of the new and old contracts is to
be considered .in determining the type of selection procedure required. If a contract was
originally awarded by the informal selection procedure, amendments that would result in a total
contract price of more than $50,000 are not permitted. If a contract was originally awarded by
the direct appointment procedure under Section 70.015C.La, amendments that would result in a
total contract price of more than$10,000 are not permitted.
PCR 80.000 - EMERGENCY CONTRACTS; SPECIFIC EXEMPTION
REQUIREMENTS; BOARD EXCEPTION- PROCEDURES; TEMPORARY
EXEMPTIONS
80.010 EMERGENCY CONTRACTS
A. The City Manager or designee may, at the City Manager's or designee's discretion, authorize
or let public contracts without a formal competitive process if an emergency exists and the
emergency consists of circumstances creating a substantial risk of loss, damage, interruption
of service, or threat to public health or safety that could not have been reasonably foreseen
and requires prompt execution of a contract to remedy the condition.
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B. The City Manager or designee must declare the existence of an emergency, which shall
authorize the City to enter into an emergency contract with a price under $50,000 and make
detailed written findings describing the emergency conditions necessitating prompt execution
of the contract: A copy of the findings together with the amount of the contract and the name
of the contractor shall be immediately forwarded by the City Manager to the Board.
C. Any contract awarded under this exemption shall be awarded within sixty (60) days
following declaration of the emergency unless an extension is granted.
A The City may enter into a public contract without a formal competitive process when
circumstances that could not reasonably be anticipated, require prompt establishment and
performance'of the contract in order to preserve public funds, property, or the uninterrupted
provision of government services. In exercising its authority under this exemption, the City
shall:
]. To the extent reasonable under the circumstances, encourage competition by attempting
to make informal solicitations or to obtain informal quotes from potential suppliers of
goods or services;
2. Make written findings describing the circumstances that require the prompt'performance
of the contract and of the harm anticipated to result from failing to establish the contract
on an expedited basis; and
3. Record the measures taken under subsection(a) of this section to encourage competition,
the amounts of the quotes or proposals obtained, if any, and the reason for selecting the
contractor.
E. The City shall not contract pursuant to the exemption in the absence of a substantial risk of
loss, damage, or interruption of services that would occur if contract performance awaited the
time necessary, given the complexity of the project, to solicit, receive and analyze bids or
proposals.
PCR 90.000 - RECYCLABLE/RECYCLED PURCHASING GUIDELINES
90.010 RECYCLED MATERIALS AND PRODUCTS GUIDELINES
The City shall make every effort to prefer, specify, and purchase recyclable items and materials
with recycled content in accordance with ORS 279A.125.
Incentives for recycled materials shall be applied whenever economically feasible.
A preference of 5% shall be applied for materials and supplies manufactured from recycled
materials, as provided in PCR 90.015 with the exception of recycled paper and paper products,
which receive a higher preference percentage as stated in PCR 90.020.
The bidder or proposer shall indicate in its bid or proposal, the materials it considers subject to
77
the 5% preference. The 5% preference will only apply to the value of that portion of a bid or
proposal that offers products containing verifiable recycled contents. The "5%preference" shall
be applied by dividing the bid amount for the recycled goods by 1.05 and using the resulting
number in calculating the total bid amount.
90.015 RECYCLED MATERIALS PREFERENCE
A. In order to qualify for a recycled materials preference, bidders and proposers, in their bids
and proposals, shall certify the minimum or the exact percentage of recycled product in all
materials and supplies offered and both the post-consumer and.secondary waste content
thereof.
B. Bids that contain false information about the percentage of recycled product, post-consumer
and secondary waste content, and verifiable recycled content shall be rejected as non-
responsive.
onresponsive.
C. Contracts awarded as a result of a preference under this rule are subject to investigation,
including but not limited to, audits, plant visitations, examination of invoices and other
documents, etc., as the City deems necessary to confirm that the products supplied contain
the percentages of recycled product, post-consumer and secondary waste stated in the bid or
proposal.
A Failure to provide products containing the percentages of recycled product, postconsumer
and secondary waste stated in the bid may result in:
1. The contractor being required to reimburse the City for the portion of the contract price
that is attributable to the preference;and
2. Contract termination; or
3. Both I and 2, or such other remedies the City deems appropriate. .
90.020 RECYCLED MATERIALS AND PRODUCTS PURCHASING GUIDELINES
A. Purchase of P4per Products
The City promotes the use of recycled paper and paper products. Purchase of recycled paper
and paper products is preferred even when the cost of the such recycled paper or paper
products is up to seven percent(7%) higher than the cost of the same quality paper or paper
products containing little or no recycled paper. "Recycled paper" shall be defined as a paper
product with not less than fifty percent (50%) of,its total weight consisting of secondary
waste materials or twenty five percent(25%) of its total weight consisting of post-consumer
waste.
1. In the specification and purchase of City high speed copier and small offset press
application paper and fine printing paper including book, bond, cover, gum, index,
bristols,boards,ledger,and duplicator papers: u
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a. The City shall use recycled paper wherever possible if available and compatible with
existing printing and copying equipment;
b. The City shall try to eliminate excessive or unnecessary paper use, including but not
limited to over-purchase of paper, over-printing of materials, purchases of too high a
grade of paper, purchase of paper which is not recyclable; and purchase of virgin
paper when recycled paper is available in the same grade;
c. Procurement specifications for the purchase of new printing and copying equipment
shall require the acceptance and operational use of recycled paper-and shall be
capable of two-sided copyijug;
d. The procurement of unbleached, recycled paper is encouraged and the use of bright,
hard to bleach colored or otherwise noir-recyclable papers shall be discouraged; and
e. in the specification and purchase of other paper items including corrugated and
fiberboard boxes, folding box board and cartons, stationery, envelopes, legal and
scratch pads,manifold business forms (including computer paper), toilet tissue, paper
towels, facial tissue, paper napkins and industrial wipes, and brown and coarse
papers, the City shall actively solicit information from vendors with regard to the
availability of other paper products (as listed above) with recycled paper content and
promote its use.
B. Purchase of Composted Waste Materials
In the specification and purchase of landscape cover, soil amendment,and fill materials:
1. The City shall eliminate from procurement specifications any exclusions or barriers to the
purchase of recycled compost materials except for exclusions based upon plant or human
health or safety; and
2. The City shall make every effort to utilize and specify functionally equivalent composted
waste products in the place of products manufactured from virgin materials.
C. Purchase of Retread Tires
In the specification and purchase of tires for vehicles and equipment in the City fleet:
1. The City shall make every reasonable effort to utilize retread tires in the.place of tires
manufactured from virgin materials where technical requirements will allow,and
2. The City shall give preference to the purchase of retread tires to the maximum extent
possible within the intended use of the product taking the following into consideration:
a. The product is unable to meet the City's specifications (e.g., emergency response
vehicles and heavy equipment);
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r
b. The product is not available within specified delivery schedules; and
c. The product is not price competitive.
D. Purchase of Re-refined Petroleum Products
in the purchase of lubricating oils for vehicles and equipment in the City fleet:
1. The City shall make every reasonable effort to utilize lubricating oils with re-refined oil
content unless: ,
a: The product does not meet performance specifications recommended by the original
equipment manufacturer and related warranties would be voided; and -
b. The product is found to not be economically or technically feasible.
2. The City shall review current procurement specifications in order to eliminate (wherever
economically and technically feasible) an exclusion of lubricants refined from recycled
waste materials.
F. Purchase of BuildinInsulation Products
In the specification and purchase of building insulation products:
L The City shall make every effort to prefer, specify and purchase insulation products
manufactured from recovered or recycled materials for maintenance and repair
operations, building construction projects and work or projects which are let to private
contractors;and
2. A decision not to purchase insulation products with the highest percentage of recovered
material content shall be based upon a determination that such products:
a. Are not available within a reasonable period of time;
b. Are not available at a reasonable price;and/or
c. Fail to meet reasonable performance standards set forth in applicable specifications.
F. Purchase of Rec clable Plastic Products
In the specifications and purchase of disposable food service products and bags:
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--
................
1. The City shall specify and utilize products, which are exclusively recyclable where
available and locally marketed. Preference shall be given to products manufactured from
materials which are readily recyclable with developed recycling markets and processes;
and
2. City employees in all departments shall use washable beverage cups and other food
services ware in the place of disposable items wherever possible. Disposable cups and
utensils shall be utilized primarily for meetings and department guests.
G. Rec clin use
The City shall also recycle or reuse materials and supplies of purchases as much as possible.
Following is a listing of some basic items which shall be recycled or reused: paper,
cardboard, scrap metal,tires,lubricants, and solvents, lead acid batteries, roadside brush and
chipped wood waste,plastic materials,and surplus property.
$1
Exhibit B
FINDINGS IN SUPPORT OF EXEMPTIONS TO
COMPETITIVE BIDDING OR PROPOSALS
The Local Contract Review Board of the City of Tigard adopts the following findings in support
of exemptions to competitive bidding/proposal requirements.
Contracts Under Certain Dollar Amounts
1. The City incurs costs in awarding contracts under a formal competitive bidding or formal
competitive proposal process.
2. While competitive bidding or competitive proposals can result in cost savings for large
projects,the cost of the process can exceed the cost savings for smaller contracts.
3. State law creates exemptions for contracts under specified dollar amounts, and the City's
exemption implements state law rather than creating a new or special exemption.
4. The rules require an informal competitive process (solicitation of quotes) in most
situations, assuring competition. Even when a direct appointment is possible,the City
cannot use a higher priced source if a lower priced source is known to be available. The
rule against fragmentation of contracts prevents misuse of this exemption.
5. The requirement to obtain at least three quotes for intermediate contracts discourages
favoritism by requiring the City to check with several sources.
6. It is unlikely that this exemption will encourage favoritism or diminish competition
because it still provides for competition in most circumstances and requires the City to
consider alternate sources.
7. The exemption will lead to cost savings by avoiding the cost of a formal process when
that cost would outweigh any likely cost savings.
8. The exemption is in the public uiterest because it allows the City to reduce internal costs
while controlling contract expenditures. This could not be achieved otherwise.
Price Regulated Items
9. If prices are regulated, a competitive process would not result in a lower-cost contract
and the costs of the process would increase the City's overall costs.
10. Price-regulated items are typically available only from a single or limited number of
sources, so exempting price-regulated items is unlikely to encourage favoritism.
11. The exemption is in the public interest because it results in cost savings for the City that
could not be achieved without the exemption.
Library Periodicals
12. Tl1e purchase of most library periodicals is within the small contract dollar amount.
13. A substantial amount of market competition exists for periodicals, which results in
competitive prices in the market.
14. The costs of a formal competitive process are greater that the amount of any likely
Savings from a competitive process.
15. The prohibition on use of higher priced sources when lower priced sources are known to
be available discourages favoritism.
Advertising Contracts
16. Most entities that provide a forum for advertisers have set prices that calmot be
negotiated.
17. The City has legal requirements for advertising public notices that can only be met by a
small number of sources and all possible sources can be contacted without the need for an
invitation to bid or request for proposals.
18. The correct advertising medium is important for the success of any advertising, so the
specific medium needs to be selected based on considerations that are difficult to
quantify. Therefore, selecting advertising media by bid is inappropriate and selecting by
proposals may also result in a proliferation of proposals that do not meet the City's needs.
19. Advertising often must be placed on a short time schedule that does not permit the use of
a formal competitive process.
20. The costs of a formal competitive process would likely be greater than the savings
resulting from using that type of process to place advertising.
21. This exemption will not encourage favoritism because the City is still able to use
informal processes to compare media and choose the best outcome for the City.
22. The exemption is in the public interest because it will result in cost savings to the City
without encouraging favoritism and those purposes could not be met with existing rules.
Equipment Maintenance Repair and Overhaul
23. It is often impossible to determine the cost of equipment repair or overhaul without
testing the equipment. It is not cost effective to have one contractor test the equipment
and another perform the repairs.
24. Equipment repair often is needed to be performed without delay and in less time than a
competitive process would take.
25. The only way to have a competitive process for equipment repair or overhaul, other than
by creating price agreements, would be to have a separate entity test the equipment to
determine what is wrong with the equipment.
26. Without knowing the extent of repairs needed, competition is not possible because
different entities could quote only their hourly rates, with no prediction as to the amount
of time the repairs would take.
27. The exemption is unlikely to encourage favoritism because it is to be used only in rare
occasions where the City does not have established price agreements,reached by a
competitive process without favoritism.
28. This exemption serves the public interest by providing a simple process for obtaining
equipment repair when needed.
29. The exemption for maintenance does not apply to routine or scheduled maintenance,
unless there is only one entity capable of providing the service.
Purchases Under Established Price Agreements
30. purchases under existing price agreements are unlikely to encourage favoritism or
diminish competition because they are based on price agreements entered into after an
open competitive process.
31. This exemption furthers the public interest by ensuring that price agreements will
Rulction properly and the same results would not be achievable if this exemption were
not granted.
Gasoline,Diesel Fuel,Heating Oil,Lubricants and Asphalt
32. The exemption encourages competition and discourages favoritism by requiring an
informal competitive process and requiring the City to use the least expensive source of
those providing quotes.
33. The purchases under this exemption are likely to be at levels that qualify as small or
intermediate contracts and the process is similar to the process required for intermediate
contracts. The exemption is provided because over a period of time the total dollar
amount of goods purchased from a single source may exceed the dollar maximum for
intermediate contracts. The exemption is justified because each individual contract will
be entered into on a competitive basis.
34. This exception is in the public interest because it allows the City to reduce costs while
maintaining competition. The same result could not be achieved within existing rules
because a costly formal process might otherwise be required.
Investment.Contracts
35. Investment of City funds is closely regulated by state statutes.
36. Protecting the City's financial resources is in the public interest and awarding investment
contracts to low bidders creates a risk of the security of the City's funds. The City needs
to have a relationship of trust with those
37. The exemption for investment contracts or contracts to borrow funds is not likely to
restrict competition or encourage favoritism because the City will investigate a range of
potential contractors to assure the security of the City's funds.
38, The exception is in the public interest because it protects the City's financial resources in
a way that could not be achieved without the exception.
Insurance Contracts
39. This exception provides for a competitive process for appointing agents of record or
obtaining specific insurance, although the process does not necessarily conform to the
standard RFP or ITB process. The competitive nature of the process promotes
competition and does not encourage favoritism. The public interest would not be served
by reliance on other regulations because of the specific nature of insurance contracts.
Employee Benefit Insurance
40, The Public Contracting Code creates an exemption for employee benefits contracts and
the City's regulations implement that exemption.
Office Copier Purchases
41. This exemption requires a comparison of products and prices and so is a competitive
process.
42. The exception is not likely to discourage competition or encourage favoritism because it
does require the City to compare and choose the best combination of goods and price. It
also results in a cost savings by being a less costly process than a formal competitive
bidding or proposal process.
43. The exemption is in the public interest because it allows the City to reduce procedural
costs while maintaining competition, and other regulations do not provide the same
combination of cost savings and competitive process.
Single Seller of Product or Service
44. In some cases,there is only one possible supplier of the goods or services needed by the
City. If there is only one supplied, a competitive process would be both unnecessary and
costly.
45. This exception does not discourage competition, it simply recognizes that in some
situations competition does not exist and that having a competitive process would not
result in competition. It also does not encourage favoritism because no one would be
disfavored by choosing the only possible source.. The regulation contains sufficient
safeguards to assure that it will be used only when other sources are not available.
46. The exception is in the public interest because it results in cost savings that would not be
possible if the exception did not exist.
Contract Amendments
47. At tunes the City's needs change during the course of a contract and more goods,
services, or work is needed to meet the City's needs. It would not be cost-effective to
require a new contracting process for additional work closely related to an existing
contract.
48. This exemption contains limitations to prevent abuse and to limit the extent of contract
amendments. These limitations discourage favoritism by requiring a new competitive
process for major amendments.
49. The exemption does not discourage competition because it applies only when the existing
contract was awarded by a competitive process.
50. The exemption is in the public interest because it saves the cost of a competitive process
to make minor amendments to an existing contract.
Affirmative Action Contracts
51. This exemption implements an exemption created by the Public Contracting Code.
Purchases of Contract by Other Public Agencies
52. Contracts by public agencies often allow other public agencies to make purchases on the
same terms.
53. This exemption promotes competition and does not encourage favoritism because it may
be used only if the original contract was awarded after a competitive process.
54. The exemption is in the public interest because it allows the City to take advantage of
other competitive processes and avoid duplication of costly processes.
55. The exemption is in the public interest because it results in cost savings while
maintaining competition. The same results could not be achieved without this exemption.
Oil or Hazardous Material Removal
56. This exemption is limited to situations in which the City must comply with a DEQ order.
The exemption is needed to ensure compliance with environmental laws and protection of
the enviromnent in a timely manner and applies only if a competitive process cannot be
completed in time to comply with the DEQ order.
57. The exception promotes competition by requiring the City to use an informal competitive
process by obtaining informal solicitations or quotes from potential suppliers.
58. This exemption is ur the public interest and the public interest in enviromnental cleanup
would not be served if this exemption were not adopted.
Contracts With Qualified Non-Profit Agencies
59. This exemption implements an exemption required by state law.
Ammunition
60. The City uses specialized ammunition, including special training ammunition. The
ammunition meeting the City's requirements is often available only for short time
periods, insufficient to allow a competitive process.
61. The general requirement to attempt to find the lowest price goods or services will ensure
that the City does not add to the City's costs. Providing this exemption will give the City
the flexibility to purchase ammunition when available and needed. Not providing this
exemption could endanger public safety.
62. The public interest is served by this exemption because it allows the City to ensure that
its police officers are adequately arined and trained.
Public Improvement Contracts Involving Design or Construction Management
63. This exemption allows a competitive proposal process to be used rather than a
competitive bid process for public improvements under some circumstances.
64. The exemption promotes competition and discourages favofitism by requiring a
competitive process.
65. The exemption recognizes that under some circumstances, the public interest is served by
considering quality as well as cost in contracting for public improvements.
66. The use of the design/build and construction manager/general contractor types of
contracts should result in cost savings to the City by allowing various means of
controlling costs and coordinating design and construction to reduce costs.
67. The public interest is served by this exemption. The public interest would not be served
by requiring competitive bidding on all public improvement contracts because doing so
would limit the City's ability to use cost-saving techniques and would prevent the City
from considering differences in quality among potential contractors when quality is a
legitimate issue. Under the competitive bidding process,the City is required to award the
contract to the lowest bidder, even if there is only a one cent difference in cost and a
substantial difference in quality,providing that the low bidder meets minimum
specifications.
Emergencies
68. In emergencies,the City is often required to take action in less time than it would take to
complete a formal competitive process.
69. The exemption promotes competition and discourages favoritism by requiring the City to
use an informal competitive process and by limiting the exemption to those contracts
needed to avoid a substantial risk of loss; damage or interruption of services.
70. The exemption promotes the public interest by allowing the City to respond quickly to
emergencies that threaten loss, damage or interruption of services. The public interest
would not be served by requiring a formal competitive process to respond to an
emergency.
CONCLUSION
As to each of the exemptions provided in the City's public contracting rules:
71. It is unlikely that any of the exemptions will encourage favoritism in the awarding of
public contracts or substantially diminish competition for public contracts. It is unlikely
that the rules as a whole, including all exemptions, will encourage favoritism in the
awarding of public contracting or substantially diminish competition for public contracts.
72. The awarding of public contracts pursuant to any of the exemptions will result in
substantial cost savings to the City. The exemptions have been prepared to allow less
expensive selection processes to be used when a more expensive process would not result
in sufficient contract cost reduction to justify a more expensive process.
73. For those provisions allowing public improvement contracts to be awarded by a means
other than formal competitive sealed bids,the exemptions will result in cost savings by
allowing the use of cost control measures throughout the development process.
74. Each exemption supports the public interest and each exemption is needed to provide a
comprehensive approach to public contracting that would not be achieved if any of the
exemptions were not provided.