Chapter 3.05
PUBLIC CONTRACTING
Sections:
Article I. Public Contracting Rules and Procedures
3.05.030 Special procurements – Exemptions.
3.05.050 Intermediate procurements.
3.05.070 Appeals of prequalification decisions and debarment decisions.
3.05.080 Cooperative purchases.
3.05.090 Electronic advertising.
3.05.100 Brand names or products, “or equal.”
3.05.110 Single seller and sole source.
Article II. Class Special Procurements and Exemptions
3.05.120 Class special procurements.
3.05.130 Exemptions for public improvement contracts.
Article III. Findings in Support of Adopting Class Special Procurements and Exemptions
3.05.150 Specific findings – Class special procurements.
3.05.160 Specific findings – Exemptions for public improvement contracts.
Prior legislation: Ord. 780.
Article I. Public Contracting Rules and Procedures
3.05.010 Delegation.
(1) Except as otherwise provided by the rules, the powers and duties given to the LCRB by the code and/or the model rules must be exercised and performed by the council.
(2) Except as otherwise limited by the council or the rules, all powers and duties given or assigned to local contracting agencies by the rules may be exercised or performed by the city manager, including, without limitation, the authority to enter into emergency contracts pursuant to ORS 279B.080 and 279C.320.
(3) All public contracts or amendments to public contracts with an estimated cost of $25,000 or more must be approved by the council. All public contracts or amendments to public contracts with an estimated cost less than $25,000 may be entered into by the city manager without council approval. The city manager may, by written designation, allow other city staff members to enter into public contracts or amendments to public contracts with an estimated cost of $10,000 or less without council approval. However, emergency contracts may be entered into by either the council or the city manager pursuant to BMC 3.05.060, regardless of dollar limits, but subject to ORS 294.481.
(4) For purposes of the rules, the “city manager” means the city manager and/or his or her designee. Reference in the model rules to the “chief procurement officer” will refer to the city manager. [Ord. 18-860 § 3 (Exh. A), 2018]
3.05.020 Personal services.
(1) Definitions. “Personal service(s)” is defined to include those services that require specialized technical, creative, professional, or communication skills or talents, unique and specialized knowledge, or the exercise of discretionary judgment, and for which the quality of the service depends on attributes that are unique to the service provider. Such services include, without limitation, the following: attorneys, accountants, auditors, and other licensed professionals; computer programmers; artists; graphic designers; performers; and consultants. The city manager may determine whether any additional service not specifically mentioned in this section is a personal service under this definition. “Personal services contract(s)” means a contract for the provision of personal services.
(2) Contracts for Personal Services. Except as provided in subsection (3) of this section, personal services contracts may be directly appointed, or awarded from proposals that are solicited informally, either orally or in writing. When proposals are sought, they will be solicited from a sufficient number of qualified prospective proposers to ensure that no fewer than two qualified proposers submit proposals. If fewer than two qualified proposers submit proposals, the efforts made to solicit proposals will be documented in city’s files. The selection may be based on criteria, including, without limitation, each proposer’s:
(a) Particular capability to perform the services required;
(b) Experienced staff available to perform the services required, including each proposer’s recent, current, and projected workloads;
(c) Performance history;
(d) Approach and philosophy used in providing services;
(e) Fees and/or costs; and/or
(f) Ability to provide timely performance in the area where the services are to be performed.
Price may be considered, but need not be the determining factor. Proposals may also be solicited by using a written request for proposals, at city’s discretion.
(3) Contracts for Architectural, Engineering, and Surveying Services, and Related Services. Personal services contracts for architectural, engineering, photogrammetric mapping, transportation planning, land surveying, and/or related services, all as defined by ORS 279C.100, will be awarded in accordance with the source selection procedures set forth in Chapter 279C ORS and Division 48 of the model rules (except as otherwise provided in these rules). Notwithstanding the foregoing, such personal services contracts may be awarded pursuant to ORS 279C.115 or 279C.120 when applicable. When using the informal selection procedures described in OAR 137-048-0210, the city manager will submit a request for proposals to a minimum of three prospective consultants drawn from the following: (a) city’s list of consultants that is created and maintained under OAR 137-048-0120; (b) another contracting agency’s list of consultants that is created and maintained under OAR 137-048-0120; or (c) all consultants that the contracting agency reasonably can locate that offer the desired architectural, engineering, photogrammetric mapping, transportation planning or land surveying services or related services, or any combination of the foregoing. Where the city manager is unable to locate three prospective consultants from the sources listed above, the city manager will submit requests for proposals to those prospective consultants identified from the sources listed above and document efforts to locate a minimum of three prospective consultants. [Ord. 18-860 § 3 (Exh. A), 2018]
3.05.030 Special procurements – Exemptions.
(1) The council may exempt from competitive bidding certain contracts or classes of contracts for the procurement of goods and services according to the procedures described in ORS 279B.085. In accordance with OAR 137-047-0285(2), city will give public notice of city’s approval of a special procurement for goods and services in the same manner as public notice of competitive sealed bids under ORS 279B.055(4) and OAR 137-047-0300. The public notice will describe the goods or services or class of goods or services to be acquired through the special procurement. City will give affected persons at least seven days from the date of the notice of approval of the special procurement to protest the special procurement.
(2) The council may exempt certain contracts or classes of contracts for public improvements from competitive bidding according to the procedures described in ORS 279C.335. When exempting a public improvement from competitive bidding, the council may authorize the contract to be awarded using a request for proposal process for public improvements, according to the processes described in OAR 137-049-0640 through 137-049-0690. [Ord. 18-860 § 3 (Exh. A), 2018]
3.05.040 Small procurements.
(1) Public contracts for goods and services $10,000 or less are not subject to competitive bidding requirements. The city manager may make a reasonable effort to obtain competitive quotes to ensure the best value for city. City may amend a public contract awarded as a small procurement beyond the $10,000 limit in accordance with OAR 137-047-0800, provided the cumulative amendments do not increase the total contract price to a sum that is greater than $12,500.
(2) Public contracts for public improvements $5,000 or less are not subject to competitive bidding requirements. The city manager may make reasonable efforts to obtain competitive quotes in order to ensure the best value for city. City may amend a public contract for a public improvement awarded as a small procurement beyond the $5,000 limit, provided the cumulative amendments do not increase the total contract price to a sum that is greater than $6,250. [Ord. 18-860 § 3 (Exh. A), 2018]
3.05.050 Intermediate procurements.
(1) A contract for procurement of goods and services that exceeds $10,000 but does not exceed $150,000 may be awarded according to the processes for intermediate procurements described in ORS 279B.070. City may amend a public contract awarded as an intermediate procurement in accordance with OAR 137-047-0800.
(2) A contract for a public improvement that exceeds $5,000 but does not exceed $100,000 may be awarded according to the processes for intermediate procurements described in OAR 137-049- 0160. City may increase the contract price of a public improvement awarded as an intermediate procurement through change order or amendment pursuant to OAR 137-049-0160. [Ord. 18-860 § 3 (Exh. A), 2018]
3.05.060 Emergency contracts.
(1) For purposes of this section, “emergency” is defined as circumstances and/or conditions that (a) could not have reasonably been foreseen, (b) create a substantial risk of loss, damage, or interruption of services or a substantial threat to property, public health, welfare, or safety, and (c) require prompt execution of a contract to remedy the condition.
(2) The city manager and/or council has the authority to determine when emergency conditions exist sufficient to warrant an emergency contract. The nature of the emergency and the method used for the selection of the contractor will be documented.
(3) Emergency contracts may be awarded as follows:
(a) Goods and Services. Emergency contracts for procurement of goods, services, and construction services that do not constitute public improvements may be awarded pursuant to ORS 279B.080 and BMC 3.05.010.
(b) Public Improvements. City hereby adopts the procedures of OAR 137-049-0150 for awarding public improvement contracts under emergency conditions. For emergency contracts awarded under this section, city will ensure competition that is reasonable and appropriate under the emergency circumstances which may include, without limitation, written requests for offers, oral requests for offers, or direct appointment without competition in cases of extreme necessity. [Ord. 18-860 § 3 (Exh. A), 2018]
3.05.070 Appeals of prequalification decisions and debarment decisions.
Review of city’s prequalification and debarment decisions will be as set forth in ORS 279B.425. The procedures in ORS 279B.425 will apply to hearings on such decisions. [Ord. 18-860 § 3 (Exh. A), 2018]
3.05.080 Cooperative purchases.
Subject to applicable council approval requirements stated in the rules, city may purchase goods under the Oregon Cooperative Purchasing Program or from any similar federal or regional program, including 10 USC 381, the Electronic Government Act of 2002 (Public Law 107-347). Purchases under other federal or state laws will be permitted upon a finding by the council that the law is sufficiently similar in effectuating or promoting transfers of property between contracting agencies. [Ord. 18-860 § 3 (Exh. A), 2018]
3.05.090 Electronic advertising.
Pursuant to ORS 279B.055 and 279C.360, electronic advertisement of public contracts in lieu of publication in a newspaper of general circulation in the area where the contract is to be performed is authorized when it is likely to be cost effective to do so. The city manager will have the authority to determine when electronic publication is appropriate, and consistent with city’s public contracting policies. Notwithstanding the foregoing, publication of public improvement contracts with an estimated cost in excess of $125,000 will also be made in at least one trade newspaper of general statewide circulation. [Ord. 18-860 § 3 (Exh. A), 2018]
3.05.100 Brand names or products, “or equal.”
(1) Specifications. City may enter into public contracts for the procurement of brand name “or equal” products, including products to be incorporated into a public improvement, subject to the requirements of this section. Solicitation specifications for public contracts must not expressly or implicitly require any product of any particular manufacturer or seller except as expressly authorized in subsections (1)(a) and (b) of this section.
(a) “Or Equal” Specification. City may specify a particular brand name, make or product suffixed by “or equal,” “or approved equal,” “or equivalent,” “or approved equivalent,” or similar language if there is no other practical method of specification.
(b) Specifying a Particular Make or Product. City may specify a brand name, make, or product without an “or equal” or equivalent suffix if there is no other practical method of specification and after documenting the procurement file with the following information: (i) a brief description of the solicitation(s) to be covered including volume of contemplated future purchases; (ii) the brand name, mark, or product to be specified; and (iii) the reasons for seeking this procurement method, including, without limitation, a finding that (A) it is unlikely that specification of the brand name, mark or product will encourage favoritism in the award of the public contracts or substantially diminish competition, (B) specification of the brand name, mark, or product would result in substantial cost savings to city, and/or (C) efficient utilization of existing equipment or supplies requires the acquisition of compatible equipment or supplies.
(2) Public Notice. City will (a) make reasonable effort to notify all known suppliers of the specified product and invite such suppliers to submit competitive bids or proposals, or (b) document the procurement file with findings of current market research to support the determination that the product is available from only one seller. This requirement is satisfied by electronically posting a notice as provided in OAR 137-047-0330 for a reasonable period of time or by documenting direct contact with such suppliers in the procurement file. [Ord. 18-860 § 3 (Exh. A), 2018]
3.05.110 Single seller and sole source.
(1) Sole Source Purchasing. City may purchase a particular product or service available from only one source if city meets the requirements of ORS 279B.075 and OAR 137-047-0275. Prior to purchase and in accordance with ORS 279B.075, city must determine in writing that the product or service is available from only one seller or source. City’s single seller/sole source determination (which will be placed in the procurement file) will include the following: (a) a description of the product or service to be purchased; (b) a brief description of the contract or contracts to be covered including volume of contemplated future purchases; and (c) city’s findings in support of a single seller/sole source which may include those items listed in ORS 279B.075(2).
(2) Sole Source, Multiple Purchases. If city intends to make several purchases of the product of a particular manufacturer or seller over an extended period, city must so state in the solicitation file, the solicitation document, if any, and the public notice required pursuant to OAR 137-047-0275(2). Such documentation and public notice constitute sufficient notice as to subsequent purchases. Such purchase may not be made for a period in excess of five years without new findings supporting continuation of the sole source procurement. [Ord. 18-860 § 3 (Exh. A), 2018]
Article II. Class Special Procurements and Exemptions
3.05.120 Class special procurements.
City may award a public contract under a class special procurement pursuant to the requirements of ORS 279B.085. Such procurements allow city to enter into one or more contracts over time without following the requirements of competitive sealed bidding, competitive sealed proposals, and/or small or intermediate procurements. The council declares the procurements listed below as class special procurements. Unless otherwise specified in a particular special procurement rule, such contracts may be awarded in any manner that the city manager deems appropriate to city’s needs, including, without limitation, by direct appointment. Except as otherwise provided, the city manager will make a record of the method of award.
(1) Advertising Contracts, Purchase Of. The city manager, acting on behalf of city, may purchase media advertising, regardless of dollar value, without competitive bidding.
(2) Advertising Contracts, Sale Of. The city manager, acting on behalf of city, may authorize the sale of advertising in city publications and for city activities, regardless of dollar value, without competitive bidding.
(3) Equipment Repair and Overhaul.
(a) Conditions. The city manager, acting on behalf of city, may enter into a public contract for equipment repair and/or overhaul without competitive bidding, if (i) service and/or parts required are unknown and the cost cannot be determined without extensive preliminary dismantling or testing, and/or (ii) service and/or parts required are for sophisticated equipment for which specially trained personnel are required and such personnel are available from only one source. City purchases under this section must be within the limits and pursuant to the methods in subsection (3)(b) of this section.
(b) Process and Criteria. The city manager will use competitive methods wherever possible to achieve best value and must document in the procurement file the reasons why a competitive process was deemed to be impractical. If the anticipated purchase is more than $150,000 competitive quotes must be obtained and retained in the procurement file.
(4) Purchase of Used Personal Property. If the anticipated purchase does not exceed $150,000, city may directly purchase used personal property and equipment if such property is suitable for city’s needs and can be purchased for a lower cost than substantially similar new property. City’s research determining that the property can be purchased for a lower cost than substantially similar new property must be documented in the procurement file. For the purpose of this section, the cost of used property will be based upon the life-cycle cost of the property over the period for which the property will be used by city.
(5) Information Technology Contracts. The city manager, acting on behalf of city, will comply with the requirements of this section for the procurement of information technology contracts. Competitive methods will be used wherever possible to achieve best value. The reasons why a competitive process was deemed to be impractical must be documented in the procurement file. Information technology contracts will be solicited in accordance with the following: (a) if the anticipated purchase price is $10,000 or more but less than $150,000, competitive quotes will be obtained and retained in the procurement file pursuant to the rules governing intermediate procurements; and (b) if the anticipated purchase price exceeds $150,000, city will solicit written proposals in accordance with city rules governing requests for proposals.
(6) Telecommunications Systems – Hardware and Software Contracts. The city manager, acting on behalf of city, will comply with the requirements of this section for the procurement of telecommunications systems contracts. Competitive methods will be used wherever possible to achieve best value. The reasons why a competitive process was deemed to be impractical must be documented in the procurement file. When competitive methods are used, telecommunications systems contracts will be solicited in accordance with the following: (a) if the anticipated purchase is $10,000 or more but less than $150,000 competitive quotes will be obtained and retained in the procurement file pursuant to the rules governing intermediate procurements; and (b) if the anticipated purchase exceeds $150,000, city will solicit written proposals in accordance with city rules governing requests for proposals.
(7) Telecommunications Services. The city manager, acting on behalf of city, may enter into a public contract for telecommunications services without competitive bidding if no competition exists within the area for the service required. To determine whether competition exists, the city manager will consider the following factors: (a) determination of alternative providers available within the geographic and service market area; (b) the extent to which alternative services offered are comparable or substitutable in technology, service provided and performance; and (c) the extent to which alternative providers can respond to city’s interest in consistency and continuity of services throughout its service area, volume discounts, equitable service for all users, centralized management and limiting city liability. City will use competitive methods wherever possible to achieve best value. If competition exists (as determined herein) and the anticipated purchase is $10,000 or more but less than $150,000 competitive quotes will be obtained and retained in the procurement file pursuant to the rules governing intermediate procurements. If the anticipated purchase exceeds $150,000, city will solicit written proposals in accordance with city rules governing requests for proposals.
(8) Copyrighted and Library Materials. City may purchase copyrighted materials where there is only one known supplier available for such goods. This includes, without limitation, new books, periodicals, curriculum materials, reference materials, audio and visual media, and nonmass marketed software from a particular publisher or its designated distributor.
(9) Requirements Contracts. The city manager, acting on behalf of city, may establish requirements contracts for the purposes of minimizing paper work, achieving continuity of products, securing a source of supply, reducing inventory, combining city requirements for volume discounts, standardization among city departments, and/or reducing lead time for ordering. Purchases under requirements contracts may be utilized in accordance with the following: (a) the requirement contract must have originally been let by competitive procurement procedures unless otherwise allowed by city’s rules; (b) city departments may purchase the goods or services from the awarded contractor without first undertaking additional competitive procurement procedures; and (c) the term of any city requirements contract, including renewals, will not exceed five years unless otherwise exempted pursuant to ORS 279B.085.
(10) Purchases under Federal Contracts. When the price of goods and services has been established by a contract of the federal government pursuant to a federal contract award, city may purchase the goods and services in accordance with the federal contract without subsequent competitive bidding. In exercising its authority under this special procurement, city will obtain and document permission from the appropriate federal agency to purchase under the federal contract and document the cost savings to be gained for city from the anticipated purchases under the federal contract. City will not contract pursuant to this section in the absence of a cost savings to city by using this method.
(11) Hazardous Material Removal and Cleanup. City may directly acquire services to remove or clean up hazardous material or oil from any vendor in an emergency or when ordered to do so by Oregon Department of Environmental Quality (“DEQ”) pursuant to its authority under Chapter 466 ORS. In doing so, the following conditions apply:
(a) To the extent reasonable under the circumstances, city will encourage competition by attempting to obtain informal price quotations or proposals from potential suppliers of goods and services;
(b) The department responsible for managing or coordinating the cleanup will prepare a written description of the circumstances that require the cleanup and/or a copy of DEQ order for the cleanup to the city manager, together with a request for contract authorization;
(c) The department responsible for managing or coordinating the cleanup will record whether there was time for competition, and, if so, the measures taken to encourage competition, the amount of the price quotations obtained, if any, and the reason for selecting the contractor to whom award is made; and
(d) The timeline for cleanup must not permit use of intermediate procurement procedures.
(12) Insurance – Employee Benefit and Other. City may purchase employee benefit insurance and other insurance without competitive bidding, regardless of dollar amount, subject to the terms of any collective bargaining agreement between city and represented employee groups.
(13) Disposal of Abandoned, Seized, and/or Nonowned Property. Contracts or arrangements for the sale or other disposal of abandoned, seized, and/or other personal property not owned by city at the time city obtains possession of such property are not subject to competitive procurement procedures. The city manager may select any method of disposal, including, without limitation, donation to a charitable organization.
(14) Disposal of Surplus Property.
(a) Methods. Surplus property may be disposed of by any commercially reasonable method upon a determination by the city manager that the method of disposal is in the best interests of city. Factors that may be considered by the city manager include, without limitation, costs of sale, administrative costs, and public benefits to city. The city manager will maintain a record of the reason for the disposal method selected, and the manner of disposal, including the name of the person to whom the surplus property was transferred. For the purpose of this section, “commercially reasonable method” includes, without limitation, transfer or sale to another city department or agency, auction, bid, liquidation sale, fixed-price sale, trade-in, donation, and any other method determined reasonable under the circumstances by the city manager.
(b) Disposal of Property with Minimal Value. Surplus property which has a value of less than $500.00, or for which the costs of sale are likely to exceed sale proceeds, may be disposed of by any means determined to be cost effective, including by disposal as waste. Prior to disposing property pursuant to this subsection (14)(b), the city official proposing to dispose the property will obtain a written confirmation from another city official determining that the value of the property is less than $500.00. The city official making the disposal will make a record of the value of the item and the manner of disposal.
(c) Restriction on Sale to City Employees. City employees will not be restricted from competing, as members of the public, for the purchase of publicly sold surplus property, but will not be permitted to offer to purchase property to be sold to the first qualifying bidder until at least three days after the first date on which notice of the sale is first publicly advertised.
(15) Temporary Extensions or Renewals. City may enter into contracts for a single period of one year or less, for the temporary extension or renewal of an expiring and nonrenewable, or recently expired, contract, other than contracts for public improvements, without competitive bidding.
(16) Temporary Use of City Property. City may negotiate and enter into a license, permit, and/or other contract for the temporary use of city-owned property without using a competitive selection process under the following circumstances: (a) the contract results from an unsolicited proposal to city based on the unique attributes of the property or the unique needs of the proposer; (b) the proposed use of the property is consistent with city’s use of the property and the public interest; and (c) city reserves the right to terminate the contract without penalty, in the event that city determines that the contract is no longer consistent with city’s present or planned use of the property or the public interest.
(17) Sponsorship Agreements. Sponsorship agreements, under which city receives or makes a gift, donation, or consideration in exchange for official recognition may be awarded by any method deemed appropriate by city, including, without limitation, by direct appointment, private negotiation, from a qualified pool, or using a competitive process.
(18) Concession Agreements. City may enter into contracts that grant a franchise or concession to a private entity, individual, or other government to promote or sell, for its own business purposes, specified types of goods or services from city property and under which the concessionaire or promoter makes payments to city based, at least in part, on the concessionaire’s revenues from sales or the value of such promotion to the sponsor’s business, whether on or off city property. A concession agreement does not include an agreement which represents a rental, lease, license, permit, or other arrangement for the use of public property. Concession agreements may be awarded by any method deemed appropriate by the city manager, including, without limitation, by direct appointment, private negotiation, from a qualified pool, or using a competitive process.
(19) Donated Materials and/or Services. City may accept donated services and/or materials regardless of dollar amount under the following circumstances: (a) the donor has agreed to donate all, or a portion of, the materials and/or services necessary to perform the work; and/or (b) the donor enters into a license or agreement with city whereby the donor agrees to comply with public contract requirements applicable to the particular project and any requirements that city deems necessary or beneficial.
(20) Gasoline, Diesel Fuel, Heating Oil, Lubricants, and Asphalt. City may enter into contracts for gasoline, diesel fuel, heating oil, lubricants, and/or asphalt without competitive bidding subject to the following: (a) prior to selection of the contractor, city obtains quotes (written or oral) from at least three vendors in the area; (b) city makes its purchase from the least expensive source of those providing quotes; and (c) the reasons why a competitive process was deemed to be impractical must be documented in the procurement file. [Ord. 18-860 § 4 (Exh. B), 2018]
3.05.130 Exemptions for public improvement contracts.
City may award a public improvement contract under an exemption to competitive procurement pursuant to the requirements of ORS 279C.335. Such procurements allow city to enter into one or more contracts over time without following the requirements of competitive sealed bidding, competitive sealed proposals, and/or small or intermediate procurements. The council declares the public improvement contracts described below to be exempt from competitive bidding. Unless otherwise specified in a particular exemption rule, such contracts may be awarded in any manner that the city manager deems appropriate to city’s needs, including by direct appointment or otherwise. Except as otherwise provided, the city manager will make a record of the method of award.
(1) Use of Existing Contractors. When a public improvement is in need of minor alteration, repair or maintenance at or near the site of work being performed by a city contractor, city may hire that contractor to perform such work subject to the following:
(a) The contractor was hired through a selection process permitted by city’s public contracting rules;
(b) The city manager first obtains a price quotation for the additional work from the contractor that is competitive and reasonable;
(c) The total cost of the proposed work will not exceed the Bureau of Labor and Industries’ threshold specified in ORS 279C.810(2); and
(d) The original contract is amended to reflect the new work and is approved by the city manager before work begins.
(2) Developer Contracts – Conditions of Land Use Approval. Public improvement agreements entered into between city and persons (developers) responsible for carrying out conditions of approval of a city land use decision, as defined by ORS 197.015, are not subject to competitive bidding. [Ord. 18-860 § 4 (Exh. B), 2018]
Article III. Findings in Support of Adopting Class Special Procurements and Exemptions
3.05.140 Authority.
ORS 279B.085 and 279C.335 authorize the LCRB, upon adoption of appropriate findings, to establish special selection, evaluation and award procedures for, or exempt from competition, the award of a specific contract or classes of contracts. Pursuant to that authority, the council has, after notice and an opportunity to comment at a regular meeting of the council, adopted the ordinance codified in this article, which establishes classes of contracts and the solicitation methods for their award, together with the following specific findings in support thereof, or a determination that no findings are required. [Ord. 18-860 § 4 (Exh. C), 2018]
3.05.150 Specific findings – Class special procurements.
The council approves the specific findings for the establishment of special solicitation methods for the classes of public contracts described below and also finds that the establishment of each class of contract and the methods approved for their award (1) is unlikely to encourage favoritism in the awarding of public contracts or substantially diminish competition for public contracts, and (2) will result in substantial cost savings to city, and/or otherwise substantially promote the public interest in a manner that could not practicably be realized by complying with requirements that are applicable under ORS 279B.055, 279B.060, 279B.065, or 279B.070 or under any rules adopted thereunder.
(1) Advertising Contracts, Purchase Of.
(a) Alternate Award Process. Contracts may be awarded in the city manager’s discretion.
(b) Cost Savings and Other Benefits. Size of and frequency of average advertisement (including all notices required to be published by city by applicable statute or regulation) does not justify the cost of solicitation. Time period of recognition of need to advertise until date of advertisement is too short to issue solicitation.
(c) Effect on Competition. The potential market is limited because not all advertisers work in all markets. Choice of advertising medium is somewhat price sensitive, but is primarily driven by location and size of circulation compared to city’s target audience.
(d) Effect on Favoritism. Minimal effect on favoritism due to the lack of competitors and specialized contracting needs.
(2) Advertising Contracts, Sale Of.
(a) Alternate Award Process. The city manager may authorize the sale of advertising in city publications and for city activities, regardless of dollar value, without competitive bidding.
(b) Cost Savings and Other Benefits. Avoids an unnecessary solicitation expense.
(c) Effect on Competition. The sale of advertising is not for the purpose of generating revenue for city, but rather is utilized to offset the cost of publication. Businesses generally purchase advertising space in the spirit of goodwill and as a means of supporting community activities.
(d) Effect on Favoritism. Minimal since any interested individual or business who wishes to advertise may do so by contacting city staff.
(3) Equipment Repair and Overhaul.
(a) Alternate Award Process. Contracts may be awarded in the city manager’s discretion.
(b) Cost Savings and Other Benefits. The need for equipment repair cannot be planned for and often must be handled on an expedited basis to avoid additional expense and adverse impact on the public’s ability to utilize city’s services. Experience with a single contractor can help improve reliability over the course of several projects.
(c) Effect on Competition. Allows contractor to be selected based on ability to provide accurate, reliable, and fast service.
(d) Effect on Favoritism. Requirement that city manager obtain competitive quotes when practical helps ensure that favoritism will not be greater than if statutory request for proposals process were used.
(4) Purchase of Used Personal Property.
(a) Alternate Award Process. Contracts may be awarded in city manager’s discretion.
(b) Cost Savings and Other Benefits. City is responsible to manage expenditures in the best interests of the public. Cost savings can be achieved through the purchase of used property and equipment in certain instances. City purchases used property and equipment when it meets city’s needs and is cost effective. Considerations include type, quantity and estimated useful life of the used item.
(c) Effect on Competition. No impact on competition as this class special procurement allows city to respond to unique opportunities that become available sporadically and without notice. Used equipment and property is usually sold on a first-come, first-served basis. When used equipment or property does become available, city must be able to respond immediately in order to obtain the property or equipment.
(d) Effect on Favoritism. No impact on favoritism since city is responding to unique opportunities. When a used item is available, there is often little competition available and sources for used items of the type, quality and quantity required by city are inconsistent.
(5) Information Technology Contracts.
(a) Alternate Award Process. Competitive methods will be used wherever possible to achieve best value. In situations where a competitive process is deemed to be impractical, the reasons must be documented in the procurement file.
(b) Cost Savings and Other Benefits. Rapid changes in technology and technology pricing make it necessary for city to be able to purchase needed computer equipment quickly. It is frequently possible to take advantage of lower pricing due to the frequent price changes in the market place.
(c) Effect on Competition. Generally, there is sufficient competition among vendors in the area of information technology and software for city to secure competitive quotes. City is required to make a good-faith effort to secure competitive quotes under this section.
(d) Effect on Favoritism. Minimal effect on favoritism as city is required to obtain competitive quotes where practical. As price is the primary factor, it is unlikely that this special procurement will encourage favoritism in the awarding of public contracts.
(6) Telecommunications Systems – Hardware and Software Contracts.
(a) Alternate Award Process. Competitive methods will be used whenever possible to achieve best value. The reasons why a competitive process was deemed to be impractical must be documented in the procurement file.
(b) Cost Savings and Other Benefits. Rapid changes in technology and technology pricing make it necessary for city to be able to purchase needed telecommunications hardware and software quickly. It is important that city be able to take advantage of price competition in the market place.
(c) Effect on Competition. Since deregulation, there is generally sufficient competition among vendors of telecommunications hardware and software for city to secure competitive quotes. City is required to make a good faith effort to secure competitive quotes under this section.
(d) Effect on Favoritism. Minimal since city is required to obtain competitive quotes where practical. As price is the primary factor, it is unlikely that this special procurement will encourage favoritism in the awarding of public contracts.
(7) Telecommunications Services.
(a) Alternate Award Process. The city manager may enter into a public contract for telecommunications services without competitive bidding, if no competition exists within the area for the service required.
(b) Cost Savings and Other Benefits. The city manager will use competitive methods wherever possible to achieve best value. If competition exists, competitive quotes will be obtained.
(c) Effect on Competition. It is important that city take advantage of price competition in the market plan. There may be circumstances, however, where sufficient competition does not exist in the relative geographic and service market area. In such cases, city will follow this section in determining whether sufficient competition exists to make a competitive procurement.
(d) Effect on Favoritism. Since deregulation, there is generally sufficient competition among vendors of telecommunications services for city to secure competitive quotes. Because price is a primary factor, it is unlikely that this special procurement will encourage favoritism in the awarding of public contracts.
(8) Copyrighted and Library Materials.
(a) Alternate Award Process. Contracts may be awarded in the city manager’s discretion.
(b) Cost Savings and Other Benefits. This special procurement is necessary to allow city to acquire special needs products that are unique and for which a single copyright owner or licensee is the only source of the material. Eliminates unnecessary competitive solicitation when a competitive market does not exist.
(c) Effect on Competition. By their nature, copyrighted materials are protected for the use of a single owner and are often produced by a single supplier who may be the owner of the copyright or its licensee. Instructional materials are adopted through a statewide process under the authority of the Oregon Department of Education; city may purchase its instructional materials through Northwest Textbook Depository. This allows city to benefit from the regional purchase and warehousing of these materials and the associated savings. This section allows city to participate in the largest possible bulk purchasing activity of instructional materials in the region.
(d) Effect on Favoritism. No effect on favoritism due to the lack of competitors and specialized contracting needs.
(9) Requirements Contracts.
(a) Alternate Award Process. City initially awards requirements contracts as a result of competitive procurement or an applicable special procurement. This special procurement allows such a contract to be converted into one that will allow city to secure a constant source of supply for the contracted-for goods.
(b) Cost Savings and Other Benefits. Allows city to reduce inventory, combine city requirements for volume discounts, standardize goods among city departments, and reduce lead time for ordering.
(c) Effect on Competition. It is unlikely that this special procurement will diminish competition for city contracts as city initially enters into such contracts through a competitive process or applicable special procurement.
(d) Effect on Favoritism. Minimal effect on favoritism since city initially enters into such contracts through a competitive process or special procurement.
(10) Purchases under Federal Contracts.
(a) Alternate Award Process. This special procurement allows the city manager to make purchases of goods and services when the price has been established by a contract of the federal government, which contract was awarded through a competitive procurement process.
(b) Cost Savings and Other Benefits. City may use this special procurement method when it determines that there is a cost savings to be made in avoiding the solicitation process.
(c) Effect on Competition. The contracts are awarded through competitive processes that meet the standards of the Oregon public contracting code. Oregon companies are not excluded or disadvantaged in participating in bidding on federal contracts.
(d) Effect on Favoritism. Minimal effect on favoritism since the contracts are awarded at the price most advantageous to the federal government. City is required to document the cost savings it will achieve by using the contract. These facts ensure that city purchases the desired goods or services at the best price available, rather than from a preferred contractor.
(11) Hazardous Material Removal and Cleanup.
(a) Alternate Award Process. Contracts may be awarded in the city manager’s discretion.
(b) Cost Savings and Other Benefits. When city is ordered to remove or clean up hazardous material, it must respond within a very short time period. This time period generally does not allow for city to take the time necessary to solicit written bids or proposals for the work to be performed. Failure to comply within the allotted time period could make city liable for delays in responding to cleanup or removal orders. Such delay might also expose city to potential liability from third parties if the cleanup is not completed quickly.
(c) Effect on Competition. This special procurement will only be used in an emergency or in situations where a remedial order is in effect and therefore there is no time to employ a competitive procurement method. Routine competitive procurement methods will be used where time permits.
(d) Effect on Favoritism. Minimal effect on favoritism since city will follow competitive procurement procedures unless precluded by time constraints.
(12) Insurance – Employee Benefit and Other.
(a) Alternate Award Process. City may purchase employee benefit insurance and other insurance without competitive bidding, regardless of dollar amount subject to the terms of any collective bargaining agreement.
(b) Cost Savings and Other Benefits. The nature, type, specific services to be provided and timing of employee benefit insurance are dictated by collective bargaining agreements between city and represented labor groups. City must fulfill its contractual obligations to represented employee groups to provide appropriate employee benefits. City relies on its professional insurance broker or agent-of-record to solicit competitive proposals from responsible companies to furnish employee benefit coverages and other insurance coverages.
(c) Effect on Competition. Minimal effect on competition since city’s agent-of-record solicits proposals from employee benefit insurance providers and other insurance providers under conditions that foster competition among a sufficient number of potential suppliers. City evaluates the proposals submitted to furnish employee benefit insurance for the best value to city given the requirements specified by the employee benefits portions of city’s agreements with represented labor groups.
(d) Effect on Favoritism. No impact on favoritism as this special procurement responds to unique opportunities.
(13) Disposal of Abandoned, Seized or Nonowned Property.
(a) Alternate Award Process. Abandoned, seized, or nonowned property may be disposed of in the city manager’s discretion.
(b) Cost Savings and Other Benefits. Avoids an unnecessary solicitation expense by allowing the city manager to determine whether the cost of solicitation is justified by the value of the property to be disposed. Allows the city manager to establish programs for donation to charitable organizations.
(c) Effect on Competition. No impact on competition as this special procurement responds to unique opportunities.
(d) Effect on Favoritism. No impact on favoritism as this special procurement responds to unique opportunities.
(14) Disposal of Surplus Property.
(a) Alternate Award Process. Surplus property may be disposed of in the city manager’s discretion.
(b) Cost Savings and Other Benefits. Avoids an unnecessary solicitation expense by allowing the city manager to determine whether the cost of solicitation is justified by the value of the property to be disposed. Allows the city manager to establish programs for donation to charitable organizations.
(c) Effect on Competition. No impact on competition as this special procurement responds to unique opportunities.
(d) Effect on Favoritism. No impact on favoritism as this special procurement responds to unique opportunities.
(15) Temporary Extensions or Renewals.
(a) Alternate Award Process. Contracts may be awarded in the city manager’s discretion.
(b) Cost Savings and Other Benefits. Allows city to prepare for competitive solicitation when existing contracts expire without notice due to administrative error.
(c) Effect on Competition. Delays competition by not more than one year.
(d) Effect on Favoritism. No impact on favoritism. At expiration of temporary extension, standard competitive procedures will apply.
(16) Temporary Use of City Property.
(a) Alternate Award Process. Contracts may be awarded in the city manager’s discretion.
(b) Cost Savings and Other Benefits. Allows city to respond to unsolicited proposals for unique revenue opportunities.
(c) Effect on Competition. No effect on competition as no competitive market exists.
(d) Effect on Favoritism. No impact on favoritism as this special procurement responds to unique opportunities.
(17) Sponsorship Agreements.
(a) Alternate Award Process. Contracts may be awarded in the city manager’s discretion.
(b) Cost Savings and Other Benefits. This special procurement allows city to respond to unsolicited proposals for revenue or marketing opportunities that would otherwise be unknown or unavailable.
(c) Effect on Competition. Mandatory open competition would likely discourage creative proposals from sponsors or city participation. Sponsorship often results from the match between a unique attribute of an event or asset and unique characteristics of the sponsor for which no competitive market exists.
(d) Effect on Favoritism. Minimal effect on favoritism as this class of special procurements responds to unique opportunities.
(18) Concession Agreements.
(a) Alternate Award Process. City manager may adopt rules for awarding contracts similar to those rules used for personal service contracts.
(b) Cost Savings and Other Benefits. Allows city to take advantage of unique revenue opportunities. Not a contract for the acquisition or disposal of goods or services. Most similar to personal services contracts because the quality of the concession may be more important than price factors. Allows a private entity or individual to promote or sell, for its own business purposes, specified types of goods or services from city property. Concessionaire makes payments to city based, in part, on the concessionaire’s revenues from the concession.
(c) Effect on Competition. Minimal effect on competition as this special procurement responds to unique opportunities.
(d) Effect on Favoritism. Minimal effect on favoritism as this special procurement responds to unique opportunities.
(19) Donated Materials and/or Services.
(a) Alternate Award Process. Subject to the requirements of this special procurement, the city manager will award such contracts in the city manager’s discretion, including, without limitation, through direct appointment.
(b) Cost Savings and Other Benefits. Avoids unnecessary expenditure when services and/or materials are donated to city. Affords city the ability to take advantage of such donated materials and/or services, enables city to use its limited funds in other areas, and frequently results in materials and/or services city would not otherwise be able to afford.
(c) Effect on Competition. No competitive market exists or equivalent vendors will be identified and allowed to compete.
(d) Effect on Favoritism. No effect on favoritism since services and/or materials are donated.
(20) Gasoline, Diesel Fuel, Heating Oil, Lubricants, and Asphalt.
(a) Alternate Award Process. Subject to the requirements of this special procurement, the city manager will award such contracts in the city manager’s discretion, including through direct solicitation.
(b) Cost Savings and Other Benefits. The purchases under this special procurement 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.
(c) Effect on Competition. This special procurement encourages competition by requiring an informal competitive process and requiring city to use the least expensive source of those providing quotes.
(d) Effect on Favoritism. This special procurement discourages favoritism by requiring an informal competitive process and requiring city to use the least expensive source of those providing quotes. [Ord. 18-860 § 4 (Exh. C), 2018]
3.05.160 Specific findings – Exemptions for public improvement contracts.
The council approves the specific findings for the exemptions for each class of public improvement established in the provisions described below and also finds that the establishment of each class of contracts and the methods approved for their award (1) is unlikely to encourage favoritism in the awarding of public improvements contracts or substantially diminish competition for public improvement contracts, and (2) the awarding of public improvement contracts under each exemption will result in substantial cost savings to city.
(1) Use of Existing Contractors.
(a) Alternate Award Process. From time to time, city needs to perform repair or maintenance functions at or near a site where a contractor, already hired by city through a competitive selection process, is performing other work. The city manager may obtain an informal price quotation from the contractor already at or near the site to perform the additional work. If the city manager determines that the informal price quotation is competitive for work of that type, then the contractor may be awarded this additional work without the need for competitive bidding; provided, that the value of the additional work, as estimated by the contractor, does not exceed $25,000.
(b) Cost Savings and Other Benefits. City will achieve cost savings because the cost of the additional work will be lower than if the work was competitively bid because the contractor is already mobilized at or near the site of the work and will not need to recover the cost of mobilization as a new contractor would.
(c) Effect on Competition. It is unlikely that this exemption will substantially diminish competition in the award of city contracts, as the contractor was originally selected through a competitive bidding process.
(d) Effect on Favoritism. Not applicable where the contractor has already been selected through an appropriate contracting method. The occurrence of such additional work is haphazard and often was not foreseen and city is not required to provide the contractor with the work if the estimated price is not competitive.
(2) Developer Contracts – Conditions of Land Use Approval.
(a) Alternate Award Process. The city manager may authorize direct negotiation(s) and appointment(s) of a public improvement contract with the contractor and/or developer responsible for carrying out conditions of approval of land use decision as defined by ORS 197.015, or with the contractor of another governmental entity constructing a public improvement, upon finding that: (i) the public improvement is an off-site or oversized street, water line, sewer line, storm drainage, and/or other similar improvement which city would otherwise have to construct, or which would have to be constructed at a later time; and (ii) the particular public improvement contract will be unlikely to encourage favoritism in the awarding of public improvement contracts or substantially diminish competition for such contracts, and will either result in substantial cost savings to city or to the public.
(b) Cost Savings and Other Benefits. As provided in subsection (2)(a) of this section, the city manager will make additional findings on a case-by-case basis.
(c) Effect on Competition. No effect on competition as the contractor is carrying out conditions of approval of a land use decision specific to the contractor’s project.
(d) Effect on Favoritism. No impact on favoritism. [Ord. 18-860 § 4 (Exh. C), 2018]