Chapter 3.25
PUBLIC CONTRACTING RULES
Sections:
3.25.020 Personal service contracts not including certain construction-related personal services.
3.25.030 Contracts for certain construction-related personal services.
3.25.040 Authority to electronically advertise solicitations for goods and services.
3.25.050 Authority to electronically advertise solicitations for public improvements.
3.25.060 Sole-source procurements.
3.25.070 Notice of intent to award certain contracts.
3.25.080 Procedure for surplus property.
3.25.010 General provisions.
(1) Except as provided within these rules, the city’s public contracting is governed by the Oregon Public Contracting Code (ORS Chapters 279, 279A, 279B and 279C) (the “Code”) and the Oregon Attorney General’s Model Public Contract Rules (OAR Chapter 137, Divisions 46, 47, 48 and 49) (the “Model Rules”).
(2) The Hubbard city council (“council”) is the city of Hubbard’s local contract review board. Except as these rules may otherwise provide, the powers and duties of local contract review boards under the Code and Model Rules will be exercised by the council and the powers and duties given or assigned to contracting agencies by the Code or Model Rules will be exercised by the city administrator or designee acting as city of Hubbard’s contracting agent.
(3) For the purposes of these rules, “department head” means the acting department head for the city of Hubbard department that is contracting for goods, services or public improvements, or his or her designee.
(4) For the purposes of these rules, “emergency” means circumstances that:
(a) Could not have been reasonably 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. (Ord. 355-2017 § 1)
3.25.020 Personal service contracts not including certain construction-related personal services.
(1) “Personal service contract” means a contract for personal or professional services performed by an independent contractor, primarily for the provision of services that require specialized technical, creative, professional or communication skills or talents, unique and specialized knowledge, or the exercise of discretionary judgment skills, and for which the quality of the service depends on attributes that are unique to the service provider. Such services include, but are not limited to, the services of attorneys, accounting and auditing services, information technology services, planning and development services, artists, designers, performers, property managers and consultants. The city administrator or designee has discretion to determine whether a particular contract or service falls within this definition. For the purposes of this section, personal services contracts do not include contracts for architectural, engineering, photogrammetric, land surveying and, in very narrow instances, transportation planning services when only such professionals may legally provide the service. The procedures for those contracts are found below at HMC 3.25.030.
(2) The following formal selection procedure will be used when the estimated payment to the contractor exceeds $150,000.
(a) Announcement. City of Hubbard will give notice of its intent to procure personal services through a newspaper of general circulation, and any other means city of Hubbard deems appropriate, including contacting prospective contractors directly. Announcements will include:
(i) A description of the proposed project;
(ii) The scope of the services required;
(iii) The project completion dates;
(iv) A description of special requirements;
(v) When and where the application may be obtained and to whom it must be returned;
(vi) The closing date; and
(vii) Other necessary information.
(b) Application. Applications will include a statement that describes the prospective contractor’s credentials, performance data, examples of previous work product or other information sufficient to establish contractor’s qualification for the project, references, and other information identified by city of Hubbard as necessary to make its selection.
(c) Initial Screening. The city administrator or designee will evaluate the qualifications of all applicants and select a prospective contractor or prospective contractors whose application demonstrates that the contractor is best qualified to meet city of Hubbard’s needs.
(d) Final Selection.
(i) The city administrator or designee will interview the finalists selected from the initial screening. At the city administrator or designee’s discretion, the interviews may be conducted before the council.
(ii) After the interview process concludes, the city administrator or designee will make the final selection. If the interviews are conducted before the council, the council will make the final selection.
(iii) The final selection will be based upon applicant capability, experience, project approach, compensation requirements, references and any other criteria identified by city of Hubbard as necessary for city of Hubbard to select a contractor.
(3) The following informal selection procedure may be used when the estimated payment to the contractor does not exceed $150,000 or when the city administrator or designee determines that the informal procedures will not interfere with competition among prospective contractors, reduce the quality of services or increase costs. The city administrator or designee will contact a minimum of three prospective contractors qualified to offer the services sought. The city administrator or designee will request an estimated fee, and make the selection consistent with city of Hubbard’s best interests. If three quotes are not received, the city administrator or designee will make a written record of efforts to obtain the quotes.
(4) The city administrator or designee may enter into personal service contracts not exceeding an estimated $5,000 without following the procedures under subsection (2) or (3) of this section. However, the city administrator or designee must make reasonable efforts to choose the most qualified contractor to meet city of Hubbard’s needs. The amount of a given contract may not be manipulated to avoid the informal or formal selection procedures.
(5) The city administrator or designee may negotiate with a single source for personal services if the services are available from only one contractor, or the prospective contractor has special skills uniquely required for the performance of the services. City of Hubbard must make written findings to demonstrate why the proposed contractor is the only contractor who can perform the services desired.
(6) The city administrator or designee may select a contractor without following any procedures if an emergency exists. In such instances, the city administrator or designee must memorialize in writing the circumstances that justify the emergency appointments. (Ord. 355-2017 § 1)
3.25.030 Contracts for certain construction-related personal services.
(1) Purpose. This section implements ORS 279C.100 to 279C.125. City of Hubbard will rely on this section, not the Model Rules, when it seeks to contract with an architect, engineer, photogrammerist, land surveyor or (in very narrow instances) a transportation planner.
(2) Applicability. This section applies only to personal services meeting the following criteria:
(a) A contract with an estimated fee that exceeds $100,000; and
(b) The contract is for a personal service that is legally required to be provided or performed by an architect, engineer, photogrammetrist, transportation planner or land surveyor. For example: hiring an architect to design a building or structure, or hiring an engineer to design a wastewater system. Because the law requires licensed professionals to design buildings and infrastructure, city of Hubbard would rely on this section to hire someone to perform those services. However, if city of Hubbard were hiring an architect or engineer to perform project management services (for example), it may solicit and award such services under HMC 3.25.020. See definition of “related services” in subsection (3)(f) of this section.
(c) If either subsection (2)(a) or (2)(b) of this section is not satisfied (i.e., the contract is for a personal service that is legally required to be provided by a licensed architect, etc., but is estimated to not exceed $100,000; or the contract will require an engineer, etc. to perform a related service) then city of Hubbard may rely on HMC 3.25.020 to solicit and award the contract.
(d) Mixed Contracts. Some contracts will contain a mixture of services covered by this section (i.e., services that only the particular consultant may legally perform) and related services. Whether city of Hubbard uses HMC 3.25.020 or this section to solicit and award a mixed contract will depend upon the contract’s predominant purpose. City of Hubbard will determine the predominant purpose based upon either the amount of money it estimates it will spend for covered services versus related services or the amount of time it estimates the consultant will spend working on covered services versus related services. If covered services predominate, city of Hubbard will solicit the contract under this section. If related services predominate, city of Hubbard will solicit the contract under HMC 3.25.020.
(3) Definitions. The following definitions apply to this section:
(a) “Construction-related consultant” means an architect, engineer, photogrammetrist, land surveyor, a transportation planner in narrow instances defined below or a provider of related services.
(b) “Estimated fee” means city of Hubbard’s reasonably projected fee to be paid for a construction-related consultant’s services under the anticipated contract, excluding all anticipated reimbursable or other nonprofessional fee expenses. The estimated fee is used solely to determine the applicable contract solicitation method and is distinct from the total amount payable under the contract.
(c) “Price agreement” is limited to mean an agreement related to the procurement of architectural, engineering, photogrammetric mapping, transportation planning or land surveying services, or related services, under agreed-upon terms and conditions and possibly at a set price with:
(i) No guarantee of a minimum or maximum purchase; or
(ii) An initial order or minimum purchase, combined with a continuing obligation to provide architectural, engineering, photogrammetric mapping, transportation planning or land surveying services or related services where city of Hubbard does not guarantee a minimum or maximum additional purchase.
(d) “Project” means all components of a city of Hubbard-planned undertaking that gives rise to the need for a construction-related consultant’s architectural, engineering, photogrammetric mapping, transportation planning or land surveying services, or related services, under a contract.
(e) “Transportation planning services” only includes project-specific transportation planning required for compliance with the National Environmental Policy Act, 42 USC 4321 et seq., and no other types of transportation planning services. By way of example only, transportation planning services do not include transportation planning for corridor plans, transportation system plans, interchange area management plans, refinement plans and other transportation plans not associated with an individual project required to comply with the National Environmental Policy Act, 42 USC 4321 et seq.
(f) “Related services” means personal services, other than architectural, engineering, photogrammetric, mapping, transportation planning or land surveying services, that are related to planning, designing, engineering or overseeing public improvement projects or components of public improvements, including, but not limited to, landscape architectural services, facilities planning services, energy planning services, space planning services, hazardous substances or hazardous waste or toxic substances testing services, cost estimating services, appraising services, material testing services, mechanical system balancing services, commissioning services, project management services, construction management services, and owner’s representation services or land use planning services. In other words, personal services that are not required by law to be performed by an architect, engineer, photogrammetrist, transportation planner or land surveyor.
(4) Selection Procedures.
(a) When selecting a construction-related consultant to perform architectural, engineering, photogrammetric mapping, transportation planning or land surveying services under this section, city of Hubbard must award a contract to the most qualified consultant.
(b) In accordance with Oregon law, when determining which consultant is most qualified, city of Hubbard may only solicit or use pricing policies and pricing proposals, or other price information, including the number of hours proposed for the services required, expenses, hourly rates and overhead, to determine a construction-related consultant’s compensation after city of Hubbard has selected the most qualified consultant.
(c) When soliciting a construction-related consultant under this section, city of Hubbard will use a request for proposals (“RFP”) or a request for qualifications (“RFQ”) followed by a RFP, as described below. City of Hubbard may advertise RFQs and RFPs in any manner it deems appropriate. If city of Hubbard directly solicits qualifications or proposals from construction-related consultants, it will attempt to contact at least three consultants.
(d) RFQ. City of Hubbard may in its sole discretion issue a RFQ to evaluate potential construction-related consultants and establish a short list of qualified construction-related consultants to whom it may issue a RFP for some or all of the architectural, engineering, photogrammetric mapping, transportation planning or land surveying services or related services described in the RFQ. RFQs may include:
(i) A brief project description;
(ii) A description of the architectural, engineering, photogrammetric mapping, transportation planning or land surveying services or related services required for the project;
(iii) Any conditions or limitations that may constrain or prohibit the selected construction-related consultant’s ability to provide additional services related to the project, including but not limited to construction services;
(iv) A response deadline and a description of how or where to submit a response;
(v) A statement that interested consultants respond solely at their own expense;
(vi) RFQ evaluation criteria; and
(vii) Any other elements the city administrator or designee deems appropriate.
(e) RFP. City of Hubbard will issue a RFP to select the most qualified construction-related consultant, regardless of whether an RFQ precedes an RFP. RFPs will include:
(i) A description of the project and the specific architectural, engineering, photogrammetric mapping, transportation planning or land surveying services or related services sought for the project, the estimated project cost, the estimated time period during which the project is to be completed, and the estimated time period in which the specific architectural, engineering, photogrammetric mapping, transportation planning or land surveying services or related services sought will be performed;
(ii) The RFP evaluation process and the criteria that city of Hubbard will use to select the most qualified construction-related consultant, including the weight, points or other classifications applicable to each criterion. Without limitation, the criteria may include:
(A) Proposers’ availability and capability to perform the services described in the RFP;
(B) Experience of proposers’ key staff persons in providing similar services on similar projects within the last three years;
(C) The amount and type of resources, and number of experienced staff persons proposers will commit to the project;
(D) Proposers’ demonstrated ability to successfully complete similar projects on time and within budget, including the hourly rates for key personnel and related cost data for similar projects in the previous 12 months;
(E) References and recommendations from past clients; and
(F) Any other criteria the city administrator or designee deems appropriate.
(iii) Conditions or limitations, if any, that may constrain or prohibit the selected construction-related consultant’s ability to provide additional services related to the project, including but not limited to construction services;
(iv) Whether interviews will or may occur and, if so, how the interview will factor into city of Hubbard’s selection;
(v) A proposal deadline and a description of how or where to submit a proposal;
(vi) A statement whether city of Hubbard will accept proposals in electronic format;
(vii) A statement that interested consultants respond solely at their own expense;
(viii) A statement reserving city of Hubbard’s right to reject any or all proposals and its right to cancel the RFP at any time if doing either would be in the public interest;
(ix) A statement directing proposers to the protest procedures set forth in the RFP;
(x) A statement whether or not city of Hubbard will hold a pre-proposal meeting for all interested construction-related consultants to discuss the project and if a pre-proposal meeting will be held, the location of the meeting and whether or not attendance is mandatory; and
(xi) Any other elements the city administrator or designee deems appropriate.
(f) After selecting the most qualified construction-related consultant in accordance with a RFP, city of Hubbard will notify each proposer accordingly and state that it will begin negotiating a contract with the most qualified consultant. A resulting contract will at least include:
(i) The consultant’s performance obligations and performance schedule;
(ii) Payment methodology and a maximum amount payable to the consultant for the services required under the contract;
(iii) Legally required terms; and
(iv) Any other provisions city of Hubbard believes to be in its best interest to negotiate.
(g) City of Hubbard will formally terminate negotiations in writing with the most qualified consultant if it is unable for any reason to negotiate a contract within a reasonable amount of time, as city of Hubbard may determine in its sole discretion. The city may thereafter negotiate with the second ranked consultant, and if necessary, with the third ranked consultant, and so on, until negotiations result in a contract. If negotiations with any consultant do not result in a contract within a reasonable amount of time, city of Hubbard may end the particular solicitation. Nothing in this section precludes city of Hubbard from re-entering negotiations, in its own discretion, with a consultant if negotiations were previously terminated for the same contract.
(5) Price Agreements. Solicitation materials and the terms and conditions for a price agreement for architectural, engineering, photogrammetric mapping, transportation planning or land surveying services or related services must:
(a) Include a scope of services, menu of services, a specification for services or a similar description of the nature, general scope, complexity and purpose of the procurement that will reasonably enable a construction-related consultant to decide whether to submit a proposal;
(b) Specify whether city of Hubbard intends to award a price agreement to one consultant or to multiple consultants. If city of Hubbard will award a price agreement to more than one consultant, the solicitation document and price agreement will describe the criteria and procedures city of Hubbard will use to select a consultant for each individual work order or task order. Subject to the requirements of ORS 279C.110, the criteria and procedures to assign work orders or task orders that only involve or predominantly involve architectural, engineering, photogrammetric mapping, transportation planning or land surveying services are at city of Hubbard’s sole discretion.
(c) Specify the maximum term for assigning services under the price agreement. (Ord. 355-2017 § 1)
3.25.040 Authority to electronically advertise solicitations for goods and services.
(1) The city administrator or designee is authorized to develop an “electronic procurement system” in accordance with OAR 137-047-0300(2)(b). As described in OAR 137-046-0110(16), this is an information system accessible through the Internet that allows city of Hubbard to post electronic advertisements and receive electronic offers for goods and services. When an electronic procurement system is in place, the Model Rules allow procurement solicitations to be advertised exclusively online. This saves city of Hubbard time and money over newspaper advertisements.
(2) Prior to any development of an electronic procurement system, city of Hubbard may advertise solicitations for goods and services on the Internet in addition to newspaper advertisements. (Ord. 355-2017 § 1)
3.25.050 Authority to electronically advertise solicitations for public improvements.
(1) For all public improvement contracts with an estimated cost not exceeding $125,000, the city administrator or designee may electronically advertise solicitations in a manner deemed appropriate. This method of advertising will save city of Hubbard time and money, may be used exclusively, and is allowed under ORS 279C.360(1).
(2) An advertisement for a public improvement contract with an estimated cost over $125,000 must be published at least once in a trade newspaper of general statewide circulation, such as the Daily Journal of Commerce. (Ord. 355-2017 § 1)
3.25.060 Sole-source procurements.
(1) Pursuant to ORS 279B.075(1), the city administrator or designee is authorized to declare in writing certain goods and services to be available from only one source.
(2) The determination of a sole source must be based on findings required by ORS 279B.075(2), and otherwise be processed in accordance with OAR 137-047-0275. (Ord. 355-2017 § 1)
3.25.070 Notice of intent to award certain contracts.
(1) At least seven days before the award of a public contract solicited under a traditional invitation to bid or request for proposals, city of Hubbard will post or provide to each bidder or proposer notice of city of Hubbard’s intent to award a contract.
(2) If stated in the solicitation document, city of Hubbard may post this notice electronically or through nonelectronic means and require the bidder or proposer to determine the status of city of Hubbard’s intent.
(3) As an alternative, city of Hubbard may provide written notice to each bidder or proposer of city of Hubbard’s intent to award a contract. This written notice may be provided electronically or through nonelectronic means.
(4) City of Hubbard may give less than seven days notice of its intent to award a contract if city of Hubbard determines in writing that seven days is impracticable as allowed by ORS 279B.135.
(5) This section does not apply to goods and services contracts awarded under small procurements under these rules, or other goods and services contracts awarded in accordance with ORS 279B.070, 279B.075, 279B.080 or 279B.085.
(6) This section does not apply to any public improvement contract or class of public improvement contracts exempted from competitive bidding requirements.
(7) A protest of city of Hubbard’s intent to award a contract may only be filed in accordance with OAR 137-047-0740 or 137-049-0450, as applicable. (Ord. 355-2017 § 1)
3.25.080 Procedure for surplus property.
(1) Surplus property is property owned by city of Hubbard such as office furniture, computers, equipment, vehicles, excluding real property, that the city administrator or designee determines is surplus and no longer useful to city of Hubbard.
(2) The city administrator or designee may authorize the sale, donation or destruction of surplus property. Surplus property may be sold through the informal solicitation of bids or through an auction, including an online auction. The city administrator or designee has the discretion to advertise the sale of surplus property in a newspaper of citywide circulation.
(3) Employees of city of Hubbard may purchase surplus property, so long as at least three individuals or entities have bid on the property and the employee’s bid is the highest bid. (Ord. 355-2017 § 1)
3.25.090 Signature authority.
(1) The purpose of this section is to clarify when the city administrator or designee may bind city of Hubbard to a purchase of, or a contract for, goods, services (including personal services) and public improvements (collectively “purchases”) without additional council authorization. In order to bind city of Hubbard to a purchase, the city administrator or designee must sign a document related to the purchase. For the purposes of this section, “signing” a document includes a digital signature or authorization.
(2) Except as provided in subsection (3) of this section, if the council’s adopted budget for a given fiscal year includes or anticipates the purchase, the city administrator or designee may bind city of Hubbard without additional council authorization. For the purposes of this section, the city administrator or designee may exercise reasonable discretion in determining whether the adopted budget anticipates a purchase.
(3) For purchases with a value exceeding $50,000 and if the council’s adopted budget for a given fiscal year does not include or anticipate the purchase regardless of the dollar amount, the council must authorize the purchase in order to bind city of Hubbard to it. (Ord. 355-2017 § 1)