Chapter 3.05
PUBLIC CONTRACTS
Sections:
3.05.010 Contract review board.
3.05.030 Public contracts for goods and services.
3.05.040 Public improvement contracts.
3.05.050 Offeror disqualification.
3.05.060 Personal services contracts.
3.05.070 Disposition of personal property.
3.05.080 Adoption of code and rules.
Prior legislation: Ord. 279.
3.05.010 Contract review board.
The city council is designated to continue as the local contract review board for the city and shall have all the rights, powers and authority necessary to carry out the provisions of ORS Chapters 279A, 279B and 279C (the “Public Contracting Code”). Except as otherwise provided in this chapter, the city administrator/department heads or their designated purchasing agent is designated as the city’s contracting agency for purposes of contracting powers and duties assigned to the city as a contracting agency under the Public Contracting Code. [Amended during 2011 codification; Ord. 523 § 1, 2006].
3.05.020 Definitions.
As used in this chapter, the following words or phrases shall have the following meanings. All words and phrases not defined in this section shall have the meanings ascribed to them in the Public Contracting Code or the Model Rules adopted by the Oregon Attorney General thereunder (“Model Rules”):
“Formal quote” means a procedure pursuant to which written offers are solicited by advertising or other writing stating the quantity and quality of goods or services to be acquired, and which offers are received by the contracting agency on or before a stated date. In soliciting formal quotes, the contracting agency shall seek quotes from a sufficiently large number of potential offerors to ensure sufficient competition to meet the best interests of the city. An award based on less then three formal quotes may be made, provided the contracting agency makes a written record of the effort to obtain quotes.
“Informal quote” means a procedure pursuant to which written or verbal offers are gathered by correspondence, telephone or personal contact stating the quantity and quality of good or services to be acquired. In soliciting informal quotes, the contracting agency shall seek quotes from a sufficiently large number of potential offerors to ensure sufficient competition to meet the best needs of the city. An award based on less than three quotes may be made, provided the contracting agency makes a written record of the effort to obtain quotes.
“Personal services contract” means a contract to retain the services of an independent contractor, including architects, engineers, land surveying and related services. The contract shall be predominantly for services requiring special training or certifications, independent judgment, skill and experience.
“Sole source procurement” means a contract for goods or services, or a class of goods or services, available from only one source.
“Works of art” means all forms of original creations of visual art, including but not limited to:
(a) “Painting” means all media, including both portable and permanently affixed or integrated works such as murals;
(b) “Sculpture” means in the round, bas-relief, high relief, mobile, fountain, kinetic, electronic, etc., in any material or combination of materials;
(c) “Miscellaneous art” means prints, clay, drawings, stained glass, mosaics, photography, fiber and textiles, wood, metal, plastics and other materials or combination of materials, calligraphy, and mixed media, any combination of forms of media, including collage and design built. [Amended during 2011 codification; Ord. 523 § 2, 2006].
3.05.030 Public contracts for goods and services.
This section applies to public contracts that are not contracts for public improvements or contracts for personal services. A public contract shall not be artificially divided or fragmented to qualify for a different award procedure than that provided by this section.
(1) The following classes of public contracts and respective award procedures are created:
(a) Public Contracts Valued at Less Than $5,000. A public contract for an amount which is valued at less than $5,000 shall be awarded by the contracting agency based on informal quotes. Amendments to public contracts under this section may not cause the contract price to exceed $6,000.
(b) Public Contracts Valued at $5,000 or More but Less Than $25,000. A public contract for an amount which is valued at $5,000 or more, but less than $25,000, shall be awarded by the contracting agency based on formal quotes. Amendments to public contracts under this section may not cause the contract price to exceed an amount that is greater than 25 percent of the original contract price.
(c) Public Contracts from $25,000. A public contract for an amount which is valued at $25,000 or more shall be awarded by the city council based on competitive sealed bidding or competitive sealed proposals pursuant to the Public Contracting Code.
(2) Exemptions. The requirements of subsection (1) of this section do not apply to the following classes of public contracts:
(a) Sole source procurements pursuant to ORS 279B.075.
(b) Emergency procurements pursuant to ORS 279B.080.
(c) Purchases through federal programs pursuant to ORS 279A.180.
(d) Contracts for products or supplies under $5,000.
(e) Contracts for the purchase or commissioning of works of art.
(f) Amendments to contracts exceeding the limits in subsection (1) of this section if the city council determines that it is not reasonably feasible to require additional competitive procurement to complete the purpose of the contract; otherwise the council shall direct additional competitive procurement and the competitive procurement procedure required for the amendment.
(g) By resolution, the city council may exempt other public contracts or classes of public contracts from the requirements of subsection (1) of this section pursuant to ORS 279B.085. [Ord. 523 § 3, 2006].
3.05.040 Public improvement contracts.
A “public improvement contract” is defined pursuant to the Public Contracting Code and does not include contracts for minor alterations, ordinary repair and maintenance of public improvements, contracts for projects for which no funds of the city are directly or indirectly used except for participation that is incidental or related primarily to project design or inspection, and does not include any other construction contract that is not defined as a public improvement under the Public Contracting Code. A public improvement contract shall not be artificially divided to qualify for a different award procedure than that provided by this section.
(1) All public improvement contracts shall be awarded by the council based on competitive sealed bids pursuant to the Public Contracting Code.
(2) Exemptions. The requirements of subsection (1) of this section do not apply to the following classes of public improvement contracts:
(a) Nontransportation Public Improvements up to $100,000. Public improvement contracts other than contracts for a highway, bridge or other transportation project for which the estimated contract price does not exceed $100,000 may be awarded using an informal solicitation for quotes.
(b) Transportation Public Improvements up to $50,000. Contracts for which the estimated contract price does not exceed $50,000 for highways, bridges or other transportation projects may be awarded using an informal solicitation for quotes.
(c) Emergency public improvement contracts may be exempted from competitive bidding if the contracting agency determines that an emergency exists and that conditions require the prompt execution of a contract. Emergency public improvement contracts shall be awarded in accordance with the Public Contracting Code.
The contracting agency shall provide the council with a written statement indicating the nature of the emergency and stating with particularity the emergency conditions and why they pose an imminent threat to the public health, safety or welfare. The contracting agency shall not declare the same emergency more than two times in any 90-day period.
(d) By resolution, the city council may exempt from competitive bidding a public improvement contract or class of public improvement contracts not otherwise exempt under this section pursuant to ORS 279C.335.
(e) When an exemption allows for award of the contract through competitive proposals, the provisions of ORS 279C.400 through 279C.410 shall apply.
(3) Amendments to public improvement contracts shall comply with the Public Contracting Code.
(4) The performance and payment bond requirements and exceptions of the Public Contracting Code shall apply to all public improvement contracts.
(5) The city may undertake to construct a public improvement using its own equipment and personnel if doing so will result in the least cost to the city or public. For purposes of this section, resurfacing of roads at a depth of two or more inches and at an estimated cost of more than $125,000 is a public improvement. If the city decides to construct a public improvement estimated to cost more than $125,000 using its own personnel and equipment, the city shall prepare adequate plans and specifications and the estimated unit cost of each classification of work, and maintain an accurate accounting in accordance with ORS 279C.305.
(6) If all responsive offers on a public improvement contract exceed the budget for the project, the contracting agency may, prior to contract award, negotiate for a price within the budget under the following procedures:
(a) Negotiations shall start with the lowest responsive, responsible offeror. If negotiations are not successful, then the contracting agency may negotiate with the second lowest responsive, responsible offeror, and so on.
(b) Negotiations may include value engineering and other options to attempt to bring the project cost within the budgeted amount.
(c) A contract may not be awarded under this section if the scope of the project is significantly changed from the description in the original solicitation documents.
(d) The records of an offeror used in contract negotiations under this section are not subject to public inspection until after the negotiated contract has been awarded or the negotiation process has been terminated. [Ord. 523 § 4, 2006].
3.05.050 Offeror disqualification.
(1) The council or contracting agency, whoever is awarding a public contract, may disqualify any person as an offeror on a contract if:
(a) The person does not have sufficient financial ability to perform the contract. Evidence that the person can acquire a surety bond in the amount and type required shall be sufficient to establish financial ability;
(b) The person does not have available equipment to perform the contract;
(c) The person does not have key personnel of sufficient experience to perform the contract; or
(d) The person has breached previous contractual obligations.
(2) The provisions of the Public Contracting Code regarding disqualification of persons shall apply in addition to this section with respect to public improvement contracts.
(3) A person who has been disqualified as an offeror may appeal the disqualification to the city council in accordance with the procedures in ORS Chapter 279C of the Public Contracting Code. [Ord. 523 § 5, 2006].
3.05.060 Personal services contracts.
(1) The following procedures shall apply to the award of personal services contracts:
(a) Personal Service Contracts for $5,000 to $10,000. Personal services contracts involving an anticipated fee of $5,000 or more but less than $10,000 per fiscal year shall be awarded by the contracting agency following solicitation of offers for personal services by written invitation or advertisement in sufficient number to provide a choice for the city from among qualified service providers. The contracting agency shall determine the selection criteria to be included in the written invitation or advertisement and shall have authority to negotiate and enter into the contract.
(b) Personal Service Contracts from $10,000. Personal services contracts to which subsection (1)(a) of this section does not apply and having an anticipated fee of $10,000 or more shall be awarded by the city council following solicitation of offers based on the procedure and selection criteria adopted by the city council before offers are solicited.
(c) Except as otherwise provided in the Public Contracting Code, for all other personal services contracts, including amendments to and annual renewals of existing contracts and emergencies, the contracting agency may enter into the contract without a solicitation of offers. A personal services contract shall not be artificially divided or fragmented to qualify for the award procedures provided by this subsection.
(2) The following criteria shall be considered in the evaluation and selection of a personal services contractor. This section does not preclude the use of other additional criteria:
(a) Total cost to the agency for delivery of services.
(b) Expertise of the contractor in the area of specialty called for.
(c) References from successfully completed projects managed by the contractor.
(d) Utilization of locally procured goods, services, or personnel.
(e) Other services provided by the contractor not specifically listed in the request for proposal.
(f) Timeliness of delivery of services.
(g) Other criteria specially listed in the solicitation document on a case-by-case basis. [Ord. 523 § 6, 2006].
3.05.070 Disposition of personal property.
(1) The city administrator/department heads shall have the authority to determine when personal property owned by the city is surplus.
(2) The city council shall select the method of disposal which maximizes the value the city will realize from disposal of the surplus property. Surplus personal property shall be disposed of as follows:
(a) Sold to the highest qualified buyer meeting the sale terms when the value of each item so offered is less than $2,000 and the sale has been advertised at least once in a newspaper of general circulation in the Pilot Rock area not less than one week prior to the sale;
(b) Traded in on the purchase of replacement equipment or supplies;
(c) Sold at public auction advertised at least once in a newspaper of general circulation in the Pendleton area not less than one week prior to the auction. The published notice shall specify the time, place and terms upon which the personal property shall be offered and a general description of the personal property to be sold;
(d) Sold at a fixed price retail sale if doing so will result in substantially greater net revenue to the city; or
(e) Contracted for use, operation or maintenance by one or more private or public entities. Prior to approval of such a contract, the department heads shall determine that the contract will promote the economic development of the city.
(3) All personal property sold pursuant to this section shall be sold as-is without any warranty, either express or implied, of any kind.
(4) Sales of surplus personal property may be conducted electronically. [Amended during 2011 codification; Ord. 523 § 7, 2006].
3.05.080 Adoption of code and rules.
(1) Except as specifically provided in this chapter, public contracts shall be awarded, administered and governed according to the Public Contracting Code and the Model Rules, as they now exist and may be amended in the future.
(2) In the event of a conflict between any provisions of this chapter and the Public Contracting Code or Model Rules, the provisions of the Public Contracting Code or Model Rules shall prevail. [Ord. 523 § 8, 2006].