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LCRB Resolution No. 20-01 CITY OF TIGARD, OREGON TIGARD LOCAL CONTRACT REVIEW BOARD RESOLUTION NO. 20-01 A RESOLUTION AMENDING THE CITY OF TIGARD PUBLIC CONTRACTING RULES WHEREAS,the City of Tigard's Public Contracting Rules (PCRs),adopted pursuant to Tigard Municipal Code (TMC) 2.46,provide for the processes and procedures of public contracting in the City;and WHEREAS, the City Council amended TMC 2.46 to move some provisions out of code and into the PCRs; and WHEREAS,the city manager's signature authority of$100,000 is less than many surrounding jurisdictions and the efficiency of contracting at the City could be increased by raising that signature authority;and WHEREAS, the City wishes to clarify the process and findings required for an alternative contracting method, such as construction manager/general contractor to comply with state law;and WHEREAS,the City Council determines that the PCRs,as revised,better suit the needs of the City that the Attorney General Model Rules (Model Rules). NOW,THEREFORE,BE IT RESOLVED by the Tigard Local Contract Review Board that: SECTION 1: The City's Public Contracting Rules are amended as shown in the attached Exhibit A (additional language is underlined and deleted text is shown in st4et#re ). SECTION 2: This resolution is effective immediately upon passage. PASSED: This_131d day of 2020. Mayor-City of Tigard ATTEST: City Recorder-City of Tigard RESOLUTION NO.20-0 1 Page 1 EXHIBIT A CITY OF TIGARD — LOCAL CONTRACT REVIEW BOARD PUBLIC CONTRACTING RULES June 2020 PCR 5.000—MISCELLANEOUS 5.010 DELEGATION OF AUTHORITY TO OBLIGATE THE CITY A. The Local Contract Review Board (I.CRB) delegates authorite to the City Manager to: 1. Award and execute contracts without specific LCRB approval whenever the contract amount is$250.000 or less. 2. Award and execute price ag eements without specific LCRB al i2roval if the Vearly estimated cost to the Cite is 5100.000 or less. 3. Authorize and execute amendments for contracts and price agreements under PCR 10.075 B. or as specifically authorized by the LCRB. 5.015 AUTHORIZATION TO ADVERTISE The Cite Manager is authorized to approve advertising for all bids or Proposals. 5.020 DUTIES OF CONTRACTS AND PURCHASING A. For contracts covered by the PCRs.Contracts and Purchasing;will: _1. Establish and maintain a centralized system for the purchase, contract, and sale of propert}• and services. _2. Adol)t forms, procedures, and administrative rules for all City purchases of goods and services regardless of the amount. 5.025 PURCHASING FROM CITY EMPLOYEES A. The purchase of ant supplies, materials. equipment. labor, or services—including personal and professional services—from any Cit1 emplo}ee, or business with which a Cite emplo)-ee is associated is subiect to prior written approval b�: the Cit�rManager. Such approval will be based ul2on findings that: 1. The purchase will be the least cost to the Citi: 2. The purchase will result in the most efficient method to accomplish the Cijy's ose• 3. The purchase is unlikely to lead to any alleged violations of thepersonnel rules: 4. The approval of the purchase is unlikeli to lead to an adverse employer-eml_plo`�ee relationship should the contract be unsatisfactorilyperformed;and 5. All rules adopted by the LCRB have been satisfied. B. For purposes of this section "ani business with which a Cit' employees is associated" means ani business for which the emploNee is a director, officer, owner or employee, or any corporation in which the Cin- eml-)lo;ee owns or has owned ten percent or more of ani- class of stock at an)7 time in the l)receding calendar}'ear. 1 PCR 10.000—COMPETITIVE PROCESS REQUIRED,EXEMPTIONS 10.010 COMPETITIVE PROCESS, EXEMPTIONS AND DEFINITIONS B. 5. "bat's"means calendar days,including weekday:s,weekends and holidat s. 10.105 USE OF ALTERNATIVE CONTRACTING METHODS FOR PUBLIC IMPROVEMENT CONTRACTS INP 0ANG SIGN-OR GONST TION-NLAN+k EM4ENT ORS 279C requires a competitive bidding process for Public Improvement Contracts unless a statutory exception applies, a class of Contracts has been exempted from Competitive Bidding,or an individual Contract has been exempted from Competitive Bidding. in accordance with ORS 279C.335. The City may enter into public improvement contracts without competitive bidding by use of an alternative contracting method if processes as described in PCR 10.108 are followed. Alternative contracting methods for public improvement are as follows: if-the-eern"aets-iftyelve design-e e6ffi tier-management -Peq e-;E-pertise-beysftdftsteaetiefter }ess emetnp+-ender"seffie ethef-eget $reeess-Abe-esed:--9rle-e€+he €elle,*itcgspeei€te-preeesses aewed A. Construction Manager/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 CM/GC performs specified Construction Manager services in addition to traditional General Contractor services. A CM/GC 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 and weighting. The criteria may include cost, quality, experience, availability, commitment to timely completion, and other factors. b. As part of the selection process, if the City chooses to hold interviews the scoring from the interviews will be combined to the other evaluation criteria to arrive at a proposer's final score and ranking. c. State that any savings the construction manager/general contractor realizes in performing the contract will accrue to the City, unless the contract provides otherwise. 2 d. Specify terms and conditions that govern how the fixed price, guaranteed maximum price or other maximum price set forth in the contract will be determined and whether the price includes or is based on unit pricing or allows for work that is constructed in phases. e. State that the City will not pay any amount that exceeds a fixed price, guaranteed maximum price or other maximum price specified in the contract unless the amount results from material changes to the scope of work set forth in the contract and the parties to the public improvement contract agree in writing to the material changes. f. Specify deadlines and time periods for the procurement that allow prospective contractors a reasonable opportunity to submit proposals,including but not limited to: 1) The date and time by which the City must receive proposals; 2) The dates on which or the time periods during which the City will conduct interviews,if the City chooses to hold interviews;and 3) The time period which the City will meet with those proposers not selected, if a proposer requests a meeting to discuss the procurement. g. 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 or the portions of subcontract work that may waive the qualification and selection process. 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. 3 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. e. The disposition of any cost savings resulting from completion of the work below the GMP, including the CM/GC share, if any, in those cost savings. Normally, the cost savings should accrue to the City. For purposes of this Section "savings" means a positive difference between a fixed price, guaranteed maximum price or other maximum prices set forth in the contract and the actual cost of the work,including costs for which the City reimburses the CM/GC and fees or profits the CM/GC earns. f. 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 fined amount when the GMP is established. i. Any economic incentives, the specific criteria that apply and their relationship to other financial elements of the Contract(including the GMP). B. Desiai-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; 4 d Shorten project time as construction activity (early submittals, mobilization, subcontracting and advance work) commences prior to completions 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. 2. A design-build contractor must have an Oregon licensed design professional(s) on staff that will be assigned to the City's project. The design-build contractor must disclose in its proposal the name of the Oregon licensed design professional(s) and verify that the professional(s)will be the one(s) providing primary design services to the City. 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 will 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. Contracts for EneW, Savings Performance Projects The Ci - ma• enter into energy savings performance contracts without following the Comlpetitive Bidding requirements of ORS 279C. "Ener• Savings Performance Contract" means a public contract between a contracting agency and a iqualified energy service company for the identification evaluation. recommendation. desi_qi and construction of energy conservation measures including a desi ii-build contract that guarantee energy savings or i>erformance. !n ffiftfty, sivafttiafts,ifte�ddiiag these prejeets that r-equire ft higher thftft nafemftl level of e . eenstit-attees-at least 7�52A-ef he-tataley:al ifttia rseare. itt searing- the east c ete the _.a_�- - --r—r 5 the laweRt eost. For &Eftffiple' if the seare faf the east &efaf is 80, the lowest east the seare tedtteed by-19 pereent(8 paitifs),fa 72. 10.108 Findings. Notice and Hearin. A. The LCRB may exempt a Contract from the requirements of Competitive Bidding for Public Improvement Contracts if it makes the following findings: 1. It is unlikely, that the exemption will encourage favoritism or substantially diminish competition in awarding; the public improvement contract. 2. The exemption will likely result in substantial cost savin rs and other substantial benefits to the City in accordance with ORS 279C.335 f 2)(b'}. 3. As an alternative to the findings re€yarding substantial cost savings, the City mU make a finding that identifies the �ro'ect as a -ilot _,ro'ect for which the Circ,- intends to determine whether the use of the Alternative Contracting Method actually!_results in substantial cost savings to the City. B. The LCRB ma° consider the i e cost and amount of the Contract the number of persons available to bid and other such factors as mai be deemed appropriate in declaring: the exemption. C. The LCRB shall require and approve additional finding>s in the follomd" areas in order to declare the exeml)tion: 1. How mam-persons are available to bid: 2. The construction budget and the projected operating costs for the completed public imnrovrment; 3. Public benefits that ma-y result from granting the exemption, 4. Whether value eW*neering techniques ma• decrease the cost of the public improvement; 5. The cost and availabiliuv of specialized expertise that is necessary for the public improvement, 6. Am-likely increases in_public safety 7. Whether granting the exemption mar reduce risks to the CiLy or the public that are related to the public improvement: 8. Whether canting the exemption will affect the sources of funding for the public improvement; 9. Whether Franting; the exemption will better enable the Citi to control the impact that market conditions ma- have on the cost of and time necessa-tv to complete the public imlrovement; 10. Whether granting the exemption will better enable the Circ• to address the size and technical complexity, of the public improvement; 11. Whether the -,ublic improvement involves new construction or renovates or remodels an existing structure; 12. Whether the public im rovement will be occupied or unoccupied during construction 13. Whether the public improvement will re wire a single phase of construction work or multiple phases of construction work to address specific project conditions,• and 14. Whether the Cit • has or has retained under contract and will use Citpersonnel, 6 consultants and legal counsel that have necessan- expertise and substantial experience in alternative contracting; methods to assist in developinf the alternative contractin}; methods that the Cin- will use to award the 12ublic improvement contract and to heli negotiate, administer and enforce the terms of the 12ublic improvement contract. D. If a particular factor set forth in this section doesn't apply to the pardctilar public improvement for which an exemption is sought. the LCRB does not need to consider that factor,and the ity is not required to address the factor, other than to state why the factor has no apl}lication to the the articular public im)rovement. E. The Cit,- shall hold a public hearing before final adoption of the findings and a declaration of the exemption. Notification of the public hearing shall be published in at least one trade newspaper of general statewide circulation a minimum of 14 Days before the heari . F. The notice must state that the public hearing is for the purpose of taking comments on the draft findings for an exemption from Coml)etidve Bid",. At the time of the notice, copies of the draft findings must be made available to the public. G. At the public hearing, the Cir.' shall offer an olportunit;- for any interested laersons to Q near and1)resent comment. H. Notice of the hearing maybe published simultaneously with the City's solicitation when the Ciiv is required to act prompd� due to circumstances beyond the Ciry's control that do not constitute and emergency as long as responses to the solicitation are due at least five 5 Days after the meeting and a 3.roval of the findings PCR 15.000 - PRICE AGREEMENTS *****NO CHANGE***** PCR 20.000 -BRAND NAMES OR MARKS *****NO CHANGE***** PCR 25.000—MINORITY OWNED,WOMAN OWNED. EMERGING SMALL BUSINESSES AND SERVICE-DISABLED VETERAN OWNED BUSINESSES *****NO CHANGE***** PCR 30.000 -FORMAL COMPETITIVE PROCESSES *****NO CHANGE***** PCR 40.035 - CONTRACT CANCELLATION PROCEDURES 40.040 B. 2 De;�osit in Interest-Bearing Accounts 7 Upon written request of the contractor, or an cirize the contract price exceeds $500,000. 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. If `` ftet price eReeed:; $590,000 and the eafitfaeter eleets to the Gity depagit ea .!a an hnteres the contractor deposits bonds, securities, or other instruments in lieu of cash retainage, the City shall accept the contractor's alternative retainage method in lieu of depositing the retainage in an interest-bearing escrow account, subject to the limitations and requirements of ORS 279C.560. PCR 50.000—WAIVER OF SECURITY BID PERFORMANCE AND PAYMENT BONDS (Also see PCR 30.055) *****NO CHANGE***** PCR 60.000 - PROPERTY DISPOSITION *****NO CHANGE***** PCR 70.000- PERSONAL SERVICES CONTRACTS 70.016 B.2. B. 3) L p to The three (3) highest ranked prospective contractors from the RFP process described above will be asked to provide price proposals to the City,in which not more than fifteen (15) percent of the overall weight of the evaluation criteria can be assigned. PCR 80.000 EMERGENCY CONTRACTS, SPECIFIC EXEMPTION RE UIREMENTS• BOARD EXCEPTION- PROCEDURES•TEMPORARY EXEMPTIONS *****NO CHANGE***** PCR 90.000—RECYCLABLE RECYCLED AND SUSTAINABLE PURCHASING GUIDELINES *****NO CHANGE***** 8