Chapter 2.05
PUBLIC CONTRACTS
Sections:
2.05.010 Local contract review board.
2.05.020 Public contracting rules.
2.05.050 City manager authority.
2.05.070 Procurement of goods and services.
2.05.090 Personal service contracts.
2.05.100 Disposal of surplus personal property.
2.05.110 Public improvement contracts.
2.05.010 Local contract review board.
The city council is designated the local contract review board for the city and the city urban renewal agency under the Public Contracting Code and is the contracting agency where that term is used except where otherwise specified. The local contract review board may delegate its powers and responsibilities as contracting agency consistent with the Public Contracting Code, the city Charter, municipal code, the Model Rules, and any other applicable ordinances and resolutions. Notwithstanding the above, the city council acting as the urban renewal agency may approve URA contracts as the LCRB without the need for placing the matter on both agendas. (Ord. 2014-19 § 1; Ord. 2005-04 § 1)
2.05.020 Public contracting rules.
The local contract review board adopts the following rules as the city’s public contracting rules. The Model Rules adopted by the Attorney General to implement ORS Chapters 279A, 279B, and 279C do not apply, unless otherwise provided for herein or as adopted by ordinance or resolution of the local contact review board. (Ord. 2005-04 § 1)
2.05.030 Purchasing agent.
The city manager is the purchasing agent of the local contract review board and may act as the contracting agency as authorized. (Ord. 2005-04 § 1)
2.05.040 Model rules.
Except as specifically provided herein, or by subsequent ordinance or resolution, the Model Rules, OAR Chapter 137, Divisions 46, 47, and 49, adopted by the Attorney General under ORS Chapters 279A, 279B, and 279C, as they now exist, are hereby adopted as the city of Lincoln City’s public contracting code. (Ord. 2013-15 § 1; Ord. 2005-04 § 1)
2.05.045 Application.
The words used in this chapter shall have the same meaning as defined in the Public Contracting Code and the Model Rules. The “Public Contracting Code” refers to ORS Chapters 279A, 279B, and 279C, and as amended in the future. In the event that rules adopted by the local contract review board do not sufficiently address a particular circumstance, or a conflict between these rules and the Public Contracting Code and the Model Rules exists, the Public Contracting Code or the Model Rules shall apply. (Ord. 2005-04 § 1)
2.05.050 City manager authority.
The local contract review board authorizes the city manager and city staff designated by resolution (designated staff) to exercise additional responsibility for public contracting as follows:
A. Except as otherwise provided for emergency contracts, the city manager may enter into any and all contracts, change orders and amendments not requiring a formal procurement (ITB, RFP, or selection) process or the approval of a special procurement or other authorization by the local contract review board. The city manager’s authority extends to the limits of all intermediate and small procurements and informal selection, including authorized changes, and is generally described, without limitation, as follows:
1. For a single obligation not exceeding $150,000 for the purchase of goods and services, supplies, materials, equipment, or contractual services, without further authorization by council (total with change orders may not exceed $150,000);
2. For a single obligation not exceeding $100,000 for professional and personal services, including but not limited to architectural, engineering, photogrammetric mapping, transportation planning, land surveying services and related services as defined in ORS 279C.100 (total with change orders may not exceed $100,000); and
3. For an obligation not exceeding $100,000 for public improvement contracts (except the total single obligation (i.e., with change orders) may be approved up to $150,000 – per LCMC 2.05.110(B)(3)).
As used herein, “single obligation” includes the original contract and any change orders. Any change order which would cause the total contract to exceed the city manager’s delegated authority set forth above must be approved by the contract review board.
The council may by resolution limit or condition the contracting authority of the city manager, including but not limited to monetary limits, or procedural safeguards such as sign off by the finance director as to legally available funds, or sign off by the city attorney as to form of the contract.
Any contract or procurement approved by the local contract review board may specify a percentage or dollar amount of authority delegated to the city manager to approve an amendment or change order. If the LCRB contract does not otherwise specify, the delegation to the manager to approve a change order or amendment shall be equal to the authorized contingency percentage or dollar amount on the contract.
B. Designated staff are hereby delegated contracting authority to the limits of small procurements under the applicable Model Rules or 10 percent of the monetary limit delegated to the city manager, whichever is greater. Notwithstanding this delegation, the city manager may limit or condition the contracting authority of any designated staff by written order, including but not limited to monetary limits, or requiring a sign off by the finance director as to legally available funds, or sign off by the city attorney as to the form of the contract, or city manager approval of a purchase order prior to execution of the contract.
C. The city manager shall adopt administrative procedures and policies, computer software programs, and forms as necessary or required to implement the administration of all public contracting in the city, as authorized by City Charter, municipal code, the local contract review board, or these rules. At a minimum, contracts shall include the following:
1. Unless otherwise approved by the contracting agency, all city contracts shall require the contractor to defend, indemnify, and hold harmless the city, its officers, agents and employees against and from any and all claims or demands for damages of any kind arising out of or connected in any way with the contractor’s performance under the contract and shall include a waiver of contractor’s right to ORS 30.285 and 30.287 indemnification and defense.
2. Unless otherwise approved by the contracting agency, city contracts shall contain a provision requiring the person or entity providing the service to obtain and maintain liability insurance coverage in at least the amount of the city’s tort liability limits, naming the city as an additional named insured, during the life of the contract.
3. The city attorney in consultation with the city manager shall be responsible for providing contract forms that meet all requirements of state law and the municipal code, including but not limited to provisions for indemnification, insurance, and worker’s compensation. These provisions may be incorporated in the contract by reference to state law, unless state law provides otherwise.
D. The city manager shall have discretion to implement any desired method of advertising or communicating the city’s announcement or procurement of contracts, including using electronic means.
E. The delegation of contracting authority to the city manager and designated staff includes the authority to sign any and all associated contract documents, including but not limited to exemption findings necessary for the contract.
F. Nothing herein prohibits the city manager or department head from requesting the local contract review board approve a public contract or procurement. (Ord. 2018-10 § 1; Ord. 2014-19 § 2; Ord. 2013-15 § 2; Ord. 2005-04 § 1)
2.05.060 Public contracts.
Except as specifically provided herein, the solicitation and award of public contracts in the city shall be accomplished pursuant to the Public Contracting Code, the Model Rules as they now exist, and the Lincoln City Municipal Code. (Ord. 2013-15 § 3; Ord. 2005-04 § 1)
2.05.070 Procurement of goods and services.
Procurement of goods and services shall be awarded as provided in the Public Contracting Code, ORS Chapter 279B, the Model Rules, and these rules.
A. Any procurement of goods or services shall be accomplished by competitive bid or proposal, except as provided herein.
B. A procurement of goods and services exceeding $10,000 but not exceeding $150,000 may be awarded as provided in ORS 279B.070. The local contract review board or city manager as contracting agency may use an intermediate procurement method, seeking at least three informally solicited competitive price quotes or competitive proposals from prospective contractors. The contracting agency shall keep a written record of the sources of the quotes or proposals received. If three quotes or proposals are not reasonably available, fewer will suffice, but the contracting agency shall make a written record of the effort made to obtain the quotes or proposals. (Ord. 2013-15 § 4; Ord. 2005-04 § 1)
2.05.080 Exemptions.
The following classes of public contracts are exempt from competitive procurement:
A. Emergency Contracts.
1. The city may declare an emergency and enter into a public contract without first obtaining competitive bids or proposals. “Emergency” means circumstances that meet all of the following requirements:
a. There is a substantial risk of loss, damage, or unnecessary or undesirable disruption or interruption or degradation of public facilities or services, or a threat to public health or safety;
b. The circumstances require prompt award and execution of a contract to remedy the situation resulting from the circumstances; and
c. Due to lack of sufficient time or other reasons related to the circumstances, the contract should be awarded without first obtaining competitive bids or proposals.
2. Emergency contracts under $100,000. The city manager may exercise the city’s authority for emergency contracts up to $100,000. At the first city council meeting following declaration of an emergency under this section, the city manager shall provide a written report to the city council describing the contract and explaining the circumstances that created the emergency.
3. Emergency contracts of $100,000 or more. The city council may exercise the city’s authority for emergency contracts of $100,000 or more. Prior to the city council’s declaration of an emergency, the city manager shall provide a written report to the city council describing the proposed contract and explaining the circumstances that create the emergency.
4. Award within 60 days. The city shall not award an emergency contract under this rule if 60 days have expired since declaration of the emergency, unless an extension is granted by the city council.
B. Change orders or contract amendments reasonably related to the scope of work, up to 25 percent of the contract price.
C. Contracts for the purchase of computer equipment and software, which may be obtained by quotes under the procedures provided in LCMC 2.05.110.
D. Contracts for goods or services less than $10,000, provided at least one quote has been obtained.
E. Purchases through federal programs, pursuant to ORS 279A.18.
F. Sole source contracts where an attempt has been made to solicit interest but only a single source has been identified, provided:
1. The local contract review board or city manager determines in writing that the goods or services are available from only one source.
2. The determination of sole source shall be based on findings, which may include: the factors in ORS 279B.075(2) or other findings that support the conclusion that goods or services are available from only one source.
G. Contracts for natural gas, electricity including street lighting, local telephone service, cable and telecommunications services, and any other utility service.
H. Contracts for personal services as defined in this chapter.
I. Price regulated items, library periodicals, advertising contracts, equipment maintenance repair and overhaul, purchases under established price agreements, gasoline, diesel fuel, heating oil, lubricants and asphalt, investment contracts, insurance contracts, office copier purchases, and oil or hazardous material removal.
J. Brand name specification contracts for equipment and supplies needed to replace or repair equipment in facilities operating with specialized equipment, such as water or sewer facilities, provided the local contract review board, or city manager for contracts less than $25,000, approves the description of the proposed contracting procedure, the goods or services to be acquired, and the circumstances that justify the use of a special procurement. The local contract review board may approve any special procurement method in accordance with ORS 279B.085.
K. Any contract exempted by the Public Contracting Code or Model Rules.
L. Any other contract in which the local contract review board makes a determination that the public interest would be promoted by exempting the contract from the competitive bidding process, provided the exemption is adopted pursuant to the Public Contracting Code and these rules. (Ord. 2014-19 § 3; Ord. 2013-15 § 5; Ord. 2005-04 § 1)
2.05.090 Personal service contracts.
“Personal service contracts” are contracts for services performed by independent contractors, with specialized knowledge, skill, or resources, or which require the exercise of professional, artistic, or management discretion or judgment, or as may be determined by the local contract review board or the city manager.
A. “Personal services” includes, but is not limited to, the following professions:
1. Accountant;
2. Advertising consultant;
3. Artist;
4. Administrator;
5. Administrative assistant;
6. Analyst;
7. Appraiser;
8. Arborist;
9. Architect;
10. Attorney;
11. Auditor;
12. Educator;
13. Engineer;
14. Environmental consultant or expert;
15. Financial consultant;
16. Health services consultant;
17. Human resources specialist;
18. Hydrologist;
19. Investigator;
20. Insurance consultant;
21. Information systems or computer specialist;
22. Land surveyor;
23. Land use or planning consultant;
24. Manager;
25. Management systems consultant;
26. Marketing consultant;
27. Project manager;
28. Public relations consultant;
29. Realtor;
30. Receptionist;
31. Secretary;
32. Training consultant;
33. Wetlands biologist;
34. Writer;
35. Any contractor identified by the local contract review board or city manager as a contractor for personal services.
B. Unless provided herein, all personal services contracts shall be awarded by a competitive selection process.
C. For personal service contracts involving $25,000 or less per year, the city manager as contracting agency is authorized to negotiate for such services with any qualified contractor.
D. Where the amount of the personal services contract is anticipated to be more than $25,000 per year but less than $100,000 per year, the local contract review board through the city manager shall solicit at least three prospective contractors who appear to have at least minimum qualifications for the proposed assignment, notify each prospective contractor in reasonable detail of the proposed assignment, and determine the prospective contractor’s interest and ability to perform the proposed assignment. The contracting agency may also negotiate a contract for such services with any qualified contractor. A contract of $100,000 or more for architectural, engineering, photogrammetric mapping, transportation planning, land surveying, or related services as defined by ORS 279C.100(8) shall be selected in accordance with the qualification based selection (QBS) process mandated by Chapter 458 Oregon Laws (2011) and applicable implementing administrative rules.
E. The contracting agency may arrange for any or all interested prospective contractors to be interviewed for the assignment by an appropriate city employee or by an interview committee. Following a review of the qualifications and interview, where conducted, of the interested prospective contractors, the contracting agency shall select the prospective contractor and shall prepare a personal service contract.
F. As appropriate, the personal services contract may be advertised by any method designed to solicit a pool of qualified competitive applicants, including advertising by electronic means.
G. At the time of award of a personal services contract or any time thereafter, the local contract review board may authorize terms under which the city manager may supplement, extend, amend, or renew any personal services contract.
H. The local contract review board or city manager shall consider the following criteria in evaluation and selection of a personal services contractor:
1. Specialized experience in the type of work to be performed.
2. Capacity and capability to perform the work, including any specialized services, within the time limitations for the work.
3. Educational and professional record, including past record of performance on contracts with governmental agencies and private parties with respect to cost control, quality of work, the exercise of discretion, ability to meet schedules, and contract administration, where applicable.
4. Availability to perform the assignment and familiarity with the area in which the specific work is located, including knowledge of design or techniques peculiar to it, where applicable.
5. Any other factors relevant to the particular contract.
I. The selection procedures described in this section may be waived by the city manager, at his or her discretion, under the following circumstances:
1. An emergency exists that could not have been reasonably foreseen and requires such prompt execution of a contract to remedy the situation that there is not sufficient time to implement selection procedures; or
2. Selection is from an approved list of qualified service providers with similar qualifications and placement on the list is determined based upon a qualification process conducted at least every three years; or
3. The work is follow-on work and a change in contractor would clearly result in increased costs or increased time. (Ord. 2022-13 § 1; Ord. 2013-15 § 6; Ord. 2005-04 § 1)
2.05.100 Disposal of surplus personal property.
A. Determination of Surplus and Valuation.
1. The local contract review board shall determine whether any personal property is surplus and shall establish an estimate of value. Valuation shall be based on any method of valuation commonly used in municipal financial practices or as recommended by the city manager in the particular circumstances.
2. Where the estimated value of surplus property is $5,000 or less, the city manager shall have authority to make a determination that any personal city property is surplus.
B. Procedure.
1. After property has been determined to be surplus and an estimate of value established, the city manager shall select a method of disposal that, in the discretion of the city manager, is likely to result in the greatest net benefit to the city, considering net financial benefit, cost of disposal, and the public welfare.
2. The city manager shall retain a written record of the disposal, including a statement containing the basis for the determination of surplus, the valuation method, if any, and the procedure used for disposal.
3. The city manager may dispose of surplus personal property as follows:
a. By sale to the highest qualified buyer after advertisement at least one week prior to sale;
b. By trade for the acquisition of other equipment or supplies;
c. By sale at public auction, including Internet auction, after advertisement at least one week prior to sale in a newspaper of general circulation or notice on the city or other municipal organization website, with sale by cash to the highest bidder;
d. By sale at a fixed price;
e. By donation or by agreement for use by a private nonprofit or public entity; and
f. By any other means of sale or exchange appropriate in the circumstances.
C. All proceeds of sale shall be paid to the city’s general fund, subject to the terms and conditions of contract, if any, approved by the contracting agency between the city and a firm selected to conduct the sale or auction.
D. The city council may dispose of surplus property by donation or by agreement for use, operation, or maintenance by one or more private nonprofit or public entities, upon a determination that the disposal will promote the economic development or the public welfare of the city.
E. Personal property shall be disposed of “as is,” without any warranty, express or implied. Sales and advertisement of disposal under this chapter may be conducted by electronic means. (Ord. 2017-21 § 1; Ord. 2005-04 § 1)
2.05.110 Public improvement contracts.
Public improvement contracts shall be awarded by competitive bid or as provided by the Public Contracting Code or these rules.
A. Exemptions. The local contract review board may exempt any public improvement contract or class of contracts under $100,000 from the requirements of this section and award a public improvement by competitive proposal or competitive quotes, provided the local contract review board approves the exemption as provided in this section.
B. Public improvement contracts not to exceed $100,000 may be based on competitive quotes under the following procedures:
1. The local contract review board authorizes the city manager as contracting agency to informally solicit at least three price quotes from prospective contracts. If three prospective contractors are not available, then fewer quotes may be solicited. The city manager shall maintain records of the attempts to obtain quotes.
2. The local contract review board shall award the contract to the prospective contractor whose quote will best serve the interests of the city, taking into account price, experience, specific expertise, availability, project understanding, contractor capacity, contractor responsibility, and other similar selection criteria. If the contract is not awarded on the basis of lowest price, the local contract review board shall make a written record of the basis for the award.
3. Intermediate level public improvement contracts obtained by competitive quotes may be increased above the original amount of award by contracting agency issuance of a change to the work or amendment, up to an aggregate contract price increase of 25 percent over the original contract amount when the contracting agent determines that a price increase is warranted for additional reasonably related work, and up to 50 percent over the original contract amount when the contracting agent determines that a price increase is warranted for additional reasonably related work and the local contract review board approves the increase.
C. The local contract review board authorizes the city manager as contracting agency to let public improvement contracts based on competitive quotes as provided herein where the city manager estimates the contract price not to exceed $100,000.
D. Construction contracts that are not public improvements, including minor alterations, ordinary repair, or maintenance of a public improvement, shall be procured as provided in ORS Chapter 279B.
E. Prequalification.
1. Where the city manager determines it is in the public interest to prequalify bidders on public improvement projects, bidders shall be prequalified as determined by the city. The city manager may allow bidders to meet prequalification requirements by submittal of an approved application for prequalification by ODOT, or due to the nature of the contract, by meeting prequalification requirements by completing and submitting a form provided by the city. Prequalification submittals must be completed by the date required by the city.
2. Where the city requires mandatory prequalification, offers from persons that are not prequalified shall not be considered.
3. The city manager shall be responsible for prescribing the form of prequalification based on the following criteria and any other criteria relevant to the contract:
a. Description of relevant experience;
b. Description of project experience with the city;
c. Description of project experience with other public agencies;
d. Contact information for prior project supervisors;
e. Financial capability;
f. Company history and officers; and
g. Any other relevant standard.
4. The city manager shall approve or disapprove applications for prequalification. If the city manager denies prequalification to an applicant, the city manager shall provide the applicant with notice of denial, specify the basis for decision, and provide opportunity for appeal of the decision to the local contract review board as provided in the Public Contracting Code, ORS 279C.445 and 279C.450.
F. Negotiations. If bids are solicited for a public improvement contract, and all bids exceed the budget for the project, the contracting agent may, prior to contract award, negotiate for a price within the project budget under the following procedures:
1. Negotiations will begin with the lowest responsive, responsible bidder. If negotiations are not successful, then the contracting agent may begin negotiations with the second-lowest responsive, responsible bidder, and so on.
2. Negotiations may include value engineering and other options to attempt to bring the project cost within the budgeted amount.
3. A contract may not be awarded under this section if the scope of the project is significantly changed from the description in the original bid documents.
4. The contracting agent will adhere to the provisions of ORS 279C.340 in applying this section.
G. Rejection of Bid. The contracting agency may reject any bid not in compliance with all prescribed public bidding procedures and requirements and may reject all bids if it is in the public interest to do so. A rejection may be based on any of the following findings:
1. 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; or
2. The person does not have equipment available to perform the contract; or
3. The person does not have personnel or sufficient experience or expertise to perform the contract; or
4. The person has repeatedly breached contractual obligations to public and/or private contracting agencies.
H. Appeal of Disqualification. A person who has been disqualified as a bidder may appeal such disqualification to the local contract review board as follows:
1. Within three business days of receipt of notice of disqualification, the disqualified bidder shall notify the city recorder in writing that the person wishes to appeal the disqualification;
2. Immediately upon receipt of the written notice of appeal, the city recorder shall inform the local contract review board;
3. Upon receipt of such notification from the city recorder, the local contract review board shall direct the city recorder to deliver notice to the person appealing and to provide the time and place of the hearing on the appeal; and
4. At a public hearing, the local contract review board shall consider de novo the notice of disqualification, the record of the investigation made by the city manager and/or the city manager’s designee, and any evidence provided by the parties. The hearing shall be conducted and the appeal decided within 14 days after the board receives notification from the city recorder. The board shall issue a final order of decision containing written findings not more than 14 days after decision on the appeal. (Ord. 2013-15 § 7; Ord. 2005-04 § 1)
2.05.120 Additional powers.
In addition to the powers and duties established in this code, the local contract review board shall have such additional powers as authorized by state law and may also:
A. Require notice publication in addition to that required by state law;
B. Make alternate arrangements for retainage pursuant to the Public Contracting Code; or
C. Grant exemptions from the bid security and performance bond required on contracts for public improvements. (Ord. 2005-04 § 1)