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Ordinance No. 87-59 CITY OF TIGARD, OREGON CITY COUNCIL ACTING AS THE LOCAL CONTRACT REVIEW BOARD f' ORDINANCE NO. 87-•-,� k AN ORDINANCE REPEALING ORDINANCE NO. 85-06 AND ADOPTING RULES OF THE CITY OF TIGARD LOCAL CONTRACT REVIEW BOARD FOR THE. AWARDING OF PUBLIC CONTRACTS, AND DECLARING AN EMERGENCY. WHEREAS, the 1983 Oregon Legislature enacted legislation calling upon the Attorney General to prepare and maintain model rules of procedures for Contract Review Boards; and WHEREAS, the Tigard City Council and Local Contract Review Board finds it necessary and desirable to modify the City's Rules to be in conformance with the Attorney General's model; and WHEREAS, there were pages inadvertently deleted from Ordinance No. 85-06 at the time of its adoption which the Local Contract Review Board finds necessary to include for the consistent implemention of Board policy. NOW, 'THEREFORE, THE CITY OF TIGARD ORDAINS AS FOLLOWS: Section 1 : The Tigard City Council, acting as the ;.oval Contract ReviewBoard, does hereby repeal Ordinance No. 85-06 in its entirety and adopts the attached "Exhibit A" as the new Local Contract Review Board Rules which is consistent with the Attorney General's model rules. Section 2: The Tigard City Council, acting as the Local Contract Review Board, further directs the City Recorder to file this document and any future revisions with the Washington County Board of Commissioners per ORS 279.055. Section 3 : This ordinance is necessary for the immediate preservation of the public health, safety and welfare in order to establish rules consistent with the rules of the State Public Contract Review Board and model rules as prepared by the Attorney General to reduce the potential for costly litigation and an emergency is hereby declared to exist and this ordinance shall be in full force and effect immediately union its passage by the Council, approval by the Mayor, and posting by the City Recorder. PASSED: By0'tis n ,�,tL_ vote of all Council members present after being r'ea; by numb r and title only, this �r._..Gl day of 1987. XCil�yRecorder — City of Tigard APPROVED: This day of /1JDu y ��.�- 1987. ezw Mayor — City of Tigard APPRPVED AS TO F ity Attorne OR NANCE NO. 87--.,52 0698F/lw "EXHIBIT A" CITY OF TIGARD f LOCAL CONTRACT REVIEW BOARD RULES The following administrative rules (AR) have been adopted by the City Council acting as the Local Contract Review Board and are effective November 2, 1967. These rules have been adopted pursuant to the authority granted to the Board by Ordinance No. 85--05. The rules shall apply to all contracting, purchasing and selling of property or professional services by the City of Tigard. TABLE OF CONTENTS 10.000 Contracts Exempt From Competitive Bidding And Requirements Contracts 10.010 Exemptions and Definitions 10.015 Exemption of Contracts Under Certain Dollar Amounts 10.020 Contracts for Price R.^••u7-,ted itc: s 10.025 Copyrighted Materials 10.030 Library Aggregate Purchases -- Library Periodicals 10.035 Advertising Contracts t 10.040 Equipment Maintenance Repair and Overhaul 10.045 Purchases of Used Personal Property 10.050 Purchases Under Established Requirements Contracts 10.055 Gasoline, Diesel Fuel, Heating Oil, Lubricants and Asphalts 10.060 Requirements Contracts • 10.065 Investment Contracts 10.070 Insurance Contracts 10.075 Employee Benefit Insurance 10.080 Data and Word Processing Contracts 10.081 Telecommunications Systems Contracts 10.082 Telecommunications Services and Equipment 10.083 Office Copier Purchases 10.085 Single Seller of Product Required 10.090 Contract Amendments 10.100 Affirmative Action Contracts 10.105 Life Cycle Cost Analysis 10.110 Request for Proposal L 1 ` � � ~ � � 20.000 Prand Names Or Marks » 20.010 Specification of Particular Brand Names or Products 20.020 Copyrighted Materials � 20,030 Single Manufacturer or, Compatible Products � 20.040 Product Prequali[ioatiun « ` ' 30.000 Public Bidding_Procedures , � 30.002 Definitiuno � 3O.OV5 Competitive Bidding � � 30.018 Bid Documents � � 30.015 Public Notice � l 30.028 Bid Preparation � 30.025 Bidder Prequalifioation � 30.030 Bidder Submissions .� , 30.085 Bid Security 30.040 Pre-Bid Conferences 30.045 Brand Name Products 30.050 Protest of Bid Specifications 30.055 Addenda to Bid Documents / 30.000 Pre-Opening Modification or Withdrawal of Bids 30.065 Receipt, Opening' and Recording of Bids 30.070 Late Bids, Lmte Withdrawals' and Late MOdifioationo 30.075 Mistakes in Bids 30.080 Time for Acceptance ' 30.085 Extension of rime for Acceptance of Bid 30.090 Bid Evaluation and Award ' 80.095 Low Tie Bids 30.100 Rejection of Individual Rids or Proposals 30.105 Negotiation with Bidders Prohibited ` 30.110 Bidder Disqualification �. ^ 30.115 Cancellation of Invitations to Bid 30.120 Disposition of Bids or Proposals if Bid Cancelled ` � 30.1�� Documentation of Award ` 30.130 Foreign Contractor 30.135 Availability of Award Decisions - Contract Retention 30.140 Performance Security ' _ 2 _ ' 30.145 Right to Audit Records 30.150 Right to inspect Plant 30. 155 Contract Cancellation Procp.!uren ` 40 Public Improvement Contracts 40.000 Application 40.005 Competitive Bidding 40.010 Public Notices 40.015 Bid Evaluation and Award 48.020 Contract Cancellation Procedures 40.025 Retainage 40.030 Progress Payments 40.035 Final Inspection 40.040 Final Estimate and Final Payment 40.045 Claims for Unpaid Labnr, or Supplies 50.000 Waiver Of Security Bid And Performance Bond 50.010 Bid Security Requirements 50.020 Contracts Under $18'000 / 60.000 Property Disposition 60.010 Auction Salon of Personal Property 60.015 Sales of Personal Property ` ' 60.020 Liquidation Sales of Personal Property 60.025 Donations of Peroumxl Property 70.000 Personal Services Contract 70.010 Personal Services Contracts 00.000 Procedures 80.010 Rules Of Procedure ^ 00.015 Meetings 80.020 Reports � 80.025 Notice Of Rule Amendment, Adoption, Repeal ^' 80.0-0 Meeting Agenda ` 90.000 Emergency Contracts Specific Exemption Requests; Board Exertion Procedures, Temporary Exc tions. 90.010 Emergency Contracts 90.015 Specific Exemptions 90.020 Brand Name Or Mark Exemptions 90.025 Conditions Of Brand Name Exemptions 90.030 Notice Of Application 90.035 Board Nearing 90.040 Temporary Rules Exemptions 90.045 Unanimous Consent Calendar 4 TTGARD LOCAL CONTRACT 11- &! BOARDADMINIS'TRA'TIVE RULES f AR 10.000 CONTRACTS EXEMPT FROM COMPETITIVE BIDDING AND REQUIREMENTS CONTRACTS. 10.010 Exemptions Rncl Uafinitions. All public. contracts shall be based upon coiupetitive bidding except the following: a. Contracts made with other public agencies or the federal government. b. Contracts which are exclusively for personal services as kefined in Section 70:000. Such contracts may include incidental materials such as written reports, architectural or- engineering renderings and similar supplemental materials. c, Contracts specifically exempt under these rules: 10.015 Exemption Of Contracts Under, Certain Dollar Amounts 10.020 Contracts For Price Regulated Items 10.025 Copyrighted Materials 10.03(' Library aggregate Purchases 10.035 Advertising Contracts 10.040 Equipment Maintenance Repair Arid Overhaul 10.045 Purchase of Used Personal Property 10.050 Purchases Under Established Requirements Contracts 10.055 Gasoline, Diesel Fuel, Heating Oil, Lubricants And Asphalt 10.060 Requirements Contracts ( 10.065 Investment Contracts 10.070 Insurance Contracts 10.075 Employee Benefit Insurance 10.080 Data and Word Processing Contracts 10.081 Telecommunications Systems Contracts 10.OG2 Telecommunications Services and Equipment 10.083 Office Copier Purchases t. 10.0185 Single Seller Contracts 10.090 Contract Amendments (Including Change Orders And Extra Work) 10. 100 Affirmative Action Contracts _ 10.105 Life Cycle Cost Analysis 10.110 Request for Proposal d. As used in this section: (1) "Board" means the City of Tigard Local Contract Review Board. (2) "City" or "The City" means Tigard, Oregon. (3) "Competitive bidding" means the solicitation by the City of competitive offers which follow the formal process for advertising, bid and bid opening required by ORS Chapter 279, and applicable rules of the City of Tigard Local Contract Review Board; 5 - T (4) "Competitive quotes" means the solicitation of offers by the City from competing vendors. The solicitation may be by advertisement or• by the City initiating a request / to vendors to make an offer. The solicitation and the t offer may be in writing or• oral. (5) "Invitation to bid" means the solicitation of competitive offers in which specification, price and delivery (or, project completion) will be the predominant award criteria. (6) "personal property" means everything subject to ownership which is riot real property and has exchangeable value. (7) "price agreement" means the same as requirements contract defined above. (6) "Request for proposal" means the solicitation of competitive proposals, or offers, to be used as a basis for• makr_na am acquisition, or• entering into a contract when specification and price will not necessarily be the predominant award criteria, (9) "Requirements contract" means an agreement in which the vender agrees to supply all the purchaser's requirements that arise for an item or items within a specified time period. i 3 (10) "Service" means work performed to meet a demand, especially work that is not connected with manufacturing j a product. 1 i (11) "Service contract means a contract that calls primarily 1 for a contractor's time and effort rather than for an end product. s i 10.015 Exemption of Contracts Under Certain dollar Amounts 1. The City may, in its discretion, let public coria acts riot t:a -- exceed $15,000 for the purchase of goods, materials, supplies and i services without formal competitive bidding, if the City has .±e+ voLned that the awarding of the contract without formal competitive bidding will result in cost savings and the following conditions are complied with: a. The contract is for a single project, and is not a component of or related to any other project. b. When the amount of the contract does not exceed $1,000, the City should, where feasible, obtain competitive quotes 6 1 c. When the amount of the contract is more than $1,000, but less than $15,000, the City shall, obtain a minimum of three competitive quotes. The City shall keep a written record of f the source and amount of the quotes received. If three �. quotes are not available, a lesser number will suffice provided that a written record is made of the effort to obtain the quotes. 2.. The City may, in its discretion, let public contracts for trade related projects, i.e. , construction, maintenance, repair, or similar labor and materials contracts without formal competitive bidding if the City has determined that the awarding of the contract without formal competitive bidding will result in cost savings and the following conditions are complied with: a. The contract is for a single project, and is not a component of or related to any other project; b. When the amount of the contract does not exceed $1,000, the City should, where feasible, obtain competitive quotes; C. When the amount of the contract is more than $1,000, but less than $10,000, except as provided in subsector (d) thp city shall obtain a minimum of three competitive quotes. The City shall keep a written record of the souree and amount of the quotes received. If three quotes are not available, a lesser number- will suffice provided that a written record is made of the effort to obtain the quotes. l d. When the contract is for maintenance or repair of roads, highways or parking lots and is more than $10,000, but less than $25,000, the City may let the contract without formal competitive bidding if a minimum of "hree competitive quotes are obtained. The City shall keep a written record of the r source and amount of the quotes received. If three quotes are not available, a lesser number will suffice provided a written record is invade of the effort to obtain the quotes. F 10.020 Contracts For Price Regulated Iteills The City may, without competitive bidding, contract for the --- purchase of goods or- services where the rata or price for the goods or services being purchased is established by federal, state or local regulatory authority. 10.025 Co righted Materials If the contract is for the purchase of copyrighted materials and there is only one supplier available for such goods, the City may contract for the purchase of the goods without competitive bidding. r, 10.030 Library Agaregate Purchases LibraryP,friodical� a. Purchases of library materials for the City library pursuant to the exemption rule, AR 10.015, are exempt from the $20,000 aggregate restriction of that rule. b. Purchases for the library of subscriptions for periodicals including journals, magazines, and similar publications may be made without competitive bidding. i 10.035 Advertising Contracts The City may purchase advertising without competitive bidding. t Such contracts shall be awarded in the manner provided by ORS 2%9.051. 10.040 epair And Overhaul 1. Contracts for equipment maintenance, repair, or overhaul may be let 1,ithnut competitive bidding, subject to the following conditions: a. The services and/or parts required are unknown and the cost cannot be determined without extensive preliminary dismantling or- testing; or, b. The services and/or parts required are for sophisticated equipment for which specially trained personnel are required and such personnel are available from only one source. 2. If the contract exceeds $10,000, the City shall document in its procurement file the reasons why competitive bids or quotes were deemed to be impractical. 10.045 Purchase4 of k)sed Personal Property Public contracting agencies may purchase used personal property for $10,000 or less without competitive bidding if the agency has determined that the direct purchase without competitive bidding ; will result in cost savings. For purchases of used personal property over $10,000, three competitive quotes shall be � obtained. if three quotes are not available, a written record must be made of the attempt to obtain quotes. lu.05Q Purchases Established Undera1ah14shed Requirements Contracts i 1. When the price of goods and services has been established by a , requirements contractpursuant to AR 10.060, the City may purchase the goods and services from the supplier without subsequent competitive bidding, — Q — i r. sw �P �Y 2. The City may use the requirements contract entered into by another public contracting agency when a formal interagency agreement exists between the City and the other agency. 10.055 Gasoline, Diesel Fuer Heating Oil, Lubricants Arid Asphalts The City may, without formal competitive bidding, purchase gasoline, diesel fuel, heating oil, lubricants, and asphalts subject to the following conditions: a. Prior to selection of the contractor, the Purchasing Agent seeks competitive quotes from a majority of vendors in the area; b. The City makes its purchase from the least expensive source, and c. The City retains written justification for the purchase made. 10.060 Requirements Contracts 1. The City may enter into requirements contracts whereby it is agread to purchase requirements or an anticipated need at a predetermined price Nrrvidin-, the following conditions are complied with: a. The contract must be let by competitive bidding pursuant to the requirements of Chapter 279, Oregon Revised Statutes and applicable rules of the City's Local Contract Review Board. b. The term of the contract including renewals does not exceed three years. 10.065 Investment Contracts The City may, without competitive bidding, contract for- the #' purpose of the investment of public funds or the borrowing .of funds by the City when such investment or- borrowing is contracted pursuant to duly enacted statute, ordinance, charter or constitution. 10.070 Insurance Contracts — 1. Contracts for insurance where either the annual or aggregate premium exceeds $5,000 must be let by formal competitive bidding or by one of the following procedures, j w 9 y a. Agent of Record: The City may appoint a licensed insurance agent ("agent of record") to perform insurance services in connection with more than one insurance contract. Among the services to be provided is the securing of competitive proposals from insurance carriers for all coverages for which the agent of record is given responsibility: i Prior to the selection of an agent of record, the City Purchasing Agent shall make reasonable efforts to inform known insurance agents in the competitive market area that it is considering such selection. These efforts s;Iall include a public advertisement in at least one newspaper of general circulation in the area. The advertisement shall generally describe the nature of the insurance that the City will require. If the amount, of the annual premium for insurance other' than employee benefits insurance is likely to exceed $10,000 per year, such novice shall also include a public advertisement in at least one insurance trade publication of general circulation in the state. ii An agent's appointment shall riot exceed a period of three years, but the same agent(s) may be selected in a stafAsequeni pedr`iuu. Agents must giaaiify th.c wPp.v3�......;2r1.. prior to each period as if each appointment period were +-he first. t iii In selecting an agent of record, the City shall select r the agent(s) most likely to perform the most cost effective services. b. Specific Proposals For Insurance Contracts: The City may solicit proposals from licensed insurance agents for the purpose of acquiring specific insurance contracts subject to the following conditions: i The City shall make reasonable efforts to inform known insurance agents in the competitive market area of the subject matter of the contract, and to solicit proposals for ..d. the anry rc � ion with I ass N�'u � _ny �..� z_.,a rc,rf»irpc_, in connection 1 M_ _ that contract. Such efforts shall include public advertisements in at least one newspaper of general circulation in the area. If the amount of annual premium for insurance other than employee benefits insurance is likely to exceed $10,000 per year, such notice shall also ► include a public advertisement in at least one insurance trade publication of general circulation in the'state. ii The City shall select an agent on the basis of the most competitive offer considering coverage, premium cost, and ° service to be provided. 'Ve — 10 — 10.075 Employee Benefit Insurance The City may purchase employee benefit insurance without / competitive bidding. 10.080 Data and Word Processing Contracts 1. Contracts for acquisition of data and .;cord processing hardware and systems software may be let using alternative competitive procurement methods subject to the following conditions; a. If the contract amount does not exceed $15,000, the City shall, as a minimum, follow informal competitive procurement methods. Prior to selection of a vendor, reasonable efforts will be made to solicit proposals from three or more vendors. Justification of award shall be documented and become a public record of the agency. b. If i. .e contract amount excoeds $15,000, the City may use the request for proposal process (AR 10. 110) and shall solicit written proposals. Solicitations shall be requested from appropriate vendors appearing on lists compiled by the agency or by advertising in an appropriate trade publication of yCl lc rwa .... c.. ,w, 7 ulatiam hen eglulre'd by statute, ..rhe Cii- gF,all document the evaluation and award process, which will be part of the public record justifying the award. C. If the amount of the contract exceeds $500,000, in addition to the requirements of subsection (1)(b) of this rule, the City shall: (1) Provide an opportunity for vendors to review requirements and, prior to submitting proposals, comment on any specifications which they feel limit competition; (2) Provide that residual values be considered only if they are clearly ascertainable; and (3) Provide that cost of conversion will be minimized by the agency. vendors competing in this category of procurement shall be given the opportunity to review the evaluation of their proposal before final management review and selection. If there is less than a 1% difference between the performance/cost ratio of the highest ranked proposals, appropriate consideration must be given to the procurement of equipment which will encourage competition. 10.081 Telecommunications Systems Contracts 1. Contracts for acquisition of telecommunications system hardware and software may be let using alternate competitive procurement methods subject to the following conditions: — 11 — a, If the contract amount does riot exceed $15,000, the City shall as a minimum obtain competitive quotes, Prior to selection of a vendor reasonable efforts will be made to solicit proposals from three or more. vendors, Justification of award shall be documented and become a public record of the agency. b. If the contract amount exceeds $15,000, the City may use the request-for-proposal process (AR 10.110) and shall solicit written proposals, Solicitations shall be requested from appropr•.iate vendors appearing on lists compiled by the agency or• by advertising in an appropriate trade publication of general circulation when required by statute, 2.. The telecommunications solicitation authorized in subsection 1(b) shall: a. State the contractual requirements in the solicitation document: b. State the evaluation criteria to be applied in awarding the contract and the roles of any evaluation committee. Criteria that would be used to identify the proposal that best meets the public contracting agency's needs may include, but are not limited to cost, quality, service, coi-apatibility, product: reliability, operating efficiency, and expansion potential: C. State the provisions made for vendors to comment on any specifications which they feel limit competition, 10.082 Telecommunications Services and Eriu:i meat i 1. The City may continue the existing telecommunications services � and equipment after January 1, 1984 from the current provider, or the appropriate AT&T company assigned such ser•vir_e or product area under the divestiture orders of United States v Western Electric Co• , et a1. , No. 82-0192,_ The District- Court, District of Columbia, 1983. 2. Any new ty-pe o - service or equipment or any major replacement of � - existing services or equipment where the rate is not established i by federal, state, or local regulatory authority shall be acquired by competitive procurement. r F 3. This rule is intended to provide an orderly transition period, The rule is automatically repealed on July 1, 1986. € 16,O83 Office Copier Purchases 1. The City may enter into multiple price agreements or requirements contracts for either the purchase or lease of office copying equipment, Except for this multiple award exemption, such agreements shall otherwise conform to the requirements of AR 10,060, E 12 g` N�^ �. ^ 2. In exercising this exemption the City shall fully consider the operating capabilities, limitations and onat of each brand or, . model and select that brand which will produoa +hm bu:t � combination of performmnce and cost per copy for each application. \ ` 10.085 Single, Geller Of Product Required Subject to all requirements of HR 20.010, the City may purchase without competitive bidding if there is only one xeller or a product of the quality required, or if the efficient utilization of existing equipment or supplies requires specification of a compatible product for which there in only one seller. / 10.090 Contract Amendments (Including Chanqe Orders And Extr-�� Worj� 1. Any contract amendment for additional work including change orders, extra work' field orders, or other change in the original specifications which increases the original contract price, may be made with the contractor without competitive bidding subject to the following conditions: a. The original contract was let by competitive bidding' unit prices or bid alternates were provided that established the cost fur- additional work, and a binding obligation exists on the partieo ccuering Ithe term, and cen ditiuns cF the additional work; or b. The amount of the aggregate coot increase resulting from all amendments shall not exceed zO% of the initial contract, or- 20% r2O% of the initial contract when the initial contract in for - a face amount riot exceeding $100'000. Amendments made pursuant to section (a) of this rule are not included in computing the aggregate amount under this section. �Contracts 1. Public rnntn^oto may be awarded without competitive bidding � pursuant to * specific Affirmative Action plan. affirmative � Action in a program designed to insure equal opportunity in employment and business for persons otherwise disadvantaged by ` reason of race' nnlvr' 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. � 13 , ` - ' ' ' . ' ' ^ m----�-- 10.105 Life Cycle-Cost Analysis 1. In determining the lowest responsible bidder, in the award of a contract, the City may use the concept of life cycle costing if it complies with section (2) of this rule. As used in this rule, life cycle costing means determining the cost of a product for its useful life. 2. The City shall follow the following procedures: a. Prior to the time of writing specifications for the product, the City shall identify those factors which will have cost implications over the life of the product. b. The Invitation to Bid shall set out clearly the factors and methodology to be used in life cycle cost adjustments. c. At or after the formal bid opening; the results of life cycle costing adjustments shall be applied to the base bid, and the bidder whose total bid results in the lowest ownership cost, taking into account the life cycle costing adjustments, shall be considered the lowest responsible bidder. 10.110 Request for Proposal 1. Public contracting agencies may, at their discretion, use request—for--proposal competitive procurement methods subject to the following conditions: y a. Contractual requirements are stated clearly in the solicitation document. b. Evaluation criteria to be applied in awarding the contract and the role of an evaluation committee are stated clearly in the solicitation document. (1) Criteria used to identify the proposal that best meets the public contr-acting needs may -include but are not limited to cost, quality, service, compatibility, product reliability, operating efficiency and expansion potential. c. Solicitation document clearly states all complaint processes and remedies available. d. Solicitation document states the provisions made for vendors to comment on any specifications which they feel limit competition.` 14 AR 20.000 BRAND NAMES OR MARKS 20.010 Specification Of Particular Brand Names Or Products Specifications for public contracts shall not expressly or implicitly require any product of any particular manufacturer or seller except pursuant to an exemption under AR 20.020 (Copyrighted Materials), 2.0.030 (Single Manufacturer Or Compatible Products), or 20.040 (Product Prequalification). If there is no other practical method of specification, the City may designate a particular brand name, make or product "or equal", but this practice should be avoided whenever possible. 20.020 Copyrighted Materials The City may specify a specific copyrighted product. This exemption does not include patented or trade mark goods. 20.030 Single Manufacturer Or Compatible Products 1, If there is only one manufacturer or seller of a product of the quality required, or if the required product is data processing equipment which will be used for research where there are requirements for exchange of software and data with other research establishments, or if the efficient utilization of the existing equipment or supplies requires a compatible product of a particular manufacturer or seller-, a public contracting agency may specify such particular product subject to the following conditions: a. Thi product is selected on the basis of the most cc,�ipetitive offer considering quality and cost. The term 'cost' includes not only the product price but also other items of expense such as costs related to quality of ron"nrai,_.n. -- b. Prior to awarding the contract, the City has made reasorable effort to notify known vendors of competing or comparable products of the intended specifications and invited such vendors to submit competing proposals. If the purchase does not exceed $15,000, such notice and invitation may be informal. If the amount of the purchase exceeds $15,000, such notice shall include advertisement in at least one newspaper of general circulation in the area where the contract is to be performed and shall be timely to allow competing vendors a reasonable opportunity to make proposals. 15 — l 2. if the amount of the purchase exceeds $15,000 and is not also pursuant to the data processing exemption, AR 10.060, Purchasing Agent shall document its action in the bid file. Such r documentation shall include: a. A brief description of the proposed contract or contracts. b. A detailed description of the reasons why the product and/or seller was selected and any competing products and/or sellers that were rejected. The description shall also includev�e efforts taken by the Purchasing Agent to notify and te proposals from competing vendors. 3. If the City intends to make several purchases of the product of a particular- manufacturer, or seller, for a period not to exceed two in the documentation required by years, it may so stag'- paragraphs (1)(b) and (2), and such documentation shall be sufficient notice as to subsequent Purchases. 20.040 product prequalification 1, When it is impractical to create specific desi gchar pe fo man y specifications for a type of- product to be. p may specify a list of approved products by reference to particul�" manufacturers or sellers in accordance with the following product prequalification procedure: a. The Purchasing Agent has made reasonable efforts to notify known manufacturer's or vendors of competitive products of its intention to accept applications for inclusion in its list of ` prequalified products. Notification shall include advertisement in a trade journal of statewide distribution when possible. In lieu of advertising, the City may notify vendors and manufacturers appearingan the appropriate list ,�,.„,• 'vie s of the State Maintained Uy l ilC l?CF/v l 41.ivi.4 of Oregon. b. i'he City permits application for prequalification of similar products up to 15 days prior to advertisement- for bids on the product. 2• If an application for inclusion in a list of prequalified products is denied, or an existing prequalification revoked, the Purchasing Agent shall notify the applicant in writing. The applicant may appeal to the Board for a review of the denial or revocation in the same manner as an appeal of disqualification or denial provided in AR 30.110(5). I 16 ;1 AR 30.000 PUBLIC BIDDING PROCEDURES ,+ 30.002 Definitions l For purposes of these rules the following definitions apply: 1. "Addenda to the Bid Documents" means additions or changes to the bid documents defined as addenda shall be labeled as such and distributed in accordance with these rules; 2.. "Bid" mains a co+npetiti.ve offer- in which price, delivery (or project completion) and conformance to specification will be the predominant award criteria. Bid also includes a proposal when authorized by the public contract review entity where a solicitation of competitive proposals or offers is utilized for procurement when specification and price will riot necessarily be 4 the predominant award criteria; 3. "Bid Closing" means the date and time announced as the deadline for the receipt of bids; 4. "Bid Opening" means the date, time and place set for opening of - competitive bids; 5. "Bid Sample" means a representative specimen of the item that i will be available in response to the bid; ® 6. "Bidding Period" means tie span of time between the date of the invitation to bid and the time and date set for receipt of bids. ( A minimum of fourteen (14) calendar days shall be provided, unless a shorter time is deemed necessary in the public interest for a particular procurement; i „4�na the document authorizing an 7 "Contract Release urae4 --__" additional purchase on an existing requirements contract. - 44�- . S. Descriptive Literature" means materials submitted by prospective vendors to provide information concerning the products available in response to the bid; 9. "Lowest Responsible Bidder" means the lowest bidder who has 4 substantially complied with all prescribed public bidding procedures and requirements and who has not been disqualified by the public contracting agency under ORS 279.037. (ORS F 279.029(1)); 30.005 r nmmnotitiye Biddin ! Contracts issued by the City shall be awarded by competitive bidding except as otherwise exempted under the provisions :>f ORS 279.015, 279.053, 279.056, or- under AR 10.000 of these rules. - 17 - 3-.010 Bid Documents 1. The Bid Documents Shall Include the Following: concerning the bid the a. Instructionstime and date set for- submission and information to bidcier•s submission r'equir'ements, includingto ss ros ycal f info natiorr,ich bids are opening of bids, the addre to be delivered, and any othe K �rchase descr•iptiun, specifications. ; b, Where applicable, the p " ins ection and acceptance delivery or, per schedule, p i requirements, and special evaluation factors; The contract terms and conditions, including warranty and C. Tr uirements, as applicable; and � bonding or other, bid security req �€ d, All addenda issued by the City. I 2, Determination of Contractual Terms and Conditions. contractual ` I dete rminO the L a. The City is authorized to M,� rnnc3ltlnrl5 of solicitations and provisions, ansa d su �• ",Y,s are contracts. provided such provisions, terms and Coriu�I=--•- not contrary to statutory or regulatory requirements. 3. Terms and Conditions Applicable to public Contracts. uirement in OR 1:n addition to the Oregon preference req terms and a' the City shall establish standard ORS � 279.021(1), le as prescribed by conditions including those applicab 279.310 to ORS 279.575: (1) payment of laborers and material men; cnntr•ibutions to cident Fund; liens and withholding taxes Industrial Ac (ORS 279.312); (2) payment of claims by public-0ii ."-4c-r% (.ORS 2/9.314); (3) Hours of labor (ORS 279.316 and 279.338); (4) Environmental and natural resources regulations (ORS 279.318); 5 payment for medical care and attention to employees (ORS 279.320); Voluntary ter;nination of the contract (ORS 279.326); u (6) ORS 279,3'L8 •- Zjy.3s�); (7) Suspension of the work ( (8) Maximum hours and overtime (ORS 279.334): (9) Claims for overtime (ORS 279.336); - 18 -- 'a (..Oj Ove-time requirement for local governments (ORS 279.340 anc 279.342); C (11) Prevailing wage rates (ORS 279.348 - 279.365); (112) Retainage (ORS 279.400 -- 279.430 and ORS 279.575); (13) Contractor's bond (ORS 2.79.526 and 279.536); i t (14) Notice of claim (ORS 279.528); 4 (15) Labor and material liens (ORS 279.538); { (16) liability in absence of bond (ORS 279.542); (17) Progress payments (ORS 279.575). i b. Such ter-ins and conditions shall become an integral part of each contract. 4. Special 'Perms and Conditions. The City may also establish special terms and conditions applicable to specified categories of contracts. Any special terms and conditions shall be included in the bid documents and become an integral part of those contracts. 5. Compliance and Exceptions to Terms and Conditions. L a. Bidders shall be responsible for noting the terms and conditions included as applicable to each set of bid s' documents. ; y b. By signing and returning the bid proposal form, the bidder is acknowledging acceptance of and the intent to abide by the terms and conditions. c, Any exrpptions to the terms and conditions must be clearly stated in writing by the bidder, in the signed returned proposal. The city reserves the right to reject any bid which takes exception to the terms and conditions. Exceptions to the terms and conditions become contractual r obligations only upon written acceptance by the City. E' Commentary Tn compiia;we with 'the provisions of ORS 279.318, the following j is a list of federal, state and local agencies of which the Owner has knowledge that have enacted ordinances or- regulations dealing ? with the prevention of environmental pollution and the preservation of natural resources that may affect the performance of the contract: } - 19 - x��t s _ - Federal Agencies: Agriculture, Department of Forest Service Soil Conservation Service Defense, Department of Army Corps of Engineers Environmental Protection AGency Interior, Department of Bureau of Sport Fisheries and Wildlife Bureau of Outdoor Recreation Bureau of Land Management Bureau of Indian Affairs Bureau of Reclamation Labor, Department of Occupational Safety and Health Administration Transportation, Department of Coast Guard Federal Highway Administration State Agencies: Agriculture, Department of Environmental Quality, Department of Fish and Wildlife, Department of Forestry, Department of i Geology and Mineral Industries, Department of Human Resources, Department of Land Conservation and Development Commission Soil and Water Conservation Commission State Engineer -- State Land Board Water Resources Board Local Agencies: City Council County Court County Commissioners, Board or- Port rPort Districts Metropolitan Service Districts County Service Districts Sanitary Districts Water Districts Fire Protection Districts 30.015 Public Notice 1. Distribution. Bid documents and notices of the availability of bid documents shall be mailed or otherwise furnished to a sufficient number of bidders for the purpose of securing competition. Notice of availability shall indicate where, when, y - 20 - ■ and for how long the bid documents may be obtained; generally describe the supply, service or construction desired; and may contain other appropriate information. The public agency may charge a fee or require a deposit: for the bid documents. 2. Advertising. a. Unless exempted every forma] solicitation of bids shall bck advertised. An advertisement for bids shall be published at least once in at least one newspaper of general circulation in the area where the contract is to be performed and in as many additional issues and publications as the public agency may determine to be necessary or desirable to ensure competition. b. All -advertisements for- bids shall state: (1) The date and time after which bids will not be received which date shall not; be less than five (5) days after the date of the last publication of the advertisement. (2) The date that prequalification applications must be filed if prequotlification is a requirement; (3) The character of the work to be done or the items to be purchased; (4) The office where specifications may be seen; J (5) The name and title of the person designated to receive bids; (6) The date, time, and place that bids will be publicly opened. 3. Posting of Bid Advert-4--c-::tent. A copy of each bid advertisement - shall be posted at the business office of the City. Bidders may obtain a copy upon request. 30.020 Bid Preparation Bid Preparation Instructions 1 Bids shall be typed or prepared in ink and shall be signed in ink by the bidder or an authorized representative of the bidder. 2. Bids shall be made on the bid form provided. 3. Alterations or erasures, if any, shall be initialed in ink by the person signing the bid. 4. Bids shall contain a fully executed bid package, including all required documents and descriptive literature. f � — 21 - i i 30.025 Bidder Prequalification The City may require mandatory prequalification of bidders on ( forms prescribed by the Purchasing Agent. When prequalif-ication is required by the bid documents as a condition for bidding, the City shall not consider the bid(s) of any prospective bidder who is not prequalified in accordance with the City's adopted rules and regulations. If a bidder is currently prequalified by either the State Department of Transportation or the State Department of General Services to perform contracts, the bidder shall be equitably presumed qualified to perform similar work for other public agencies. (ORS 279.047). 30.030 Bidder Submissions 1. Bid Samples and Descriptive Literature. Bid samples or descriptive literature may be required when it is necessary to evaluate required characteristics of the items bid. Bid samples will be returned in accordance with provisions contained in the bid documents. 2. Identification of Bids. Bids shall be submitted in a sealed envelope appropriately marked or in the envelope provided by the City, which is applicable, to ensure proper identification and special handling. The City shall not be responsible for the proper identification and handling of any bids not submitted in the designated envelope. 3. Receipt of Bid. It is the bidder's responsibility to ensure that bids are received by the City prior to the stated bid closing time. 30.035 Bid Security 1. Public Improvement Contracts, Bid security not: to exceed 10 percent of the base bid(s) shall be required for public improvement contracts where the amount: of the contract exceeds $10,000. The bid security shall be forfeited if the bidder fails to execute se cvntr«ci promptly and Properly ii «wariieu. vita - 279.031). 2. Other Public Contracts. Bid security riot to exceed 10 percent of the bid may be required by the City for other contracts in order to guarantee acceptance of 'he award. This requirement shall be stated in the bid documents 3. Contracts Under $10,000. Bid security for contracts of less than $10,000 shall be required only in critical circumstances, so as not to discourage competition. 4. Form of Bid Security. The following forms of bid security will be accepted by the City; 22 ._ ■ a. Surety bond from a surety company authorized to do business in the State of Oregon; b. Cashier's check, certified check, or- savings and loan secured check; or c. Annual surety bond field with the City (except for public improvements contracts). 5. Return of bid Security. The bid security of all unsuccessful bidders shall be returned after a contract has been executed, or all bids have been rejected. The public agency may return the bid security of unsuccessful bidders after bid opening but prior to award, if the return does not prejudice bid award and provided that the security of at least the three lowest bidders is retained pending the execution of a contract. s� 30.040 Pre—Bid Conferences Pre—bid conferences may be held by the City to explain the procurement requirements or conduct site inspections. The city may require attendance at the pre—bid conference as a condition for bidding. Such conferences shall be announced to all prospective bidders in the bid documents. The pre--bid conference shalt by held within a reasonable time after the bid documents have been issued to allow bidders to become aware of it, but sufficiently before bid closing to allow consideration of the conference results in preparing bids. Statements at the pre-bid conference shall not change the bid documents unless confirmed to all prospective bidders by means of a written addendum to the bid documents. 30.045 Brand Name Products 1. Product Requirement by Brand Name Prohibited. Specifications for, public contracts shall not expressly or implicitly require any product by any brand name or mark, nor the product of any particular manufacturer or seller except pursuant to exemptions authorized by the rules including but not limited to: } A. Copyrighted Materials; AR 20.010. b. Single Seller of Product Required and Single Manufacturer or Compatible Products; AR 20.030 and AR 10.065 3 'L:. Specification of' Particular Brand Names or PP'ode.iCT:q: FIK 20.010. d. public agencies may identify products by brand names so long k as "approved equal." or "or equal" is included in the bid documents. s r r r - 23 - ; is 30.050 Protest of Bid Specifications 1. Time for Submission of Protest. Protests of bid specifications shall be presented to the City in writing in accordance with the following timelines: a. Public Improvement Contract — ten (10) calendar days prior, to bid closing; b. Other Public Contracts — five (5) calendar days prior, to bid closing; Such protest shall include the reasons for protest and any proposed changes to specifications. No protest against award because of the content of bid specifications shall be considered after the deadline established for submitting such protest. 2. Extension of Opening Date. if any bid specification protest is received in accordance with section (1) above, the bid opening date may be extended if necessary to allow consideration of the protest and issuance of any addenda to the bid documents. 3. Identification of Protest. Envelopes containing protests of bid specifications shall be marked as follows: Bid Specification Protest _ Bid Number or Other Identification 30.055 Addenda to Bid Documents 1. Form. Changes to bid documents shall be accomplished by addenda. The bidder shall acknowledge receipt of all addenda issued, either with the bid or separately prior to bid opening. _. Distribution. Addenda shall be sent to all prospective bidders known to have obtained the bid documents or attending any mandatory pre—bid conferences. 3. Timeliness. Addenda shall be issued within a reasonable time prior to bid closing to allow prospective bidders to consider them in preparing their bids, but in no case less than 72 hours before the bid closing. If necessary, the City may notify prospective bidders by telegram or telephone, followed by a confirming written addendum. 30.060 Pre—opening rjoaificatiun or wi%'iu'rawai of gids 1. - Modifications. Bids once submitted may be modified in writing prior to the time and date set for bid closing. Any modifications shall be prepared on the company letterhead, signed by an authorized officer, and state that the new document supersedes or modifies the prion bid. Telegraphic modification shall not be accepted unless authorized in the bid documents. To f — 24 — z 1 ensure the integrity of the bidding process, the envelope continuing any modifications to a bid shall be marked as follows: Bid Modification Bid Number or Other Identification 2. Withdrawals. a. Bids may be withdrawn by written notification on company letterhead signed by an authorized person and received prior to the time and date set- fur bid closing. Bids also may be withdrawn in person prior• to the scheduled bid closing upon presentation of appropriate identification. b. Unopened bids withdrawn under subsection (a) above, may be released to the bidder, after voiding any date and time stamp used. c. Requests to withdraw mailed bids shall be marked as follows: Bid Withdrawal Bid Number or• Other Identification 3. Documentation. All documents relatir:a to, fihe modification or withdrawal of bids shall be made a part of the appropriate bid file. 30.065 Receipt, Opening, and Recording of._Bids 1. Receipt. Upon its receipt, each bid and modification shall be time—stamped or marked by hand but riot opened and shall be stored in a secure place until bid opening. If bids or modifications are opened inadvertently or are opened prior to the time and date set for bid opening because they were improperly identified by the bidder, the bids or authorized modification documents shall be re3ealod and stored for opening at the correct time. When :.i ca., 0.1—CUPS, i]U4l,iliiicii�a Livii o 4I ox,ti �Jr6ci:uuik srlwli be pJic U"4 iiI the bid file. 2. Opening and Recording. Bids and modifications shall be opened publicly, at the time, date, and place designated in the bid documents. If witnesses are present at the bid opening, and to the extent practicable, the name of each bidder•, the bid price(s), and such other information as considered appropriate, aloud. on voluminous bids, the City may advise shall be read a,.vwM. ____.._ bidders as part of the bid documents that the bid items and prices will not be read aloud. 3. Availability. The opened bids shall be available for public inspection prior to award except to the extent the kidder designates trade secrets or other proprietary data to be confidential. ORS 192.500(1)(b). The City shall verify and - 25 determine that the confidential information claimed to be exempt is in fact exempt from disclosure under the Oregon Public Records Law. Material so designated shall accompany the bid and shall be readily separable from the bid in order to facilitate public inspection of the nonconfidential portion of the bid. Prices, makes, model or catalog number of items offered, scheduled delivery dates, and terms of payment shall be publicly available regardless of any designation to the contrary. 30.070 Late Bids, late Withdrawals.and Late Modifications 1. Definition. Any bid received after the time and date set in the bid documents for receipt of bids is late. Any request for bid withdrawal or modification received after the time and date set for bid closing is late. 2. Disposition. Late bids, late modification, or late withdrawals shall not be considered. 30.075 Mistakes in Bids 1. General. Clarification or withdrawal of a bid because of an inadvertent, nonjudgmental mistake in the bid requires careful consideration to protect the integrity of the competitive bidding r system, and to assure fairness. Except as provided in this rule, if the mistake is attributable to an error in judgment, the bid may not be corrected. Bid correction or withdrawal by reason of a nonjudgmental mistake is permissible but only to the extent it is not contrary to the interest of the City or the fair treatment t of other bidders. 2. Mistakes Discovered After Bid Closing but Before Award. This subsection prescribes procedures to be applied in situations where mistakes in bids are discovered after the time and date set for bid closing but before award, a My H,'1 r• Tnfor—m lii-11--s• 1#11mo .,:if Vi iiiuillt.ic.'a i v matters Vi form —� — rather than substance that are evident from the bid documents, or insignificant mistakes that can be waived or corrected promptly without prejudice to other' bidders or the City; that is, the informality does not affect price, quantity, quality, delivery, or contractual conditions except in the case of informalities involving unit price. Examples include, but are not limited to, the failure of a bidder to: (1) Return the number of signed bids or the number of other documents required by the bid documents; (2) Sign the bid form in the designated block so long as a signature appears in the bid documents evidencing an intent to be bound; (3) Acknowledge receipt of an addendum to the bid documents, u but only if: z 26 (A) It is clear from the bid that the bidder received the addendum and intended to be bound by its terms; or x._ (B) The addendum involved did net affect price, quantity, quality, or delivery. (b) Mistakes Where Intended Correct Bid is Evident. If the mistake and the intended correct bid are clearly on the face of the bid form, or can be substantiated from accompanying documents, the City may accept the bid. Examples of mistates that may be clearly evident on the face of the bid form are typographical errors, errors in extending unit prices, transposition errors, and arithmetical errors. For discrepancies between unit prices and extended prices, unit prices shall prevail. (c) Mistakes Where Intended Correct Bid is Not Evident. The City may not accept a bid in which a mistake is clearly evident on the face of the bid form but the intended correct bid is not clearly evident or cannot be substantiated from accompanying documents. 30.080 Time for Acceptance Bids shall be valid for thirty (30) days unless otherwise specified in the bid documents. 30.085 Extension of Time for Acceptance of Bid Notwithstanding AR 30.080, after, opening bids, the City may request orally in writing that bidders extend the time in writing during which the City may accept their bids. - — m 30.090 R i d Fat i on Mnd n ird --- 1. General. The contract, if awarded, is to be awarded to the lowest responsible bidder. Consistent with the provisions of the bid documents, awards may be made by item, groups of items, or� entire bid in the public interest as determined by the City. The city reserves the right to reject any bid not in compliance with the bid documents or all bids pursuant to ORS 279.0335 when it is in the public interest to do so. 2. Special Requirements. The bid documents- shall set forth any special requirements and criteria which will be used to determine the lowest resnnnsihle bidder fun hi „d -hall -bee evaluated for any requirementor criterion that is not disclosed in the bid documents or City regulation. g 3. Product Acceptability. a. The bid documents shall set forth the evaluation criteria to `. g{ be used in determining product acceptability. The City may r,M — 27 ~ - i the nuhmixoion of bid samples, descriptive r� � technicaldata, or other material, and may also provide^^^~�~~~fu' accomplishing any of the following prior to award. ^ (` inspection or testing of a pro6uot prior (1) Demonstration, to award for such characteristics a quality or workmanship; (2) Examination of such elements as appearance, finish, taste, or feel; or (3) Other examinations to determine whether the product conforms with specifications. b' The acceptability evaluation is conducted only to determine that m bidder's offering is acceptable as provided in the hid duouments Any bidder's product which does not meet the minimum 'equiremento shall be rejected. Product rejections are not ' considered bidder disqualifications and are not grounds for appeal under ORS 279,043. 4' Determination of Lowest Responsible Bidder. Following determination of project acceptability as set forth in subsection (2) if any is required, bids will be evaluated to determine which 6i4,jar nffurn the lowest ouot to the City in accordance with the - evaluation criteria set forth in the bid documunty. only objectively measurable criteria which are set forth in the bid documents shall be applied in determining the lowest responsible bidder. Examples of such criteria include' but are not limited to transportation uuot, onlume weighing' trade—in allowances, ' depreciation allowances, cartage penalties' an d ownership or life cycle onot formulas, Evaluation factors need not be Precise - t to the extent poonible ` edio�oro of actual future costs; but u . m pr such evaluation factors shall: m. Be reasonable estimates based upon information the City has available concerning future use; and b. Treat all bids equitably. n' Recognize that public policy requires acquisitions and public the leant uu,t '/( ~ improvements to he accomplishedt a . ORS � | 279.023(l). 5 Re«triotipnn Nothing in this section shall be deemed to permit ` ` ' ' '^~—' bidder submitting a higher quality item than contract award c» a ou documents if ch bidder- is not also that designated in the bid the lowest responsible bidder an determined under subsection (4) of this section. Further, this section does not permit negotiations with any bidder' � ` ` ' ` — 29_ ' 30.095 Low 'Tie Bids 1. Definition. Low tie bids are low responsive bids from responsible bidders that are identical in price, fitness, availability and quality and which meet all the requirements and criteria set forth in the bid documents. 2. Award. a. Low tie bids are subject to the Oregon preference contained in ORS 279.021(1): "In all public contracts, the public contracting agency shall prefer goods or services that have been manufactured or produced in this state if price, fitness, availability and quality are otherwise equal." b. Low tie bids that remain tied after application of the statutory Oregon preference shall be awarded according to the following sequence: (1) Preference shall be given to the bidder, whose principal offices or headquarters are located in Oregon. (2) Tf afi.n still remains after applying (1) above, award shall be made by drawing lots among any tied Oregon bidders. Such bidders shall be given notice and an opportunity to be present when the lots are drawn. (3) If none of the tied bidders is located in Oregon, award of the contract shall be made by drawing lots. 30,100 Reiection of Individual Bids or Proposals 1. General. This section applies to rejections, in whole or in part, of individual bids or proposals. In accordance with ORS 279.035, the City may reject in whole or- in part, any bid not in compliance with all prescribed bidding procedures and requirements. No bid shall be considered unless the bid security, properly executed, has been submitted with the bid as required by the bid documents. 2. Reasons for Rejection. Reasons for rejecting a bid include but are not limited to: a. The bidder has not prequalified under ORS 279.039, or has been disqualified under ORS 279.037; b. The bidder has been declared ineligible by the Commissioner of the Bureau of Labor and Industries under ORS 279.361; c. The bid is riot responsive, that is, it does not conform in all material respects to bid documents or — 29 — dThe supply, service, or construction item offered in the bid ' is unacceptable by reason of its failure to meet the | requirements of the bid documents or- permissible alternates ! or, other acceptability criteria set forth in the bid �r- documents. � - i 30.1{y5 Negotiat' with Bidders Prohibited is used, the public agency shall Unless a request fcr proposal | not negotiate with any hidder, prior to award of a contract. } After award of the contract, modifications to the contract shall ' be made with change orders or addenda to the contract and in aocurdance with the exemption rules. \ 30,-110fication 1 Grounds for Disqualification. As provided in ORS 279.037' the � d � bidder disqualification: following are grounds for � a' The person does not have sufficient financial ability to } perform the contract. If a bond in required to ensure p f tract evidence that the person can | perf«rman»eu»etyah «»n in the amount and type required shall � ^ acquzre m surety "''" '' | be sufficient to establish financial ability; \ b. The person does not have equipment available to perform the | contract; ^ /~ c. The person Jueo no t have key personnel available of { sufficient experience to per-form the contract;' nr ` d. The person has repeatedly breached contractual obligations to public --nd priva4u :ontraoting ag"ncieu. [ ' ' -mak such nve,tzym^i",. as is 1 u Investigation, The ^^^' ^~y — -� � necessary �o �erennzne whether ° p~' ^~'' is qualified l � � rma�zun prv�p`^x prospectivebidderfo rn vupp » ^'` " n � " ^^^ ',~' .____ grounds ,. r�quex�e » °, ' � , .^~,~~^^. -.-_— a. The effective date of the disqualification and the effective period of disqualification; b. The grounds for disqualification from bidding; and c. A statement of the contractor's appeal rights and -applicable appeal deadlines. 5. Appeal of Disqualification. If a contractor wishes to appeal the City's decision to disqualify, the contractor must notify the City in writing within three (3) business days after receipt of the notification. The City shall mail .its notice to the contractor by Certified Mail -• Return Receipt Requested. 30.115 Cancellation of Invitations to Bid 1. Cancellation in the Public Interest. An invitation to bid may be cancelled, in whole or in part, and all bids may be rejected when it is in the public interest as determined by the city. The reasons therefor shall be made part of the bid file. 2. Notice of Cancellation. When an invitation to bid is cancelled prior to bid opening, notice of cancellation shall be sent to all _ holders of bid documents. When an invitation to bid is cancelled after bid opening, notice shall be sent to those bidders who submitted a bid. The notice of cancellation shall: a. Identify the invitation to bid; f _ - b. Briefly explain the reason for cancellation; and c. Where appropriate, explain that an opportunity will be given to compete on any resolicitation. 30.120 Disposition of bids or Proposals if Bid Cancelled 1. Prior to Bid Opening. When an invitation for bids is cancelled prior to bid opening, all bids received will be returned to biuuers unopened, if submitted with a clearly visible return address. If there is no return address on the envelope, the bid will be opened to determine the source and then returned to sender. 2.. After Bid Opening. When all bids are rejected, the bids received shall be retained and become part of the City's permanent file. 30.125 Documentation of Award 1. Basis of Award. Following award, a record showing the basis for determining the successful bidder shall be made a part of the bid file. 2. Contents of Award Record. The record shall consist of: 31 r, ;x x a. Completed bid tabulation sheet, b. Written justification of any rejection of lower, bids. �. 30.130 Foreign Contractor (ORS 279.021 If the amount of the contract exceeds $10,000 and the contractor is a "foreign contractor," the contractor shall promptly report to the Oregon Department of Revenue on forms to be provided by the Department of Revenue the total contract price, terms of payment, length of contract and such other information as the Department of Revenue may require before final payment can be received on the contract. A copy of the report shall be forwarded to the City. The City shall satisfy itself that the above requirements have been complied with before it issues final payment on the contract, For the purposes of this rule, a foreign contractor is one who is not domiciled in or registered to do business in the State of Oregon. 30.135 Availability_ of Award Decisions — Contract Retention 1. Contract Documents. A signed purchase order, price agreemient, 0-- contract document, as applicable, shall be sent to the successful bidder. 2. Notification to Unsuccessful Bidders. Unsuccessful bidders need not be notified. Tabulations of awarded bids may be obtained for a nominal charge in person or by submitting to the public agency a written request stating the bid number and a self--addressed, t stamped envelope, 3. Availability of Bid Files, Completed bid files shall be available for public review at the City. 4. Copies from Bid Files. Copies of materiae from bid files, ether than previously described tabulation sheets, may be obtained upon payment of a reasonable copying charge. 5. Contract Retention. The following requirements on retention of contract documents after award shall apply: a. For all service contracts the original must be kept for, two years after the contract has been completely executed; b. Capital contracts must be kept permanently; c. Goods contracts must be kept for seven years after maturity; d. Intergovernmental and interagency agreements must be kept permanently. Any copies of the originals must be kept for two years after maturity in all of the categorie$ listed above. n } - 32 �- 30.140 Performance Security 1. Public Improvements Contract. Except in emergencies, when the requirement may be waived pursuant to ORS 279.029(3), a l performance bond in a sum equal to the contract price shall be required for all public improvement contracts in excess of $10,000. 2. Other Public Contracts, The City may require performance security for other public contracts. Such requirements shall be stated in the bid documents. 3. Contracts Under $10,000. Performance bonds for a contract under $10,000 shall be utilized only in critical circumstances, so as not to discourage competition. 4. Requirement for Surety Bond. A surety bond furnished by a surety company authorized to do business in Oregon is the only acceptable form of performance security unless specified in the bid documents. _ 'J, l lme for Subjul5tslun. Upoi, request by t1he city, the aMpar'ent successful bidder must furnish the required performance bond within 10 days. Prompt submittal of the performance bond is required to ensure timely project initiation. Failure to furnish the bond prior to the deadline shall result in rejection of the bid, and forfeiture of bid security and award to the next lowest esponsible bidder. 30.145 Right to Audit Records 1. Audit of Cost or Pricing Data. The City may, at reasonably times and places, audit the books and records of any person who has submitted cost or pricing data according to the terms of a contract to the extent that such books and records relate to such cost or pricing data. Any person who receives a contract, for which cost or pricing data are required, shall maintain such books and records that relate to such cosi or p, sing data for three (3) years from the date of final payment under the contact, unless a shorter period is otherwise authorized in writing. 2. Contract Audit. The City shall be entitled to audit the books and records of a contractor or any sub,-ontractor under any contract or subcontract to the extent that such books and records relate to .the performance of such contract or subcontract. Such books and records shall be maintained by the contractor for a period of three (3) years from the date of final payment under the prime contract and by the subcontractor- for a period of three (3) years from the date of final payment under the subcontract, unless a shorter period is otherwise authorized in writing 5�f - 33 — 5m r 30.150 Right to In Plant 1. Time for- Inspection. The city may, at reasonable times, inspect f the part of the plant or place of business of a contractor, or any 't subcontractor which is related to the performance of any contract awarded. 2. Access to Plant or Place of Business. As a condition of bidding, bidders agree that the City may enter, a contractor's or subcontractor's plant or place of business during normal business hours for the following purposes: E i a. Inspect and/or test supplies or services for acceptance by the City pursuant to the terms of the bid; t b. Investigate in connection with a bidder's application, a s minority business certification, or bidder, qualification; r t i 3. Contractual Provisions. Contracts may provide that the City may inspect supplies and services at the contractor's or subcontractor's facility and perform tests to determine whether they conform to the bid documents, or, after award, to contract requirements, and are therefore acceptable. S;.ich inspections and tests shall be conducted in accordance with the ter-ins of the -- contract. A. Procedures for Trial Use and Testing. The City may establish operational procedures gotierning the testing and trial use of / equipment, materials, and the application of resulting l information and data to specifications or procurements, f 5. Conduct of Inspections. ` a. Inspectors. Inspections or tests shall be performed so as riot to unduly delay the work of the contractor or subcontractor. No change of any provision of the specifications or the contract may be required by the inspector without written authorization of the public agency, s unless otherwise specified in the bid documents. The presence or absence of an inzpector shall not relieve the contractor or, subcontractor from any requirement of the contract. b. Location. When an inspection is made in the plant or place of business of a contractor or subcontractor, such contractor or subcontractor shall provide without charge all reasonable facilities and assistance for the safety and convenience of the person performing the inspection or testing, c. Time of Testing or Inspection. Inspection or testing of supplies and services performed at the plant or place of business of any contractor or subcontractor shall be perforned at reasonable times during normal business hours. ., - 34 — on the contractor's bond, if a notice of such claim has been filed prior to the expiration of six (6) months following the acceptance of the work by the City. 2. Notice of Claim. To initiate a claim against the contractor's bond, a person should file with the Purchasing Agent a Notice of Claim in the form and manner attached as Exhibit A. Any notice of claim should include the following information: a. Name and address of the claimant; b. Name of prime contractor; C. Title of project and contract date; d. Name of the City; e. Name of bonding company (may be obtained from City); 3. Response to Notice of Claim. Upon receipt of such Notice of Claim, the City shall: a. Send acknowledgment to claimant; b. Send copy of notice to contractor; C. File copy of Notice with Secretary of State. d. File copy of Notice with bonding (surety) company . 4. Referral to Surety Company, If- the contract has been completed and all funds disbursed to the prime contractor, the City shall refer all claims to the surety company for resolution. The City z shall not arrange for second payments directly to subcontractors — or suppliers for work already paid for by the City. 5. Discretionary Payment of Claim. if the contract is still in force, the city may, in accordance with ORS 279,314, pay a valid L_ '1-.L...r. V.mow serv1Co-s and charge claim to the person furnishing the the amount of the payment against funds due or to become due to the contractor under the contract. Liability of Claim. If the city chooses to make such a payment 6. L y as provided in ORS 279.314, the contractor or the contractor's x surety shall not be relieved from obligation with respect to any unpaid claims. jl ti 1 3 1. Cx 42 — 40.045 EXHIBIT A To: (insert name of the public, body) NOTICE. IS HEREBY GIVEN that the undersigned, (inseri: name o. or supplier), a (corporation, partnership, sole proprietorship, etc.), as claimant, has a claim for (labor performed by the claimant, materials supplied by the claimant, etc.), generally consisting of (brief- description) in the sum of $� _ _ against the bond taken from (name of prime centractor), as principal, and (name of bonding company), as surety, for the • � of rirni2ct� at (name of agency), (city), Oregon, construction of the (ti,.�. _w said contract dated (insert date) by and between the public agency, as Agent of the State, and (name of prime contractor), as Contractor. (Insert a brief description of the work concerning which the bond was taken.) DATED this � day of � 19 8y -- — (claimant's name and title) x s 43 AR 50.000 WAIVER OF SECURITY BID AND PERFORMANCE BOND 50.010 Bid Security Requirements y. The City may, in its discretion, waive the bid security requirements of ORS 279.027 for contracts other than those for public. improvements. (In the discretion of the Purchasing Agent the City may accept blanket bid bonds.) 50.020 Contracts Under $10,000 The City may, in its discretion, waive the bid security requirements of ORS 279.027 and performance bond requirements of ORS 279.027 if the amount of the contract for the public improvement is less than $10,000. } s { r 44 •':.* :^'^^.-;..^•--x�+=a+ x7!r^z^..^co-,-»•.«�.»-«�.,-..�-.+ am�na _. A AR 60.000 PROPERTY DISPOSITION f 60.010 Auction Sales of Personal Property Personal property may be sold at auction if the city Administrator determines that the auction contemplated will probably result in a higher net: return than if the property were sold by competitive written bid. 60.015 Sales of Personal Proper The City may sell personal property, including recyclable or reclaimed materials, without formal competitive bidding if it has determined that a negotiated sale will result in increased net revenue and the following conditions are complied with the following: 1. Mhen the current market value per item is deemed to be less than $1,000, the City may establish a salli g P-1c". I;chedule and advertise .a sale date, and yell to the first qualified buyer meeting the sale terms; or 2. When the current value per item is deemed to exceed $1,000, the personal property must be offered for competitive written bid and be advertised in accordance with ORS 279.02.5, or be offered for sale at public auction in accord knee withl ^R 60.010. if no bids are received or if a determination is made that the market value of the property exceeds the offer of the highest responsible bidder, all bids may be rejected and the City may negotiate a sale subject to the following conditions: a. An appraisal of the market value of the property is obtained and documented and the negotiated sale price exceeds the market value; or b. The sale amount exceeds the highest bid received through the bidding ur auction process. ftm�—- 60.020 Liquidation Sales of Personal Proper The City may sell personal property through a commercially recognized third party liquidator if the City has determined that a liquidation sale will result in increased net revenue and the selection of the liquidator was conducted, as a minimum, by the competitive request-for-proposal process governed by rule 10.110. 60.025 Donations of Personal Proper 1. The City may transfer personal property, including recyclable or reclaimed materials, without remuneration or only nominal remuneration without competitive bids to the following activities: a. Another public agency; or - 45 E . b. Any sheltered workshop, work activity center or group care home which operates under contract or agreement with, or grant from, any state agency and which is certified to t' receive federal surplus property; or c. Any recognized non—profit activity which is certified to receive federal surplus property. 2. The City may donate or sell, without competitive bids, surplus personal property to recognized private non—profit social or health service activities, subject to the following conditions: a. A determination has been made that the property is riot needed for other public purposes; b. If the property has a current market value of $250 or more, the donation or sale shall; (1) Be approved by the City Administrator; (2) Be documented by the City to be clearly in the public interest. fi _ 46 — AR 70.000 PERSONAL SERVICES CONTRACT t_ 70.010 Personal Services Contracts The City may enter into personal services contracts as provided by 10.010(b) based upon the following: I. The following are personal service contracts: a. Contracts for services performed as an independent contractor in the professional capacity, including but riot limited to the servicos of an accountant; attorney; architectural or land use planning consultant; physician or dentist; registered professional engineering; appraiser or surveyor; aerial photographer; tinier; broadcaster; or data processing consultant. b. Contracts for services as an artist in the performing or fine arts, including but not limited to photographer, film-maker; painter; weaver; sculptor. c. Contracts for services of a specialized creative and research oriented, noncommercial nature. d. Contract for services as a consultant. e. Contracts for educational and human custodial care services. 2. The following are NOT personal service contracts: a. Contracts, even though in a professional capacity, if predominately for a N,uuUct, e.g., a contract with a landscape architect to design a garden is for personal services, but a contract to design a garden and supply all the shrubs and trees is predominately a tangible product. b. A contract to supply labor which is a type that can generally be done by any competent worker, e.g. , Janitorial, security Y guard, crop spraying, laundry and landscape maintenance service contracts. c. ' Contracts for tr Je related activities considered to be labor and material contracts. d. Contracts for services of a trade-related activity, even though a specific license is required to engage in the activity. , Examples are repair and/or maintenance of all types of equipment or structures. , 47 _ AR 80.000 PROCEDURES 80,010 Rules Of Procedure l Roberts Rules of Order, excepting that seconds will not be required, will govern proceedings of the Board where they do riot conflict with these rules or, statutory provisions. 80,015 Meetings 1. The applicable provisions of the Public Meetings Law shall control the notice and character of meetings of the Board, i 2. Meetings of the Board may be held by conference telephone call after required public notice. The Chairperson shall conduct the meeting using a speaker telephone attachment. 3. On urgent or perfunctory matters, the Chairperson may, by telephone, poll the members of the Board. Electronic transcripts of the polling calls will be made and retained. In the course of a poll, any member may request the matter be discussed by ; conference call or deferred to a meeting. 4. Prior to conference calls or telephone polls, the press and t public, including persons directly interested in the subject matter of the poll, shall be given reasonable notice uh«t they may be present in the office of the Chairperson at the time of the meeting or poll. - { 80__020 Reports All reports required to be submitted to the Board by those rules or statutes shall be provided to each Board member in advance of the date the item is scheduled for review. i 80,025 Notice Of Rule Amendment, Adoption, Repeal Notices of amendment, adoption or repeal of rules, including contract exemption rulings and of meetings of the Local Contract t Review Board and the agenda of the meetings shall be sent to the following at least seven (7) days prior to the meeting: a. Press: The Oregonian, The Tigard Times, The Daily Journal of Commerce. - 48 - b Management and Labor; Association of Oregon :Industries; Associated General Contractors; Oregon Construction Industry f Council; Oregon AFL—CIO, and Oregon State Building Trades Council. c. Any persons requesting notice in writing who show themselves in a position to be affected by the Board's determination. 80.030 Meeting Agenda The agenda of the meetings of the Board shall include the following; a. Unanimous consent calendar pursuant to AR 90.045 including a brief description of the contract exempted and the amount of the contract. b. Consideration without hearing of pending applications for exemption. The agenda will list all proposed pending exemptions with a brief description of proposed exemptions including the amount of the contract. c. Consideration with hearing of pending applications for exemption rulings. d. Contested case hearings of appeals of disqualification or revocation or ;requalification, including the name of the contractor and the grounds of the proposed disqualification or revocation or prequalificat-ion. k r F 49 �_.; ' , AR 90.000 EMERGENCY CONTRACTS; SPECIFIC EXEMPTION REQUESTS; BOARD EXEMPTION PROCEDURES, TEMPORARY EXEMPTIONS ~ � !90.010 ^ ` l. The City Administrator may, in the Administrator-Is discretion, authorize or let public contracts without formal competitive bidding if an emergency exists and the emergency ounaioto of circumstances that could not have been reasonably foreseen and requires prommt execution of a contract to remedy the condition. 2. The City Administrator or the Administrator's representative must declare that emergency and make detailed written findings describing the emergency conditions necessitating prompt execution of the contract. H copy of the findings together with the amount of the contract and the name of the contractor shall be immediately forwarded' by the purchasing Agent. to '--he Board. 90,015 Specific Exemptions 1. The Purchasing Agent may apply to the Board for a ruling under HR *8.030 through 90.045 exempting a particular contract or contracts from competitive bidding requirements of ORS 279.015 which are not otherwise exempted under those rules. The application shall contain the following i,.yormatian: � a. The nature of the project; / . b. Estimated cost of the project; » \ ' o. H narrative description of the cost savings anticipated by the exemption from competitive bidding and the reasons competitive bidding would be inappropriate; d. Proposed alternative contraction and purchasing practices to ' . be employed; and e. The estimated date by which it would be necessary to let the � contract. � u. The Board may require such additional information as it deems necessary to determine whether a specific contract is to be � exempt from competitive bidding. 50.020 Brand Name Or Mark...Exemption Applications, ��- The Purchasing Agent may apply for and receive brand name or mark exemption ruling from the Board for current and contemplated r future puruhayeo. Applications shall contain the following , information: ' ' _ 50 _ ' `. a. A brief description of the contract or contracts to be covered. The description should include contemplated future purchases. tf b. The brand name, mark or product to be specified. C. The reasons the Purchasing Agent is seeking the exemption. 90.025 Conditions Of Brand Name Exemptions 'The Board may grant exemptiuns if the following conditions are met: a. The exemption is riot likely to encourage favoritism in public contracts or substantially diminish competition and will result in cost savings. b. There is only one manufacturer• or seller of thc, product of the quality required, or efficient utilization of existinq equipment or supplies requires acquisition of compatible equipment or supplies. c. The exemption is requested for the purchase of a particular product to be used in an experimental project. 90.030 Notice Of Application _ Uoon receipt of an application for an exemption ruling under AR 90.015 or AR 20.040, the Chairperson of the Board shall set the matter• for• public hearing to receive data, views, arguments and shall cause a notice of intention to adopt an order to be posted in full public view in the City Hall and shall publish notice of the intention to adopt the order in a newspaper of general circulation at _least 7 days prior to the hearing. 90.035 Board Hearincl The application will be placed on the Board's agenda for the next Board meeting, and, in the exercise of discretion, the : Chairperson may also set additional public meetings to receive dattz, views and arguments. 4 { _ 51 90.040 TemporarRules Exemptions In appropriate cases, the Chairperson of the Board may grant a temporary exemption from public bidding pending formal consideration of a specific exemption. 90.045 Unanimous Consent Calendar The Chairperson of the Board may, in the exercise of discretion notify the members of the Board that an application for exemption has been made and that if no objections are received to the exemption from the members of the Board within seven days of the Chairperson's notice the exemption will be considered granted by unanimous consent and the Chairperson may in the exercise of discretion, deem the exemption adopted as a temporary rule. Exemptions so adopted will be placed on the Board's agenda as a unanimous consent calendar for ratification or adoption as a permanent rule by the Board at the next meeting of the Board. (AB;lw/0698F) fi q r 52 — 6. Inspection of Construction Projects, On--site inspection of construction shall be performed in accordance with the terms of the contract. 30.155 Contract Cancellation Procedures i d Grounds for Cancellation. A contract may be cancelled by the City for any violation of the provisions of the contract. Such provisions generally include, but are not limited to: t 1. Standard terms and conditions included in all contracts; 2. Product or service specifications; 3. Delivery or completion requirements; 4. Contracted pricing and price escalation/de--escalation clauses. i R y il _ 35 AR 40 PUBLIC IMPROVEMENT CONTRACTS 40.000 Alaplication_ In addition to the requirements set forth in Division 30 of these rules the following rules apply to public improvement contracts, 40.005 Competitive Bidding 1 Public improvement contracts, if awarded, shall be awarded by the City to the lowest responsible bidder as defined by statute unless otherwise exempt under ORS 279.015, 279.053 or 2.79.056. 4 40.010 Public Notice s 1. Trade Newspaper Advertisement. In addition to the requirements of AR 30.015, public improvements having an estimated coat in excess of $50,000 shall be advertised for bids in at least one trade newspaper of general state—wide circulation. 2. Prevailing Wage Rate Notice• if the following conditions apply, the Glly shall Ll ll tUde in t t,QYu hl i nn1_i c0 a statement that the o . bidder shall comply with the requirements of the prevailing wage law in ORS 279.350: a. The bid must be for public works as defined in ORS 279.346(3) which includes construction, reconstruction, major renovation or painting of roads, highways, buildings, structures and improvements of all types; S 1_ Thecontract-- n_ rice for the project: exceeds $10,000; and l c. The project is not regulated under the Davis-.Bacon Act (40 € ----- USC 276x). (QRS 279.357). 40.015 Bid Evaluation and Award Award of a public improvement contract shall be to the lowest responsible bidder on the basis of total bid price. If the bid includes unit prices and extensions for estimated quantities, the total bid price for the purpose of comparing bids will be the total sum computed from bid quantities and the unit prices 4 entered thereon by the bidder with due adjustments being made for alternate items and any specified or authorized reductions, additions or changes. In case of conflict between a unit price and the corresponding extended amount, the unit price shall govern. 40.020 Contract Cancellation Procedures 1. Termination Due to Circumstances Beyond the Control of the Contractor (ORS 279.326, 279.326, 279.330, 279.332). t- r s 36 "r a. Reasons for Termination. The City may, by written order or- upon written request from the contractor, terminate the contract or a portion thereof if arty of the following occur; t (1) The contractor is prevented from completing the work for reasons beyond the control of the City; (2) Completion of the project is beyond control of the contractor; (3) Or for any reason considered by the city to be in the public interest (other than a labor dispute or reason of any third party judicial proceeding relating to the work other than a suit or action filed in regards to a labor dispute). These reasons may include, but are not necessarily limited to, non—availability of materials, phenomenon of nature of catastrophic proportions or intensity, executive orders of the President related to national defense, congressional or state acts related to funding. b. Payment When Contract is Terminated. When the contract, or any portion thereof, is terminated before completion of «ll items of work in the contract, payment will be made for the actual items of work completed ur,ier the contract, or by mutual agreement, for items of work partially completed. No claim for loss of anticipated profits will be allowed. c:. Responsibility for Completed Work if Contract Terminated. Termination of the contract or a portion thereof shall not relieve the contractor of responsibility for the work completed, nor shall it relieve the surety of its obligation for arty just claims wrisinq froa, the work pz:fcrm d. ---- 7 Termination of Contract for Default (ORS 279.333). a. If the contractor should persistently or repeatedly refuse to or fail to .supply enough properly skillsd workmen or proper materials for the efficient execution of the project, or, should fail to make prompt payment to ; subcontractors for material or labor, or persistently disregard laws, ordinances or the instruction of the City, or otherwise be guilty or a substantial violation of any provision of the contract, then the City without prejudice to any other right or remedy and after giving the contractor or the surety seven (7) day's written notice, may terminate the employment of the contractor and take possession of the premises and of all materials, tools and appliances thereon as well as all other materials whether on the premises or not, on which the contractor has received partial payment. The City may finish the work by whatever method it may deem expedient. u 37 `- b. Required Response to Declaration of Default. If the above action is taken, the contractor or the surety shall provide the City with immediate and peaceful possession of all of the materials, tools and appliances located on the premises, as well as all other materials whether on the premises or riot, on which the contractc.r has received any progress payment. further, the contractor shall not be entitled to receive any further payment until the work is completed. On the completion of the work, determination shall be made by the City of the total amount the contractor would have boon entitled to receive for the work, under, the terms of the contract, had the contractor completed the work. If the difference between said total amount and the sum of all amounts previously paid to the contractor, which difference will hereinafter be called the "unpaid balance," exceeds the expense incurred by the City in completing the work, including expense for additional managerial and administrative services, such excess will be paid to the contractor, with the consent of the surety. If, instead, the expense incurred by the City exceeds the unpaid balance, the amount of the excess shall be paid to the City by the coritriactor of tie suri;lty. C. Expense of Completion. The expense incurred by the City shall be as determined and certified by the City. d. Refusal to Perform. In addition to and apart from the above--mentioned right of the City to terminate the employment of the contractor, the contract may be cancelled by the City for- any willful failure or refusal on the part of the contractor to perform faithfully the contact according to all of its terms and conditions: however; in such event neither• the contractor nor the surety shall be relieved from damages or losses suffered by the City on account of the contractor's breach of contract. e. Remedies are Cumulative, The City may, at its discretion, avail itself of any or all of the above rights or remedies without prejudice or preclude the City from subsequently invoking any other right or remedy set forth above or elsewhere in the contract. 40.025 Retainaqe (ORS 279.420, .279.575 1. Retainage of Five Percent. The amount to be retained from any given progress payment will be such that when added to the sum of amounts previously retained will equal not more than five percent of the value of completed work except if the contract work is 50 percent completed and the work is progressing satisfactorily, the retainage may be reduced or eliminated on the remaining progress payments. Any reduction or elimination of retainage shall be allowed only upon written application of the contractor, which application shall include written approval of the contractor's surety; except that when the contract 'work is 97 1/2 percent - 38 _ completed, the City may without applicattln by the contractor, reduce the retained -amount to 100 percent of the value of the contract work remaining to be done. If retainage has been reduced or eliminated, the City reserves the right in protecting its interests to reinstate at any time retainage from further progress payments. 2. Alternatives to Cash Retainage. In lieu of cash retainage to be held by the City, the contractor may select one of the following options: a. Deposit of Securities . The contractor may deposit bonds or, securities with the City or in any bank o! trust company to beheld for the benefit of the City. In such event, the City shall reduce the retainage in an amount equal to the value of the bonds and securities. This reduction in retainage will be made in the progress payments made subsequent to the time the contractor deposits the bonds and securities. The value of the bonds and securities will be determined periodically by the City based on market value, amount retained on progress payments will be adjusted accordingly. The bonds and securities deposited by Line contractor shall be fully assigned to the City or be payable to the City on demand and shall be of a character approved by the Finance Director, including but not limited to the following: (1) Stills, certificates, notes or• bonds of the United States. f (2) Other obligations of the United States or its agencies. (3) Obligations of any corporation whoiiy owned by the Federal government. (A) Indebtedness of the Federal National Mortgage Association. ' (5) Time certificates of deposit or, savings acc(- passbooks issued by a commercial bank, savings and loan association, or mutual savings bank, duly authorized to do business in Oregon. (6) Corporation a� rids rated A or better by a recognized rating service. (7) General obligation bonds of the State of Oregon or any political subdivision thereof. (8) General obligation improvement warrants issued pursuant to ORS 287.502. (9) Irrevocable letters of credit from a bank doing business in Oregon. 39 — At the time the City determines that all requirements for the protection of the City's interest have been fulfilled, all bonds and securities deposited as above provided will be released to ( the contractor. b. Deposit in Interest—Bearing Accounts. Upon written request of the contractor, the City shall deposit any amounts withheld as retainage in an interest—bearing account in a bank, savings bank, trust company or savings association for the benefit of the City. Interest earned on such account shall accrue to the contractor. 3. Recovery of Costs. If the City incurs additional costs as a result of the exercise of any of the options for retainage described herein, the City may recover such costs from the contractor by reduction of the final payment-. As work on the contract progresses, the City shall, upon request, inform the contractor of all accrued costs. 40.030 Progress Payments (ORS 279.575 1. Request for Progress Payments. At a regular time each month, the rnni ractor SNi 11 . i f roe+-d—A b. the .a.,.......ent i--- _, _. .. by .,� contract NV4N�IICIIVO, jIAUNJ.L to the City a request for payment based upon an estimate of the amount of work completed and of the value of acceptable material to be incorporated in the completed work which has been delivered and acceptably stored. Upon verification and approval of the City, the sum of these values will be referred to the "value of completed work." With these estimates as a base, a progress payment will be made to the contractor, which progress payment shall be equal to the value of completed work, less such amounts as may have been previously paid, less such other amounts as may be deductible or as may be owing and due to the City for any cause, and less an amount to be retained in protection of the public agency's interests. 2. Progress Payments Do Not Mears Acceptance of Work. Progress payments shall not be construed as an acceptance or, approval of- any part of the work covered thereby, and they shall in no manner relieve the contractor of responsibility for defective workmanship or material. 3. Estimates for Progress Payments. The estimates upon which progress payments are based are not represented to be accurate estimates, and all quantities shown therein are subject to correction in the final estimate. If the contractor uses such estimates as a basis for making payments to subcontractors, this is at the contractor's own risk, and the contractor shall bear all loss that may result. — 40 40.035 Final Inspection (ORS 279.575 .1 1. Notification of Completion. When the contractor determines that all construction work on the project has been completed, the contractor shall so notify the City in writing. The City shall make an inspection of the project and project records within 15 days of receiving said notice. If, at such inspection, all construction provided for and ordered under the contract is complete and satisfactory to the public: agency, and all certifications, bills, forms and documents have been submitted properly, such inspection shall constitute the final inspection. 2. Instructions to Complete the Work. If, however, at any I in part is found unsatisfactory inspection, any work in whole o , or it is found that all certifications, bills, forms and documents have not been submitted properly, the City shall within 15 days provide instructions to the contractor on outstanding requirements to complete the project. At such time as the contractor determines full compliance with, and the execution of such instructions, the contractor shall notify the City in writing. The city shall make another inspection within 15 days after such notice and this inspection shall constitute the final inspection provided construction work has been completed satisfactorily. 3. Acknowledgment of Acceptance. Upon satisfactory completion of all work required under the contract, the City shall acknowledge acceptance of the work in writing. ( 40.040 Final Estimate and Final Payment (ORS 279.575(3) 1. Submission of Final Estimate. As soon as practicable after final inspection of the work under the contract, if unit prices were i applicable, the City shall prepare a final estimate of the quantities of the various classes of work performed. Following a I determination of the total amount due tl•re contractor, and 3 following final acceptance of the work by the City, final payment shall be made to the contractor. 3 2. set-off of Prior Payments. All prior partial estimates and payments shall be subject to correction in the final estimate and f payment. s 3. Interest, Beginning 30 days after the date of final acceptance of the project by the City, the City shall pay to the contractor interest at the rate established by state statute on any money due and payable to the contractor. ` 40.045 Claims far Unpaid`Labor or Supplies 1. Right of Action. As provided in ORS 279.526 a person claiming to have supplied labor or materials for work on a public improvement contract let by the City for which the person has not been paid by the prime contractor or any subcontractor has a right of action — 41 — ; _ j