Chapter 3.04
PUBLIC CONTRACTING REGULATIONS

Sections:

3.04.010    Public contracts policy.

3.04.020    Definitions.

3.04.030    Application of public contracting regulations.

3.04.040    Attorney General’s model rules do not apply.

3.04.050    Regulation of public contracts by the local contract review board.

3.04.060    Authority of purchasing manager.

3.04.070    Process for approval of special solicitation methods and exemptions.

3.04.080    Solicitation methods for classes of contracts.

3.04.090    Informal solicitation procedures.

3.04.100    Use of brand name specifications for public improvements.

3.04.110    Bid, performance and payment bonds.

3.04.120    Electronic advertisement of public contracts.

3.04.130    Appeal of debarment or prequalification decision.

3.04.140    Award of contract.

3.04.150    Surplus property.

3.04.010 Public contracts policy.

A.    Short Title. The provisions of these regulations should be cited as the Jefferson County public contracting regulations.

B.    Purpose. It is the policy of Jefferson County, in adopting these public contracting regulations, to utilize public contracting practices and methods that maximize the efficient use of public resources and the purchasing power of public funds by:

1.    Promoting impartial and open competition;

2.    Using solicitation materials that are complete and contain a clear statement of contract specifications and requirements; and

3.    Taking full advantage of evolving procurement methods that suit the contracting needs of the county as they emerge within various industries.

C.    Interpretation of Public Contracting Regulations. In furtherance of the purpose of the objectives set forth in subsection B of this section, it is the intent of the board that these regulations be interpreted to authorize the full use of all contracting power and authority described in ORS Chapters 279A, 279B and 279C. (Ord. O-18-19 § A Exh. A (part), 2019: Ord. O-27-05 § 2 (part), 2005)

3.04.020 Definitions.

The following terms used in these regulations shall have the meanings set forth in this section:

“Award” means the selection of a person to provide goods, services or public improvements under a public contract. The award of a contract is not binding on the county until the contract is executed and delivered by the county.

“Bid” means a binding, sealed, written offer to provide goods, services or public improvements for a specified price or prices.

“Board” means the Jefferson County local contract review board.

“Concession agreement” means a contract that authorizes and requires a private entity or individual to promote or sell, for its own business purposes, specified types of goods or services from real property owned or managed by the county, and under which the concessionaire makes payments to the county, based, at least in part, on the concessionaire’s revenues or sales. The term “concession agreement” may include a rental agreement or license for the use of premises.

“Contract price” means the total amount paid or to be paid under a contract, including any approved alternates, and any fully executed change orders or amendments.

“Contract review board or local contract review board” means the Jefferson County local contract review board (JCLCRB), as designated by the enabling ordinance, which is the board of commissioners for Jefferson County.

“Cooperative procurement” means a procurement conducted by or on behalf of one or more contracting agencies.

“Debarment” means a declaration by the purchasing manager or board, under ORS 279B.130 or 279C.440, that prohibits a potential contractor from competing for the county’s public contracts for a prescribed period of time.

“Disposal” means any arrangement for the transfer of property by the county under which the county relinquishes ownership.

“Emergency” means circumstances that create a substantial risk of loss, damage or interruption of services or a substantial threat to property, public health, welfare or safety, and require prompt execution of a contract to remedy the condition.

“Energy savings performance contract” means a contract with a qualified energy service company for the identification, evaluation, recommendation, design and construction of energy conservation measures that guarantee energy savings or performance.

“Findings” are the statements of fact that provide justification for a determination. Findings may include, but are not limited to, information regarding operation, budget and financial data; public benefits; cost savings; competition in public contracts; quality and aesthetic considerations; value engineering; specialized expertise needed; public safety; market conditions; technical complexity; availability; performance; and funding sources.

“Goods” means any item or combination of supplies, equipment, materials or other personal property, including any tangible, intangible and intellectual property and rights and licenses in relation thereto.

“Informal solicitation” means a solicitation made in accordance with these regulations, to a limited number of potential contractors, in which the solicitation agent attempts to obtain at least three written quotes or proposals.

“Invitation to bid” means a publicly advertised request for competitive sealed bids.

“Lowest responsible bidder” means the lowest bidder who:

1.    Has substantially complied with all prescribed public contract procedures and requirements;

2.    Has met the standards of responsibility set forth in ORS 279B.110 or 279C.375;

3.    Has not been debarred or disqualified by the county under ORS 279B.130 or 279C.440; and

4.    If the advertised contract is a public improvement contract, is not on the list created by the construction contractors board under ORS 701.227.

“Model rules” means the public contracting rules adopted by the Attorney General under ORS 279A.065.

“Offeror” means a person who submits a bid, quote or proposal to enter into a public contract with the county.

“Oregon Public Contracting Code” means ORS Chapters 279A, 279B, and 279C.

“Person” means a natural person, or any other private or governmental entity, having the legal capacity to enter into a binding contract.

“Personal services contract” means a contract with an independent contractor predominantly for services that require special training or certification, skill, technical, creative, professional or communication skills or talents, unique and specialized knowledge, or the exercise of 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 architects, engineers, land surveyors, attorneys, auditors and other licensed professionals, artists, designers, computer programmers, performers, consultants and property managers. The purchasing manager or board shall have discretion to determine whether additional types of services not specifically mentioned in this definition fit within the definition of personal services.

“Proposal” means a binding offer to provide goods, services or public improvements, with the understanding that acceptance will depend on the evaluation of factors other than, or in addition to, price. A proposal may be made in response to a request for proposals or under an informal solicitation.

“Public contract” means a sale or other disposal, or a purchase, lease, rental or other acquisition, by the county of personal property, services, including personal services, public improvements, public works, minor alterations, or ordinary repair or maintenance necessary to preserve a public improvement.

“Public improvement” means a project for construction, reconstruction or major renovation on real property by or for the county. “Public improvement” does not include:

1.    Projects for which no funds of the county are directly or indirectly used, except for participation that is incidental or related primarily to project design or inspection; or

2.    Emergency work, minor alteration, ordinary repair or maintenance necessary to preserve a public improvement.

“Purchasing manager” means the county administrative officer (CAO) or designee appointed by the CAO to exercise the specific delegated authority of the purchasing manager under these regulations.

“Qualified pool” means a pool of vendors who are prequalified to compete for the award of contracts for certain types of contracts or to provide certain types of services. The purchasing manager may designate the prequalification pool of ODOT, DAS, or any other county or municipal corporation to be prequalified in the county qualified pool.

“Quote” means a price offer made in response to an informal or qualified pool solicitation to provide goods, services or public improvements.

“Request for proposals” means a publicly advertised request for sealed competitive proposals.

“Services” means and includes all types of services (including construction labor) other than personal services.

“Solicitation” means an invitation to one or more potential contractors to submit a bid, proposal, quote, statement of qualifications or letter of interest to the county with respect to a proposed project, procurement or other contracting opportunity. The word “solicitation” also refers to the process by which the county requests, receives and evaluates potential contractors and awards public contracts.

“Solicitation agent” means, with respect to a particular solicitation, the purchasing manager or person designated by the purchasing manager to conduct a solicitation or make a recommendation on an award to the purchasing manager.

“Solicitation documents” means all informational materials issued by the county for a solicitation, including, but not limited to, advertisements, instructions, submission requirements and schedules, award criteria, contract terms and specifications, and all laws, regulations and documents incorporated by reference.

“Surplus property” means personal property owned by the county which is no longer needed for use by the county. (Ord. O-18-19 § A Exh. A (part), 2019: Ord. O-27-05 § 2 (part), 2005. Formerly 3.04.060)

3.04.030 Application of public contracting regulations.

In accordance with ORS 279A.025, these regulations and the Oregon Public Contracting Code do not apply to the following classes of contracts:

A.    Between Governments. Contracts between the county and other public bodies, including cities, special districts, agencies of the state of Oregon or its political subdivisions, or any other public body designated under ORS Chapter 190;

B.    Grants. A grant contract is an agreement under which the county is either a grantee or a grantor of moneys, property or other assistance, including loans, loan guarantees, credit enhancements, gifts, bequests, commodities or other assets, for the purpose of supporting or stimulating a program or activity of the grantee and in which no substantial involvement by the grantor is anticipated in the program or activity other than involvement associated with monitoring compliance with the grant conditions. The making or receiving of a grant is not a public contract subject to the Oregon Public Contracting Code. Any grant made by the county, however, shall impose conditions on the grantee that ensure that expenditures of the grant are made in accordance with Oregon and other applicable law;

C.    Legal Witnesses and Consultants. Contracts for professional or expert witnesses or consultants to provide services or testimony relating to existing or potential litigation or legal matters in which the county is or may become interested;

D.    Real Property. Acquisitions or disposals of real property or interests in real property;

E.    Oregon Corrections Enterprises. Procurements from an Oregon corrections enterprises program;

F.    Finance. Contracts, agreements or other documents entered into, issued or established in connection with:

1.    The incurring of debt by the county, including any associated contracts, agreements or other documents, regardless of whether the obligations that the contracts, agreements or other documents established are general, special or limited;

2.    The making of program loans and similar extensions or advances of funds, aid or assistance by the county to a private person or entity for the purpose of carrying out, promoting or sustaining activities or programs authorized by law, other than for the construction of public works or public improvements;

3.    The investment of funds by the county as authorized by law;

4.    Banking, money management or other predominantly financial transactions of the county that, by their character, cannot practically be established under the competitive contractor selection procedures, based upon the findings of the purchasing manager;

G.    Employee Benefits. Contracts for employee benefit plans as provided in ORS 243.105(1), 243.125(4), 243.221, 243.275, 243.291, 243.303 and 243.565;

H.    Other Exemptions under State Laws. Any other public contract specifically exempted from the Oregon Public Contracting Code by another provision of law;

I.    Federal Law. Except as otherwise expressly provided in ORS 279C.800 to 279C.870, applicable federal statutes and regulations govern when federal funds are involved and such statutes or regulations conflict with any provision of the Oregon Public Contracting Code or these regulations, or require additional conditions in public contracts not authorized by the Oregon Public Contracting Code or these regulations. (Ord. O-18-19 § A Exh. A (part), 2019: Ord. O-27-05 § 2 (part), 2005. Formerly 3.04.020)

3.04.040 Attorney General’s model rules do not apply.

Except as otherwise provided in these regulations, the model rules adopted by the Attorney General under ORS 279A.065 do not apply to the contracts of Jefferson County. (Ord. O-18-19 § A Exh. A (part), 2019: Ord. O-27-05 § 2 (part), 2005)

3.04.050 Regulation of public contracts by the local contract review board.

Except as expressly delegated under these regulations, the board reserves to itself the exercise of all of the duties and authority of a local contract review board and a contracting agency under state law, including, but not limited to, the power and authority to do any of the following:

A.    Solicitation Methods Applicable to Contracts. Approve the use of contracting methods and exemptions from contracting methods for a specific contract or certain classes of contracts;

B.    Brand Name Specifications. Exempt the use of brand name specifications for public improvement contracts;

C.    Waiver of Performance and Payment Bonds. Approve the partial or complete waiver of the requirement for the delivery of a performance or payment bond for construction of a public improvement;

D.    Electronic Advertisement of Public Contracts. Authorize the use of electronic advertisements for contracts in lieu of publication in a newspaper of general circulation;

E.    Appeals. Make final determinations of debarment, prequalification or contract award;

F.    Rulemaking. Adopt contracting rules under ORS 279A.065 and 279A.070, including without limitation rules for the procurement, management, disposal and control of goods, services, personal services and public improvements;

G.    Award. Award all contracts;

H.    Delegation. Delegate to any employee or agent of Jefferson County any of the duties or authority reserved to the board; and

I.    Mandatory Review of Rules. Whenever the Oregon State Legislative Assembly enacts laws that cause the Attorney General to modify its model rules, the board shall review these regulations to determine whether any modifications to the regulations need to be adopted by the board to ensure compliance with statutory changes. (Ord. O-18-19 § A Exh. A (part), 2019: Ord. O-27-05 § 2 (part), 2005. Formerly 3.04.030)

3.04.060 Authority of purchasing manager.

A.    General Authority. The county administrative officer (CAO) shall be the sole purchasing manager for the county, and is authorized to issue all solicitations and to award all county contracts for which there is an appropriation or other written authorization by the board, except as otherwise provided in these regulations. Subject to these regulations and the Oregon Public Contracting Code, the purchasing manager may adopt or amend all solicitation materials, contracts and forms, and shall hear all solicitation, prequalification and award protests. Solicitations must be approved by the purchasing manager in advance.

B.    Delegation of Purchasing Manager’s Authority. The responsibilities or authorities of the purchasing manager under these regulations may be delegated only by written directive (e.g., to a department head).

C.    Mandatory Review of Rules. Whenever the Oregon State Legislative Assembly enacts laws that cause the Attorney General to modify its model rules, the purchasing manager shall review these regulations, and recommend to the board any modifications required to ensure compliance with statutory changes. (Ord. O-18-19 § A Exh. A (part), 2019: Ord. O-27-05 § 2 (part), 2005. Formerly 3.04.050)

3.04.070 Process for approval of special solicitation methods and exemptions.

A.    Authority of the Board. In its capacity as the local contract review board for the county, the JCLCRB, upon its own initiative, or upon request of the purchasing manager, may create special selection, evaluation and award procedures for, or may exempt from competition, the award of a specific contract or class of contracts as provided in this section.

B.    Basis for Approval. In making a determination regarding a special selection method, the board may consider the type, cost, amount of the contract or class of contracts, number of persons available to make offers, and such other factors as it may deem appropriate. The approval of a special solicitation method or exemption from competition must be based upon a record before the board that contains the following:

1.    The nature of the contract or class of contracts for which the special solicitation or exemption is requested;

2.    The estimated contract price or cost of the project, if relevant;

3.    Findings to support the substantial cost savings, enhancement in quality or performance, or other public benefit anticipated by the proposed selection method or exemption from competitive solicitation;

4.    Findings to support the reason that approval of the request would be unlikely to encourage favoritism or diminish competition for the public contract or class of public contracts, or would otherwise substantially promote the public interest in a manner that could not practicably be realized by complying with the solicitation requirements that would otherwise be applicable under these regulations;

5.    A description of the proposed alternative contracting methods to be employed; and

6.    The estimated date by which it would be necessary to let the contract(s).

C.    Hearing.

1.    The board shall approve the special solicitation or exemption after a public hearing before the board following notice by publication in at least one newspaper of general circulation in the area.

2.    At the public hearing, the board shall offer an opportunity for any interested party to appear and present comment.

3.    The board will consider the findings and may approve the exemption as proposed or as modified by the board after providing an opportunity for public comment.

D.    Commencement of Solicitation Prior to Approval. A solicitation may be issued prior to the approval of a special exemption under this section; provided, that the closing of the solicitation may not be earlier than five days after the date of the hearing at which the board approves the exemption. If the board fails to approve a requested exemption, or requires the use of a solicitation procedure other than the procedures described in the issued solicitation documents, the issued solicitation may either be modified by addendum or canceled.

E.    Special Requirements for Public Improvement Contracts.

1.    Notification of the public hearing for exemption of a public improvement contract, or class of public improvement contracts, shall be published in a trade newspaper of general statewide circulation at least fourteen (14) days prior to the hearing.

2.    The notice shall state that the public hearing is for the purpose of taking comments on the board’s draft findings for an exemption from the standard solicitation method. At the time of the notice, copies of the draft findings shall be made available to the public. (Ord. O-18-19 § A Exh. A (part), 2019: Ord. O-27-05 § 2 (part), 2005)

3.04.080 Solicitation methods for classes of contracts.

The following classes of public contracts and the method(s) that are approved for the award of each of the classes are established by the board:

A.    Purchases from Nonprofit Agencies for Disabled Individuals. The county shall give a preference to goods, services and public improvements available from qualified nonprofit agencies for disabled individuals in accordance with the provisions of ORS 279.835 to 279.853.

B.    Public Improvement Contracts.

1.    All public improvement contracts shall be based upon competitive bids except:

a.    A public improvement contract with a qualified nonprofit agency that provides employment opportunities for individuals with disabilities under ORS 279.835 to 279.853.

b.    A public improvement contract with a value of less than ten thousand dollars ($10,000).

c.    A public improvement contract with a contract price that does not exceed one hundred thousand dollars ($100,000) made under procedures for competitive quotes in ORS 279C.412 and 279C.414.

d.    A public improvement contract under ORS 279C.335(3)(b), which provides an exemption for alternative contracting methods.

2.    Nontransportation Public Improvements up to One Hundred Thousand Dollars ($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 one hundred thousand dollars ($100,000) may be awarded using an informal solicitation for quotes.

3.    Transportation Public Improvements up to Fifty Thousand Dollars ($50,000). Contracts for which the estimated contract price does not exceed fifty thousand dollars ($50,000) for highways, bridges or other transportation projects may be awarded using an informal solicitation for quotes.

4.    County-Funded Privately Constructed Public Improvements. The county may contribute funding to a privately constructed public improvement project without subjecting the project to competitive solicitation requirements if all of the following conditions are met with respect to the entire public improvement project, and documented with written findings:

a.    The county’s contribution to the project may not exceed twenty-five (25) percent of the total cost of the project;

b.    The county must comply with all applicable laws concerning the reporting of the project to the Bureau of Labor and Industries as a public works project;

c.    The general contractor for the project must agree in writing to comply with all applicable laws concerning reporting and payment of prevailing wages for the project;

d.    The funds contributed to the project may not provide a pecuniary benefit to the owner of the development for which the project is being constructed, other than benefits that are shared by all members of the community;

e.    The performance of the general contractor and the payment of labor for the project must be secured by both performance and payment bonds or other cash-equivalent security that is acceptable to the purchasing manager to protect the county against defective performance and claims for payment; and

f.    The contract for construction of the project must be amended, as necessary, to require the general contractor to maintain adequate workers’ compensation and liability insurance and to protect and provide indemnification to the county for all claims for payment, injury or property damage arising from or related to the construction of the project.

C.    Personal Services Contracts.

1.    Personal Services Contracts Not Exceeding One Hundred Fifty Thousand Dollars ($150,000). Contracts for personal services for which the estimated contract price does not exceed one hundred fifty thousand dollars ($150,000) may be awarded using an informal solicitation for proposals.

2.    Award from Qualified Pool. Contracts for personal services for which the estimated contract price does not exceed seventy-five thousand dollars ($75,000) may be awarded by direct appointment, without competition, from a qualified pool.

3.    Personal Services Contracts Not Exceeding Twenty Thousand Dollars ($20,000) per Year. Contracts for which the solicitation agent estimates that payments will not exceed twenty thousand dollars ($20,000) in any fiscal year or one hundred fifty thousand dollars ($150,000) over the full term, including optional renewals, may be awarded under any method deemed in the county’s best interest by the solicitation agent, including by direct appointment.

4.    Personal Services Contracts for Continuation of Work. Contracts of not more than one hundred fifty thousand dollars ($150,000) for the continuation of work by a contractor who performed preliminary studies, analysis or planning for the work under a prior contract may be awarded without competition if the prior contract was awarded under a competitive process and the solicitation agent determines that use of the original contractor will significantly reduce the costs of, or risks associated with, the work.

5.    Selection for Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services. Contracts with an estimated fee less than one hundred thousand dollars ($100,000) may be made by direct appointment; contracts with an estimated fee less than two hundred fifty thousand dollars ($250,000) may use informal solicitation procedures; contracts with an estimated fee that exceeds two hundred fifty thousand dollars ($250,000) must comply with ORS 279C.110 for selection process.

D.    Hybrid Contracts. The following classes of contracts include elements of construction of public improvements as well as personal services and may be awarded under a request for proposals, unless exempt from competitive solicitation.

1.    Design/Build and CM/GC Contracts. Contracts for the construction of public improvements using a design/build or construction manager/general contractor construction method shall be awarded under a request for proposals. The determination to construct a project using a design/build or construction manager/general contractor construction method must be approved by the purchasing manager, upon facts that support a finding that the construction of the improvement under the proposed method is likely to result in cost savings, higher quality, reduced errors, or other benefits to the county.

2.    Energy Savings Performance Contracts (ESPCs). Unless the contract qualifies for award under another classification in this section, contractors for energy savings performance contracts shall be selected under a request for proposals in accordance with these regulations.

E.    Contracts for Goods and Services.

1.    Any Procurement. The procurement of goods or services in any amount may be made under either an invitation to bid in compliance with ORS 279B.055 or a request for proposals in compliance with ORS 279B.060.

2.    Intermediate Procurements. The procurement of goods or services for which the estimated contract price does not exceed one hundred fifty thousand dollars ($150,000) may be made under an informal solicitation for either quotes or proposals.

3.    Procurements in Excess of One Hundred Fifty Thousand Dollars ($150,000). The procurement of goods or services for which the estimated contract price exceeds one hundred fifty thousand dollars ($150,000) must be made by requesting and evaluating competitive sealed proposals or bids.

F.    Contracts Subject to Award at Purchasing Manager’s Discretion. The following classes of contracts may be awarded in any manner which the purchasing manager deems appropriate to the county’s needs, including by direct appointment or purchase. Except where otherwise provided, the solicitation agent shall make a record of the method of award.

1.    Advertising. Contracts for the placing of notice or advertisements in any medium.

2.    Amendments. Contract amendments shall not be considered to be separate contracts if made in accordance with the public contracting regulations.

3.    Animals. Contracts for the purchase of animals.

4.    Contracts up to Ten Thousand Dollars ($10,000). Contracts of any type for which the contract price does not exceed ten thousand dollars ($10,000).

5.    Copyrighted Materials—Library Materials. Contracts for the acquisition of materials entitled to copyright, including, but not limited to, works of art and design, literature and music, or materials even if not entitled to copyright, purchased for use as library materials.

6.    Equipment Repair. Contracts for equipment repair or overhauling, provided the service or parts required are unknown and the cost cannot be determined without extensive preliminary dismantling or testing.

7.    Government Regulated Items. Contracts for the purchase of items for which prices or selection of suppliers are regulated by a governmental authority.

8.    Insurance. Insurance and service contracts as provided for under ORS 414.115, 414.125, 414.135 and 414.145.

9.    Non-Owned Property. Contracts or arrangements for the sale or other disposal of abandoned property or other personal property not owned by the county.

10.    Specialty Goods for Resale. Contracts for the purchase of specialty goods by the county for resale to consumers.

11.    Sponsor Agreements. Sponsorship agreements, under which the county receives a gift or donation in exchange for recognition of the donor.

12.    Structures. Contracts for the disposal of structures located on county-owned property.

13.    Renewals. Contracts that are being renewed in accordance with their terms are not considered to be newly issued contracts and are not subject to competitive procurement procedures.

14.    Temporary Extensions or Renewals. 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 a contract for public improvements.

15.    Temporary Use of County-Owned Property. The county may negotiate and enter into a license, permit or other contract for the temporary use of county-owned property without using a competitive selection process if:

a.    The contract results from an unsolicited proposal to the county 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 the county’s use of the property and the public interest; and

c.    The county reserves the right to terminate the contract without penalty, in the event that the county determines that the contract is no longer consistent with the county’s present or planned use of the property or the public interest.

16.    Used Property. The purchasing manager, for procurements up to twenty thousand dollars ($20,000), may contract for the purchase of used property by negotiation if such property is suitable for the county’s needs and can be purchased for a lower cost than substantially similar new property. For this purpose the cost of used property shall be based upon the life-cycle cost of the property over the period for which the property will be used by the county. The purchasing manager shall record the findings that support the purchase.

17.    Utilities. Contracts for the purchase of steam, power, heat, water, telecommunications services and other utilities.

G.    Contracts under Emergency Circumstances.

1.    In General. When an official with authority to enter into a contract on behalf of the county determines that immediate execution of a contract within the official’s authority is necessary to prevent substantial damage or injury to persons or property, the official may execute the contract without competitive selection and award, but, where time permits, the official shall attempt to use competitive price and quality evaluation before selecting an emergency contractor.

2.    Reporting. An official who enters into an emergency contract shall, as soon as possible:

a.    Document the nature of the emergency, the method used for selection of the particular contractor and the reason why the selection method was deemed in the best interest of the county and the public; and

b.    Notify the board of the facts and circumstances surrounding the emergency execution of the contract.

3.    Emergency Public Improvement Contracts. A public improvement contract may only be awarded under emergency circumstances if the purchasing manager or the board has made a written declaration of emergency. Any public improvement contract award under emergency conditions must be awarded within sixty (60) days following the declaration of an emergency unless the board grants an extension of the emergency period. Where the time delay needed to obtain a payment or performance bond for the contract could result in injury or substantial property damage, the purchasing manager may waive the requirement for all or a portion of required performance and payment bonds.

H.    Federal Purchasing Programs. Goods and services may be purchased without competitive procedures under a local government purchasing program administered by the United States General Services Administration (“GSA”) as provided in this subsection.

1.    The procurement must be made in accordance with procedures established by GSA for procurements by local governments, and under purchase orders or contracts submitted to and approved by the purchasing manager.

2.    The price of the goods or services must be established under price agreements between the federally approved vendor and GSA.

3.    The price of the goods or services must be less than the price at which such goods or services are available under state or local cooperative purchasing programs that are available to the county.

4.    If a single purchase of goods or services exceeds one hundred fifty thousand dollars ($150,000), the purchasing manager must obtain informal written quotes or proposals from at least two additional vendors (if reasonably available) and find, in writing, that the goods or services offered by GSA represent the best value for the county. This subsection does not apply to the purchase of equipment manufactured or sold solely for military or law enforcement purposes.

I.    Cooperative Procurement Contracts. Cooperative procurements may be made without competitive solicitation as provided in the Oregon Public Contracting Code, ORS 279A.200 to 279A.225.

J.    Sole Source Contracts. Contracts for goods or services which are only available from a single source may be awarded without competition pursuant to ORS 279B.075. The purchasing manager shall verify that the goods or services, or class of goods or services, are available from only one source. To the extent feasible, the county shall negotiate with the sole source to obtain contract terms advantageous to the county. The county’s determination of a sole source must be based on written findings that may include:

1.    The efficient utilization of existing goods or services requires the acquisition of compatible goods or services;

2.    The goods or services required for the exchange of software or data with other public or private agencies are available from only one source;

3.    The goods or services are for use in a pilot or an experimental project; or

4.    Other findings that support the conclusion that the goods or services are available from only one source.

If the county determines that it may enter into a contract as a sole source where the contract exceeds one hundred fifty thousand dollars ($150,000), the county shall give public notice of the board’s determination that the goods or services or class of goods or services are available from only one source. The county shall publish such notice in a manner similar to public notice of competitive sealed bids under ORS 279B.055(4). The public notice shall describe the goods or services to be acquired by a sole-source procurement, identify the prospective contractor and include the date, time and place that protests are due. Affected persons shall have at least seven days from the date of the notice of the sole-source determination to protest the sole-source determination.

K.    Concession Agreements.

1.    General. No part of a concession agreement shall contain or constitute a waiver of any generally applicable rules, code provisions or requirements of the county concerning regulation, registration, licensing, inspection, or permit requirements for any construction, rental or business activity.

2.    Classes of Contracts Eligible for Award without Competition. The following concession agreements may be awarded by any method deemed appropriate by the solicitation agent, including, without limitation, by direct appointment, private negotiation, from a qualified pool, or using a competitive process.

a.    Contracts under Five Thousand Dollars ($5,000). Contracts under which the solicitation agent estimates that receipts by the county will not exceed five thousand dollars ($5,000) in any fiscal year and fifty thousand dollars ($50,000) in the aggregate.

b.    Single Event Concessions. Concessions to sell or promote food, beverages, merchandise or services at a single public event shall be awarded based on any method determined by the purchasing manager to provide a fair opportunity to all persons desiring to operate a concession, but in which the promotion of the public interest and success of the event shall be of predominant importance.

3.    Competitive Award. Concession agreements solicited by the county for the use of designated public premises for a term greater than a single event shall be awarded as follows:

a.    Small Concessions. For concession agreements for which the concessionaire’s projected annual gross revenues are estimated to be one hundred thousand dollars ($100,000) or less, the purchasing manager has discretion to use either an informal solicitation or formal request for proposals process applicable to contracts for personal services. If the proposals received indicate a probability that the concessionaire’s annual gross revenues will exceed one hundred thousand dollars ($100,000), the solicitation agent may, but shall not be required to, reissue the solicitation as a request for proposals.

b.    Major Concessions. Concession agreements for which the concessionaire’s projected annual gross revenues under the contract are estimated to exceed one hundred thousand dollars ($100,000) annually shall be awarded using a formal request for proposals. (Ord. O-18-19 § A Exh. A (part), 2019: Ord. O-27-05 § 2 (part), 2005)

3.04.090 Informal solicitation procedures.

A.    Informally Solicited Quotes and Proposals.

1.    Solicitation of Offers. When authorized by these regulations, an informal solicitation may be made by general or limited advertisement to a certain group of vendors, by direct inquiry to persons selected by the solicitation agent, or in any other manner which the solicitation agent deems suitable for obtaining competitive quotes or proposals. The solicitation agent shall deliver or otherwise make available to potential offerors a written scope of work, a description of how quotes or proposals are to be submitted and description of the criteria for award.

2.    Award. The solicitation agent shall attempt to obtain a minimum of three written quotes or proposals before making an award. If the award is made solely on the basis of price, the solicitation agent shall award the contract to the responsible offeror that submits the lowest responsive quote. If the award is based on criteria other than, or in addition to, price, the solicitation agent shall award the contract to the responsible offeror that will best serve the interest of the county, based on the criteria for award and the standards of responsibility set forth in ORS 279B.110 or 279C.375.

3.    Records. A written record of all persons solicited and offers received shall be maintained. If three offers cannot be obtained, a lesser number will suffice; provided, that a written record is made of the effort to obtain the quotes.

B.    Qualified Pools.

1.    General. To create a qualified pool, the purchasing manager may invite prospective contractors to submit their qualifications to the county for inclusion as participants in a pool of contractors qualified to provide certain types of goods, services, or projects including personal services and public improvements.

2.    Advertisement. The invitation to participate in a qualified pool shall be advertised in the manner provided for advertisements of invitations to bid and requests for proposals by publication in at least one newspaper of general statewide circulation. If qualification will be for a term that exceeds one year or allows open entry on a continuous basis, the invitation to participate in the pool must be republished at least once per year and shall be posted at the county’s main office and on its website.

3.    Contents of Solicitation. Requests for participation in a qualified pool shall describe the scope of goods or services or projects for which the pool will be maintained, and the minimum qualifications for participation in the pool, which may include, but shall not be limited to, qualifications related to financial stability, contracts with manufacturers or distributors, certification as an emerging small business, insurance, licensure, education, training, experience and demonstrated skills of key personnel, access to equipment, and other relevant qualifications that are important to the contracting needs of the county.

4.    Contract. The operation of each qualified pool may be governed by the provisions of a pool contract to which the county and all pool participants are parties. The contract shall contain all terms required by the county, including, without limitation, terms related to price, performance, business registration or licensure, continuing education, insurance, indemnification, labor and employment requirements, and requirements for the submission, on an annual or other periodic basis, of evidence of continuing qualification. The qualified pool contract shall describe the selection procedures that the county may use to issue contract job orders. The selection procedures shall be objective and open to all pool participants and afford all participants the opportunity to compete for or receive job awards. Unless expressly provided in the contract, participation in a qualified pool will not entitle a participant to the award of any county contract.

5.    Use of Qualified Pools. Subject to the provisions of these regulations concerning methods of solicitation for classes of contracts, the purchasing manager shall award all pool contracts for goods or services of the type for which a qualified pool is created from among the pool’s participants, unless the purchasing manager determines that best interests of the county require solicitation by public advertisement, in which case pool participants shall be notified of the solicitation and invited to submit competitive proposals.

6.    Amendment and Termination. The purchasing manager may discontinue a qualified pool at any time, or may change the requirements for eligibility as a participant in the pool at any time, by giving notice to all participants in the qualified pool.

7.    Protest of Failure to Qualify. The purchasing manager shall notify any applicant who fails to qualify for participation in a pool that it may appeal a qualified pool decision to the board in the manner described in Section 3.04.140. (Ord. O-18-19 § A Exh. A (part), 2019: Ord. O-27-05 § 2 (part), 2005)

3.04.100 Use of brand name specifications for public improvements.

A.    In General. Specifications for contracts shall not expressly or implicitly require any product by one brand name or mark, nor the product of one particular manufacturer or seller, except for the following reasons:

1.    It is unlikely that such exemption will encourage favoritism in the awarding of public improvement contracts or substantially diminish competition for public improvement contracts;

2.    The specification of a product by brand name or mark, or the product of a particular manufacturer or seller, would result in substantial cost savings to the county;

3.    There is only one manufacturer or seller of the product of the quality required; or

4.    Efficient utilization of existing equipment, systems or supplies requires the acquisition of compatible equipment or supplies.

B.    Authority of Purchasing Manager. The purchasing manager shall have authority to determine whether an exemption for the use of a specific brand name specification should be granted by recording findings that support the exemption based on the provisions of subsection A of this section.

C.    Brand Name or Equivalent. Nothing in this section prohibits the county from using a “brand name or equivalent” specification; from specifying one or more comparable products as examples of the quality, performance, functionality or other characteristics of the product needed by the county; or from establishing a qualified product list. (Ord. O-18-19 § A Exh. A (part), 2019: Ord. O-27-05 § 2 (part), 2005)

3.04.110 Bid, performance and payment bonds.

A.    Solicitation Agent May Require Bonds. The purchasing manager may require bid security and good and sufficient performance and payment bonds even though the contract is of a class that is exempt from the requirement.

B.    Bid or Proposal Security.

1.    If the county requires bids or proposal security, it shall be ten (10) percent of the offeror’s bids or proposal. The offeror shall forfeit its security after award if the offeror fails to execute the contract and promptly return it with any required contract elements such as a performance bond within fourteen (14) days of award unless the board finds otherwise. Unless the county has otherwise exempted a solicitation from bids security pursuant to ORS 279C.390, the county shall require bids security for public improvement procurements.

2.    Form of Security. The purchasing manager may accept as security a cashier’s check or certified check in lieu of all or a portion of the required bond, an irrevocable letter of credit or a surety bond.

3.    Return of Security. The county shall return or release the bids or proposal security of all unsuccessful offerors after a contract has been fully executed and all required bonds have been provided, or after all offers have been rejected. The county may return the bids or proposal of unsuccessful offerors prior to award if the return does not prejudice the contract award and the security of the three lowest bids or three highest scoring proposals is retained pending execution of the contract.

C.    Performance and Payment Bonds.

1.    General. Except as provided in these regulations, all public contracts are exempt from the requirement for the furnishing of performance and payment bonds.

2.    Contracts Involving Public Improvements. Unless the county has exempted a solicitation from a performance and/or payment bond under ORS 279C.390, prior to executing a public improvement contract for more than one hundred thousand dollars ($100,000), or in the case of contracts for highways, bridges and other transportation projects more than fifty thousand dollars ($50,000), the contractor must deliver a performance bond in an amount equal to the full contract price conditioned on the faithful performance of the contract in accordance with the plans, specifications and conditions of the contract solely for the protection of the county and any public agency that is providing funding for the project for which the contract was awarded, and a payment bond in an amount equal to the full contract price, solely for the protection of claimants under ORS 279C.600.

3.    Form of Bond. The purchasing manager may accept as a bond a cashier’s check or certified check in lieu of all or a portion of the required bond, an irrevocable letter of credit or a surety bond.

D.    Design/Build Contracts. If the public improvement contract is with a single person to provide both design and construction of a public improvement, the obligation of the performance bond for the faithful performance of the contract must also be for the preparation and completion of the design and related services covered under the contract. Notwithstanding when a cause of action, claim or demand accrues or arises, if the surety is not liable after final completion of the contract, or longer if provided for in the contract, for damages of any nature, economic or otherwise, and including corrective work, attributable to the design aspect of a design-build project, or for the costs of design revisions needed to implement corrective work, then the contractor or its insurer, as a condition of the contract award, shall be liable for all such damages.

E.    Construction Manager/General Contractor Contracts. If the public improvement contract is with a single person to provide construction manager and general contractor services, in which a guaranteed maximum price may be established by an amendment authorizing construction period services following preconstruction period services, the contractor shall provide the bonds required by this section upon execution of an amendment establishing the guaranteed maximum price. The county shall also require the contractor to provide bonds equal to the value of construction services authorized by any early work amendment in advance of the guaranteed maximum price amendment. Such bonds must be provided before construction starts.

F.    Surety—Obligation. Each performance bond and each payment bond must be executed solely by a surety company or companies holding a certificate of authority to transact surety business in Oregon. The bonds may not constitute the surety obligation of an individual or individuals. The performance and payment bonds must be payable to the county or to the public agency or agencies for whose benefit the bond is issued, as specified in the solicitation documents, and shall be in a form approved by the purchasing manager.

G.    Emergencies. In cases of emergency, or when the interest or property of the county probably would suffer material injury by delay or other cause, the requirement of furnishing a good and sufficient performance bond and a good and sufficient payment bond for the faithful performance of any public improvement contract may be waived, if a declaration of such emergency is made in accordance with the provisions of Section 3.04.080, unless the county requires otherwise. (Ord. O-18-19 § A Exh. A (part), 2019: Ord. O-27-05 § 2 (part), 2005)

3.04.120 Electronic advertisement of public contracts.

In lieu of publication in a newspaper of general circulation in the area, the advertisement for an invitation to bid or request for proposals may be published electronically by posting on the county’s website; provided, that the following conditions are met:

A.    The placement of the advertisement is on a location within the website that is maintained on a regular basis for the posting of information concerning solicitations for projects of the type for which the invitation to bid or request for proposals is issued; and

B.    The solicitation agent determines that the use of electronic publication will be at least as effective in encouraging meaningful competition as publication in a newspaper of general circulation in the area and will provide costs savings for the county, or that the use of electronic publication will be more effective than publication in a newspaper of general circulation in the area in encouraging meaningful competition. (Ord. O-18-19 § A Exh. A (part), 2019: Ord. O-27-05 § 2 (part), 2005)

3.04.130 Appeal of debarment or prequalification decision.

A.    Right to Hearing. Any person who has been debarred from competing for county contracts or for whom prequalification has been denied, revoked or revised may appeal the purchasing manager’s decision to the board as provided in this section.

B.    Filing of Appeal. The person must file a written notice of appeal with the purchasing manager within three business days after the prospective contractor’s receipt of notice of the determination of debarment, or denial of prequalification.

C.    Notification of Appeal to Board. Immediately upon receipt of such notice of appeal, the purchasing manager shall notify the board of the appeal.

D.    Hearing. The procedure for appeal from a debarment or denial, revocation or revision of prequalification shall be as follows:

1.    Promptly upon receipt of a notice of appeal, the board shall notify the appellant of the time and place of the hearing;

2.    The board shall conduct the hearing and decide the appeal within thirty (30) days after receiving notice of the appeal from the purchasing manager; and

3.    At the hearing, the board shall consider de novo the notice of debarment, or the notice of denial, revocation or revision of prequalification, the standards of responsibility upon which the decision on prequalification was based, or the reasons listed for debarment, and any evidence provided by the appellant or county staff.

E.    Decision. The board shall set forth in writing the reasons for the decision.

F.    Costs. Costs of the appeal shall be paid by the appellant. (Ord. O-18-19 § A Exh. A (part), 2019: Ord. O-27-05 § 2 (part), 2005)

3.04.140 Award of contract.

A.    Negotiation When Bids Exceed Cost Estimate. In accordance with ORS 279C.340, if all responsive bids or proposals on a competitive solicitation exceed the county’s cost estimate, prior to contract award, the county may negotiate with the lowest responsible bidder in an attempt to bring the contract within the county’s cost estimate.

B.    Notice of Intent to Award. The county shall provide written notice of its intent to award a contract at least seven days before the award of a contract. The county’s award shall not be final until seven days after the date of the notice, unless the solicitation document provided a different period for protest. This requirement does not apply to contracts less than ten thousand dollars ($10,000) that are not competitively procured, intermediate procurements, sole source procurements, emergency procurements or special procurements.

C.    Protest. An adversely affected or aggrieved offeror must exhaust all avenues of administrative review and relief before seeking judicial review of the county’s award decision. The offeror may submit to the county a written protest of the county’s intent to award the contract within the protest period and must specify the grounds upon which the protest is based. An offeror is adversely affected or aggrieved only if the offeror is eligible for award of the contract as the responsible bidder submitting the lowest responsive bid, the responsible proposer submitting the best responsive proposal and is next in line for award or that the procurement is available by a party other than that proposed for a sole source contract. The board, or board’s designee, may issue a written decision on the protest subject to judicial review. (Ord. O-18-19 § A Exh. A (part), 2019)

3.04.150 Surplus property.

A.    General Methods. Surplus property may be disposed of by any of the following methods upon a determination by the solicitation agent that the method of disposal is in the best interest of the county. Factors that may be considered by the solicitation agent include costs of sale, administrative costs, and public benefits to the county. The solicitation agent shall 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. Disposal of property with a value greater than three thousand dollars ($3,000) must receive authorization from the county administrative officer. Disposal of property with a value greater than ten thousand dollars ($10,000) must receive authorization from the board.

1.    Governments. Without competition, by transfer or sale to another governmental agency or department.

2.    Auction. By publicly advertised auction to the highest bidder.

3.    Bids. By public advertised invitation to bid.

4.    Liquidation Sale. By liquidation sale using a commercially recognized third-party liquidator selected in accordance with rules for the award of personal services contracts.

5.    Fixed Price Sale. The solicitation agent may establish a selling price based upon an independent appraisal or published schedule of values generally accepted by the insurance industry, schedule and advertise a sale date, and sell to the first buyer meeting the sales terms.

6.    Trade-In. By trade-in, in conjunction with acquisition of other price-based items under a competitive solicitation. The solicitation shall require the offer to state the total value assigned to the surplus property to be traded.

7.    Donation. By donation to any organization operating within or providing a service to residents of the county, which is recognized by the Internal Revenue Service as an organization described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended.

B.    Disposal of Property with Minimal Value. Surplus property which has a value of less than five hundred dollars ($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. The official making the disposal shall make a record of the value of the item and the manner of disposal.

C.    Restriction on Sale to County Employees. County employees shall not be restricted from competing, as members of the public, for the purchase of publicly sold surplus property, but shall 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. (Ord. O-18-19 § A Exh. A (part), 2019)