LCRB Resolution No. 11-01 CITY OF TIGARD, OREGON
LOCAL CONTRACT REVIEW BOARD
RESOLUTION NO. 11- U 1
A RESOLUTION ADOPTING REVISED PUBLIC CONTRACTING RULES.
WHEREAS, the City of Tigard previously adopted and used rules applicable to public contracting, including
rules covering procedure and rules governing exemptions;and
WHEREAS, legislative changes to statutes applicable to public contracting were incorporated into Tigard's
rules to remain compliant with the statutes;and
WHEREAS,the City Council determines that the revised draft rules better suit the needs of the city than the
proposed Attorney General model rules;and
WHEREAS, the City of Tigard finds that there will be a future need for the city to enter into public
contracts and that it is therefore appropriate for the city to adopt Public Contracting Rules, consistent with
the state Public Contracting Code;and
WHEREAS, the City of Tigard's Purchasing and Contracting Manual will be revised to meet the requirements
established under the revised Public Contracting Rules.
NOW,THEREFORE,BE IT RESOLVED by the Tigard City Council that:
SECTION 1: The City Council, as the Local Contract Review Board, hereby adopts rules attached as
Exhibit A pursuant to the authority granted the Board by Tigard Municipal Code Section
2.46. These rules shall apply to all contracting, purchasing, and disposing of surplus
personal property by the City of Tigard.
SECTION 2: The Local Contract Review Board adopts the findings in support of exemptions included in
the attached Exhibit B.
SECTION 3: The model rules adopted or to be adopted by the Attorney General do not apply to
contracting for the City of Tigard.
SECTION 4: The City Council, acting as the Local Contract Review Board, hereby establishes a revised
Purchasing and Contracts Manual reflecting the new Public Contracting Rules.
SECTION 5 This resolution takes effect immediately upon adoption and the rules adopted under Section
1 shall be effective as to contracts that have not been advertised or entered into as of
August 1, 2011. However, the public contracting rules in existence prior to this resolution
shall remain in effect as to any contract entered into prior to August 1,2011 or for which an
invitation to bid or request for proposal is or has been advertised prior to August 1,2011.
LCRB RESOLUTION NO. 11 - (�
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PASSED: This / day of 2011.
Local Contract Review Board Ch=-City of Tigard
ATTEST:
Local Contract Review Board Recorder-City ofGard
LCRB RESOLUTION NO. 11 -
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EXHIBIT A
CITY OF TIGARD - LOCAL CONTRACT REVIEW BOARD
PUBLIC CONTRACTING RULES
The following Public Contracting Rules (PCRs) have been adopted by the City Council acting as the Local
Contract Review Board pursuant to the authority granted to the Board by Tigard Municipal Code Section
2.46. The rules apply to all contracting, purchasing, and disposing of personal property by the City of
Tigard but do not apply to acquisition,sale or other transfer of real property.
TABLE OF CONTENTS
10.000 COMPETITIVE PROCESS REQUIRED, EXEMPTIONS
10.010 Competitive Process,Exemptions,Definitions
10.015 Exemption of Contracts Under Certain Dollar Amounts
10.020 Contracts for Price Regulated Items
10.025 Library Periodicals
10.030 Advertising Contracts
10.035 Equipment Maintenance Repair and Overhaul
10.040 Purchases under Established Price Agreements
10.045 Gasoline,Diesel Fuel,Heating Oil,Lubricants and Asphalt
10.050 Investment Contracts
10.055 Insurance Contracts
10.060 Employee Benefit Insurance
10.065 Office Copier Purchases
10.070 Sole Source Procurement
10.075 Contract Amendments (Including Change Orders and Extra Work)
10.080 Affirmative Action Contracts
10.085 Purchases Off Contract by Other Public Agencies
10.090 Oil or Hazardous Material Removal
10.095 Contracts with Qualified Non-profit Agencies
10.100 Ammunition
10.105 Public Improvement Contracts Involving Design or Construction Management
10.110 Individual Exemptions
10.115 Class Exemptions
10.120 Justification of Public Improvement Contracts Awarded by Other Than Competitive Bidding
10.125 Software
10.130 Telecommunication Services
10.135 Developer Provision of Public Improvements
15.000 PRICE AGREEMENTS
15.010 Price Agreements
20.000 BRAND NAMES
20.010 Specification of Particular Brand Names or Products
20.015 Copyrighted Materials
20.020 Single Manufacturer or Compatible Products
20.025 Product Pre-qualification
20.030 Brand Name or Mark Exemption
25.000 MINORITY OWNED BUSINESSES. WOMAN OWNED BUSINESSES, EMERGING
SMALL BUSINESSES
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25.010 Minority Owned Businesses,Woman Owned Businesses,and Emerging Small Businesses
25.015 Authority to Require Contracting with Emerging Small Businesses
30.000 FORMAL COMPETITIVE PROCESSES
30.010 Definitions
30.015 Competition
30.020 Eligibility to Bid on Construction Contracts
30.025 Solicitation Documents
30.030 Bids and Proposals Are Offers
30.035 Public Notice
30.040 Bid or Proposal Preparation
30.045 Bidder Pre-qualification
30.050 Bidder Submissions
30.055 Bid Security
30.060 Pre-Bid or Pre-Proposal Conferences
30.065 Addenda to Solicitation Documents
30.070 Pre-Opening Modification or Withdrawal of Bids of Proposals
30.075 Receipt,Opening,and Recording of Bids and Proposals
30.080 Late Bids,Proposals,Late Withdrawals,and Late Modifications
30.085 Mistakes
30.090 Time for Acceptance
30.095 Extension of Time for Acceptance of Bid
30.100 Evaluation and Award
30.105 Life Cycle Cost Analysis
30.110 Responsibility
30.115 Responsive and Non-responsive Bids or Proposals;Acceptance and Rejection
30.120 Low Tie Bids
30.125 Rejection of Individual Bids or Proposals
30.130 Rejection of All Bids or Proposals
30.135 Protests of Award
30.140 Other Protests
30.145 Negotiation
30.150 Bidder Disqualification
30.155 Cancellation of Invitations to Bid or Requests for Proposals
30.160 Disposition of Bids or Proposals If Bid Is Cancelled
30.165 Documentation of Award
30.170 Foreign Contractor
30.175 Contract Terms and Conditions
30.180 Availability of Award Decisions -Contract Retention
30.185 Requests for Proposals
30.190 Performance and Payment Security
30.195 Right to Audit Records
30.200 Right to Inspect Plant
30.205 Contract Cancellation and Termination Procedures
40.000 PUBLIC IMPROVEMENT CONTRACTS
40.010 Application
40.015 Competitive Bidding
40.020 First Tier Subcontractor Notice
40.025 First Tier Subcontractor Disclosure
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40.030 Bid Evaluation and Award
40.035 Contract Cancellation Procedures
40.040 Retainage
40.045 Progress Payments
40.050 Final Inspection
40.055 Final Estimate and Final Payment
40.060 Claims for Unpaid Labor or Supplies
40.065 Planning for Public Improvements
40.070 Prevailing Wage Laws
50.000 WAIVER OF SECURITY BID AND PERFORMANCE BOND
50.010 Bid Security Requirements
50.015 Contracts Under$10,000
50.020 Subcontracting to Emerging Small Businesses
60.000 PROPERTY DISPOSITION
60.010 Surplus Personal Property
60.015 Auction Sales of Personal Property
60.020 Sales of Personal Property
60.025 Liquidation Sales of Personal Property
60.030 Donations of Personal Property
60.035 Trade of Personal Property
60.040 Disposal of Surplus Property Meeting Hazardous Waste Definitions
70.000 PERSONAL SERVICES CONTRACTS
70.010 Personal Services Contracts
70.015 Screening and Selection Policy for Personal Services Contracts
70.020 Amendments
80.000 EMERGENCY CONTRACTS: SPECIFIC EXEMPTION REQUIREMENTS; BOARD
EXCEPTION; PROCEDURES;TEMPORARY EXCEPTIONS
80.010 Emergency Contracts
90.000 RECYCLABLE/RECYCLING PURCHASING GUIDELINES
90.010 Recycled Materials and Products Guidelines
90.015 Recycled Materials Preference
90.020 Recycled Materials and Products Purchasing Guidelines
100.000 INTERGOVERNMENTAL AGREEMENTS
100.010 Right to Enter into Intergovernmental Agreements
100.020 Applicability of Intergovernmental Agreements
100.030 Intergovernmental Agreement Approval Authority
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�3.
PCR 10.000- COMPETITIVE PROCESS REQUIRED, EXEMPTIONS
10.010 COMPETITIVE PROCESS,EXEMPTIONS AND DEFINITIONS
A. All public improvement contracts shall be based upon competitive bidding unless meeting an exception
listed here within. All other public contracts shall be based upon competitive bidding or competitive
proposals (collectively"formal competitive process"),except the following:
1. Contracts made with other public agencies are not subject to these rules, except to the extent that
the rules explicitly allow certain transactions with other public agencies.
2. Contracts which are exclusively for personal services as determined by application of Public
Contract Rule (PCR) 70.010. Such contracts may include incidental materials such as written reports,
architectural or engineering renderings,and similar supplemental materials.
3. Grants and contracts evidencing acceptance of donations by the City.
4. Contracts for professional or expert witnesses or consultants relating to existing or potential
litigation or other legal matters.
5. Transfers of real property or any interest in real property.
6. Energy savings performance contracts.
7. Contracts relating to bonds, certificates of participation, and similar debt repayment obligations, or
to program loans,or to public investments.
8. Employee benefit plans.
9. Contracts specifically exempt under the following rules:
10.015 Exemption of Contracts under Certain Dollar Amounts
10.020 Contracts for Price Regulated Items
10.025 Library Periodicals
10.030 Advertising Contracts
10.035 Equipment Maintenance Repair and Overhaul
10.040 Purchases under Established Price Agreements
10.045 Gasoline,Diesel Fuel,Heating Oil,Lubricants, and Asphalt
10.050 Investment Contracts
10.055 Insurance Contracts
10.060 Employee Benefit Insurance
10.065 Office Copier Purchases
10.070 Single Seller of Product
10.075 Contract Amendments (Including Change Orders and Extra Work)
10.080 Affirmative Action Contracts
10.085 Purchases Off Contracts by Other Public Agencies
10.090 Oil or Hazardous Material Removal
10.095 Contracts with Qualified Non-profit Agencies
10.100 Ammunition
10.105 Public Improvement Contracts Involving Design or Construction Management
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10.110 Individual Exemptions
10.115 Class Exemptions
80.010 Emergency Contracts
B. As used in this Section:
1. "Board"means the City of Tigard Local Contract Review Board.
2. "City" or"The City" means Tigard,Oregon.
3. Competitive bidding" means a competitive sealed bid procedure for awarding contracts following
the rules set forth in PCR 30.000.
4. "Competitive quotes" means the solicitation and receipt of offers by the City from competing
vendors, The solicitation may be by advertisement or by the City initiating a request to vendors to
make an offer.The solicitation and the offer may be written or oral.
5. "Invitation to Bid" means the solicitation of competitive bids in which price among those bidders
meeting specifications will be the predominant award criterion.
6. "LCRB"means the City of Tigard Local Contract Review Board.
7. "Personal property" means everything subject to ownership which is not real property and has
exchangeable value.
8. "Price Agreement" means an agreement in which the vendor agrees to supply all goods or services
of a particular type ordered by the City within a specified time period at a specified price and on
terms specified in the price agreement.
9. "Public agency" means any federal, state or local government, or any department of any federal,
state or local government,including any local school or education City or any special district.
10. "Request for Proposal"means the formal solicitation of competitive written proposals to be used as
a basis for making an acquisition or entering into contract when price will not be the predominant
award criterion, following the rules set forth in Section 30.010 to 30.205.
11. "Service" means work performed to meet a demand, especially work that is not connected with
manufacturing a product.
12. "Service contract" means a contract that calls primarily for a contractor's time and effort rather than
an end product.
13. "Telecommunications Services" means the lease or rental of the use of voice and data transmission
facilities or services, or of central office services, but does not include acquisition of switch or
station equipment or acquisition or installation of wire and cable.
C. When a contract is exempt from a formal competitive process, the City shall use reasonable efforts to
ensure it is obtaining goods or services on the best terms (price, quality and other terms). Those efforts
shall normally include seeking out potential contractors and determining price and availability by use of
informal quotes or other similar methods. The City shall not knowingly purchase goods or services if it
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knows that comparable goods or services are available at lower cost on otherwise similar terms.
10.015 EXEMPTION OF CONTRACTS UNDER CERTAIN DOLLAR AMOUNTS
A. Public Contracts Other Than Public Improvements Contracts
The City may, in its discretion, enter into public contracts other than public improvements contracts
without a formal competitive process if the value of the contract does not exceed $100,000. If this
exemption is applied, the City must use either the small contract or intermediate contract procedures set
forth in Subsections C and D of this section. This exemption does not authorize City employees or
officials to enter into an agreement in excess of their dollar authority to bind the City.
B. Public Improvements Contracts
The City may,in its discretion, enter into public improvement contracts without competitive bidding if
the value of the contract does not exceed $100,000. If this exemption is applied, the City must use
either the small contract or intermediate contract procedures set forth in Subsections C and D of this
section. This exemption does not authorize City employees or officials to enter into an agreement in
excess of their dollar authority to bind the City.
C. Small Contract Procedures
When the amount of the contract does not exceed $10,000, the City may award the contract from any
source known to the City to provide goods or services of acceptable quality at competitive prices. The
City may not knowingly use a more expensive source if the goods or services of equivalent quality are
readily available from alternate sources on the same terms at lower prices.
D. Intermediate Contract Procedures
When the amount of the contract does not exceed $100,000, but is more than $10,000, the City may
award the contract after seeking at least three competitive quotes or proposals. The City shall keep a
written record of the source and amount of the quotes or proposals received. If three suppliers are not
available, a lesser number of actual quotes or proposals will suffice provided that a written record is
made of the good faith effort to obtain the quotes or proposals.
E. No Division or Fragmentation of Contracts
A procurement of goods and/or services may not be artificially divided or fragmented to allow use of
the small or intermediate contract procedures unless an exception or exemption is granted under these
Rules.
F. Amendment of Small and Intermediate Contracts
A contract awarded under the small or intermediate contract procedures may not be amendment if the
amendment would result in a total contract price that exceeds the maximum amount for the procedure
used to award the original contract.
10.020 CONTRACTS FOR PRICE REGULATED ITEMS
The City may,without formal competitive process, contract for the purchase of the goods or services where
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the rate or price for the goods or services being purchased is established by federal, state, or local regulatory
authority.
10.025 LIBRARY PERIODICALS
Purchases for the library of subscriptions for periodicals including journals, magazines, and similar
publications may be made without formal competitive process. However, this provision does not authorize
the use of a higher priced source if a lower price source of acceptable quality is known to be available.
10.030 ADVERTISING CONTRACTS
The City may purchase advertising without formal competitive process.
10.035 EQUIPMENT MAINTENANCE, REPAIR,AND OVERHAUL
Contracts for equipment maintenance,repair, or overhaul may be let without a formal competitive process,
subject to the following conditions:
A. The services and/or parts required are unknown and the cost cannot be determined without extensive
preliminary dismantling or testing; or
B. The services and/or parts required are for sophisticated equipment for which specially trained personnel
are required and such personnel are available from only one source.
The City should,where possible,use a price agreement rather than relying on this exception.
10.040 PURCHASES UNDER ESTABLISHED PRICE AGREEMENTS
When the price of goods and services has been established by a price agreement entered into by a
competitive process, the City may purchase goods and services from the supplier without a subsequent
competitive process for the duration of the price agreement.
10.045 GASOLINE,DIESEL FUEL,HEATING OIL,LUBRICANTS AND ASPHALT
The City may,without a competitive process, purchase gasoline, heating oil, lubricants, and asphalt subject
to the following:
A. Prior to selection of the contractor,the City gets quotes from at least three vendors in the area;
B. The City makes its purchase from the least expensive source of those providing quotes;and
C. The City retains written justification for the purchase made.
10.050 INVESTMENT CONTRACTS
The City may,without a formal competitive process, contract for the purpose of the investment of public
funds or the borrowing of funds by the City when such investment or borrowing is contracted pursuant to
duly enacted statute,ordinance,charter,or constitution.
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10.055 INSURANCE CONTRACTS
Contracts for insurance where either the annual or aggregate premium exceeds $5,000 must be let by a
formal competitive process or by one of the following procedures:
A. Agent of Record.
The City may appoint a licensed insurance agent ("agent of record") to 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. Proposals for coverage are presented to the City Manager or designee for approval:
1. Prior to the selection of an agent of record, the City shall make reasonable efforts to inform known
insurance agents in the competitive market area that it is considering such selection. These efforts
shall include a public advertisement in at least one newspaper of general circulation in the area. The
advertisement shall generally describe the nature of the insurance that the City will require. If the
amount of the annual premium for insurance other than employee benefits insurance is likely to
exceed $10,000 per year, such notice shall also include a public advertisement in at least one
insurance trade publication of general circulation in the state.
2. An agent's appointment shall not exceed a period of 5 years, but the same agent(s) may be selected
in a subsequent period. Agents must qualify the appointments prior to each period as if each
appointment period were the first.
3. In selecting an agent of record,the City shall select the agent(s) most likely to perform the most cost
effective services at a level of competence acceptable to the City.
B. Specific Proposals for Insurance Contracts.
The City may solicit proposals from licensed insurance agents for the purpose of acquiring specific
insurance contracts subject to the following conditions:
1. The City shall make reasonable efforts to inform known insurance agents in the competitive market
area of the subject matter of the contract and to solicit proposals for providing the services required
in connection with that contract. Such efforts shall include public advertisements in at least one
newspaper of general circulation in the area. If the amount of annual premium for insurance other
than employee benefits insurance is likely to exceed $10,000 per year, such notice shall also include a
public investment in at least one insurance trade publication of general circulation in the state.
2. The City shall select an agent on the basis of the most competitive offer considering coverage,
premium cost,and service to be provided.
10.060 EMPLOYEE BENEFIT INSURANCE
The City may purchase employee benefit insurance without formal competitive process.
10.065 OFFICE COPIER PURCHASES
A. The City may enter into contracts for the purchase or lease of photocopiers without formal competitive
process.
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B. In exercising this exemption, the City shall consider the operating capabilities, limitations, and cost of
each brand or model as well as cost and select the brand and vendor that will produce the best
combination of performance and cost per copy for each application.
10.070 SOLE-SOURCE PROCUREMENT
The City may purchase without a formal competitive process if there is only one seller (sole seller) of a
product or service of the quality required, or if the efficient utilization of existing equipment or supplies
requires specification of a compatible product for which there is only one seller,The determination of a sole
source must be based on written findings as required by ORS 279B.075. A sole source contract may be
awarded only after approval of the findings by the City Manager, Assistant City Manager, or designee. To
the extent reasonably practical, the City shall negotiate with single sellers to obtain the best possible contract
terms for the City.
10.075 CONTRACT AMENDMENTS(INCLUDING CHANGE ORDERS AND EXTRA WORK
A contract amendment for additional work, including change orders, extra work, field orders, or other
change in the original specifications which increases the original contract price, may be made with the
contractor without a formal competitive process subject to the following conditions:
A. The original contract was let by formal competitive process, and the contract documents included unit
prices or bid alternates were provided that provide a basis for determining the cost for additional work,
and a binding obligation exists on the parties covering the terms and conditions of the additional work;
or
B. The amount of the aggregate cost increase resulting from all amendments does not exceed 25% of the
initial contract. Amendments made pursuant to Section A of this rule are not included in computing the
aggregate amount under this section. The LCRB may, at its sole discretion, approve amendments
exceeding the 25%aggregate total if the Board finds it to be in the public's best interest to do so.
10.080 AFFIRMATIVE ACTION CONTRACTS
A. Public contracts may be awarded without a formal competitive process pursuant to a specific
Affirmative Action plan. Affirmative Action is a program designed to insure equal opportunity in
employment and business for persons otherwise disadvantaged by reason of race, color, religion, sex,
national origin, age, or physical or mental handicap, including but not limited to, personnel practices of
contractors, "set-aside" programs, and minority business enterprises. These rules shall not be construed
to prohibit engaging in practices designed to promote affirmative action goals and policies.
B. In carrying out the affirmative action policy,by appropriate ordinance, resolution or administrative rule,
the City may limit competitive bidding on a public contract for procurement of goods and services or on
any public contract estimated to cost $100,000 or less to contracting entities owned or controlled by
persons described in Subsection A of this section.
10.085 PURCHASES OFF CONTRACTS BY OTHER PUBLIC AGENCIES
A. The City may purchase any good or service without a formal competitive process if the good or service
is purchased from a bidder that has been awarded a contract for the same good or service,whether by a
requirements contract or by individual contract by another public agency through its public contract
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purchasing procedures if:
1. The original contract was awarded by a competitive bid or proposal process or pursuant to an
exemption equivalent to an exemption provided by these rules.
2. The contract allows other public agency usage of the contract. A contract that does not prohibit
other public agency usage of the contract shall be deemed to allow other public agency use, unless
the agency that awarded the contract objects to the use.
3. The purchase is on the same terms, or terms which are no less favorable to the City in all material
respects,as the contract awarded by the public agency.
B. A purchase under the Oregon Cooperative Purchasing Program or any similar federal or regional
program, including the Electronic Government Act of 2002 (10 USC 381) shall be considered an
exempt purchase under this exemption.
10.090 OIL OR HAZARDOUS MATERIAL REMOVAL
A. The City may enter into public contracts without a formal competitive process when ordered to clean up
oil or hazardous waste pursuant to the authority granted the Department of Environmental Quality
(DEQ) under ORS Chapter 466, especially ORS 466.605 through 466.680, and this order necessitates
the prompt establishment and performance of the contract in order to comply with the statutes
regarding spill or release of oil or hazardous material that has created an emergency condition. in
exercising its authority under this exemption, the City shall:
1. To the extent reasonable under the circumstances, encourage competition by attempting to make
informal solicitations or to obtain informal quotes from potential suppliers of goods or services.
2. Make written findings describing the circumstances requiring cleanup or a copy of the DEQ order
ordering such cleanup.
3. Record the measures taken under Subsection 1 of this section to encourage competition,the amount
of the quotes or proposals obtained,if any,and the reason for selection the contractor selected.
B. The City shall not contract pursuant to this exemption in the absence of an order from DEQ to clean
up a site with a time limitation that would not permit hiring a contractor under the usual formal
competitive process procedures.
10.095 CONTRACTS WITH QUALIFIED REHABILITATIVE FACILITIES
The City may enter into contracts with qualified rehabilitative facilities providing employment for disabled
individuals under ORS 279.835 to 279.855 without a competitive process. The City shall contract with such
agencies when required by law. To the extent competition exists among qualified non-profit agencies, the
City shall select the qualified non-profit agency offering the lowest price for an acceptable level of service.
10.100 AMMUNITION
The City may enter into contracts for the purchase of lethal and non-lethal ammunition, both for service
and for training,without a formal competitive process.
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10.105 PUBLIC IMPROVEMENT CONTRACTS INVOLVING DESIGN OR CONSTRUCTION
MANAGEMENT
The City may enter into public improvement contracts without competitive bidding if the contracts involve
design or construction management or require expertise beyond normal construction work. Unless exempt
under some other exemption, a competitive proposal process must be used. One of the following specific
processes shall be followed:
A. Construction Manager/General Contractor
The City may select a person or firm to act as a Construction Manager/General Contractor (CM/GC)
to construct public improvements by means of a competitive proposal process.
1. A CM/GC performs specified Construction Manager services in addition to traditional General
Contractor services. A CM/GC contract shall require full performance within a negotiated
Guaranteed Maximum Price (GMP). The basis for payment shall be reimbursable direct costs plus a
fee constituting full payment for work and services rendered, which together shall not exceed the
GMP.
2. The solicitation documents shall include:
a. A description of the evaluation process and criteria. The criteria may include cost, quality,
experience,availability,commitment to timely completion,and other factors.
b. The process to be followed for establishing the guaranteed maximum price.
c. A description of the circumstances under which any of the following activities may be
authorized and undertaken for compensation prior to establishing the GMP, but only after unit
prices are established:
1. Early procurement of materials and supplies;
2. Early release of bid packages for such things as site development;and
3. Other advance work related to critical components of the project.
3. The contract documents shall include:
a. A description of the method by which the CM/GC shall competitively select contractors and
subcontractors.
b. Either the maximum guaranteed price or a process for establishing a guaranteed maximum price.
c. A description of the situations in which the CM/GC may perform the work of the improvement
without subcontracting, including any requirement that the CM/GC compete with others to do
the work and the work that the CM/GC may perform directly without a competitive process.
d. The standards or factors under which changes or additional work that warrants an increase in
the GMP,as well as criteria for decreasing the GMP. The GMP shall not be increased without a
concomitant increase to the scope of the GMP.
e. The disposition of any cost savings resulting from completion of the work below the GMP,
including the CM/GC share, if any, in those cost savings. Normally, the cost savings should
accrue to the City.
f. The items or categories of items are eligible for cost reimbursement within the GMP.
g. A provision for a final audit adjustment and process.
h. A fee that is inclusive of profit, overhead and all other indirect or non-reimbursable costs. Costs
determined to be included within the fee should be expressly defined wherever possible. The fee,
first expressed as a proposed percentage of all reimbursable costs, shall be identified during and
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r
become an element of the selection process. It shall subsequently be expressed as a fixed amount
when the GMP is established.
i. Any economic incentives, the specific criteria that apply and their relationship to other financial
elements of the Contract(including the GMP).
B. Design-Build Contracts
1. A design-build contract is one in which a single entity designs and constructs a public improvement.
Design-build contracts shall only be used if City staff has the expertise and experience to administer
a design-build contract.The design-build process may be used to:
a. Obtain through a Design-Build team, engineering design, plan preparation, value engineering,
construction engineering, construction, quality control and required documentation as a fully
integrated function with a single point of responsibility;
b. Integrate value engineering suggestions into the design phase, as the construction contractor
joins the project team early with design responsibilities under a team approach, with the
potential of reducing contract changes;
c. Reduce the risk of design flaws, misunderstandings and conflicts inherent in construction
contractors building from designs in which they have had no opportunity for input, with the
potential of reducing contract claims;
d. Shorten project time as construction activity (early submittals, mobilization, subcontracting and
advance work) commences prior to completion of a "biddable" design, or where a design
solution is still required(as in complex or phased projects);or
e. Obtain innovative design solutions through the collaboration of the contractor and design team,
which would not otherwise be possible if the contractor had not yet been selected.
2. A design-build contractor must have an Oregon licensed design professional(s) on staff that will be
assigned to the City's project. The design-build contractor must disclose in its proposal the name of
the Oregon licensed design professional(s) and verify that the professional(s) will be the one(s)
providing primary design services to the City.
3. A design-build contractor awarded a contract shall provide additional security as required by ORS
279C.380(1)(a). The obligation is not intended to be a substitute for professional liability insurance,
and does not include errors and omissions or latent defects coverage.
4. The level or type of design services required must be clearly defined within the solicitation
documents and contract, along with a description of the level or type of any design services
previously performed for the project. The services to be performed shall be clearly delineated as
either design specifications or performance standards.
5. The contract shall clearly identify the liability of design professionals, shall include requirements for
professional liability insurance,and shall clearly identify the extent of any indemnity or warranty.
C. Other Public Improvement Contracts Where Quality Is An Issue
In many situations, including those projects that require a higher than normal level of expertise or skill,
quality of the final product may be important beyond meeting minimum specifications. In those
situations, the City may use a request for proposal process, provided that the cost factor constitutes at
least 75% percent of the total evaluation score. In scoring the cost factor, the proposer submitting the
lowest cost amount shall receive the maximum possible score for the cost factor, and the scores of the
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other proposers shall be reduced by the percentage by which their cost exceeded the lowest cost. For
example, if the maximum score for the cost factor is 80, the lowest cost proposer would get a score of
80. A proposer with a cost that is 10 percent higher would have the score reduced by 10 percent (8
points), to 72.
10.110 INDIVIDUAL EXEMPTIONS
A. The City may exempt a particular contract or contracts from formal competitive process requirements
which are not otherwise exempted under these rules. Staff shall prepare an informational packet for the
Board when requesting the declaration of an individual exemption that contains the following details:
1. The nature and scope of the project or purchase;
2. Estimated cost of the project or purchase;
3. A narrative description of the cost savings anticipated by the exemption from the formal
competitive process and the reasons the formal competitive process would be inappropriate;
4. Proposed alternative contracting and purchasing practices to be employed; and
5. The estimated date by which it would be necessary to let the contract.
B. The Board may require such additional information as it deems necessary to determine whether a
specific contract is to be exempt from the formal competitive process.
C. The Board shall hold a public hearing and adopt findings justifying the individual exemption. The
findings shall at a minimum address include the findings required by ORS 279B.085(3) for contracts
other than public improvements or ORS 279C.335 for public improvement contracts.
D. Notification of the public hearing shall be published in a newspaper of general circulation in the City a
minimum of 14 days prior to the hearing. Notification shall be published in a trade newspaper of general
circulation in the state if required by the Public Contracting Code.
E. The notice shall state that the public hearing is for the purpose of taking comments on the City's draft
findings for an exemption from the formal competitive process requirement. At the time of the notice,
copies of the draft findings shall be made available to the public. At the option of the City, the notice
may describe the process by which the findings are finally adopted and may indicate the opportunity for
any further public comment.
F. At the public hearing, the City shall offer an opportunity for any interested party to appear and present
comment.
G. If the City is required to act promptly due to circumstances beyond its control that do not constitute an
emergency, notification of the public hearing can be published simultaneously with the City's solicitation
of contractors for the alternative public contracting method, as long as responses to the solicitation are
due at least five days after the meeting and approval of the findings.
10.115 CLASS EXEMPTIONS
A. The Board may exempt certain public contracts or classes of public contracts from the formal
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competitive process requirements by amending these rules upon approval of the following findings:
1. It is unlikely that such exemption will encourage favoritism in the awarding of public contracts or
substantially diminish competition for public contracts;
2. The awarding of public contracts pursuant to the exemption will result in substantial cost savings to
the City. In making such findings, the Board may consider the type, cost, amount of the contract,
number of persons available to bid,and such other factors as may be deemed appropriate;and
3. The exemption otherwise substantially supports the public interest in a way that could not be
achieved under existing rules.
B. The Board shall adopt a class exemption only after a duly noticed public hearing. The notice of the
hearing shall be posted in full public view in the City Hall and published in a newspaper of general
circulation at least 14 days prior to the hearing. If the exemption involves a public improvement, the
notice shall also be published in a trade publication of statewide circulation.
10.120 JUSTIFICATION OF PUBLIC IMPROVEMENT CONTRACTS AWARDED OTHER THAN BY
COMPETITIVE BIDDING
Upon completion of and final payment for any public improvement contract in excess of $100,000 for
which the City did not use the competitive bidding process, the City shall prepare and deliver to the Local
Contract Review Board an evaluation of the public improvement project. The evaluation shall include but
not be limited to:
A. The actual project cost as compared with original project estimates.
B. The amount of any guaranteed maximum price.
C. The number of project change orders issued.
D. A narrative description of successes and failures during the design, engineering and construction of the
project.
E. An objective assessment of the use of the alternative contracting process as compared to the findings
required by ORS 279C.335.
Evaluations required by this section shall be made available for public inspection and shall be completed
within 30 days of acceptance of the project.
10.125 SOFTWARE
The City may award a contract for software without a formal competitive process if it is determined that
little to no competition exists for the required software. In determining whether or not competition exists,
the City may consider the following factors;
A. The extent to which software is able to be integrated with City systems including both hardware and
software.
B. The stability of the software company,which shall include:
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1. The software's track record in the industry;
2. The software's companies financial standing;and
3. The frequency of upgrades that enhance the software.
C. The overall cost of the software,which shall include the City's internal costs of upkeep on the software.
Contracts for annual software maintenance may also extend past the standard five (5) year maximum
contract terms detailed in these rules so long as maintaining the software continues to be in the Citys' best
interest.
10.130 TELECOMMUNICATION SERVICES
The City may award a contract for telecommunications services without a formal competitive process if it
determines that no competition exists among services suppliers. In determining whether competition exists,
the City may consider the following factors:
A. The extent to which alternative providers exist in the relevant geographic and service market. The
relevant market will vary from service category to service category and cannot be predetermined in
advance.
B. The extent to which alternative services offered are comparable or substitutable in technology, service
provided, and performance. For example,if the City's requirement is for digital services, analog services
are not comparable or substitutable.
C. The extent to which alternative providers can respond to the City's interests in consistency and
continuity of services throughout its service area, volume discounts, and centralized management. The
City must document for the record its findings on these factors or any other factors used in determining
whether competition exists. In developing its findings, the City may solicit information by any means,
including informal discussions or correspondence or through a formal Request for Information.
10.135 DEVELOPER PROVISION OF PUBLIC IMPROVEMENTS
At times, private developers may provide work on public improvements for the City as required by a
condition of land use approval or to comply with a land use approval or as required by a development
agreement with the City. The developer in those circumstances is conclusively deemed to be a sole source
for the provision of the public improvements, without the need for findings. No competitive process is
required to enter into a development agreement that includes the provision of public services by a developer
or for a developer to provide and the City to accept public improvements as required by a condition of
approval.
There are also times when the City may contract with a developer to provide services on a public
improvement due to the developers work in the area even through the work may not be a condition of land
use. In these circumstances, the City must provide determination that there will be significant savings to the
City to contract with the developer. This determination must be made in writing and made part of the
project's permanent file. In these cases the developer shall conclusively deemed to be a sole source for the
provision of the public improvement. No competitive process is required to enter into a public
improvement contract for the developer to provide services on the public improvements if the savings are
determined to be significant enough to warrant such an exemption.
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PCR 15.000 - PRICE AGREEMENTS
15.010 PRICE AGREEMENTS
The City may enter into price agreements providing the following conditions are met:
A. The contract is awarded by a formal competitive process.
B. The term of the contract including renewals does not exceed 5 years.
15.015 MULTIPLE PRICE AGREEMENTS PERMITTED
The City may enter into price agreements with more than one supplier for the same goods or services.
PCR 20.000- BRAND NAMES OR MARKS
20.010 SPECIFICATION OF PARTICULAR BRAND NAMES OR PRODUCTS
A. Specifications for public contracts shall not expressly or implicitly require any product of any particular
manufacturer or seller except pursuant to an exemption under PCR 20.015 (Copyrighted Materials),
20.020 (Single Manufacturer or Compatible Products), 20.025 (Product Pre-qualification), or 20.030
(Brand Name or Mark Exemption Applications).
B. If there is no other practical method of specification, the City may designate a particular brand name,
make or product"or equal",but this practice should be avoided whenever possible.
20.015 COPYRIGHTED MATERIALS
The City may specify a specific copyrighted product. This exemption does not include patented or trade
mark goods.
20.020 SINGLE MANUFACTURER OR COMPATIBLE PRODUCTS
A. If there is only one manufacturer or seller of a product of the quality required, or if the required product
is data processing equipment which will be used for research where there are requirements for exchange
of software and data with other research establishments, or if the efficient utilization of the existing
equipment or supplies requires a compatible product of a particular manufacturer or seller,the City may
specify such particular product subject to the following conditions:
1. The product is selected on the basis of the most competitive offer considering quality and cost. The
term "cost" includes not only the product price, but also other items of expense such as costs
related to quality of conversion.
2. Prior to awarding the contract, the City has made reasonable effort to notify known vendors of
competing or comparable products of the intended specifications and invited such vendors to
submit competing proposals.
3. If the purchase does not exceed$50,000, such notice and invitation may be informal.
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4. If the amount of the purchase exceeds $50,000, such notice shall include advertisement in at least
one newspaper of general circulation in the area where the contract is to be performed and shall be
timely to allow competing vendors a reasonable opportunity to make proposals.
B. If the amount of the purchase exceeds $50,000, the City shall document its actions in the bid file. Such
documentation shall include:
1. A brief description of the proposed contract or contracts.
2. A detailed description of the reasons why the product and/or seller was selected and any competing
products and/or sellers that were rejected. The description shall also include the efforts taken by
the City to notify and invite proposals from competing vendors.
C. If the City intends to make several purchases of the product of a particular manufacturer or seller for a
period not to exceed 2 years,it may so state in the documentation required by subsection (1)(b) and (2)
of this rule,and such documentation shall be sufficient notice as to subsequent purchases.
20.025 PRODUCT PRE-QUALIFICATION
A. When it is impractical to create specific design or performance specification for a type of product to be
purchased, the City may specify a list of approved products by reference to particular manufacturers or
sellers according to the following product pre-qualification procedure:
1. The City has made reasonable efforts to notify known manufacturers or vendors of competitive
products of its intention to accept applications for inclusion in its list of pre-qualified products.
Notification shall include advertisement in a trade journal of statewide distribution when possible.
In lieu of advertising, the City may notify vendors and manufacturers appearing on the appropriate
list maintained by the Oregon Department of Transportation (ODOT) Qualified Products List or
any list produced and maintained by the Oregon Department of General Services.
2. The City permits application for pre-qualification of similar products up to 15 days prior to
advertisement for bids on the product.
B. If an application for inclusion in a list of pre-qualified products is denied,or an existing pre-qualification
revoked, the City shall notify the applicant in writing. The applicant may appeal to the Board for a
review of the denial or revocation in the same manner as an appeal of disqualification or denial provided
in PCR 30.150.
20.030 BRAND NAME OR MARK EXEMPTION
A. The City may apply for and receive a brand name or mark exemption ruling from the Board for current
and contemplated future purchases. Applications shall contain the following information:
1. A brief description of the contract or contracts to be covered. The description should include
contemplated future purchases.
2. The brand name,mark or product to be specified.
3. The reasons the City is seeking the exemption.
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B. The Board may grant brand name or mark exemptions only if either of the following conditions are met:
1. The exemption is not likely to encourage favoritism in public contracts or substantially diminish
competition and will result in cost savings.
2. There is only one manufacturer or seller of the product of the quality required,or efficient utilization
of existing equipment or supplies requires acquisition of compatible equipment or supplies.
PCR 25.000—MINORITY OWNED BUSINESSES WOMAN OWNED BUSINESSES, AND
EMERGING SMALL BUSINESSES
25.010 MINORITY OWNED BUSINESSES,WOMAN OWNED BUSINESSES,AND EMERGING SMALL
BUSINESSES
It is the policy of the City to provide opportunities for available contracts to certified minority owned,
woman owned and emerging small business and to cooperate with the State or Oregon Advocate for
Minority, Women and Emerging Small Business to determine the best means by which to make such
opportunities available.
25.015 AUTHORITY TO REQUIRE SUBCONTRACTING WITH CERTIFIED MINORITY OWNED
BUSINESSES,WOMAN OWNED BUSINESSES,AND EMERGING SMALL BUSINESSES
The City may, in solicitation documents, require that some portion of the work to be performed or some
portion of the materials to be provided be provided by a certified emerging small business and establish
other requirements authorized by ORS 279A.105.
PCR 30.000 - FORMAL COMPETITIVE PROCESSES
30.010 DEFINITIONS
For purposes of this chapter,the following definitions apply:
A. "Addenda to the Bid Documents"means additions or changes to the bid documents defined as addenda
shall be labeled as such and distributed according to these rules.
B. "Bid"means an offer submitted in response to an invitation to bid.
C. "Bid Closing"means the date and time announced as the deadline for the receipt of bids.
D. "Bid Opening"means the date,time and place set for opening of bids.
E. `Bid Sample"means a representative specimen of the item that will be available in response to the bid.
F. `Bidder"is a person who submits a bid in response to the City's invitation to bid.
G. "Bidding Period"means the span of time between the date of the invitation to bid and the time and date
set for receipt of bids. A minimum of 14 calendar days shall be provided, unless a shorter time is
deemed necessary in the public interest for a particular procurement.
H. "Board"means Local Contract Review Board.
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I. "Contract" means the written agreement, including the City's solicitation document and the accepted
portions of a bid or proposal, between the City and the contractor describing the work to be done and
the obligations of the parties. Depending upon the goods and services being procured, the City may use
"contract" as meaning a purchase order,price agreement, or other contract document in addition to the
City's solicitation document and the accepted portions of a bid or proposal. If the contract is for a
public improvement, the "contract" may consist of the City's solicitation document, including any
addenda, the general and special conditions governing the work, the accepted portions of the bid or
proposal, the performance and payment bond (if required), plans, technical specifications, approved
shop drawings,and any contract amendments,including approved change orders.
J. "Contract Price" means the total of the awarded bid or proposal amount, including any approved
alternates and any fully executed change orders or amendments.
K. "Contract Release Order" means the document authorizing an additional purchase on an existing
requirement contract.
L. "Contractor" means the individual, firm, or corporation awarded the public contract to furnish the City
the goods,services,or work procured in the City's solicitation.
M. "Descriptive Literature" means materials submitted by prospective vendors to provide information
concerning the products available in response to the bid.
N. "Lowest Responsible Bidder" means the lowest bidder who has substantially complied with all
prescribed public bidding procedures and requirements and who has not been disqualified by the public
contracting agency under ORS 279B.130 or 279C.440.
O. "Proposer"is a person who submits a proposal in response to the City's Request for Proposals.
P. "Solicitation Document" means an Invitation to Bid or Request for Proposals which included all
documents,whether attached or incorporated by reference,utilized for soliciting bids or proposals.
Q. "Specifications" means any description of the physical or functional characteristics or of the nature of a
supply, service, or construction item. Specifications may include a description of any requirement for
inspecting, testing, or preparing a supply, service, or construction item for delivery and the quantities or
qualities of materials to be furnished under the contract. Specifications generally will state the result to
be obtained and may,on occasion,describe the method and manner of doing the work to be performed.
Specifications may be incorporated by reference and/or through attachment to the contract.
30.010 COMPETITION
A. Contracts issued by the City shall be awarded by formal competitive process except as otherwise
exempted under the Oregon Public Contracting Code or these rules.
B. It is the policy of the City to encourage public contracting competition that supports openness and
impartiality in the maximum extent possible.
C. The City finds that:
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1. Competition exists not only in prices,but in the technical competence of suppliers,in their ability to
make timely deliveries, and in the quality and performance of their products and services and that a
balance must exist between performance competition and price competition.
2. The nature of effective competition varies with the product or service being procured and, that
while competitive sealed bids are a common method of procurement, it is not always the most
advantageous, practical or cost-effective method of source selection. The cost of the selection
process must be considered—a costly selection process is not appropriate for contracts with a low
dollar value.
3. Meaningful competition can be achieved through a variety of methods when procuring products or
services. The methods include but are not limited to:
a. Price competition as represented by the initial or acquisition price;
b. Competition as represented by price and performance evaluations of the competing items and
suppliers;
c. Competition as represented by the evaluation of the capabilities of bidders or proposers to
perform needed services;
d. Competition as represented by evaluation of the capabilities of the bidders and proposers to
perform the services followed by a negotiation on price;
e. Competition as represented by another method of procurement that is reasonably determined to
satisfy the City's needs.
D. All public contracts shall be made under conditions that foster or reflect competition among a sufficient
number of potential suppliers that offer a wide spectrum of products and services and that represent a
broad marketplace. Fostering competition shall be reflected in:
1. Research made to determine possible new sources of supply;
2. Attempts made to ensure solicitation documents are simple and inviting;
3. Everyday courtesy shown to prospective suppliers and contractors;and
4. The way information on contracting opportunities is provided to suppliers including but not limited
to advertisement in publications of general circulation or in trade publications and any other
reasonable methods that encourage competition.
E. The City may evaluate every aspect of competition in its efforts to purchase products or services,choose
the appropriate solicitation process, or award contracts according to the criteria described herein and
arrive at offers that represent optimal value to the City.
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30.020 ELIGIBILITY TO BID ON CONSTRUCTION CONTRACTS
A person shall not submit a bid or proposal to work as a construction contractor unless that person is first
registered with the Construction Contractors Board or licensed by the State Landscape Contractor's Board
as required by ORS 671.530. Bids from persons who fail to comply with this requirement shall be deemed
non-responsive and be rejected.
The City may require prequalification of bidders in accordance with ORS 279C.430 and ORS 279C.435.
The City may also disqualify a bidder from consideration for contract award in accordance with ORS
279C.440.
30.025 SOLICITATION DOCUMENTS
Solicitation documents shall include the following:
A. Instructions and information to bidders or proposers concerning the submission requirements,
including the time and date set for opening, the name, address and title of the person designated to
receive bids and a contact person, if different, a statement the bid or proposal must be physically
received by the City by the deadline and any other special information relating to bid submission. The
bid deadline shall be at least seven days after the first publication of notice and 5 days after the last
publication of notice.
B. The date that pre-qualification applications must be filed if pre-qualification is a requirement.
C. The character of the work to be done or the items to be purchased, including, as applicable:
specifications, delivery or performance schedule, inspection and acceptance requirements, and special
evaluation factors;
D. The office where any additional information, including additional specifications, may be reviewed or
obtained,
E. For bids — the contract terms and conditions, including warranty and bonding or other security
requirements, as applicable. For proposals, a list of contract terms required by the City, a list of
additional issues to be included in the contract,and a list of issues for which the proposer is expected to
propose contract terms.
F. That the solicitation may be cancelled or that any or all bids may be rejected for not complying with all
prescribed procedures and requirements;
G. That any and all bids may be rejected for good cause on a finding that it is in the public interest to do so;
H. In invitations to bid, a statement whether the bidders is a resident bidder as defined in ORS 279A.120
(1) (b);
I. That a contractor must be licensed for asbestos abatement under ORS 468A.710,if applicable;
J. A statement that no bid or proposal for construction shall be received or considered by the City unless
the bidder or proposer is registered with the Construction Contractors Board per PCR 30.020
K If bid or proposal security is required,a description of the security required;
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L. A description of any performance and payment bonding requirements;
M. For proposals, a description of the manner in which proposals will be evaluated and the relevant value
of each evaluation factor, including price. If a multi-tiered process is used, that process will be
described,including the process for protesting the decision at any stage of the process;
N. If applicable, a statement that no bid will be considered unless the bid contains a statement that the
bidder will comply with ORS 279C.840 or 40 USC 276a;and
O. All addenda issued by the City.
30.030 BIDS AND PROPOSALS ARE OFFERS
A. Bids and proposals constitute an offer to enter into a contract which,if accepted by the City, shall bind
the bidder or proposer to a contract unless the bid or proposal is withdrawn prior to opening.
B. The bid or proposal shall constitute a "firm offer" unless bidders or proposers are specifically
authorized to take exceptions or to leave terms open to negotiation by the invitation to bid or request
for proposals. However, nothing in this provision prohibits the City from negotiating with a bidder or
proposer to the full extent allowed by state law. Unless expressly authorized by the solicitation
documents or these rules, bidders or proposers shall not make their bids or proposals contingent upon
the City's acceptance of specifications or contractual terms that conflict with or are in addition to those
advertised in the solicitation documents.
30.035 PUBLIC NOTICE
A. Distribution
Solicitation documents or notices of the availability of bid documents shall be mailed to likely bidders
and proposers, placed on the Oregon Department of Administrative Service's electronic procurement
system known as the "Vendor Information Program," or otherwise furnished to a sufficient number of
bidders or proposers for the purpose of securing competitive bids or proposals. Notice of availability
shall indicate where,when, and for how long the bid/proposal documents may be obtained. The City
many charge a fee for the bid documents.
B. Advertising
1. Every formal solicitation of bids or proposals shall be advertised. An advertisement for bids or
proposals shall be published at least once in at least one newspaper of general circulation in the City
and in as many additional issues and publications as the City may determine to be necessary or
desirable to ensure competition. If for a construction contract in excess of$100,000 notice shall be
published in at least one trade newspaper of general statewide circulation. The City shall endeavor
to provide information concerning bids and proposals on its website and may post information on
other databases.
2. All advertisements for bids or proposals shall state:
a. The date and time after which bids will not be received,which date shall not be less than five (5)
days after the date of the last publication of the advertisement;
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b. The date that pre-qualification applications must be filed if pre-qualification is a requirement;
c. The work to be done or the items to be purchased;
d. The office where additional documentation, including specifications, specifications may be
reviewed or obtained;
e. The name,tide,and address of the person designated to receive bids;
f. The date,time,and place that bids or proposals will be opened;
g. If for a public improvement, whether the prevailing wage provisions of ORS 279C.800 to
279C.870 and/or the Davis-Bacon Act(40 USC 276a) apply.
C. Posting of bid or proposal advertisement
A copy of each bid or proposal advertisement shall be posted at the business office of the City. Bidders
or proposers may obtain a copy upon request.
30.040 BID OR PROPOSAL PREPARATION
Bid and Proposal Preparation Instructions:
A. Except as otherwise allowed,as applicable,bids and proposals shall be typed or prepared in ink and shall
be signed in ink by the submitter or an authorized representative. The City will not accept facsimile
bids,proposals,or signatures.
B. Bids and proposals shall be made on the bid forms provided unless otherwise instructed in the
solicitation document.
C. Alterations or erasures,if any,shall be initialed in ink by the person signing the bid.
D. Bids and proposals shall include all required documents and descriptive literature.
30.045 BIDDER PRE-QUALIFICATION
The City may require mandatory pre-qualification of bidders on forms prescribed in the bid document.
When pre-qualification is required by the bid documents as a condition for bidding, the City shall not
consider the bid(s) of any prospective bidder who is not pre-qualified. The City shall determine
qualifications within 30 days of receipt of an application for prequalification. In determining responsibility
of the applicant, the City shall consider only the criteria listed in ORS 279B.110(2). The City may have a
separate pre-qualification process. If a bidder is currently pre-qualified by the Oregon Department of
Transportation to perform specific classes of work, the bidder shall be presumed qualified to perform
similar work for the City.
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30.050 BIDDER SUBMISSIONS
A. Samples and Descriptive Literature
Samples or descriptive literature may be required when it is necessary to evaluate required characteristics
of an item. Samples may be returned in accordance with provisions contained in the bid documents.
B. Identification of Bids and Proposals
Bids and proposals shall be submitted in a sealed envelope appropriately marked to ensure proper
identification and special handling. The City shall not be responsible for the proper identification and
handling of any bid not submitted in the designated manner or format to the required delivery point.
The City may refuse to accept or may reject any bid or proposal not properly sealed or marked.
C. Receipt of Bid or Proposal
It is the submitter's responsibility to ensure that bids or proposals are received by the City at the
required delivery point prior to the stated bid or proposal closing time regardless of the method used to
submit or transmit them.
30.055 BID SECURITY
A. 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 the contract promptly and properly if awarded.
B. Other Public Contracts
Bid security not to exceed 10 percent of the bid may be required by the City for other contracts in order
to guarantee acceptance of the award. This requirement shall be stated in the bid documents if in effect.
C. 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.
D. Form of Bid Security
The following forms of bid security will be accepted by the City:
1. Surety bond from surety company authorized to do business in the State of Oregon;
2. Cashier's check,certified check,or savings and loan secured check;or
3. Annual surety bond filed with the City (except for public improvement contracts).
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E. Return of Bid Security
The bid security of all unsuccessful bidders shall be returned after a contract has been executed or all
bids have been rejected. The City may return the bid security of unsuccessful bidders after bid opening
but prior to award if the return does not prejudice bid award and provided that the security of at least
the three lowest bidders is retained pending the execution of a contract.
F. Security for Proposals
If contracts are to be awarded based on competitive proposals, the City may, in its discretion, require
proposal security on the same terms as the bid security described in this section. Proposal security shall
normally be required for any public improvement contract to be awarded by a proposal process.
30.060 PRE-BID OR PRE-PROPOSAL CONFERENCES
Pre-bid or pre-proposal conferences may be held by the City to explain the City's requirements,conduct site
inspections, or otherwise supplement or clarify information. The City may require attendance at the
conference as a condition for bidding or submitting a proposal. The conferences shall be announced in the
solicitation documents. The conference shall be held within a reasonable time after the solicitation
documents have been issued but sufficiently before bid closing to allow consideration of the conference
results in preparing submittals. Statements at the conference shall not change the solicitation documents
unless confirmed to all prospective bidders or proposers by means of a written addendum to the solicitation
documents.
30.065 ADDENDA TO SOLICITATION DOCUMENTS
A. Form
Changes to solicitation documents shall be accomplished by addenda. The bidder or proposer shall
acknowledge receipt of all addenda issued, either with the bid or proposal or separately prior to opening.
A solicitation may be delayed or suspended by addendum if in the best interest of the City.
B. Distribution
Addenda shall be sent to all prospective bidders or proposers known to have obtained the solicitation
documents or attended any mandatory conferences.
C. Timeliness
1. Addenda shall be issued within a reasonable time prior to bid closing to allow consideration prior td
submittal of the bid or proposal, but in no case less than 48 hours before the submittal deadline.
The standard minimum notification for City-issued addenda shall be 72 hours prior to the close of
the bid or proposal. If staff has need to issue any addenda with less than 72 hours (but not less than
48 hours) staff shall document for the project file the reasons for the shorter notification timeframe.
If necessary, the City may notify prospective bidders or proposers by telephonic facsimile (fax), e-
mail, or telephone. If telephone is used, the City shall confirm the oral notice with a written
addendum.
2. In its discretion, the City may extend the closing date and time to allow prospective bidders or
proposers to analyze and adjust to changes made by Addenda. The City shall notify prospective
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bidders or proposers of new closing date and time either in the Addendum or in writing
accompanying the Addendum.
D. Addenda to Multi-Tier RFPs
If a multi-tier process is used to evaluate proposals, the City may issue addenda applicable to any tier of
the process at least 5 days before starting that tier of the process. If the City does issue such addenda,
amended or supplemental proposals may be submitted before the next tier of the process is started.
30.070 PRE-OPENING MODIFICATION OR WITHDRAWAL OF BIDS OR PROPOSALS
A. Modifications
Bids or proposals once submitted may be modified in writing prior to the time and date set for bid
closing. Any modifications shall be prepared on the company letterhead, signed by an authorized
officer, and state that the new document supersedes or modifies the prior bid or proposal. To ensure
the integrity of the process, the envelope containing any modifications to a bid or proposal shall be
marked as follows:
Bid/Proposal Modification
Bid/Proposal Title,Number, and/or Other Identification
B. Withdrawals
1. Bids or proposals may be withdrawn by written notification on company letterhead signed by an
authorized person and received prior to the time and date set for closing. Bids or proposals also
may be withdrawn in person prior to the scheduled closing upon presentation of appropriate
identification.
2. Unopened bids or proposals withdrawn under subsection (a) above may be released to the bidder
after voiding any date and time documentation detailed as the result of the initial submittal.
3. Requests to withdraw mailed bids or proposals shall be marked as follows:
Bid/Proposal Withdrawal
Bid/Proposal Title,Number, and/or Other Identification
C. Documentation
All documents relating to the modification or withdrawal of bids or proposals shall be made a part of
the appropriate bid file.
30.075 RECEIPT,OPENING,AND RECORDING OF BIDS AND PROPOSALS
A. Recei t
Upon receipt, each bid, proposal, or modification shall be time-stamped or marked by hand but not
opened and shall be stored in a secure,place until opening. If bids, proposals, or modifications are
opened inadvertently or are opened prior to the time and date set for opening because they were
improperly identified, the bids, proposals, or authorized modification documents shall be resealed and
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stored for opening at the correct time. When this occurs, documentation of the procedure shall be
placed in the file.
B. Opening and Recording
Bids and modifications shall be opened publicly, at the time, date, and place designated in the bid
documents. If witnesses are present at the bid opening, and to the extent practicable, the name of each
bidder, the bid price(s), and such other information as considered appropriate, shall be read aloud. On
voluminous bids the City may advise bidders as part of the bid documents that the bid items and prices
will not be read aloud.
Proposals may be opened at any time after the deadline for submittal of proposals. A summary sheet
providing basic information about each proposal shall be prepared.
C. Availability
Opened bids shall be available for public inspection prior to award except to the extent the bidder
designates trade secrets or other proprietary data to be confidential (ORS 192.501(2)). Proposals shall
not be available for public inspection until after a contract is awarded and entered into. The City shall
verify and determine that the confidential information claimed to be exempt is in fact exempt from
disclosure under the Oregon Public Records Law. Material so designated shall accompany the bid and
shall be readily separable from the bid or proposal in order to facilitate public inspection of the non-
confidential portion of the bid or proposal. Prices, makes, model, or catalog number of items offered,
scheduled delivery dates, and terms of payment shall be publicly available regardless of any designation
to the contrary.
D. Notice of Intent to Award
The City shall provide notice of intent to award to each person that has submitted a bid or proposal.
The notice shall state the date,time and location of the bid award decision. The notice shall include the
name of the person or entity that staff recommends the contract be awarded to. The notice shall
include any bid comparisons sheets or proposal comparison sheets.
30.080 LATE BIDS,PROPOSALS,WITHDRAWALS,AND MODIFICATIONS
Any bid, proposal, withdrawal, or modification received after the deadline for submission set in the
solicitation documents is late and shall not be considered. The City may use any watch or clock to
determine the time and the determination of the City employee or officer receiving the bids as to whether a
bid,proposal,withdrawal,or modification is late shall be final and not subject to challenge.
30.085 MISTAKES
A. General
Under extraordinary circumstances,a bid or proposal may be withdrawn after the deadline for submittal
because of an inadvertent nonjudgmental mistake. If the mistake is attributable to an error in judgment,
the bid or proposal may not be withdrawn or corrected. Correction or withdrawal by reason of
nonjudgmental mistake is permissible but only to the extent it is not contrary to the interest of the City
or the fair treatment of other bidders or proposers.
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B. Mistakes Discovered after Bid Closing but before Award
This section applies to situations where mistakes in bids are discovered after the submission deadline
but before award.
1. Minor Informalities
Minor informalities are matters of form rather than substance that are evident from the bid
documents, or insignificant mistakes that can be waived or corrected promptly without prejudice to
other bidders or the City; that is, the informality does not affect price, quantity, quality, delivery, or
contractual conditions except in the case of informalities involving unit prices. Examples include,
but are not limited to,the failure of a bidder to:
a. Return the number of signed bids or number of other documents required by the bid documents
b. Sign the bid form in the designated block so long the bid documents evidence an intent to be
bound;or
c. Acknowledge receipt of an addendum to the bid documents,but only if.
1. It is clear from the bid that the bidder received the addendum and intended to be bound by
its terms;or
2. The addendum involved did not affect price,quantity,quality,or delivery.
C. Mistakes Where Intended Correct Bid is Evident
If the mistake and the intended correct bid are clearly on the face of the bid form, or can be
substantiated from accompanying documents, the City may accept the bid. Examples of mistakes that
may be clearly evident on the face of the bid form are typographical errors, errors in extending unit
prices, transposition errors, and arithmetical errors. Mistakes that are clearly evident on the face of the
bid form or proposal document also may include instances in which the intended correct bid or
proposal item is made clearly evident by simple arithmetic calculations. For example, a missing unit
price may be established by dividing the total bid or proposal item by the quantity of units for that item,
and a missing or incorrect total bid or proposal price for an item may be established by multiplying the
unit price by the quantity when those figures are available on the bid or proposal. For discrepancies
between unit prices and extended prices,unit prices shall normally prevail.
D. Mistakes Where Intended Correct Bid is Not Evident
The City may not accept a bid in which a mistake is clearly evident on the face of the bid form but the
intended correct bid is not clearly evident or cannot be substantiated from accompanying documents.
30.090 TIME FOR ACCEPTANCE
Bids shall be valid and binding offers for 30 days from the deadline to submit bids unless otherwise
specified in the bid documents. Proposals shall be binding and valid offers for 60 days from the date of the
submittal deadline.
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30.095 EXTENSION OF TIME FOR ACCEPTANCE OF BID OR PROPOSALS
The City may request orally or in writing that bidders or proposers extend the time in which the City may
accept their offers.
30.100 EVALUATION AND AWARD
A. General
The contract, if awarded, is to be awarded to the lowest responsive and responsible bidder or the best
responsive and responsible proposer. Consistent with the provisions of the solicitation documents and
in the public interest as determined by the City, awards may be made by item,groups of items, or entire
bid or proposal. The City reserves the right to reject any bid or proposal not in compliance with the
solicitation documents or with state law, City Code, or these rules. The City reserves the right to reject
any or all bids or proposals upon a finding by the City that it is in the public interest to do so.
B. Special Requirements
1. Solicitation documents shall set forth any special requirements and criteria that will be used to
determine the lowest responsible bidder. No bid shall be evaluated for any requirement or criterion
that is not disclosed in the bid documents or City regulation.
2. In determining the lowest responsible bidder, the City shall, for the purpose of awarding the
contract, add a percent increase on the bid of a non-resident bidder equal to the percent, if any, or
of the preference give to that bidder in the state in which the bidder resides.
3. The City may rely on a list provided for by the Oregon Department of Administrative Services
pursuant to ORS 279A.120 (1) (4) for preference provided for by this section.
C. Product Acceptability
1. The solicitation documents shall set forth the evaluation criteria to be used in determining product
acceptability. The City may require the submission of samples, descriptive literature, technical data,
or other material,and may also provide for accomplishing any of the following prior to award.
a. Demonstration, inspection, or testing of a product prior to award for such characteristics as
quality or workmanship;
b. Examination of such elements as appearance, finish,taste,or feel;or
c. Other examinations to determine whether the product conforms to specifications.
2. The acceptability evaluation is conducted only to determine that a bidder's offering is acceptable as
provided in the bid documents. Any bidder's product which does not meet the minimum
requirements shall be rejected.
D. Determination of Lowest Responsive and Responsible Bidder
Following determination of product acceptability as set forth in subsection C, if applicable, bids will be
evaluated to determine which bidder offers the lowest cost to the City in accordance with the evaluation
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criteria set forth in the bid documents. Only objectively measurable criteria,which are set forth in the
bid documents, shall be applied in determining the lowest responsible bidder. Examples of such criteria
include, but are not limited to, transportation cost, volume weighing, trade-in allowances, depreciation
allowances, cartage penalties, and ownership or life cycle cost formulas. Evaluation factors need not be
precise predictors of actual future costs,but to the extent possible, such evaluation factors:
1. Are reasonable estimates based upon information the City has available concerning future use;
2. Treat all bids equitably;and
3. Recognize that public policy requires acquisitions and public improvements to be accomplished at
the least cost.
The City shall take into account any preferences provided by these rules in determining the lowest bid.
E. Determination of Best.Responsive,and Responsible Proposer
Proposals will be evaluated to determine which proposer offers the best solution to the City in
accordance with the evaluation criteria set forth in the solicitation documents. Only the criteria set forth
in the solicitation documents shall be applied. The criteria shall be as objective as possible. Examples
of evaluation criteria may include, but are not limited to, cost, quality, service, compatibility, product
reliability, operating efficiency, expansion potential, performance history on other private and public
contracts, experience of key personnel, adequacy of equipment and/or physical plan, financial
wherewithal, sources of supply, references and warranty provisions. Evaluation factors need not be
precise predictors of actual fixture costs and performance, but to the extent possible, such evaluation
factors shall:
1. Be reasonable estimates based on information available to the City;
2. Treat all proposals equitably;
3. To the extent that the proposal involves a public improvement,recognize that public policy requires
public improvements to be accomplished at the least cost.
F. In evaluating proposals,the City may use any of the following methods:
1. An award based solely on an evaluation of the written proposals;
2. Discussions with a number of proposers leading to a best and final offer from each proposer and an
evaluation of the best and final offers;
3. An award based on the written proposals and interview performance;
4. Serial negotiations,staring with the highest ranked proposer;
5. Competitive simultaneous negotiations;
6. A multi-tiered process,with some number of proposer being eliminated at each stage of the process;
7. A multi-stage process, with a qualifications determination at the first stage of the process, followed
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by cost considerations;or
8. Any other method or combination of methods designed to best serve the needs of the City and its
taxpayers.
The solicitation document shall describe the process to be followed.
G. No Assignment or Transfer of Contract Rights
Unless an express provision of the public contract otherwise provides, the contractor shall not assign,
sell or transfer rights, nor delegate responsibilities, under public contract, either in whole or in part,
without first obtaining the City's prior written consent. Unless otherwise agreed by the City in writing,
such consent shall not relieve the contractor of any obligations under a public contract, and any assignee
or transferee shall be considered the agent of the contract and bound to abide by all provisions of the
public contract. Except in the event of a novation,if the City consents in writing to an assignment, sale,
or transfer of the contractor's rights and responsibilities, the contractor and its surety, if any, shall
remain ultimately liable to the City for complete performance of the public contract as if no such
assignment,sale,or transfer had occurred.
30.105 LIFE CYCLE COST ANALYSIS
A. In determining the lowest responsible bidder, in the award of a contract, the City may use the cycle
costing. As used in this rule,life cycle costing means determining the cost of a product for its useful life.
B. The City shall follow these procedures:
1. At the time of writing specifications for the product, the City shall identify those factors which will
have cost implications over the life of the product and which, for evaluation purposes,will be used
to adjust the bid or proposal price of the product.
2. The solicitation documents shall set out clearly the factors and methodology to be used in life cycle
cost adjustments.
3. The results of life cycle costing adjustments shall be applied to the bid or proposal price of the
product(s) offered. The bid or proposal that results in the lowest overall ownership cost, taking into
account the life cycle costing adjustments, shall be considered the lowest bid or best proposal for
purposes of bid or proposal price evaluation.
30.110 RESPONSIBILITY
A. A responsible bidder or proposer is one who has:
L Adequate financial resources to perform the contract, or the ability to obtain such resources. The
City shall require acceptable evidence of the bidder's or proposer's ability to provide or obtain the
required financial resources. Acceptable evidence normally consists of,but is not limited to, current
and recent balance sheets; income statements; cash flow statements; and/or a performance bond
from an acceptable surety in an amount equal to the bid or proposal price. Such evidence may also
include a commitment of specific arrangement that will be in existence at the time of contract award
to rent,purchase,or otherwise acquire the needed facilities,equipment, or other resources;
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2. The ability to comply with the required or proposed delivery or performing schedule, taking into
consideration all existing commercial and public business commitments;
3. A satisfactory performance record. A bidder or proposer who is, or recently has been, seriously
deficient in contract performance shall be presumed to be non-responsible, unless the City
determines that the circumstances were properly beyond the contractor's control or that the
contractor has taken appropriate corrective action. Record of failure to perform acceptably is strong
evidence of non-responsibility. The City shall consider the number of contracts involved and the
extent of the deficiency of each in making this evaluation. In addition, the City may consider
whether the bidder's performance history demonstrates responsibility as defined in ORS 279B.110
and 279C. 375;
4. Key personnel available of sufficient experience, as determined by the City, to perform the
contracts;
5. The necessary organization, experience, accounting and operational controls, and technical skills, or
the ability to obtain these skills and abilities as required to satisfactorily perform the contract. These
may include, as appropriate, such elements as production control procedures, property control
systems, and quality assurance measures applicable to materials to be produced or services to be
performed by the bidder and its proposed subcontractor(s);
6. The necessary production, construction, and technical equipment and facilities, or the ability to
obtain them;
7. A satisfactory record of integrity;
8. For contractors on public improvement contracts,has not been determined to be not responsible by
the Construction Contractors Board;and
9. Is otherwise qualified and eligible to receive award under applicable laws and regulations.
B. The City shall consult with the Construction Contractor's Board concerning the responsibility of any
person to whom a public improvement contract is proposed to be awarded, and shall comply with the
reporting requirements of ORS 279C.375. The City has the right,prior to awarding any public contract,
to make such investigation as is necessary to determine whether a bidder or proposer is responsible.
This investigation may include,but is not limited to:
1. An inquiry into the responsibility of proposed subcontractors and suppliers.
2. Requiring a bidder or proposer to demonstrate its financial ability to perform the contract as
provided in subsection A.1 of this rule. In exercising this right, the City shall notify the apparent
successful bidder or proposer in writing to submit such documentation as the City deems necessary
to complete a thorough evaluation of financial ability.
3. By submitting a bid or proposal, a bidder or proposer authorizes the City to request any credit
report information the City deems necessary to investigate and evaluate financial responsibility to
perform the contract(s).
C. Failure of a bidder or proposer to promptly supply information requested by the City during its
responsibility investigation shall be grounds for a finding of non-responsibility.
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D. Only bids and proposals from responsible bidders or proposers, as defined in this rule, shall be eligible
for contract award. Bid or proposals from non-responsible bidders or proposers shall be rejected as
provided in PCR 30.115.
30.115 RESPONSIVE AND NON-RESPONSIVE BIDS OR PROPOSALS; ACCEPTANCE AND
REJECTION
A. A "responsive bid or proposal" is one that complies in all material aspects with the solicitation
documents and with all prescribed public bidding procedures and requirements.
B. A "non-responsive bid or proposal"is one which:
L Omits, or is unclear as to the price and the price cannot be determined in the bid or proposal
documents;
2. Offers goods or services of a quality or quantity inferior to that requested in the solicitation
documents;
3. Does not meet the delivery date requirements specified in the solicitation documents;
4. Takes exception to the terms and conditions of the solicitation documents other than as allowed by
these rules or the solicitation documents;
5. Is conditional upon the City's acceptance of terms and conditions difference from those contained
in solicitation documents,except as allowed by these rules or the solicitation documents;or
6. Contains a deviation which,if the bid or proposal were accepted,would give the bidder or proposer
a substantial advantage or benefit not shared by other bidders or proposers to the solicitation
documents.
C. The City shall accept, and consider for award, only those bids or proposals, which are responsive as
defined in this rule. Non-responsive bids or proposals shall be rejected,as provided in PCR 30.115.
30.120 LOW TIE BIDS
A. Definition
Low tie bids are low responsive bids from responsible bidders that are identical in price, fitness,
availability and quality and which meet all the requirements and criteria set forth in the bid documents.
B. Award
L If low tie bids are received, a preference shall be given to goods and services that have been
manufactured or produced in Oregon.
2. If the bids remain tied after application of the Subsection 1, preference shall be given to the bidder
whose principal offices or headquarters are located in Oregon.
3. If the bids remain tied after application of Subsections 1 and 2, the award shall be made by drawing lots
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among any tied Oregon bidders. Such bidders shall be given notice and an opportunity to be present
when the lots are drawn.
4. If there are no Oregon bidders after application of subsections 1 and 2, award of the contract shall be
made by drawing lots.
30.125 REJECTION OF INDIVIDUAL BIDS OR PROPOSALS
A. General
This section applies to rejections, in whole or in part, of individual bids or proposals. The City may
reject in whole or in part, any bid not in compliance with all prescribed bidding procedures and
requirements, and may reject for good cause any bid or proposal upon a written finding of the City that
it is in the public interest to do so. No bid shall be considered unless the bid security,properly executed,
has been submitted with the bid as required by the bid documents.
B. Reasons for Rejection
Reasons for rejecting a bid or proposal include but are not limited to:
1. The submitter has not pre-qualified when pre-qualification is required or has been disqualified;
2. The submitter has been declared ineligible by the Commissioner of the Bureau of Labor and
Industries under ORS 279.361;
3. The bid or proposal is non-responsive, that it does not conform in all material respects to bid
documents or requirements, including all prescribed public procurement procedures and
requirements;
4. The supply, service,or construction item offered in the bid or proposal is unacceptable by reason of
its failure to meet the requirements of the solicitation documents or permissible alternates or other
acceptability criteria set forth in the solicitation documents;
5. The submitter is not capable of satisfying the terms and conditions of the public contract in a timely
manner due to financial incapacity; inability to obtain bonding, loss of license, or other objective
cause;
6. The submitter within the last 5 years has been found, in a civil, criminal, or administrative
proceeding, to have committed fraud, misrepresentation, price-rigging, unlawful anti-competitive
conduct,or similar behavior;
7. The submitter has been determined responsible (i.e., adjudicated by a court, or as determined in
writing by the City agency in the case of a public contract) for more than one breach of a public or
private contract(s)in the last 3 calendar years before the scheduled date of the bid opening;
8. The security has not been submitted or properly executed as required by the solicitation documents;
9. When applicable, the bidder has not met the emerging small business, disadvantaged business,
minority business, and women business enterprise requirements,if any, established by the City, and
has not made a good faith effort to comply with the requirements prior to the time bids are opened;
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10. The submitter failed to certify in accordance with Section D of this rule;
11. Other circumstances of the particular bid, proposal, or submitter (including submitter's
subcontractors) indicate that acceptance of the bid or proposal would impair the integrity of the
selection process or result in an imprudent contract by the City;or
12. The contractor has discriminated against subcontractors because the subcontractor is a minority,
women or emerging small business enterprise certified under ORS 200.055.
C. Form of Business Entity
The corporate or business form of bidders or proposers shall be subject to scrutiny, so that previously
disqualified bidders or proposers, or their officers and directors, may not by subterfuge, change of
apparent ownership,or other adjustments in formal appearance,avoid application of this rule.
D. Non-discrimination Certification
The bidder or proposer shall certify as part of the bid that the contractor has not discriminated against
subcontractors because the subcontractor is certified as a minority,women, or emerging small business
enterprise.
30.130 REJECTION OF ALL BIDS OR PROPOSALS
A. Bid Rejection
All bids or proposals may be rejected for good cause upon a written finding by the City that it is in the
public interest to do so. Notification of rejection of all bids or proposals, along with the good cause
justification and finding of public interest shall be sent to all that submitted a bid or proposal.
B. Rejection Criteria
Reasons for rejecting all bids or proposals include but are not limited to:
1. An error in the solicitation documents, including its terms, conditions, or specifications that
unnecessarily restricted competition for the public contract;
2. The price,quality,or performance presented by the lowest or best responsible bidder or proposer is,
in the City's opinion,too costly or of insufficient quality to justify acceptance of the bid or proposal.
This criterion may be satisfied evidence that the same goods or services can be obtained otherwise
for less cost;
3. Misconduct, error, or ambiguous or misleading provisions in the bid documents or process threaten
the fairness and integrity of the competitive process;or
4. Causes other than legitimate market forces threaten the integrity of the competitive procurement
process. These causes include, but are not limited to, those that tend to limit competition such as
restrictions on competition, collusion, corruption, unlawful anti-competitive conduct, and
inadvertent or intentional errors in the bid documents.
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30.135 PROTESTS OF AWARD
A. Purpose
Adversely affected or aggrieved bidders or proposers must exhaust all avenues of administrative review
and relief before seeking judicial review of and decision by the City under the Public Contracting Code
or these rules.
B. Notice of Award
The written notice of award of the contract shall constitute a final decision by the City to award the
contract if no written protest of the notice of award is filed with the City within seven calendar days of
the notice of award or such other period as provided in the City's solicitation. If a protest is timely filed,
the notice of award is a final decision of the City upon issuance of a written decision denying the protest
and affirming the award. The notice of award and any written decision on a protest shall be sent to
every bidder or proposer who provided an address.
C. Right to Protest
Any actual bidder or proposer who is adversely affected or aggrieved by the City's notice of award of the
contract to another bidder or proposer on the same solicitation shall have seven calendar days after
notice of award to submit to the City a written protest of the notice of award or such other time as
provided in the solicitation documents. The written protest shall specify the grounds upon which the
protest is based. In order to be adversely affected or aggrieved,a bidder or proposer must itself claim to
be eligible for award of the contract as the lowest responsible bidder or best proposer and must be next
in line for award;i.e., the protester must claim that all lower bidders or better proposers are ineligible for
award because they are non,-responsive or non-responsible. The City shall not entertain a protest
submitted after the time period established in this rule or such different period as may be provided in
the City's solicitation.
D. Authority to Resolve Protests
The City Manager, or designee, shall have the authority to settle or resolve a written protest submitted
under section E of this rule.
E. Decision
If the protest is not settled or resolved by mutual agreement, the City Manager, or designee, shall
promptly issue a written opinion on the protest. If the opinion denies the protest,judicial review of this
decision will be available if provided for by statute. If the City Manager or designee determines that
there is good cause for the protest, the matter shall be submitted to the Board for further action. The
decision of the Board on a protest shall be final. Both the protestor and the person to whom the
contract was awarded shall have a right to present arguments to the Board.
30.140 PROTESTS OTHER THAN NOTICE OF AWARD
A. A protest may be filed to contest the adoption or amendment of these rules, adoption of a class or
contract specific exemption, solicitation documents (including specifications and contract terms), or the
process used in the solicitation. The protest must be filed with the City's Contracts and Purchasing
Office within 7 days of the adoption or amendment of rules or exemptions, the publication of
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solicitation documents,or other action being protested. Grounds for protest are limited to:
1. That the City acted contrary to law;
2. That the City's actions unnecessarily restrict competition; or
3. That the City has improperly specified a brand name.
B. The protest must include:
1. Sufficient information to identify the solicitation;
2. The grounds for the protest;
3. Evidence or supporting information;and
4. The relief sought.
C. The City Manager shall, if possible, issue a written decision on the protest under this section at least
three days before any bid or proposal opening that could be affected by the protest.
D. A bidder or proposer who does not protest a proposed contract term included in the solicitation
documents must accept the contract term as included in the solicitation documents.
E. If protest of a solicitation is timely received, the opening date may be extended if necessary to allow
consideration for the protest and issuance of any addenda to the solicitation documents.
F. Envelopes containing protests of solicitation specifications shall be marked as follows:
Specification Protest
Bid/Proposal Title,Number,and/or Other Identification
30.145 NEGOTIATION
A. Negotiation with Bidders
If a project is competitively bid and all responsive bids from responsible bidders exceed the City's cost
estimate, the City may negotiate with the lowest responsive, responsible bidder, prior to awarding the
contract,in order to solicit value engineering and other options to attempt to bring the project with the
agency's cost estimate.
1. A negotiation with the lowest responsive, responsible bidder pursuant to this paragraph shall not
result in the award of the contract to that bidder if the scope of the project is significantly changed
from the original bid proposal.
2. Notwithstanding any other provision of law, the records of a bidder used in contract negotiation
pursuant to this paragraph are not subject to public inspection until after the negotiated contract has
been awarded or the negotiation process has been terminated.
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B. Negotiation with Proposers
The City may negotiate with proposers after proposal opening in order to try to reach the best possible
contract for the City. Proposals may be revised in the course of negotiations for the best offer,provided
that any revision is not so extensive as to be unfair to other proposers who do not have the opportunity
to negotiate.
30.150 BIDDER DISQUALIFICATION
A. Definitions -As used in this rule:
1. "Disqualification" means the debarment, exclusion or suspension of a person from right to submit
bids or proposals in response to the City's solicitations for a reasonable, specified period of time
named in the order of disqualification. A contractor or vendor so debarred,excluded or suspended,
is disqualified.
2. "Person" means an individual, partnership, or corporation. Disqualification attaches to and follows
the individual, so that an individual who is a partner in a partnership or an officer or principal in a
corporation which is disqualified may not re-form the business entity as a way of avoiding the
disqualification.
B. Grounds for bid-specific disqualification include:
1. The person does not have sufficient financial ability to perform the contract. If a bond is required
to ensure performance of a contract, evidence that the person can acquire a surety bond in the
amount and type required shall be sufficient to establish financial ability;
2. The person does not have equipment available to perform the contract;
3. The person does not have key personnel available of sufficient experience to perform the contract;
or
4. The person has repeatedly breached contractual obligations to public and private contracting
agencies.
5. The person has discriminated against a subcontractor because the subcontractor is a minority,
women,or emerging small business enterprise certified under ORS 200.055.
6. The person has engaged in conduct prohibited by ORS 200.075,including:
a. If the person has entered into any agreement representing that a disadvantaged, minority,
women or emerging small business enterprise, certified pursuant to ORS 200.055, will be
performing or supplying materials under a public improvement contract without the knowledge
and consent of the certified enterprise;
b. If the person exercises management and decision making control over the internal operations, as
defined by ORS 200.075(1)(b), of any certified disadvantaged, minority, women or emerging
small business enterprise;
c. If the person uses a disadvantaged, minority, women or emerging small business enterprise to
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perform contracting services or provide supplies under a public improvement contract to meet
an established Disadvantaged Business Enterprise (DBE)/Minority-owned Business Enterprise
(MBE)/Woman-owned Business Enterprise (WBE)/Emerging Small Business (ESB) goal,when
the enterprise does not perform a commercially useful function, as define by ORS 200.075(3),in
performing its obligations under the contract.
C. Debarment
A prospective bidder or proposer may be debarred from consideration for an award for a period of up
to three years if convicted of a criminal offense relating to a public contract; convicted of a crime
involving dishonesty (as provided in ORS 279B.130(2)(b), convicted under antitrust statutes, has
violated a contract and debarment for violation was listed in the contract terms, or failure to carry
workers compensation or unemployment insurance.
Debarment shall be by written decision explaining the reasons for the debarment and explaining appeal
rights. Appeals shall be provides under ORS 279B.425. Any appeal must be filed with the City's
Contracts and Purchasing Office within three days after receipt of the notice of debarment.
D. Investigation
The City may make such investigation as is necessary to determine whether a person is qualified. If a
bidder or prospective bidder fails to supply information promptly as requested by the City, such failure
is grounds for disqualification.
E. Notice of Disqualification
The bidder or prospective bidder will be notified in writing by personal service or certified mail of the
City's decision to disqualify the person from bidding with the City. The notice shall contain:
1. The effective date of the disqualification and the effective period of disqualification;
2. The grounds for disqualification from bidding;and
3. A statement of the contractor's appeal rights and applicable appeal deadlines.
F. 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 business days after receipt of the notification. The City shall mail its notice to the
contractor by Certified Mail Return Receipt Requested, if not personally served. Appeals shall be
conducted under the procedures and standards of ORS 279C.445 and 279C.450. A protest of a denial,
revocation, or revision of a prequalification shall be filed within three business days after receipt of
notice of the decision. On receipt of the protest, a hearing shall be set before the Local Contract
Review Board and the hearing shall be held and the decision issued within 30 days of receipt of the
protest. The Local Contract Review Board will consider the action de novo, based on applicable
standards. If the denial is upheld, the person filing the protest shall reimburse the City for costs of
processing the protest.
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30.155 CANCELLATION OF INVITATIONS TO BID OR REQUESTS FOR PROPOSALS
A. Cancellation in the Public Interest
An invitation to bid or request for proposal may be canceled,in whole or in part, and all bids received
may be rejected when it is in the public interest as determined by the City. The reasons therefore shall
be made part of the file.
B. Notice of Cancellation
When an invitation to bid or request for proposal is canceled prior to the submission deadline, notice of
cancellation shall be sent to all known holders of the documents. When an invitation to bid or request
for proposals is canceled after deadline for submission,notice shall be sent to those who submitted a bid
or proposal. The notice of cancellation shall:
1. Identify the specification documents;
2. Briefly explain the reason for cancellation;and
3. Where appropriate,explain that an opportunity will be given to compete on any re-solicitation.
30.160 DISPOSITION OF BIDS OR PROPOSALS IN EVENT OF CANCELLATION
A. Prior to Bid Opening
When an invitation for bids or request for proposals is canceled prior to opening of the bids or
proposals, all submissions will be returned unopened, if submitted with a clearly visible return address.
If there is no return address on the envelope, the submissions will be opened to determine the source
and then returned to sender.
B. After Opening
When all bids or proposals are rejected, those received shall be retained and become part of the City's
permanent project file.
30.165 DOCUMENTATION OF AWARD
A. Basis of Award
Following award, a record showing the basis for determining the successful bidder shall be made a part
of the file.
B. Contents of Award Record
The record shall consist of-
t Completed bid tabulation sheet;or
2. Completed proposal evaluations;and
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3. Written justification of any rejection of lower bids;or
4. Written explanation for any rejection of proposals for failing to meet mandatory requirements of the
Request for Proposals.
30.170 FOREIGN CONTRACTOR
If a contractor is not domiciled in or registered to do business in the State of Oregon, the City shall require
the contractor to promptly provide the Oregon Department of Revenue and the Secretary of State
Corporation Division with any and all information required by those agencies relative the contract between
the contract and City. The City shall have the right to withhold final payment to the contractor under this
Rule until the contractor has met the requirement under the Rule.
30.175 CONTRACT TERMS AND CONDITIONS
A. Required Terms and Conditions
The City shall establish standard terms and conditions for contracts. Contracts shall include provisions
relating to the following, if applicable. For those provisions referring to statutes, the contract language
shall comply with and implement the statutes.
1. Payment of laborers and material suppliers; contributions to Industrial Accident Fund; liens and
withholding taxes,and drug testing(ORS 279B.220,279C.505);
2. Payment of claims by public officers, payments to first tier subcontractors and claims by labor and
materials suppliers (ORS 279C.515),
3. Hours of labor(ORS 279B.020,279B.235,279C.520,279C.540);
4. Environmental and natural resources regulations (279B.525);
5. Payment for medical care, compliance with or exemption from workers compensation laws (ORS
279B.230,279C.530);
6. Prevailing wage rates (ORS 279C.830);
7. Salvaging, recycling, composting or mulching yard waste material, and salvage and recycling of
construction and demolition debris (ORS 279B.225,270C.510);
8. Certification by contractor of compliance with the Oregon tax laws according to ORS 305.385;
9. Certification by contractor of nondiscrimination as to relations with subcontractors (ORS
279A.110);
10. Inclusion of provisions in contracts with subcontractors,as required by ORS 279C.580;
11. Progress payments and retainage;
12. Bonding requirements (performance and payment bonds, and bonds required to be filed with the
Construction Contractors Board or BOLI);and
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13. Any other requirement imposed by federal or state law, regulation, rule or ordinance, which is
applicable to the contract.
B. The City may develop and require contract provisions relating to the following:
1. Termination of the contract;
2. Suspension of the work;
3. Labor and materials liens;
4. Liability in absence of bond;
5. Use of recovered resources and recycled and recyclable materials,including paper,oils,and tires;
6. Any other term to further the City's and the public interest.
C. Terms and Conditions Applicable to Construction Contracts
In cases where the contract calls for work as described in ORS 701.005(2) (i.e.; construction work), the
contracts shall contain:
L Certification by the "contractor" that the contractor is registered with the Construction Contractors
Board according to ORS 701.035 to 701.055,unless prohibited by federal regulations.
2. Certification by the contractor that all subcontractors performing work as described in ORS
701.005(2) will be registered with the Construction Contractors Board according to ORS 701.035 to
701.055 before the subcontractors commence work under this contractor.
D. Special Terms and Conditions
The City may also establish special terms and conditions applicable to specified categories of contracts.
Any special terms and conditions shall be included in the bid documents and become an integral part of
those contracts.
E. Compliance and Exceptions to Terms and Conditions
1. Bidders and proposers shall be responsible for noting the terms and conditions included applicable
to each set of solicitation documents.
2. By submitting a bid or proposal, the bidder or proposer acknowledges acceptance of and the intent
to abide by the terms and conditions specified in the invitation to bid or request for proposals and
agrees to enter into a contract consistent with state public contracting law requirements. Submission
of a bid or proposal without objection to provisions listed in the form contract included in the
solicitation documents constitutes an offer to enter into a contract on those terms and no
negotiation of those terms is permitted after the contract award.
3. The City has the right to reject any bid or proposal that takes exception to specifications or to
contract terms unless the right to take exception is expressly granted in the Invitation to Bid or
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Request for Proposals. Bids or proposals which take exception to the specifications or contract
terms, or which are made contingent upon the City's acceptance of different or additional
specifications or terms, may be rejected because they are not responsive to the Invitation to Bid or
the Request for Proposals.
4. Any exceptions to any proposed terms and conditions must be clearly stated in writing by the bidder
or proposer in the signed bid or proposal. The City reserves the right to reject or accept any bid or
proposal that takes exception to the terms and conditions,but must take into account any objections
in comparing the bid or proposal to other bids or proposals. Exceptions to the terms and
conditions become contractual obligations only upon written acceptance by the City.
F. Commenter
The following is a list of federal, state, and local agencies of which the City has knowledge that have
enacted ordinances or regulations dealing with the prevention of environmental pollution and the
preservation of natural resources that may affect the performance of contracts:
FEDERAL AGENCIES•
Agriculture
Department of Forest Service
Soil Conservation Service
Defense
Department of Army Corps of Engineers
Energy
Department of Federal Energy Regulatory Commission
Environmental Protection Agency
Department of Health and Human Services
Housing and Urban Development
Department of Solar Energy Conservation Bank
Interior,Department of
Bureau of Sports Fisheries and Wildlife
Bureau of Outdoor Recreation
Bureau of Land Management
Bureau of Mines
Bureau of Indian Affairs
Bureau of Reclamation
Geological Survey
Minerals Management Service
Labor,Department of
Mine Safety and Health Administration
Occupational Safety and Health Administration
Transportation,Department of
Coast Guard
Federal Highway Administration
Water Resources Council
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STATE AGENCIES:
Administrative Services,Department of
Agriculture,Department of
Columbia River Gorge Commission
Consumer&Business Services,Department of Oregon Occupational Safety&Health Division
Energy,Department of
Environmental Quality,Department of
Fish and Wildlife,Department of
Forestry,Department of
Geology and Mineral Industries,Department of
Human Resources,Department of
Land Conservation and Development Commission
Parks and Recreation,Department of
Soil and Water Conservation Commission
State Engineer
State Land Board
Water Resources Board
LOCAL AGENCIES:
City Council
County Court
County Commissioners,Board of
Port Districts
Metropolitan Services Districts
County Service Districts
Sanitary Districts
Water Districts
Fire Protection Districts
30.180 AVAILABILITY OF AWARD DECISIONS—CONTRACT RETENTION
A. Contract Documents
A signed purchase order, agreement, or contract, as applicable, shall be executed with the person to
whom the contract is awarded.
B. Notification to Unsuccessful Bidders
Unsuccessful bidders and proposers will be provided with the notice of intent to award. Tabulations of
awarded bids shall be posted on the City's website or may be obtained in accordance with the City's
Public Record Request policies.
C. Availability of Files
Completed files, other than confidential materials, shall be available for public review at the City in
accordance with the City's Public Records policies.
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D. Copies from Files
Copies of material from files may be obtained in accordance with the City's Public Records policies.
E. Contract Retention
The following requirements on retention of contract documents after award shall apply:
1. For all service contracts the original must be kept for six (6) years after the contract has been
completely executed;
2. Capital improvement contracts must be kept a minimum of 10 years after substantial completion;
3. Goods contracts must be kept for six (6) years after maturity;
4. Intergovernmental and interagency agreements must be kept a minimum of 10 years after substantial
completion;and
5. Other purchasing related documents should be retained according to City retention schedules;
Any copies of the originals must be kept for two (2) years after maturity in all of the categories listed
above.
30.185 REQUESTS FOR PROPOSALS
A. The City may use the request for proposal process for any contract for which price is not the sole factor
for awarding the contract. When the City uses a request for proposal, the solicitation document shall
state:
1. The necessary contract terms;
2. The evaluation criteria to be applied in awarding the contract and the role of an evaluation
committee,if any;
3. The criteria for awarding the contract,which may include but are not limited to cost,quality, service,
experience, expertise, compatibility with existing or future City assets, product reliability, operating
efficiency,and expansion potential;
4. Complaint processes and remedies available;
5. The provisions made for vendors to comment on any specifications that they believe limit
competition;and
6. The location where sealed written proposals are to be submitted and the date and deadline for
submittal.
B. All requests for proposals shall be published at least once in a newspaper, journal, trade publication or
similar periodical. In deciding where to advertise, the City shall consider what publication is most likely
to be read by qualified proposers.
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C. The City may establish an ad hoc proposal review committee to evaluate any proposal and may provide
for an interview of selected proposers as part of the evaluation process. Any use of a proposal review
committee or interview process shall be detailed in the request for proposals.
30.190 PERFORMANCE AND PAYMENT SECURITY
A. Public Improvements Contract
Except in emergencies, when the requirement may be waived, or unless the requirement is exempted
under these rules,all persons entering into public improvements contracts with the City will be required
to provide:
1. A performance bond in a sum equal to the contract price,and
2. A payment bond in a sum equal to the contract price.
3. Proof that a public works bond with a corporate surety in the amount of$30,000 has been filed with
the Construction Contractors Board for contracts subject to Prevailing Wage Rate Law.
Public improvement contracts of$10,000 or less are exempt from the bond requirements.
B. Other Public Contracts
The City may require performance security for other public contracts. Such requirements shall be stated
in the solicitation documents.
C. Contracts Under 510,000
Performance bonds for a contract under$10,000 shall be utilized only in critical circumstances, so as not
to discourage competition.
D. Requirement for Surety Bond
A surety bond furnished by a surety company authorized to do business in Oregon is the only
acceptable form of performance security unless otherwise specified in the solicitation documents.
E. Time for Submission
Upon request by the City, the apparent successful bidder or proposer must furnish the required
performance bond within ten days of contract award. Prompt submittal of the performance bond is
required to ensure timely project initiation. Failure to furnish the bond prior to the deadline shall result
in rejection of the bid or proposal, forfeiture of bid security, and award to the next lowest responsible
bidder or next highest-scoring proposer.
F. Claims on Payments Bonds
Claims on payment bonds shall comply with ORS 279C600 to 279C.625 and Section 40.060.
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30.195 RIGHT TO AUDIT RECORDS
A. Records Maintenance:Access
Contractors and subcontractors shall maintain all fiscal records relating to public contracts in accordance
with generally accepted accounting principles. In addition, contractors and subcontractors shall
maintain any other records necessary to clearly document(i) their performance and(ii) any claims arising
from or relating to their performance under a public contract. Contractors and subcontractors shall
make all records pertaining to their performance and any claims under a public contract accessible to the
City at reasonable times and places,regardless whether litigation has been filed as to such claims.
B. Audit of Cost or Pricing Data
The City may, at reasonable times and places, audit the books and records of any person who has
submitted cost or pricing data according to the terms of a contract to the extent that such books and
records relate to such cost or pricing data. Any person who receives a contract, for which cost or
pricing data are required, shall maintain such books and records that relate to such cost or pricing data
for three (3) years from the date of final payment under the contract,unless a shorter period is otherwise
authorized in writing.
C. Contract Audit
The City shall be entitled to inspect, examine, copy, and audit the books and records of a contractor or
any subcontractor under any contract or subcontract to the extent that such books and records relate to
the performance of such contract or subcontract. Such books and records shall be maintained by the
contractor for a period of three (3) years from the date of final payment under the prime contract and
by the subcontract for a period of three (3) years from the date of final payment under the subcontract,
or until the conclusion of any audit, controversy or litigation arising out of or related-to the contract,
whichever date is later,unless a shorter period is otherwise authorized in writing.
30.200 RIGHT TO INSPECT PLANT
A. Time for Inspection
The City may, at reasonable times,inspect the part of the plant or place of business of a contractor or
any subcontractor that is related to the performance of any contract awarded.
B. Access to Plant or Place of Business
As a condition of bidding, bidders agree that the City may enter a contractor's or subcontractor's plant
or place of business during normal business hours for the following purposes:
1. Inspect and/or test supplies or services for acceptance by the City pursuant to the terms of the bid;
or
2. Investigate in connection with a bidder's application, a minority business certification, or bidder
disqualification.
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C. Contractual Provisions
Contracts may provide that the City may inspect supplies and services at the contractor's or
subcontractor's facility and perform tests to determine whether they conform to the bid documents, or,
after award, to contract requirements, and are therefore acceptable. Such inspections and tests shall be
conducted in accordance with the terms of the contract.
D. Procedures for Trial Use and Testing
The City may establish operational procedures governing the testing and trial use of equipment,
materials,and the application of resulting information and data to specifications or procurements.
E. Conduct of Inspections
1. Inspectors
Inspections or tests shall be performed so as not to unduly delay the work of the contractor or
subcontractor. No change of any provision of the specifications or the contract may be required by
the inspector without written authorization of the City,unless otherwise specified in the solicitation
documents. The presence or absence of an inspector shall not relieve the contractor or
subcontractor from any requirement of the contract.
2. Location
When an inspection is made in the plant or place of business of a contractor or subcontractor, such
contractor or subcontractor shall provide without charge all reasonable facilities and assistance for
the safety and convenience of the person performing the inspection or testing.
3. Time of Testing or Inspection
Inspection or testing of supplies and services performed at the plant or place of business of any
contractor or subcontractor shall be performed at reasonable times during normal business hours.
F. Inspection of Construction Projects
On-site inspection of construction shall be performed in accordance with the terms of the contract.
30.205 CONTRACT CANCELLATION AND TERMINATION PROCEDURES
A. A contract may be canceled by the City for any violation of the provisions of the contract or for
violation of the certification of non-discrimination against minority, women, and emerging small
business enterprises.
B. The City may terminate any contract if insufficient funds are appropriated to complete the contract.
C. No cancellation of a public contract shall, unless limited by the terms of the particular contract, restrict
or abrogate any other remedy available to the City that is provided either by law or under the particular
contract.
D. The City shall provide the contractor written notice of the grounds for cancellation or termination and
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of its intention to cancel the contract or terminate the contractor's performance. If the contractor
provided a performance and payment bond, the surety shall also be provided with a copy of the notice
of contract cancellation or contractor termination. The notice shall include the effective date of the
intended cancellation or termination, the grounds for cancellation or termination and notice of the
amount of time (if any) in which the City will permit the contractor to correct the failure to perform.
The public contract may provide contract cancellation or contractor termination procedures that are
different from or in addition to,those provided in this rule.
E. If the contractor has provided a performance and payment bond, the City may afford the contractor's
surety the opportunity, upon the surety's receipt of a contractor termination notice, to provide a
substitute contractor to complete performance of the contract. Performance by the substitute
contractor shall be rendered pursuant to all material provisions of the original contract, including the
provisions of the performance and payment bond. Such substitute performance does not involve the
award of a new public contract and shall not be subject to competitive procurement requirements.
PCR 40.000-PUBLIC IMPROVEMENT CONTRACTS
40.010 APPLICATION
In addition to the requirements set forth in Section 30 of these rules, the following rules apply to public
improvement contracts. The requirements in Section 40 are intended to be complementary to those in
Section 30, with the rules in Section 40 supplementing the Section 30 requirements, where necessary, to
meet the City's needs when administering contracts for public improvements.
40.015 COMPETITIVE BIDDING
Except as otherwise specifically permitted by these rules,public improvement contracts shall be awarded by
competitive bidding. If the public improvement contract includes design aspects, including value
engineering under a CM/GC covered project, the City may award the contract by a competitive proposal
process.
40.020 FIRST TIER SUBCONTRACTOR NOTICE
If the public improvement contract may be for more than $100,000, the solicitation documents must
provide notice that the contractors must disclose first-tier subcontractors who will furnish labor or materials
greater than five percent of the total bid or $15,000, whichever is greater, or $350,000 regardless of the
percentage of the total bid within two working hours after the deadline for bid submission. The disclosure
must state the name of each subcontractor and the category of work the subcontractor will perform.
40.025 FIRST TIER SUBCONTRACTOR DISCLOSURE
A. Bidders for public contracts with a value of more than $100,000 must submit a first-tier contractor
disclosure sheet within two hours of the deadline for submitting a bid. The disclosure sheet must list all
first-tier subcontractors who will furnish labor or materials greater than five percent of the total bid or
$15,000,whichever is greater, or $350,000 regardless of the percentage of the total bid. The disclosure
must state the name of each subcontractor, the category of work the subcontractor will perform and the
dollar value of each subcontract. If no first-tier subcontractor meets the threshold level for disclosure
and the bid price is more than $100,000, the disclosure sheet must still be submitted with the
information that no subcontractors meet the threshold level for disclosure.
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B. Bid and proposals for public improvement contracts with a value of greater than $100,000 for which a
first-tier subcontractor disclosure is not submitted within two hours of the submittal deadline shall be
considered non-responsive.
C. The closing for submission of bids subject to first-tier subcontractor disclosure shall be on Tuesday,
Wednesday or Thursday between 2 and 5 pm.
A First tier subcontractors may be substituted if only in compliance with ORS 279C.585.
E. The City may require first-tier subcontractor disclosure in any invitation to bid, even if disclosure is not
otherwise required by statute or these rules.
40.030 BID EVALUATION AND AWARD
A. General
Unless exempted by these rules, a public improvement contract, if awarded, is to be awarded to the
lowest,responsive and responsible bidder.
B. Special Requirements
The solicitation documents shall set forth any special requirements and criteria, which will be used to
determine the lowest,responsive and responsible bidder. No bid shall be evaluated for any requirement
or criterion that is not disclosed in the solicitation documents or City regulation.
C. Bid Evaluation and Award
The evaluation format for competitive bid pricing can be lump sum,unit price, or a combination of the
two.
1. Lump sum
If the bid form includes a lump sum base bid, plus additive or deductive alternates, the total bid
price, for the purpose of comparing bids, shall be the total sum computed from adding or deducting
alternates, as selected by the City, to the base bid. If the alternates, or if the City has selected no
additive or deductive alternates for award, bids shall be compared on the basis of lump sum prices,
or lump sum base bid prices,as applicable.
2. Unit Price
If the bid includes unit prices and extensions for estimated quantities, the total bid price, for the
purpose of comparing bids, will be the total sum computed from multiplying the bidder, with due
adjustments being made for additive or deductive alternates, if any, selected for award. Note: In
case of a conflict between a unit price and the corresponding extended amount, the unit price shall
govern.
3. Combination Lump Sum and Unit Price
The City shall select a combination of factors for purposes of bid evaluation and contract award and
use the methods described in (a) and (b) to compute and compare bids. Note: In case of a conflict
between a unit price and the corresponding extended amount,the unit price shall govern.
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D. Proposal Evaluation and Award
If a selection method other than competitive bids is authorized by these rules for a public improvement,
proposals will be evaluated to determine which proposer offers the best solution to the City in
accordance with the evaluation criteria set forth in the solicitation documents and in the City's rules.
The solicitation evaluation criteria may include, but are not limited to, cost, quality, relevant experience,
service, performance history on other private and public contracts, experience and availability of key
personnel, adequacy of equipment and physical plant, financial wherewithal, sources of supply, and
references. Evaluation factors need not be precise predictors of actual future costs and performance,
but,to the extent possible, such evaluation factors shall:
1. Be reasonable estimates based on information available to the City;
2. Treat all proposals equitably;
3. Recognize that public policy requires acquisitions and public improvements to be accomplished at
the least cost.
E. No assignment or transfer of contract rights
A contractor shall not assign, sell, or transfer rights, nor delegate responsibilities under a public contract
either in whole or in part,without first obtaining the City's prior written consent. Such written consent
shall not relieve a contractor of any obligations under a public contract, and any transferee shall be
considered the agent of the contractor and bound to abide by all provisions of the public contract.
Except in the event of a novation, if the City consents in writing to an assignment, sale, or transfer of
the contractor's rights and responsibilities, the contractor shall remain ultimately liable to the City for
complete performance of the public contract as if on such assignment,sale,or transfer had occurred.
40.035 CONTRACT CANCELLATION PROCEDURES
A. Termination Due to Circumstances Beyond the Control of the Contractor
1. Reasons for Termination
The City may, in its sole discretion, by written order or upon written request from the contractor,
terminate the contract or a portion thereof if any of the following occur:
a. The contractor is prevented from completing the work for reasons beyond the control of the
City;
b. Completion of the project is beyond the control of the contractor;
c. For any reason considered by the City to be in the public interest (other than a labor dispute or
reason of any third party judicial proceeding relating to the work other than a suit or action filed
in regards to a labor dispute). These reasons may include, but are not necessarily limited to,
non-availability of materials, phenomenon of nature of catastrophic proportions or intensity,
executive orders of the President related to national defense, congressional or state acts related
to funding;
d. Any third party judicial proceeding relating to the work other than a suit or action filed in
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regards to a labor dispute;
e. If the circumstances or conditions are such that it is impracticable within a reasonable time to
proceed with a substantial portion of the public works;
f. The City does not have funds budgeted or available to complete the contract;or
g. Any other reason allowed as a basis for termination under the contract.
2. Payment When Contract is Terminated
When the contract, or any portion thereof, is terminated before completion of all items of work in
the contract,payment will be made for the actual items of work completed under the contract,or by
mutual agreement, for items of work partially completed. No claim for loss of anticipated profits
will be allowed.
3. 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 any claims arising from the
work performed.
B. Termination of Contract for Default
1. Declaration of Default
The City may, after giving the contractor or the surety seven (7) days' written notice and an
opportunity to cure deficient performance, terminate the contractor's performance for any
reasonable cause,including but not limited to those set forth in subsection 2(a)(1) to (6) of this rule.
Upon such termination, the City may immediately take possession of the premises and of all
materials, tools and appliances thereon as well as all other materials,whether on the premises or not,
on which the contractor has received partial payment. The agency may finish the work by whatever
method it may deem expedient.
a. If the contractor should persistently or repeatedly refuse to or fail to supply an adequate number
of properly skilled workers or proper materials for the efficient execution of the project;or
b. If the contractor should fail to make prompt payment to subcontractors for material or labor, or
persistently disregard laws, ordinances, or the instruction of the City, or otherwise be guilty of a
substantial violation of any provision of the contract;or
c. If the Contractor should voluntarily or involuntarily seek protection under the U.S. Bankruptcy
Code and its Debtor in Possession or Trustee for the estate fails to assume the contract within a
reasonable time;or
d. If the contractor should make a general assignment for the benefit of the contractor's creditors;
or
e. If a receiver should be appointed on account of the contractor's insolvency;or
PP Y
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f. If the contractor is otherwise in material breach of any part of the contract.
2. Required Response to Declaration of Default
If the above action is taken, the contractor or the surety shall provide the City with immediate and
peaceful possession of all of the materials, tools, and appliances located on the premises, as well as
all other materials whether on the premises or not, on which contractor has received any progress
payment. Further, the contractor shall not be entitled to receive any further payment until the work
is completed. On the completion of the work, determination shall be made by the City of the total
amount under the terms of the contract, had the contractor completed the work. If the difference
between said total amount and the sum of all amounts previously paid to the contractor, which
difference will hereinafter be called the "unpaid balance," exceeds the expense incurred by the City
in completing the work, including expense for additional managerial and administrative services,
such excess will be paid to the contractor, with the consent of the surety. If, instead, the expense
incurred by the City exceeds the unpaid balance, the amount of the excess shall be paid to the City
by the contractor or the surety.
3. Expense of Completion
The expense incurred by the City shall be as determined and certified by the City.
4. Substitution of Contractor
As provided in PCR 30.205, termination of the contractor and substitution of another contractor to
complete the work does not constitute the award of a new public contract and shall not be subject
to the provisions of ORS 279A.015 (5),ORS 279B.050 to ORS 279B.085,or ORS 279C.300 to ORS
279C.470.
5. Refusal to Perform
In addition to and apart from the above-mentioned right of the City to terminate the employment of
the contractor, the contract may be canceled by the City for any willful failure or refusal on the part
of the contractor to perform faithfully the contract according to all of its terms and conditions;
however, in such event neither the contractor nor the surety shall be relieved from damages or
losses suffered by the City on account of the contractor's breach of contract.
6. 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.
40.040 RETAINAGE
A. Retainage of Five Percent
The City will retain amounts from progress payments so that the total value of all amounts retained will
not exceed 5 percent of the value of completed work. If the contract work is 50 percent completed and
the work is progressing satisfactorily, the retainage may be reduced on the remaining progress payments.
Any reduction or elimination of retainage shall be allowed only upon written application of the
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contractor,which application shall include written approval of the contractor's surety; except that when
the contract work is 97-1/2 percent completed, the City may without application by the contractor,
reduce the retained amount to 100 percent of the value of the contract work remaining to be done. If
retainage has been reduced or eliminated, the City reserves the right in protecting its interests to
reinstate at any time retainage from further progress payments.
B. Alternatives to Cash Retainage
In lieu of cash retainage to be held by the City,the contractor may select one of the following options:
1. Deposit of Securities
The contractor may deposit bonds or securities with the City or in any bank or trust company to be
held for the benefit of the City. In such event,the City shall reduce the retainage in an amount equal
to the value of the bonds and securities. This reduction in retainage will be made in the progress
payments made subsequent to the time the contractor deposits the bonds and securities.
The value of the bonds and securities will be determined periodically by the City and the amount
retained on progress payments will be adjusted accordingly. The bonds and securities deposited by
the contractor shall be fully assigned to the City or be payable to the City on demand and shall be of
a character approved by the Finance Director,including but not limited to the following:
a. Bills,certificates, notes or bonds of the United States.
b. Other obligations of the United States or its agencies.
c. Obligations of any corporation wholly owned by the Federal Government.
d. Indebtedness of the Federal National Mortgage Association.
e. Time certificates of deposit or savings account passbooks issued by a commercial bank, savings
and loan association,or mutual savings bank,duly authorized to do business in Oregon.
f. Corporation bonds rated A or better by a recognized rating service.
g. General obligation bonds of the State of Oregon or any political subdivision thereof.
h. General obligation improvement warrants issued pursuant to ORS 287.502.
i. Irrevocable letters of credit from a bank doing business in Oregon.
At the time the City determines that all requirements for the protection of the City's interest has
been fulfilled,all bonds and securities deposited as above provided will be released to the contractor.
2. Deposit in Interest-Bearing Accounts
Upon written request of the contractor, the City shall deposit any amounts withheld as retainage in
an interest-bearing account in a bank, savings bank, trust company, or savings association for the
benefit of the City. Interest earned on such account shall accrue to the contractor.
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3. The City may,at its discretion, allow the contractor to deposit a surety bond in a form acceptable to
the City in lieu of all or a portion of funds retained to be retained. The contractor shall accept like
bonds from subcontractors and suppliers when the City allows surety bonds for retainage.
C. 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.
40.045 PROGRESS PAYMENTS
A. Request for Progress Payments
At a regular time each month, the contractor shall,if required by the contract documents, submit to the
Ci a request for payment based upon an estimate of the amount of work completed and of the value
City 9 p Y p P
of acceptable material to be incorporated in the completed work which has been delivered and
acceptably stored. Upon verification and approval of the City, the sum of these values will be referred
to the "value of completed work." With these estimates as a base, a progress payment will be made to
the contractor, which shall be equal to the value of completed work, less such amounts as may have
been previously paid,less such other amounts as may be deductible or as may be owing and due to the
City for any cause,and less an amount to be retained in protection of the City's interests.
B. Progress Payments Do Not Constitute Acceptance of Work
Progress payments shall not be construed as an acceptance or approval of any part of the work covered
thereby, and they shall in no manner relieve the contractor of responsibility for defective workmanship
or material.
C. Estimates for 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.
D. Contractor Certified Payroll Payment Withholding
The City shall withhold 25% of any amount owed to a contractor if the contractor does not file certified
payroll records with the City along with any invoice for payment on any project covered by Prevailing
Wage Rate Law.
40.050 FINAL INSPECTION
A. 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 fifteen (15) days of receiving said notice. If, at such inspection, all construction
provided for and ordered under the contract is complete and satisfactory to the City, and all
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certifications,bills, forms,and documents have been submitted properly,such inspection shall constitute
the final inspection.
B. Instructions to Complete the Work
If, however,at any inspection, any work in whole or in part is found unsatisfactory,or it is found that all
certifications,bills, forms,and documents have not been submitted properly,the City shall within fifteen
(15) days provide instructions to the contractor on outstanding requirements to complete the project.
At such time as the contractor determines full compliance with, and the execution of such instructions,
the contractor shall notify the City in writing. The City shall make another inspection within fifteen (15)
days after such notice, and this inspection shall constitute the final inspection provided construction
work has been completed satisfactorily.
C. Acknowledgment of Acceptance
Upon satisfactory completion of all work required under the contract, the City shall acknowledge
acceptance of the work in writing.
40.055 FINAL ESTIMATE AND FINAL PAYMENT
A. Submission of Final Estimate
As soon as practicable after final inspection of the work under the contract, if unit prices were
applicable, the City shall prepare a final estimate of the quantities of the various classes of work
performed. Following a determination of the total amount due the contractor, and following final
acceptance of the work by the City,final payment shall be made to the contractor.
B. Set-off of Prior Payments
All prior partial estimates and payments shall be subject to correction in the final estimate and payment.
C. Retainage
Any retainage help by the City shall be included in and paid to the contractor as part of a contract's final
Payment.
D. Interest
In accordance with ORS 279C.570 (8), the City shall pay a contractor interest at the rate of 1.5 percent
per month on the final payment due to a contractor,with the interest to commence thirty (30) days after
the work under the contract has been completed and accepted and shall run until the date when the final
payment is paid to the contractor.
40.060 CLAIMS FOR UNPAID LABOR OR SUPPLIES
A. Right of Action
A person claiming to have supplied labor or materials for work on a public improvement contract led by
the City for which the person has not been paid by the prime contractor or any subcontractor, has a
right of action on the contractor's payment bond. This right arises if the person has not been paid in
full and has given written notice of a claim within 120 days of last providing labor or furnishing
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materials, or within 150 days of providing labor or furnishing materials if the claim is for a required
contribution to a fund of any employee benefit plan.
B. Notice of Claim
1. To initiate a claim against the contractor's bond, a person should file a Notice of Claim in the form
and manner attached as PCR 40.061 - Exhibit A. Such notice must be given to the contractor and
the City.
2. Any notice of claim should include the following information:
a. Name and address of the claimant;
b. Name of prime contractor;
c. Title of project and contract date;
d. Name of the City;
e. Name of bonding company(may be obtained from City);and
f. Name of contractor or subcontractor to whom labor or material supplied.
C. Response to Notice of Claim
Upon receipt of such Notice of Claim,the City shall:
1. Send an acknowledgment to claimant;
2. Send a copy of the notice to the prime contractor;and
3. File a copy of the Notice with the bonding(surety) company.
D. Referral to Surety Company
If the contract has been completed and all funds disbursed to the prime contractor, all claims shall be
referred to the surety company for resolution. The City shall not arrange for second payments directly
to subcontractors or suppliers for work already paid for by the City.
E. Discretionary Payment of Claim
If the contract is still in force, the City may pay a valid claim to the person furnishing the labor or
services and charge the amount of the payment against funds due or to become due to the contractor
under the contract.
F. Liability of Claim
If the City chooses to make a payment as provided in Subsection E, the contractor or the contractor's
surety shall not be relieved from obligation with respect to any unpaid claims.
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40.061 EXHIBIT A
To: (insert name of the public body)
NOTICE IS HEREBY GIVEN that the undersigned, (insert name of subcontractor or supplier), a (corporation,
partnership, sole propnetorship, etc.), as claimant, has a claim for(labor performed by the claimant, materials supplied by
the claimant, etc.),generally consisting of(brief description) in the sum of,$ against the payment bond taken
frnm (name of prime contractor), as principal, and(name of bonding company if known), as surety,for the construction of
the(title or description of prvject). The material or labor was supplied to (name of contractor).
(Insert a brief description of the work concerning which the bond was taken.)
DATED this day of 20—.
By
(claimant's name)
40.065 PLANNING FOR PUBLIC IMPROVEMENTS
The City will prepare a file with the Commissioner of the Bureau of Labor and Industries a list of planned
public improvements at least 30 days before adoption of the City's budget and otherwise comply with ORS
279C.305.
40.070 PREVAILING WAGE LAWS
Contractors shall comply with all Prevailing Wage Rate Laws (ORS 279C.800 to 279C.870 or the Davis-
Bacon Act,40 US 276a) if applicable.
PCR 50.000 - WAIVER OF SECURITY (BID, PERFORMANCE AND PAYMENT BONDS)
(Also see PCR 30.055)
50.010 BID SECURITY REQUIREMENTS
The City shall require bid security unless an exception under the Public Contracting Code or these rules
apply. The City may, in its discretion, waive bid security requirements for contracts other than those for
public improvements. In its discretion, the City may accept blanket bid bonds. The City may require
proposal security bonds.
50.015 CONTRACTS UNDER$10,000
The City may,in its discretion,waive the bid security and performance bond requirements if the amount of
the contract is less than$10,000.
50.020 EMERGING SMALL BUSINESS CONTRACTS UNDER$100,000
A. The City may, in its discretion, waive bid security requirements and performance bond requirements
when the public improvement project:
1. Has estimated direct construction costs not exceeding$100,000;
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2. Is being undertaken through a program where the bidders are drawn exclusively from a list of
certified Emerging Small Businesses maintained by the Advocate of Minority, Women and
Emerging Small Business;and
3. The City has been provided funds by the legislature for the purpose of assisting Emerging Small
Businesses.
B. The City may waive bid security requirements and/or performance bond requirements under the
following conditions:
1. There exists an emerging small business account or like source of funds containing an unexpended
and unobligated balance;
2. The City has authority to encumber and make payments from the account; and
3. The City encumbers an amount in the account to cover the total cost of each project wherein the
bid security and/or the performance bond is waived.
PCR 60.000 - PROPERTY DISPOSITION
60.010 SURPLUS PERSONAL PROPERTY
A. Personal property owned by the City and under the dollar value of$500 may be disposed of with the
approval of any department head or the City Manager. Personal property that exceeds that dollar value
may be disposed of only after being declared surplus by the City Manager. The method of disposal will
be determined based on condition,value,demand,and/or use.
B. Personal property may be declared surplus by the City Manager or designee if it is scheduled for
replacement in an adopted budget or it is no longer necessary to provide City services.
60.015 AUCTION SALES OF PERSONAL PROPERTY
Personal property may be sold at auction if the City determines that an auction will probably result in the
best net return for the City. Auctions that are widely publicized,including internet auctions, do not require
notice by the City.
60.020 SALES OF PERSONAL PROPERTY
A. When the current market value per item is estimated to be more than $25,000, the personal property
must be offered for competitive bid and be advertised in a newspaper of general circulation in the City.
The City at its discretion may choose between sealed written bids or a public auction. If no bids are
received or if a determination is made that the market value of the property exceeds the offer of the
highest responsible bidder, all bids may be rejected, and the City may negotiate a sale subject to the
following conditions:
1. An appraisal of the market value of the property is obtained and documented, and the negotiated
sale price exceeds the market value;or
2. The sale amount exceeds the highest bid received through the bidding or auction process.
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B. The City may sell personal property by a negotiated sale if the value of the property is estimated to be
less than $25,000 and the City has determined that a sale without competitive bidding will result in at
least as much net revenue as would a competitive bidding process. The City shall endeavor to get as
many quotes as is reasonable under the circumstances (normally at least three) and shall negotiate to
maximize the proceeds for the City.
60.025 LIQUIDATION SALES OF PERSONAL PROPERTY
The City may sell personal property through a commercially recognized third party liquidator if the City has
determined that a liquidation sale will result in increased net revenue and the selection of the liquidator was
conducted by the competitive request for proposal process under these rules.
60.030 DONATIONS OF PERSONAL PROPERTY
A. The City may transfer personal property, including recyclable or reclaimed materials, without
remuneration or only nominal remuneration without competitive bids to the following entities:
1. Another public agency;
2. Any sheltered workshop,work activity center or group care home which operates under contract or
agreement with, or grant from, any state agency and which is certified to receive federal surplus
property;or
3. Any recognized non-profit activity,which is certified to receive federal surplus property.
B. The City may donate or sell,without competitive bids, surplus personal property to recognized private,
non-profit social or health service activities,subject to the following conditions:
1. A determination has been made that the property is not needed for other public purposes;and
2. If the property has a current market value of$500 or more,the donation or sale shall:
a. Be approved by the City Manager or designee;and
b. Be documented by the City to be clearly in the public interest.
C. The City shall maintain a record of all transfers, donations, or sales authorized by sections A and B of
this rule.
60.035 TRADE OF PERSONAL PROPERTY
The City may trade personal property owned by the City to other government agencies or to other entities
provided the following conditions apply:
A. Trades to other government agencies are exempt from public bidding by PCR 10.010A.1;however,such
trades must be approved by the City Manager.
B. Trades of personal property with parties other than government agencies must proceed as follows:
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1. The market value of both the item to be traded and the item requested must be documented.
2. The proposal to trade an item for another item must be made available to an adequate number-of
potential vendors to encourage competition.
3. Such trades must be approved by the City Manager.
60.040 DISPOSAL OF SURPLUS PERSONAL PROPERTY MEETING HAZARDOUS WASTE
DEFINITIONS
If personal property has been declared surplus by the City and can be defined as a hazardous material or
waste,including electronic material,or e-waste,the City may appropriately recycle or dispose of the property
without competitive bids subject to the following conditions:
A. A determination has been made that the property is not needed for other public purposes,
B. If the property has a current market value of$500 or more, staff made a good faith effort to locate a
seller and documentation of the effort will be made part of the City's files.
PCR 70.000- PERSONAL SERVICES CONTRACTS
70.010 PERSONAL SERVICES CONTRACTS
A. Personal service contracts are not "public contracts" subject to formal competitive process under the
Oregon Public Contracting Code. This Section of the PCRs describes a method for distinguishing
between personal service contracts and public contracts, particularly service contracts, and provides
examples of contracts or classes of contracts which are or are not personal service contracts.
B. The determination whether a contract is a public contracts or a personal service contract shall be based
on the following:
1. Whether the City has developed or is reasonably able to develop reasonably adequate design and/or
performance specifications and whether selecting a contractor on the basis of lowest price and
meeting minimum specifications would likely meet the City's needs. If the tasks to be performed
can reasonably be performed based solely on compliance with minimum specifications, then the
tasks should be performed pursuant to a public contract awarded by a competitive bidding process.
Conversely, if the City is reasonably unable to develop adequate design and/or performance
specifications but must instead have the assistance of the contractor's training, knowledge, and
expertise to develop a scope of work statement and selecting the contractor on the basis of lowest
price would be unlikely to meet the City's needs, then the tasks would most appropriately be
performed under a personal service contract.
2. Whether selecting the contractor on the basis of qualifications rather than lowest price will result in
the City obtaining the best value for its money.
3. A personal service contract is appropriate where the contract is awarded primarily on the basis of
the contractor's qualifications, including but not limited to, such criteria as experience, training,
knowledge, and expertise, technical skill, creativity, artistic ability, performance history, and
demonstrated ability to exercise sound professional judgment. Price will be a secondary criterion for
awarding a personal service contract.
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4. A personal service contract is not appropriate where price is or should be the primary or a major
selection criterion.
C. Personal service contracts may include,but are not limited to,the following:
1. Contracts for services performed as an independent contractor in the professional capacity,
including but not limited to the services of an accountant; attorney; architectural or land use
planning consultant; physician or dentist; registered professional engineer; appraiser or surveyor;
aerial photographer;timber cruiser;broadcaster;or data processing consultant.
2. Contracts for such services as an artist in the performing of fine arts, including but not limited to
photographer,filmmaker;painter;weaver;or sculptor.
3. Contracts for services of a specialized creative and research oriented,noncommercial nature.
4. Contracts for educational and human custodial care services.
D. The following are NOT personal service contracts:
1. Contracts, even though in a professional capacity, if predominately for a product, e.g., a contract
with a landscape architect to design a garden is for personal services, but a contract to design a
garden and supply all the shrubs and trees is predominately a tangible product.
2. A service contract, including a contract with a temporary service or personnel agency, to supply
labor which is of a type that can generally be done by any competent worker, e.g., data entry,
janitorial, security guard, crowd management, crop spraying, laundry, and landscape maintenance
service contracts
3. Contracts for trade related activities considered to be labor and material contracts.
4. Contracts for services of a trade-related activity, to accomplish routine, continuing, and necessary
functions, even though a specific license is required to engage in the activity. Examples are repair
and/or maintenance of all types of equipment or structures.
70.015 SCREENING AND SELECTION POLICY FOR PERSONAL SERVICES CONTRACTS
It is the City's policy to select as expeditiously as possible the best qualified consultant available, consistent
with financial considerations. The selection procedures in this section shall be used to select the personal
services contractors,except where ORS 279C.110 requires a different procedure. The selections procedures
do not apply to the appointment or hiring of City officials and employees, to employment or services
contracts with City officials and employees (except if providing services outside the scope of employment or
official duties),or to collective bargaining agreements.
A. Formal Selection Procedure
This procedure shall be used for personal service contracts when the total cost of the contract exceeds
$100,000. The City may elect to use the Formal Selection Procedure for any personal service contract,
regardless of price.
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1. Announcement
The City will make at least one public announcement of its need for personal services in an
appropriate trade periodical or newspaper of general circulation. The announcement shall include a
description of the proposed project, the scope of the services required, project completion dates,
and a description of any special requirements, if present. The announcement shall invite qualified
prospective contractors to indicate to the requesting department their interest in performing the
services required. The announcement will specify a closing date by which the statement must be
received by the appropriate department.
2. Application
Prospective contractors must submit a statement which describes their capabilities, credentials, and
performance data sufficient to establish their qualification for the project.
3. Initial Screening
The Department Head or designee shall evaluate the qualifications of all applicants responding to
the announcement by the closing date and select from among the respondents a minimum of three
prospective contractors whose statements evidence the highest level of qualification. Should fewer
than three (3) statements be received, then each prospective contractor submitting statements that
meet the minimum qualifications will be interviewed.
4. Final Selection Procedure
a. Interviews
The Department Head or designee may hold discussions with the finalists selected for initial
screening. Applicant capability, experience, and compensation requirements shall determine the
department's final selection. The interviews may be in person or by phone.
b. Award of Contracts
The Department Head or designee shall make a recommendation to the Board for award of the
contract based on the written materials and the interview evaluation. The designee may be a
committee.
B. Informal Selection Procedure
1. This procedure may be used when the estimated fee to the contractor does not exceed$100,000.
2. The department will contact a minimum of three (3) prospective contractors with which it has had
previous successful experience or which are known by the department to be qualified to offer the
sought-after services. A projected fee will be requested and a selection made by the Department
Head or designee based upon the consultant's capability, experience, project approach, and
compensation requirements.
C. Direct Appointment Procedure
1. A qualified consultant may be appointed directly from the City's current list of consultants, another
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public contracting agency's current list of consultants pursuant to an interagency or
intergovernmental agreement entered into in accordance with ORS Chapter 190; or from
consultants offering the necessary services that the City reasonably can locate. Direct appointment
procedure may be used when:
a. The consultant's estimated fee does not exceed$20,000;or
b. When the project consists of work that has been substantially described, planned, or otherwise
previously studied or rendered in an earlier departmental contract, provided that the original
selection procedure used for the project was a formal procedure and the consultant's estimated
fee does not exceed$100,000.
2. A direct appointment shall be competitive to the extent practicable and may be based on the
consultant's availability, capabilities, staffing experience, compensation requirements and the
project's location.
D. Emergency Appointment Procedure
Nothing in the rule shall be inferred to prohibit or otherwise impede the Department Head's or
designee's right to make direct consultant appointments when conditions require a prompt action to
protect life or property. In such instances, the recommended appointment and a written description of
the conditions requiring the use of this appointment procedure shall be submitted by the Department
Head or designee to the City Manager or designee for action. The City Manager or designee will
determine if an emergency exists, declare the emergency, and when appropriate, approve the
appointment.
E. Responsible Parties'Actions
1. Professional Consultants
Submit qualifications, credentials, and performance data relating to their capabilities to the
appropriate division in response to project announcement.
2. Division/Department
a. Determine that the work on a project requires the services of a consultant.
b. Announce project as required by this section.
c. Request the City Manager's approval of the required actions.
d. Determine appropriate selection/appointment procedure.
e. Select consultant/candidates as specified under this rule.
f. Interview the top candidates and make the final selection.
g. Execute contracts and awards to consultants,with the City Manager's prior approval.
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h. Maintain a file on the selection process,including:
1. The method and copy of the announcement.
2. The names of firms/individuals and cost estimates considered.
3. A justification of need for the contract.
4. The basis for selection.
5. The means by which rates were established.
6. How reasonableness of price was determined.
7. A copy of the resulting contract.
3. City Manager
a. Approves each project's scope and budget as necessary.
b. Makes direct and emergency appointments as required.
c. Approves/disapproves Personal Services Contract and all subsequent amendments unless the
amount of the contract requires the Board's approval.
70.020 AMENDMENTS
Amendments for additional work on personal service contracts shall be permitted only if the City requests
additional work of the same type. Any such amendment may not exceed 25%of the original contract value.
If an additional personal services contract is to be awarded for work related to an existing personal service
contract,the total value of the new and old contracts is to be considered in determining the type of selection
procedure required. If a contract was originally awarded by the informal selection procedure, amendments
that would result in a total contract price of more than $50,000 are not permitted. If a contract was
originally awarded by the direct appointment procedure under Section 70.015C.1.a,amendments that would
result in a total contract price of more than$10,000 are not permitted.
PCR 80.000- EMERGENCY CONTRACTS;SPECIFIC EXEMPTION REQUIREMENTS;
BOARD EXCEPTION;PROCEDURES;TEMPORARY EXEMPTIONS
80.010 EMERGENCY CONTRACTS
A. The City Manager or designee may,at the City Manager's or designee's discretion,authorize or let public
contracts without a formal competitive process if an emergency exists and the emergency consists of
circumstances creating a substantial risk of loss, damage, interruption of service, or threat to public
health or safety that could not have been reasonably foreseen and requires prompt execution of a
contract to remedy the condition.
B. The City Manager or designee must declare the existence of an emergency, which shall authorize the
City to enter into an emergency contract with a price under $50,000 and make detailed written findings
describing the emergency conditions necessitating prompt execution of the contract. A copy of the
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0
findings together with the amount of the contract and the name of the contractor shall be immediately
forwarded by the City Manager to the Board.
C. Any contract awarded under this exemption shall be awarded within sixty (60) days following declaration
of the emergency unless an extension is granted.
D. The City may enter into a public contract without a formal competitive process when circumstances that
could not reasonably be anticipated, require prompt establishment and performance of the contract in
order to preserve public funds, property, or the uninterrupted provision of government services. In
exercising its authority under this exemption,the City shall:
1. To the extent reasonable under the circumstances, encourage competition by attempting to make
informal solicitations or to obtain informal quotes from potential suppliers of goods or services;
2. Make written findings describing the circumstances that require the prompt performance of the
contract and of the harm anticipated to result from failing to establish the contract on an expedited
basis;and
3. Record the measures taken under subsection (a) of this section to encourage competition, the
amounts of the quotes or proposals obtained,if any,and the reason for selecting the contractor.
E. The City shall not contract pursuant to the exemption in the absence of a substantial risk of loss,
damage,or interruption of services that would occur if contract performance awaited the time necessary,
given the complexity of the project,to solicit,receive and analyze bids or proposals.
PCR 90.000- RECYCLABLE/RECYCLED PURCHASING GUIDELINES
90.010 RECYCLED MATERIALS AND PRODUCTS GUIDELINES
The City shall make a good faith effort to prefer, specify, and purchase recyclable items and materials with
recycled content in accordance with ORS 279A.125.
Incentives for recycled materials shall be applied whenever economically feasible.
A preference of 5% shall be applied for materials and supplies manufactured from recycled materials, as
provided in PCR 90.015 with the exception of recycled paper and paper products, which receive a higher
preference percentage as stated in PCR 90.020.
The bidder or proposer shall indicate in its bid or proposal, the materials it considers subject to the 5%
preference. The 5% preference will only apply to the value of that portion of a bid or proposal that offers
products containing verifiable recycled contents. The "5% preference" shall be applied by dividing the bid
amount for the recycled goods by 1.05 and using the resulting number in calculating the total bid amount.
90.015 RECYCLED MATERIALS PREFERENCE
A. In order to qualify for a recycled materials preference, bidders and proposers, in their bids and
proposals, shall certify the minimum or the exact percentage of recycled product in all materials and
supplies offered and both the post-consumer and secondary waste content thereof.
B. Bids that contain false information about the percentage of recycled product, post-consumer and
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N.
secondary waste content,and verifiable recycled content shall be rejected as non-responsive.
C. Contracts awarded as a result of a preference under this rule are subject to investigation, including but
not limited to, audits, plant visitations, examination of invoices and other documents, etc., as the City
deems necessary to confirm that the products supplied contain the percentages of recycled product,
post-consumer and secondary waste stated in the bid or proposal.
A Failure to provide products containing the percentages of recycled product, post-consumer and
secondary waste stated in the bid may result in:
1 The contractor being required to reimburse the City for the portion of the contract price that is
attributable to the preference;and
2. Contract termination;or
3. Both 1 and 2,or such other remedies the City deems appropriate.
90.020 RECYCLED MATERIALS AND PRODUCTS PURCHASING GUIDELINES
A. Purchase of Paper Products
The City promotes the use of recycled paper and paper products. Purchase of recycled paper and paper
products is preferred even when the cost of the such recycled paper or paper products is up to seven
percent (79/o) higher than the cost of the same quality paper or paper products containing little or no
recycled paper. "Recycled paper" shall be defined as a paper product with not less than fifty percent
(50%) of its total weight consisting of secondary waste materials or twenty five percent (25%) of its total
weight consisting of post-consumer waste.
1. In the specification and purchase of City high speed copier and small offset press application paper
and fine printing paper including book, bond, cover, gum, index, bristols, boards, ledger, and
duplicator papers:
a. The City shall use recycled paper wherever possible if available and compatible with existing
printing and copying equipment;
b. The City shall try to eliminate excessive or unnecessary paper use, including but not limited to
over-purchase of paper, over-printing of materials, purchases of too high a grade of paper,
purchase of paper which is not recyclable; and purchase of virgin paper when recycled paper is
available in the same grade;
c. Procurement specifications for the purchase of new printing and copying equipment shall
require the acceptance and operational use of recycled paper and shall be capable of two-sided
copying;
d. The procurement of unbleached, recycled paper is encouraged and the use of bright, hard to
bleach colored or otherwise non-recyclable papers shall be discouraged;and
e. In the specification and purchase of other paper items including corrugated and fiberboard
boxes, folding box board and cartons, stationery, envelopes, legal and scratch pads, manifold
business forms (including computer paper), toilet tissue, paper towels, facial tissue, paper
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napkins and industrial wipes, and brown and coarse papers, the City shall actively solicit
information from vendors with regard to the availability of other paper products (as listed
above)with recycled paper content and promote its use.
B. Purchase of Composted Waste Materials
In the specification and purchase of landscape cover, soil amendment,and fill materials:
1. The City shall eliminate from procurement specifications any exclusions or barriers to the purchase
of recycled compost materials except for exclusions based upon plant or human health or safety;and
2. The City shall make every effort to utilize and specify functionally equivalent composted waste
products in the place of products manufactured from virgin materials.
C. Purchase of Re-refined Petroleum Products
In the purchase of lubricating oils for vehicles and equipment in the City fleet:
1. The City shall make every reasonable effort to utilize lubricating oils with re-refined oil content
unless:
a. The product does not meet performance specifications recommended by the original equipment
manufacturer and related warranties would be voided;and
b. The product is found to not be economically or technically feasible.
2. The City shall review current procurement specifications in order to eliminate (wherever
economically and technically feasible) an exclusion of lubricants refined from recycled waste
materials.
D. Purchase of Building Insulation Products
In the specification and purchase of building insulation products:
1. The City shall make every effort to prefer, specify and purchase insulation products manufactured
from recovered or recycled materials for maintenance and repair operations, building construction
projects and work or projects which are let to private contractors;and
2. A decision not to purchase insulation products with the highest percentage of recovered material
content shall be based upon a determination that such products:
a. Are not available within a reasonable period of time;
b. Are not available at a reasonable price;and/or
c. Fail to meet reasonable performance standards set forth in applicable specifications.
E. Purchase of Recyclable Plastic Products
In the specifications and purchase of disposable food service products and bags:
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1. The City shall specify and utilize products, which are exclusively recyclable where available and
locally marketed. Preference shall be given to products manufactured from materials which are
readily recyclable with developed recycling markets and processes;and
F. Recycling/Reuse
The City shall also recycle or reuse materials and supplies of purchases as much as possible. Following
is a listing of some basic items which shall be recycled or reused: paper, cardboard, scrap metal, tires,
lubricants, and solvents, lead acid batteries, roadside brush and chipped wood waste, plastic materials,
and surplus property.
PCR 100.00—INTERGOVERNMENTAL AGREEMENTS
100.010 RIGHT TO ENTER INTERGOVERNMENTAL AGREEMENTS
The City may as set forth in ORS 190.010, enter into a written agreement with any other unit or units of
local government for the performance of any or all functions and activities that a party to the agreement,its
department, offices, officers, agents, or employees, have authority to perform. The Intergovernmental
Agreement shall serve to define roles and responsibilities for each party.
Any agreement let by the City under this Section of the PCBs shall specify the functions or activities to be
performed and by what means they shall be performed. Information provided in the let Intergovernmental
Agreements shall include:
A. The agencies involved along with contact departments or divisions;
B. The functions or activities to be carried out,and by which party,during the terms of the agreement;
C. The payment and funding terms,if applicable;
D. The apportionment of fees or other revenue derived from the functions or activities under the
agreement,if applicable;
E. The duration terms of the agreement;
F. The rights of the parties to terminate the agreement;
All other provisions carried out in ORS 190.010 relating to Intergovernmental Agreements shall be followed
by the City.
100.020 APPLICABILITY OF INTERGOVERNMENTAL AGREEMENTS
The City shall require an Intergovernmental Agreement be let any time obligations between the City and a
unit or units of another local governmental agency exist. Exchange of funds does not need to occur for an
Intergovernmental Agreement to be required.
100.030 INTERGOVERNMENTAL AGREEMENT APPROVAL AUTHORITY
The Tigard City Council shall have the sole right to award the City's Intergovernmental Agreements unless
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the Council delegates such authority to the City Manager. Such delegation to the City Manager shall not
exceed the dollar threshold granted to the City Manager under Tigard Municipal.Code. Upon award of an
Intergovernmental Agreement by the City Council,either the Mayor or City Manager shall be authorized to
execute and sign the Agreement.
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EXHIBIT B
FINDINGS IN SUPPORT OF EXEMPTIONS TO
COMPETITIVE BIDDING OR PROPOSALS
The Local Contract Review Board of the City of Tigard adopts the following findings in support of
exemptions to competitive bidding/proposal requirements.
Contracts Under Certain Dollar Amounts
1. The City incurs costs in awarding contracts under a formal competitive bidding or formal
competitive proposal process.
2. While competitive bidding or competitive proposals can result in cost savings for large
projects, the cost of the process can exceed the cost savings for smaller contracts.
3. State law creates exemptions for contracts under specified dollar amounts,and the City's
exemption implements state law rather than creating a new or special exemption.
4. The rules require an informal competitive process (solicitation of quotes) in most situations,
assuring competition. Even when a direct appointment is possible, the City cannot use a
higher priced source if a lower priced source is known to be available. The rule against
fragmentation of contracts prevents misuse of this exemption.
5. The requirement to obtain at least three quotes for intermediate contracts discourages
favoritism by requiring the City to check with several sources.
6. It is unlikely that this exemption will encourage favoritism or diminish competition because
it still provides for competition in most circumstances and requires the City to consider
alternate sources.
7. The exemption will lead to cost savings by avoiding the cost of a formal process when that
cost would outweigh any likely cost savings.
8. The exemption is in the public interest because it allows the City to reduce internal costs
while controlling contract expenditures. This could not be achieved otherwise.
Price Regulated Items
9. If prices are regulated, a competitive process would not result in a lower-cost contract and
the costs of the process would increase the City's overall costs.
10. Price-regulated items are typically available only from a single or limited number of sources,
so exempting price-regulated items is unlikely to encourage favoritism.
11. The exemption is in the public interest because it results in cost savings for the City that
could not be achieved without the exemption.
Library Periodicals
12. The purchase of most library periodicals is within the small contract dollar amount.
13. A substantial amount of market competition exists for periodicals,which results in
competitive prices in the market.
14. The costs of a formal competitive process are greater that the amount of any likely savings
from a competitive process.
15. The prohibition on use of higher priced sources when lower priced sources are known to be
available discourages favoritism.
Advertising Contracts
16. Most cntitics that provide a forum for advertisers have set prices that cannot be negotiated.
17. The City has legal requirements for advertising public notices that can only be met by a small
number of sources and all possible sources can be contacted without the need for an
invitation to bid or request for proposals.
18. The correct advertising medium is important for the success of any advertising, so the
specific medium needs to be selected based on considerations that are difficult to quantify.
Therefore, selecting advertising media by bid is inappropriate and selecting by proposals may
also result in a proliferation of proposals that do not meet the City's needs.
19. Advertising often must be placed on a short time schedule that does not permit the use of a
formal competitive process.
20. The costs of a formal competitive process would likely be greater than the savings resulting
from using that type of process to place advertising.
21. This exemption will not encourage favoritism because the City is still able to use informal
processes to compare media and choose the best outcome for the City.
22. The exemption is in the public interest because it will result in cost savings to the City
without encouraging favoritism and those purposes could not be met with existing rules.
Equipment Maintenance Repair and Overhaul
23. It is often impossible to determine the cost of equipment repair or overhaul without testing
the equipment. It is not cost effective to have one contractor test the equipment and
another perform the repairs.
24. Equipment repair often is needed to be performed without delay and in less time than a
competitive process would take.
25. The only way to have a competitive process for equipment repair or overhaul, other than by
creating price agreements,would be to have a separate entity test the equipment to
determine what is wrong with the equipment.
26. Without knowing the extent of repairs needed,competition is not possible because different
entities could quote only their hourly rates,with no prediction as to the amount of time the
repairs would take.
27. The exemption is unlikely to encourage favoritism because it is to be used only in rare
occasions where the City does not have established price agreements,reached by a
competitive process without favoritism.
28. This exemption serves the public interest by providing a simple process for obtaining
equipment repair when needed.
29. The exemption for maintenance does not apply to routine or scheduled maintenance,unless
there is only one entity capable of providing the service.
Purchases Under Established Price Agreements
30. Purchases under existing price agreements are unlikely to encourage favoritism or diminish
competition because they are based on price agreements entered into after an open
competitive process.
31. This exemption furthers the public interest by ensuring that price agreements will function
properly and the same results would not be achievable if this exemption were not granted.
Gasoline, Diesel Fuel, Heating Oil, Lubricants and Asphalt
32. The exemption encourages competition and discourages favoritism by requiring an informal
competitive process and requiring the City to use the least expensive source of those
providing quotes.
33. The purchases under this exemption are likely to be at levels that qualify as small or
intermediate contracts and the process is similar to the process required for intermediate
contracts. The exemption is provided because over a period of time the total dollar amount
of goods purchased from a single source may exceed the dollar maximum for intermediate
contracts. The exemption is justified because each individual contract will be entered into
on a competitive basis.
34. This exception is in the public interest because it allows the City to reduce costs while
maintaining competition. The same result could not be achieved within existing rules
because a costly formal process might otherwise be required.
Investment Contracts
35. Investment of City funds is closely regulated by state statutes.
36. Protecting the City's financial resources is in the public interest and awarding investment
contracts to low bidders creates a risk of the security of the City's funds. The City needs to
have a relationship of trust with those
37. The exemption for investment contracts or contracts to borrow funds is not likely to restrict
competition or encourage favoritism because the City will investigate a range of potential
contractors to assure the security of the City's funds.
38. The exception is in the public interest because it protects the City's financial resources in a
way that could not be achieved without the exception.
Insurance Contracts
39. This exception provides for a competitive process for appointing agents of record or
obtaining specific insurance, although the process does not necessarily conform to the
standard RFP or ITB process. The competitive nature of the process promotes competition
and does not encourage favoritism. The public interest would not be served by reliance on
other regulations because of the specific nature of insurance contracts.
Employee Benefit Insurance
40. The Public Contracting Code creates an exemption for employee benefits contracts and the
City's regulations implement that exemption.
Office Copier Purchases
41. This exemption requires a comparison of products and prices and so is a competitive
process.
42. The exception is not likely to discourage competition or encourage favoritism because it
does require the City to compare and choose the best combination of goods and price. It
also results in a cost savings by being a less costly process than a formal competitive bidding
or proposal process.
43. The exemption is in the public interest because it allows the City to reduce procedural costs
while maintaining competition,and other regulations do not provide the same combination
of cost savings and competitive process.
Sole Source Procurement
44. In some cases, there is only one possible supplier of the goods or services needed by the
City. If there is only one supplied, a competitive process would be both unnecessary and
costly.
45. This exception does not discourage competition,it simply recognizes that in some situations
competition does not exist and that having a competitive process would not result in
competition. It also does not encourage favoritism because no one would be disfavored by
choosing the only possible source. The regulation contains sufficient safeguards to assure
that it will be used only when other sources are not available.
46. The exception is in the public interest because it results in cost savings that would not be
possible if the exception did not exist.
Contract Amendments (Including Change Orders and Extra Work
47. At times the City's needs change during the course of a contract and more goods, services,
or work is needed to meet the City's needs. It would not be cost-effective to require a new
contracting process for additional work closely related to an existing contract.
48. This exemption contains limitations to prevent abuse and to limit the extent of contract
amendments. These limitations discourage favoritism by requiring a new competitive
process for major amendments.
49. The exemption does not discourage competition because it applies only when the existing
contract was awarded by a competitive process.
50. The exemption is in the public interest because it saves the cost of a competitive process to
make minor amendments to an existing contract.
Affirmative Action Contracts
51. This exemption implements an exemption created by the Public Contracting Code.
Purchases of Contract by Other Public Agencies
52. Contracts by public agencies often allow other public agencies to make purchases on the
same terms.
53. This exemption promotes competition and does not encourage favoritism because it may be
used only if the original contract was awarded after a competitive process.
54. The exemption is in the public interest because it allows the City to take advantage of other
competitive processes and avoid duplication of costly processes.
55. The exemption is in the public interest because it results in cost savings while maintaining
competition. The same results could not be achieved without this exemption.
Oil or Hazardous Material Removal
56. This exemption is limited to situations in which the City must comply with a DEQ order.
The exemption is needed to ensure compliance with environmental laws and protection of
the environment in a timely manner and applies only if a competitive process cannot be
completed in time to comply with the DEQ order.
57. The exception promotes competition by requiring the City to use an informal competitive
process by obtaining informal solicitations or quotes from potential suppliers.
58. This exemption is in the public interest and the public interest in environmental cleanup
would not be served if this exemption were not adopted.
Contracts With Qualified Non-Profit Agencies
59. This exemption implements an exemption required by state law.
Ammunition
60. The City uses specialized ammunition,including special training ammunition. The
ammunition meeting the City's requirements is often available only for short time periods,
insufficient to allow a competitive process.
61. The general requirement to attempt to find the lowest price goods or services will ensure
that the City does not add to the City's costs. Providing this exemption will give the City the
flexibility to purchase ammunition when available and needed. Not providing this
exemption could endanger public safety.
62. The public interest is served by this exemption because it allows the City to ensure that its
police officers are adequately armed and trained.
Public Improvement Contracts Involving Design or Construction Management
63. This exemption allows a competitive proposal process to be used rather than a competitive
bid process for public improvements under some circumstances.
64. The exemption promotes competition and discourages favoritism by requiring a competitive
process.
65. The exemption recognizes that under some circumstances,the public interest is served by
considering quality as well as cost in contracting for public improvements.
66. The use of the design/build and construction manager/general contractor types of contracts
should result in cost savings to the City by allowing various means of controlling costs and
coordinating design and construction to reduce costs.
67. The public interest is served by this exemption. The public interest would not be served by
requiring competitive bidding on all public improvement contracts because doing so would
limit the City's ability to use cost-saving techniques and would prevent the City from
considering differences in quality among potential contractors when quality is a legitimate
issue. Under the competitive bidding process, the City is required to award the contract to
the lowest bidder, even if there is only a one cent difference in cost and a substantial
difference in quality,providing that the low bidder meets minimum specifications.
Software
68. This exemption allows contracts for software to be let if a determination is made that little to
no competition exists for the required software.
69. The exemption details the criteria that must be used in determining whether or not
competition exists for the software.
70. The exemption is in public interest as it results in cost savings by eliminating the costs
associated with the competitive process that would be unproductive as little to no
competition exists for the required software.
Telecommunication Services
71. This exemption allows contracts for software to be let if a determination is made that little to
no competition exists for the required service.
72. The exemption detail which factors the City may look at in determining whether or not
completion exists.
73. The exemption is in public interest as it results in cost savings by eliminating the costs
associated with the competitive process that would be unproductive as little to no
competition exists for the required service.
Emergencies
74. In emergencies, the City is often required to take action in less time than it would take to
complete a formal competitive process.
75. The exemption promotes competition and discourages favoritism by requiring the City to
use an informal competitive process and by limiting the exemption to those contracts
needed to avoid a substantial risk of loss,damage or interruption of services.
76. The exemption promotes the public interest by allowing the City to respond quickly to
emergencies that threaten loss, damage or interruption of services. The public interest
would not be served by requiring a formal competitive process to respond to an emergency.
Conclusion
As to each of the exemptions provided in the City's public contracting rules:
77. It is unlikely that any of the exemptions will encourage favoritism in the awarding of public
contracts or substantially diminish competition for public contracts. It is unlikely that the
rules as a whole,including all exemptions,will encourage favoritism in the awarding of
public contracting or substantially diminish competition for public contracts.
78. The awarding of public contracts pursuant to any of the exemptions will result in substantial
cost savings to the City. The exemptions have been prepared to allow less expensive
selection processes to be used when a more expensive process would not result in sufficient
contract cost reduction to justify a more expensive process.
79. For those provisions allowing public improvement contracts to be awarded by a means other
than formal competitive sealed bids,the exemptions will result in cost savings by allowing
the use of cost control measures throughout the development process.
80. Each exemption supports the public interest and each exemption is needed to provide a
comprehensive approach to public contracting that would not be achieved if any of the
exemptions were not provided.
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