Chapter 2.48 FTA PROCUREMENT POLICY FTA PROCUREMENT POLICY

Chapter 2.48
FTA PROCUREMENT POLICY

Sections:

2.48.010 Introduction.

2.48.020 Code of ethics and conflict of interest policy.

2.48.030 City of Sisters – Responsibilities under federal law.

2.48.040 Sources of acquisitions.

2.48.050 Procedures for open market procurements.

2.48.060 Contract administration requirements and considerations.

2.48.010 Introduction.

(1) Purpose. This chapter establishes guidelines and minimum standards that city of Sisters (“city”) will use in the management of subject third-party contracts. This chapter is intended to ensure that city complies with Federal Transit Administration (“FTA”) and Oregon Department of Transportation (“ODOT”) standards to ensure full and open competition and equitable treatment of all potential sources for all purchases made with funding derived from federal, state, and local governments. In all purchasing activity, the goal of city is to ensure maximum open and free competition consistent with the following:

(a) FTA Circular 4220.1F, “Third Party Contracting Guidance,” or latest version thereof;

(b) 2 CFR Sections 200.317 through 200.326; and

(2) Applicability.

(a) This chapter applies to all procurements undertaken and financed, in whole or in part, with FTA financial assistance provided to city to support open market procurements. An open market solicitation is used to purchase a good or service by soliciting from any available source. Most city procurement activity will be undertaken on the open market. Open market procurements exclude, among other transactions and/or procurements excluded under applicable law, the following:

(i) Employment contracts;

(ii) Real estate contracts; and

(iii) Intergovernmental agreements.

(b) The goal of this chapter is to provide an atmosphere in which all procurement transactions will be conducted in a manner providing full and open competition. To this end, city will avoid the following situations considered restrictive of competition:

(i) Application of unreasonable requirements placed on firms to qualify to do business;

(ii) Imposition of geographic preference standards in the selection of vendors;

(iii) Imposition of unnecessary experience and excessive bonding requirements;

(iv) Use of noncompetitive pricing practices between firms or between affiliated companies;

(v) Employment of noncompetitive awards to any person or firm on retainer contracts;

(vi) Failure to recognize organizational conflicts of interest, which means that because of other activities, relationships, or contracts, a contractor is unable, or potentially unable, to render impartial assistance or advice to the grantee; a contractor’s objectivity in performing the contract work is or might be otherwise impaired; or a contractor has an unfair competitive advantage;

(vii) Use of brand name specifications without listing its salient characteristics and not allowing an equal product to be offered; and

(viii) Any arbitrary action in the procurement process.

City will conduct procurements in a manner that does not give in-state or local geographical preferences in the evaluation of bids or proposals, except in those cases where applicable federal statutes expressly mandate or encourage geographic preference. This does not preempt Oregon licensing laws from being considered in those disciplines that are regulated by the state of Oregon. Geographic location may be a selection criterion in procurements for architectural and engineering (“A&E”) services if an appropriate number of qualified firms, given the nature and size of the project, are able to compete for the contract.

(3) Third-Party Contracting Capacity. FTA regulations (2 CFR Section 200.319(c) and FTA Circular 4220.1F, Chapter III, Section 3(a) require city to have written procurement procedures. This chapter is designed to meet FTA and ODOT requirements in this regard.

(4) Relationship to Other City Policies. The purpose of this chapter is twofold. First, city has established this chapter to conform to the provisions of federal procurement regulations that govern city’s use of FTA and ODOT funds. Second, this chapter ensures that materials, supplies, services, and equipment required for efficient and effective operation of any transit programs are procured with regard to an analysis of price, quality, quantity, terms, and delivery specifications. Notwithstanding anything contained in this chapter to the contrary, this chapter pertains only to city’s purchases made with FTA funds for transit programs; purchases with local funds and for purposes other than transit programs will follow applicable federal, state, and local laws, regulations, and ordinances, including, without limitation, city’s public contracting ordinance (Chapter 2.45 SMC, as amended).

This chapter may not answer all questions related to purchasing; if any employee of city has a question regarding these procedures, ODOT should be contacted for clarification and guidance.

When city undertakes any purchase utilizing FTA funds, this chapter will supersede any existing purchasing policy promulgated by city. When any conflict exists between this chapter and any other existing city policies, the procedures in this chapter will prevail. If a city employee determines that a conflict exists between this chapter and state and/or local laws, city will contact ODOT and communicate the conflict. [Ord. 502 § 1 (Exh. A § 1), 2020].

2.48.020 Code of ethics and conflict of interest policy.

(1) Purpose. Federal grant management rules (2 CFR Section 200.318(c)(1)) require each recipient to maintain written standards of conduct governing the performance of its employees engaged in the award and administration of contracts. This chapter must address:

(a) Personal conflicts of interest;

(b) Gifts; and

(2) Definitions. As used herein, the following definitions apply:

“Conflict of interest” means a situation in which an employee, councilor, officer, or agent has a private or personal interest sufficient to appear to influence the objective exercise of his or her official duties. A conflict of interest represents a divergence between a person covered by this chapter and his or her private interests and his or her professional obligations to city such that an independent observer might reasonably question whether the individual’s professional actions or decisions are determined by considerations of personal gain, financial or otherwise.

Financial Interest. An officer, agent, councilor, his or her partner, employee, or their immediate family is considered as having a financial interest in a company if (a) they receive more than $10,000 in consulting income, salaries, or equity in the company, (b) they have more than five percent equity in the company, (c) they have intellectual property rights in or receive royalties from the company, or (d) they serve as a director, officer, partner, trustee, manager, or employee of the company.

“Immediate family” includes an employee’s spouse, grandparent, parent, brother, sister, child or grandchild, or his or her partner.

(3) Applicability. No employee, elected official, agent, or other individual under an employment contract with city, or his or her immediate family member, partner, or organization that employs or is about to employ any of the foregoing may participate in the selection, award, or administration of a contract supported with FTA assistance if a conflict of interest, real or apparent, would be involved. Such a conflict would arise when any of those previously listed individuals has a financial or other interest in the firm selected for award.

(4) Gifts. Any contractor, subcontractor, or supplier who has a contract with city; has performed under such a contract within the past year; or anticipates bidding on such a contract in the future will be prohibited from making gifts or providing favors to any individual defined in subsection (2) of this section who is charged with the duty of the following:

(a) Preparing plans, specifications, or estimates for public contract;

(b) Awarding or administering public contracts; or

City also prohibits all covered individuals defined in subsection (2) of this section who perform the functions listed above from receiving or accepting any such gift or favor.

(5) Employee Conflicts of Interest.

(a) Conflicts of Interest. It will be a breach of ethical standards for any city employee to participate directly or indirectly in a procurement when the employee knows:

(i) The employee or any member of the employee’s immediate family, councilor, officer, agent, or his or her partner has a financial interest pertaining to the procurement;

(ii) A business or organization in which the employee, or any member of the employee’s immediate family, has a financial interest pertaining to the procurement; or

(iii) Any other person, business, or organization with whom the employee or any member of employee’s immediate family is negotiating or has an arrangement concerning prospective employment is involved in the procurement.

(b) Discovery of Actual or Potential Conflict of Interest (Disqualification and Waiver). Upon discovery of an actual or potential conflict of interest, an employee participating directly or indirectly in a procurement will:

(i) Promptly file a written statement of disqualification with the city manager (or his successor); and

(ii) Withdraw from further participation in the procurement.

The employee may, at the same time, request from the city manager an advisory opinion as to what further participation, if any, the employee may have in the procurement. It will be at the sole discretion of the city manager to determine if the employee may have any further participation in the procurement and, if so, the extent to which the employee may participate. Any employee who fails to comply with the provisions of this section may be subject to disciplinary action.

(c) Employee Disclosure Requirements. A city employee who has reason to believe that he or she or his or her immediate family have an interest that may be affected by his or her official acts, actions as a city employee, or by city’s official acts or actions will disclose the precise nature and value of such interest in a written disclosure statement to the city manager. The employee’s disclosure statement will be reviewed by the city manager and the city manager will respond to the employee in writing with an opinion as to the propriety of said interest.

If the city manager has reason to believe that he or she or his or her immediate family has an interest that may be affected by his or her official acts, actions as a city employee, or by city’s official acts or actions, the city manager will disclose the precise nature and value of such interest in a written disclosure statement to the council.

(d) Confidential Information. A city employee may not directly or indirectly make use of, or permit others to make use of, for the purpose of furthering a private interest, confidential information acquired by virtue of his or her position or employment with city.

(e) Solicitation Provision. City will insert the following provisions in all formal competitive solicitation documents for products and services:

These policies will apply to City of Sisters employees involved in procurements. It is a breach of ethical standards for any City employee to participate directly or indirectly in a procurement when the employee knows:

• The employee, or any member of the employee’s immediate family, has a financial interest pertaining to the procurement;

• A business or organization in which the employee, or any member of the employee’s immediate family, has a financial interest pertaining to the procurement; or

• Any other person, business, or organization with whom the employee or any member of employee’s immediate family is negotiating or has an arrangement concerning prospective employment is involved in the procurement.

In addition, any persons acting as members of an evaluation committee for any procurement will, for the purposes of the procurement, be bound by conditions of this section. Throughout the bid/proposal evaluation process and subsequent contract negotiations, offerors will not discuss or seek specific information about this procurement, including, without limitation, the contents of submissions, evaluation process, or contract negotiations, with members of any evaluation committee, the council, or other City employees other than the designated procurement officer.

(f) Organizational Conflicts of Interest. The city manager and staff are encouraged to work closely with the city attorney to review all situations that have the potential for an organizational conflict of interest.

Organizational conflicts of interest may result in bias and potentially provide an unfair competitive advantage to a potential offeror. An organizational conflict of interest occurs due to the type of work performed under a third-party contract, or because of other activities or relationships, including, without limitation, the following:

(i) A contractor is unable, or potentially unable, to render impartial assistance or advice to city;

(ii) A contractor’s objectivity in performing contract work is or might otherwise be impaired; or

(iii) A contractor has an unfair competitive advantage.

Bias arises when a contractor is placed in a situation where there may be an incentive to distort advice or decisions. Whenever a contract is awarded that involves the rendering of advice, the question must always be asked whether the potential for a conflict of interest exists for the contractor rendering the advice. City will utilize a “conflict of interest disclosure statement” in its solicitation when contracting for services of this nature. [Ord. 502 § 1 (Exh. A § 2), 2020].

2.48.030 City of Sisters – Responsibilities under federal law.

(1) Third-Party Contracting Capacity. City must maintain adequate technical capacity to carry out its FTA-assisted projects and comply with federal rules. City’s third-party contracting capability must be adequate to undertake its procurements effectively and efficiently in compliance with applicable federal, state, and local laws, regulations, and ordinances.

(2) Contract Administration System. City must maintain a contract administration system necessary to ensure that it and its third-party contractors comply with the terms, conditions, and specifications of their contracts or purchase orders and applicable federal, state, and local laws, regulations, and requirements.

(a) Written Procurement Procedures. City must maintain and follow written procurement procedures that address the following matters, all of which are contained in this chapter:

(i) Solicitations. Requirements for city solicitations are addressed in SMC 2.48.050.

(ii) Necessity. Requirements for city’s need for products or services are addressed in this section.

(iii) Lease versus Purchase. Requirements related to the use of lease or purchase alternatives to achieve an economical and practical procurement are addressed in this section.

(iv) Metric Usage. Requirements related to the acceptance of products and services dimensioned in the metric system of measurement are addressed in this section.

(v) Environmental and Energy Efficiency Preferences. Requirements related to preference for products and services that conserve natural resources, protect the environment, and are energy efficient are addressed in this section.

(vi) Procurement Methods. Descriptions of the procurement methods that city may use are addressed in SMC 2.48.050.

(vii) Legal Restrictions. Descriptions of federal and state restrictions on city’s acquisitions are addressed in this section and SMC 2.48.050.

(viii) Third Party Contract Provisions. Specific third-party contract provisions required for each third-party contract and flow-down requirements to subcontracts are addressed in this section.

(A) Sources. Descriptions of the availability and use of various sources of products and services.

(B) Resolution of Third-Party Contracting Issues. Procedures related to the resolution of third-party contracting issues.

(b) Adequate Third-Party Contract Provisions. City must include provisions in all its third-party contracts that are necessary to form a sound and complete agreement.

(c) Industry Contracts. City will not use an industry-developed contract or a contract that is provided by a bidder or offeror unless it has first evaluated the benefits of the contract. City will ensure that contracts include all provisions required under federal, state, and local laws, regulations, and ordinances and are otherwise in form and substance acceptable to city.

(d) Revenue Contracts. City may enter into a revenue contract with a third party to generate revenues in connection with a transit-related activity, or to create business opportunities utilizing an FTA-funded asset. Revenue contracts will follow competitive selection procedures and principles outlined under this chapter.

(e) Record Keeping. City must prepare and maintain adequate and readily accessible project performance and financial records, covering procurement transactions and other aspects of project implementation. City must maintain these records for five years after city and its subrecipients, if any, have made final payment and all other pending matters are closed. Specific record-keeping requirements include the following:

(i) Written Record of Procurement History. City must maintain and make available to ODOT and FTA written records detailing the history of each procurement. For all procurements above the micro-purchase level, city must maintain records relating to the following:

(A) Procurement Method. City must provide its rationale for the method of procurement it used for each contract, including a sole source justification for any acquisition that does not qualify as competitive.

(B) Contract Type. City must state the reasons for selecting the contract type it used.

(D) Contractor Responsibility. City must provide a written determination of responsibility for the successful contractor.

(E) Cost or Price. City must evaluate and state its justification for the contract cost or price.

(F) Reasonable Documentation. City must retain documentation commensurate with the size and complexity of the procurement.

(G) Vendor Verification. City must include verification of acceptance with a selected vendor/supplier/manufacturer through the federal System of Award Management (SAM) for each project and associated project file.

(ii) Access to Records. City must provide FTA and ODOT officials, Comptroller General, or any of their representatives access to and the right to examine and inspect all records, documents, and papers, including contracts, related to any FTA project financed with federal assistance.

(iii) Use of Technology/Electronic Commerce. City may use an electronic commerce system to conduct third-party procurements. If city uses an electronic commerce system, the following requirements apply:

(A) Sufficient System Capacity. City’s system must have sufficient system capacity necessary to accommodate all federal requirements for full and open competition.

(B) Written Procedures. Before any solicitation takes place, city must establish adequate written procedures to ensure that all information FTA/ODOT requires for project administration is entered into the system and can be made readily available to ODOT, as needed.

(3) Determination of Needs. City must maintain and follow adequate procedures for determining the types and amounts of products and services it needs to acquire.

(4) Eligibility. All products and services to be acquired with FTA funds must be eligible under the federal law authorizing the FTA assistance award and any regulations thereunder. All products and services to be acquired with FTA funds must also be eligible for support within the scope of the underlying grant or cooperative agreement from which the FTA assistance to be used is derived.

(5) Necessity. City will adhere to the following standards for avoiding the purchase of duplicative and/or unnecessary products and services it does not need:

(a) Unnecessary Reserves. City will limit the acquisition of federally assisted property and services to the amount it needs to support its operations.

(b) Acquisition for Assignment Purposes. City will contract only for its current and reasonably expected public transportation needs and will not add quantities or options to third-party contracts solely to permit assignment to another party at a later date. These limits on assignments, however, do not preclude joint procurements that are entered into simultaneously by two or more parties to obtain advantages unavailable for smaller procurements.

(i) General Prohibition. City may contract only for its current and reasonably expected public transportation needs and may not add quantities or options to third-party contracts solely to permit assignment to another party at a later date.

(ii) Changes in Recipient’s Needs. ODOT and FTA recognize that the quantity of property or services a recipient reasonably believes it may need at the time of contract award may change. City’s needs might decrease due to changed circumstances or honest mistakes. In those situations, city may assign its unneeded contract authority to another entity that would like to acquire the property or services.

(iii) Exceptions. These limits on assignments, however, do not preclude the following:

(A) Joint Procurements. City and one or more other FTA recipients may enter into a single procurement at the same time to obtain advantages unavailable for smaller procurements.

(B) Participation in ODOT Sponsored Vehicle Procurements. City may enter into contracts developed by the state of Oregon to acquire vehicles.

(c) Procurement Size. For every procurement, city will consider whether to consolidate or break out the procurement to obtain the most economical purchase. Absent efforts to foster greater opportunities for disadvantaged business enterprises (DBEs), small and minority firms, and women’s business enterprises, city will not split a larger procurement merely to gain the advantage of micro-purchase or small purchase procedures.

(d) Options. City will justify, as needed, all option quantities included in every solicitation and contract. An option is a unilateral right in a contract by which, for a specified time, city may acquire additional equipment, supplies, or services than originally procured. An option may also extend the term of the contract.

(e) Lease versus Purchase. City will review lease versus purchase alternatives for acquiring property and will prepare or obtain an analysis to determine the most economical alternative. If city chooses to lease an asset it must prepare a written comparison of the cost of leasing the asset compared with the cost of purchasing or constructing the asset.

(f) Specifications. City’s procurement specifications will clearly describe the products or services to be procured and will state how the proposals will be evaluated. City’s procurement specifications will not be exclusionary, discriminatory, unreasonably restrictive, or otherwise in violation of federal, state, or local laws, regulations, or ordinances.

(6) Contractor Responsibilities. City, in awarding contracts financed, in whole or in part, with FTA financial assistance, will follow guidance in this subsection (and as otherwise provided in this chapter) to evaluate contractor capabilities to perform the subject contract.

In addition to the federal rules (2 CFR Section 200.318(h)) that require contract awards be made only to responsible contractors, federal transit law at 49 U.S.C. Section 5325(j) limits third-party contractor awards to those contractors capable of successfully performing under the terms and conditions of the proposed contract. Before selecting a contractor for award, city must consider such matters as contractor integrity, compliance with public policy, record of past performance, and financial and technical resources.

(a) Debarment and Suspension. Debarment and suspension regulations and guidance include the following provisions:

(i) DOT Debarment and Suspension Regulations. DOT regulations, “Nonprocurement Suspension and Debarment,” 2 CFR Part 1200, apply to each third-party contract at any tier of $25,000 or more, to each third-party contract at any tier for a federally required audit (irrespective of the contract amount), and to each third-party contract at any tier that must be approved by an FTA official irrespective of the contract amount (2 CFR Section 1200). City will apply DOT’s debarment and suspension requirements to itself and each third-party contractor at every tier to the extent required by DOT’s regulations that incorporate the requirements of Office of Management and Budget (OMB), “Guidelines to Agencies on Governmentwide Debarment and Suspension (Nonprocurement)” (2 CFR Section 180).

(ii) System for Award Management. SAM combines federal procurement systems and the Catalog of Federal Domestic Assistance into one new system. SAM includes the functionality from the following systems:

(A) Central Contractor Registry (CCR);

(B) Federal Register (Fedreg);

(D) Excluded Parties List System (EPLS).

At its discretion, city may collect a debarment and suspension certification from the prospective third-party contractor or include a clause in the third-party contract requiring disclosure. Additionally, it will be city’s policy to verify that the prospective third-party vendor is not listed as a debarred contractor on SAM.

(b) Lobbying Certification and Disclosure. If a third-party contract will exceed $100,000, before awarding the contract city will obtain a lobbying certification and, if applicable, a lobbying disclosure from a prospective third-party contractor (see DOT regulations, “New Restrictions on Lobbying,” 49 CFR Part 20, modified as necessary by 31 U.S.C. Section 1352).

(c) Additional Requirements. In addition to the requirements outlined above, there are various requirements that may apply to city’s third-party contracts, depending on the type of procurement and the anticipated dollar value of the subject contract. It is city’s responsibility to assess each procurement and determine the applicable FTA third-party terms and conditions that should be included in the solicitation and contract documents. FTA Circular 4220.1F, Appendix D, has a matrix stipulating these conditions. These conditions may include the following:

(i) Federal Civil Rights Laws and Regulations.

(A) Federal Equal Employment Opportunity (EEO) requirements;

(B) Nondiscrimination on the basis of sex;

(D) Nondiscrimination in federal public transportation programs;

(E) Title VI of the Civil Rights Act;

(F) Environmental justice;

(G) Limited English proficiency (LEP);

(H) Nondiscrimination on the basis of disability.

(ii) Socio-Economic Development Regulations.

(A) Disadvantaged Business Enterprises (DBE);

(B) Small and minority firms and women’s business enterprises;

(D) Seat belt use.

(iii) Socio-Economic Requirements for the Acquisition of Property and Services.

(A) Labor Regulations.

1. Wage and hour requirements;

2. Fair labor standards.

(iv) Environmental Protections.

(A) Environmental mitigation;

(B) National Environmental Policy Act (NEPA).

1. Protections for parks, recreation areas, wildlife and waterfowl refuges, and historic sites;

2. Clean air;

3. Clean water;

4. Recycled products;

5. Other federal environmental protection requirements.

(v) Energy Conservation.

(vi) Preference for U.S. Property – Buy America.

(vii) Shipments of Property – U.S. Flag Requirements.

(A) Shipments by ocean vessel;

(B) Shipments by air carrier;

(viii) Technical Restrictions on the Acquisition of Property and Services.

(A) Intelligent Transportation Systems (ITS);

(B) Metric measurements;

(ix) Rolling Stock – Special Requirements.

(A) Accessibility;

(B) Transit vehicle manufacturer compliance with DBE requirements;

(D) Spare ratios;

(E) Air pollution and fuel economy;

(F) Pre-award and post-delivery review;

(G) Bus testing;

(H) In-state dealers;

(I) Basis for contract award;

(J) Five-year limitation.

(x) Public Transportation Services – Special Requirements.

(A) Protections for public transportation employees;

(B) Drug and alcohol testing;

(D) Charter service restrictions;

(E) School bus restrictions.

(xi) Construction – Special Requirements.

(A) Bonding;

(B) Bid guarantee;

(D) Payment bond;

(E) Anti-kickback;

(F) Construction safety;

(G) Labor neutrality;

(H) Prevailing wages.

(7) Bonding. Some procurements may require city to require that the vendor submit a bid bond, performance bond, or payment bond (typically construction projects). When bonding is required, the conditions and requirements provided under this subsection will apply.

(a) Threshold. For construction or facility improvement contracts or subcontracts exceeding the simplified acquisition threshold, ODOT may accept the bonding policy and requirements of city; provided, that ODOT has made a determination that the federal interest is adequately protected. If such a determination has not been made, the following minimum requirements must be satisfied:

(i) Bid Guarantee. A bid guarantee from each bidder equivalent to five percent of the bid price. The “bid guarantee” must consist of a firm commitment such as a bid bond, certified check, or other negotiable instrument accompanying a bid as assurance that the bidder will, upon acceptance of the bid, execute such contractual documents as may be required within the time specified.

(ii) Performance Bond. A performance bond on the part of the contractor for 100 percent of the contract price. A “performance bond” is one executed in connection with a contract to secure fulfillment of all the contractor’s obligations under the contract.

(iii) Payment Bond. A payment bond on the part of the contractor for 100 percent of the contract price. A “payment bond” is one executed in connection with a contract to assure payment as required by law of all persons supplying labor and material in the execution of the work provided for under the contract.

(b) Acceptable Sureties. Federal rules for nongovernmental recipients requires the nongovernmental recipient to obtain construction bonds from companies holding certificates of authority as acceptable sureties under DOT regulations, “Surety Companies Doing Business with the United States,” (31 CFR Part 223). For a current list of approved sureties, see DOT’s Listing of Approved Sureties (Department Circular 570). As FTA encourages a governmental recipient to require similarly acceptable sureties, it will be city’s policy to accept such sureties.

(c) Reduced Bonding. City recognizes that bonding costs can be expensive. City will accept a local bonding policy that conforms to the minimums described in subsection (7)(a) of this section. If bonding levels are sought at levels less than those amounts, city must obtain the prior approval of ODOT/FTA. ODOT/FTA will approve such requests only if it determines that city’s bonding policy adequately protects the federal interest in the project.

(d) Excessive Bonding. City will adhere to FTA’s rules on excessive bonding requirements (FTA Circular 4220.1F, Chapter IV, Section 2h(1)(f)). However, if city determines it has a material risk of loss because of a failure of the prospective contractor, bonding requirements may exceed those outlined in subsection (7)(a) of this section only with the prior approval of ODOT/FTA.

(8) Preference for U.S. Property – Buy America. Any construction contract exceeding $150,000 entered into by city with FTA assistance will include provisions that require the third-party contractor to provide property produced or manufactured in the United States for use in the construction project that the recipient acquires, unless FTA has granted a waiver authorized by those regulations. FTA cautions that its Buy America regulations are complex and different from the federal Buy American Act regulations in FAR Subparts 25.1 and 25.2. Property that the contractor acquires to perform its construction activities for the recipient, such as tools, machinery, and other equipment or facilities, is not covered by FTA’s Buy America requirements unless the recipient intends to take possession of that property upon completion of the project. Thus, if a third-party contractor is acquiring property for its general inventory of equipment or facilities to conduct its overall business affairs, city may enter the cost of that acquisition into its calculations of overhead amounts applicable to the FTA-assisted project irrespective of whether that property would comply with FTA’s Buy America regulations.

(9) Accessibility. Facilities to be used in public transportation service must comply with 42 U.S.C. Section 12101 et seq. and DOT regulations, “Transportation Services for Individuals with Disabilities (ADA),” 49 CFR Section 37; and Joint ATBCB/DOT regulations, “Americans with Disabilities (ADA) Accessibility Specifications for Transportation Vehicles,” 36 CFR Section 1192 and 49 CFR Section 38. Notably, DOT incorporated by reference the ATBCB’s “Americans with Disabilities Act Accessibility Guidelines” (ADAAG), revised July 2004, which include accessibility guidelines for buildings and facilities, and are incorporated into Appendix A to 49 CFR Part 37. DOT also added specific provisions to Appendix A modifying the ADAAG, with the result that buildings and facilities must comply with both the ADAAG and amendments thereto in Appendix A to 49 CFR Part 37. [Ord. 502 § 1 (Exh. A § 3), 2020].

2.48.040 Sources of acquisitions.

(1) Force Account. “Force account” means use of city’s own labor forces and equipment to undertake a project (typically construction, renovation, or repair). The use of force account labor is a project management function, rather than a procurement and contract administration function, except in the general sense of city’s ability to perform work with its own forces rather than contracting with another entity to acquire the property or services it needs, and the cost implications of the recipient’s decision. City does not charge force account labor to its FTA grants.

(2) Joint Procurements. City may participate in joint procurements whereby city and one or more other entities agree from the outset to use a single solicitation document and enter into a single contract with a vendor for delivery of products or services. The following requirements apply to city’s participation in joint procurements: (a) solicitation documents may not be drafted for the purpose of accommodating the needs of other parties that may later want to participate in the benefits of the contract; and (b) city is responsible for ensuring that the joint procurement solicitation and contract complies with all federal requirements and that the solicitation document and contract includes all required clauses and certifications.

(3) State or Local Government Purchasing Schedules or Purchasing Contracts.

(a) Definition. FTA uses the term “state or local government purchasing schedule” to mean an arrangement that a state or local government has established with several or many vendors in which those vendors agree to provide essentially an option to the state or local government, and its subordinate government entities, to acquire specific property or services in the future at established prices. These arrangements are somewhat similar to the GSA Cooperative Purchasing Program available for federal government use.

DAS helps the PTD contract for appropriate vehicles to meet the needs of public transportation providers. While ODOT does not purchase vehicles directly, grantees are permitted to purchase vehicles from the online Oregon procurement information network (“ORPIN”) system operated by DAS, which contains a list of qualified vendors for each vehicle type contracted. There are some vehicles on the contracts that do not fit within Oregon’s useful life standards and are not eligible for reimbursement with grant funds. Therefore, PTD has created a crosswalk document that lists each vehicle within the state’s useful life categories. This document, posted on PTD’s website, will assist agencies in selecting vehicles and documenting a process that meets all federal requirements for funding. The state price agreements were developed by DAS and ODOT procurement and PTD staff with input from transit agencies.

(b) Applicability of Federal Provisions. When obtaining property or services in this manner, city must ensure all federal requirements, required clauses, and certifications (including Buy America) are properly followed and included, whether in the master intergovernmental contract or in the recipient’s purchase document. While DAS and ODOT take all precautions to ensure that such provision is in the original solicitation and contract documents, it is ultimately city’s responsibility to ensure such documents and certifications are obtained.

If such requirements, clauses, and certifications were not included in the original purchase solicitation and contracts, city may request the vendor to append the required federal clauses in the purchase order or other document that effects the city’s procurement. When this method is used, city will obtain Buy America certification before entering into the purchase order. This method cannot be used to circumvent FTA’s Buy America requirements.

(c) Federal Supply Schedules. Purchases by city from federal supply schedules established by GSA are limited to the purchase of information technology (IT) products and to products and services to facilitate recovery from a major disaster. The following requirements apply to city purchases from GSA schedules:

(i) City is authorized to use GSA schedules for purchases of products and services to facilitate recovery from a major disaster that is declared by the president of the United States. Upon declaration of a major disaster by the president, city may purchase products and services from GSA schedules both in advance and in the aftermath of the emergency event. City will be responsible for ensuring that the products and services acquired will only be used for recovery.

(ii) City must ensure that all federal requirements, required clauses, and certifications are properly followed and included, whether in the master intergovernmental contract or city’s purchase document.

(iii) City is required to evaluate the reasonableness of prices obtained from GSA schedules. GSA schedule pricing may not be used as a sole or single source for procurement. City may only use GSA schedule pricing as one of multiple pricing sources solicited in accordance with its requirements for small purchases described in SMC 2.48.050.

(d) Existing Contracts. City may use existing contract rights as an acquisition source. An “existing contract” means a contract that, when formed, was intended to be limited to the original parties thereto.

(i) Permissible Actions. Within the conditions set forth below, city may use existing contract rights held by another recipient of FTA assistance:

(A) Exercise of Options. City may use contract options held by another recipient of FTA assistance with the following limitations:

1. Consistency with the Underlying Contract. City must ensure that the terms and conditions of the option it seeks to exercise are substantially similar to the terms and conditions of the option as stated in the original contract at the time it was awarded.

2. Price. City may not exercise an option unless it has determined that the option price is better than prices available in the open market, or that when it intends to exercise the option, the option is more advantageous.

3. Awards Treated as Sole Source Procurements. The following actions constitute sole source awards: (a) if a contract has one or more options and those options were not evaluated as part of the original contract award, exercising those options after contract award will result in a sole source award; and/or (b) exercising an option after city has negotiated a lower or higher price will result in a sole source award unless that price can be reasonably determined from the terms of the original contract, or that price results from federal actions that can be reliably measured.

(B) Assignment of Contract Rights (“Piggybacking”). If city finds that it has inadvertently acquired contract rights in excess of its needs, it may assign those contract rights to another ODOT subrecipient if the original contract contains an assignability provision that permits the assignment of all or a portion of the specified deliverables under the terms originally advertised, competed, evaluated, and awarded, or contains other appropriate assignment provisions. City may use contractual rights through assignment from another recipient of FTA assistance after first determining the contract price remains fair and reasonable, and the contract provisions are adequate for compliance with all federal requirements. City need not perform a second price analysis if a price analysis was performed for the original contract; however, city must determine whether the contract price or prices originally established are still fair and reasonable before using those rights. City will be responsible for ensuring the contractor’s compliance with FTA’s Buy America requirements and execution of all the required pre-award and post-delivery Buy America review certifications. Before proceeding with the assignment, however, city will review the original contract to be sure that the quantities the assigning recipient acquired, coupled with the quantities that city seeks, do not exceed the amounts available under the assigning recipient’s contract.

(ii) Impermissible Actions. City may not use federal assistance to finance the following:

(A) Improper Contract Expansion. A contract has been improperly expanded when it includes a larger scope, greater quantities, or options beyond the recipient’s reasonably anticipated needs. A contract has also been improperly expanded when excess capacity has been added primarily to permit assignment of those contract rights to another entity.

(B) Cardinal Changes. A significant change in contract work that causes a major deviation from the original purpose of the work or the intended method of achievement, or causes a revision of contract work so extensive, significant, or cumulative that, in effect, the contractor is required to perform very different work from that described in the original contract, is a cardinal change or “tag-on.” A change within the scope of the contract is not a cardinal change or “tag-on.”

(4) Open Market. City will acquire most of the property and services it needs through procurements in the open market using procedures described in SMC 2.48.050. [Ord. 502 § 1 (Exh. A § 4), 2020].

2.48.050 Procedures for open market procurements.

(1) Solicitation of Competitive Price Quotes, Bids or Proposals. Compliance with the solicitation procedures described in subsection (4) of this section will fulfill FTA requirements for “full and open competition.”

(2) Receipt and Evaluation of Unsolicited Proposals. City may enter into contracts based on an unsolicited proposal when authorized by applicable state law or regulation. Receipt of an unsolicited proposal does not, by itself, justify contract award without providing for full and open competition. Unless the unsolicited proposal offers a proprietary concept that is essential to contract performance, city must seek competition. To satisfy the requirement for full and open competition, city must take the following actions before entering into a contract resulting from an unsolicited proposal:

(a) Publicize its receipt of the unsolicited proposal;

(b) Publicize an adequate description of the products or services offered without improperly disclosing proprietary information or disclosing the originality of thought or innovativeness of the products or services sought;

(d) Provide an adequate opportunity for interested parties to comment or submit competing proposals; and

(e) Publicize its intention to award a contract based on the unsolicited proposal or another proposal submitted in response to the publication.

If it is impossible to describe the products or services offered without revealing proprietary information or disclosing the originality of thought or innovativeness of the products or services sought, city may make a sole source award to the offeror. A sole source award may not be based solely on the unique capability of the offeror to provide the specific products or services proposed.

(3) Prequalification. City may prequalify bidders, offerors, and products for procurement purposes; provided, however, city is not required to do so. The decision of whether to require prequalification for eligibility to participate in procurement will be made separately for every procurement and will be approved by the city manager.

If city opts to prequalify bidders, offerors, and products for procurement purposes, the following conditions apply:

(a) City must ensure that all prequalification lists it uses are current;

(b) City must ensure that all prequalification lists it uses include enough qualified sources to provide maximum full and open competition; and

(c) City must permit potential bidders or offerors to qualify during the solicitation period (from the issuance of the solicitation to its closing date). City is not required to hold a particular solicitation open to accommodate a potential supplier that submits products for approval before or during that solicitation nor must city expedite or shorten prequalification evaluations of bidders, offerors, or products presented for review during the solicitation period.

(4) Solicitation Requirements and Restrictions. Every procurement solicitation that city issues above the micro-purchase level (currently established in federal guidance at $10,000) must include the information identified in this subsection and be advertised in a manner that ensures adequate and open competition in accordance with this section.

(a) Description of the Property or Services. The solicitation and the contract awarded thereunder must include a clear and accurate description of city’s technical requirements for the products or services to be acquired in a manner that provides for full and open competition.

(i) Descriptive Elements. City will prepare descriptions of property, goods, or service in terms of functions to be performed or level of performance required, including the range of acceptable characteristics or minimum acceptable standards. Detailed product specifications should be avoided, if possible; however, there is no prohibition against their use when appropriate.

(ii) Quantities. Additional quantities or options above city’s needs at the time of acquisition may not be added to contracts solely to allow assignment of those quantities or options at a later date.

(iii) Brand Name or Equal. When it is impractical or uneconomical to provide a clear and accurate description of the technical requirements of the property to be acquired, a “brand name or equal” description may be used to define the performance or other salient characteristics of a specific type of property. The salient characteristics of the named brand that bidders or offerors must provide must be identified.

(iv) Prohibited Practices. Solicitations with requirements that contain features that unduly restrict competition may not be used. City will not:

(A) Impose unreasonable business requirements for bidders or offerors.

(B) Impose unnecessary experience requirements for bidders and offerors.

(C) Use prequalification procedures that conflict with the prequalification standards described in subsection (3) of this section.

(D) Make a noncompetitive award to any person or firm on a retainer contract with city if that award is not for the property or services specified for delivery under the retainer contract.

(E) Impose unreasonable restrictive bonding requirements on bidders and offerors in excess of FTA and state requirements.

(F) Specify only a brand name product without allowing offers of an equal product, or allowing an equal product without listing the salient characteristics that the equal product must meet to be acceptable for award.

(G) Specify in-state or local geographical preferences, or evaluate bids or proposals in light of in-state or local geographic preferences, even if those preferences are imposed by state or local laws or regulations. The only exception expressly mandated or encouraged by federal law that may be applicable to city is the procurement of architectural and engineering (“A&E”) services. Geographic location may be a selection criterion in the procurement of A&E services if an appropriate number of qualified firms are eligible to compete for the contract in view of the nature and size of the project.

(H) Engage in practices that result in organizational conflicts of interest. An organizational conflict of interest occurs when any of the following circumstances arise:

1. Lack of Impartiality or Impaired Objectivity. When the bidder or offeror is unable, or potentially unable, to provide impartial and objective assistance or advice due to other activities, relationships, contracts, or circumstances.

2. Unequal Access to Information. When the bidder or offeror has an unfair competitive advantage through obtaining access to nonpublic information during the performance of an earlier contract.

3. Biased Ground Rules. When, during the conduct of an earlier procurement, the bidder or offeror has established the ground rules for a future procurement by developing specifications, evaluation factors, or similar documents.

(I) Support or acquiesce in noncompetitive pricing practices between firms or between affiliated companies.

(J) Take any arbitrary action in the procurement process.

(b) Evaluation Factors. All solicitations issued by city will identify all factors to be used in evaluating bids or proposals. At the discretion of the city manager, the relative order of importance and/or weights may be communicated to prospective offerors.

(c) Permissible Contract Types. City will state the type of contract that will be awarded in all solicitation documents. The following types of contracts will typically be executed with the successful vendor:

(i) Firm Fixed Price. A firm fixed price contract includes a price that remains fixed irrespective of the contractor’s cost experience in performing the contract. A firm fixed price contract may include an economic price adjustment provision, incentives, or both.

(ii) Cost Reimbursement. A cost-reimbursement contract provides for payment of the contractor’s allowable incurred costs, to the extent prescribed in the contract. Allowable costs may include incentives if the recipient believes they can prove helpful. Cost-reimbursement contracts are suitable for use only when uncertainties involved in contract performance do not permit costs to be estimated with sufficient accuracy to use any type of fixed price contract.

(d) Prohibitive or Restricted Contract Types. The following contract types are prohibited or restricted:

(i) Cost Plus Percentage of Cost. Cost plus percentage of cost type contracts are prohibited.

(ii) Time and Materials. Time and materials type contracts may be used only after a written determination is made that no other contract type is suitable. In addition, the contract between city and the contractor must specify a ceiling price that the contractor may not exceed except at its own risk.

(e) Other Federal Requirements Affecting the Property or Services to Be Acquired. The solicitation and resulting contract must identify those federal requirements that will affect contract scope and performance.

(f) Other Federal Requirements Affecting the Bidder or Offeror and Contractor. The solicitation and resulting contract must identify all federal requirements that a bidder or offeror must fulfill before and during contract performance.

(g) Reservation of Right to Award to Other than the Low Bidder or Offeror. The solicitation must specifically reserve city the right to award a contract to other than the low bidder or offeror. If the solicitation documents do not specify this right, city will be obligated to award the contract to the low bidder.

(h) Reservation of Right to Reject All Bids or Offers. The solicitation must specifically reserve city’s right to reject all bids or offers.

(5) Methods of Procurement. City will use competitive procedure(s) appropriate for the acquisition undertaken. The procedures used must comply with Oregon and local law as well as with federal requirements. Federal restrictions vary with the type of procurement method used. The following guidance is based on the requirements of 2 CFR Sections 200.318 through 200.326, supplemented by FTA policies that address the needs of FTA recipients.

(a) Micro-Purchases.

(i) Definition. “Micro-purchases” means those purchases of products and services that cost $10,000 or less, as defined by 2 CFR Section 200.67 (or current threshold established by the FARs); for purposes of this chapter, city will use $10,000 as the threshold for relatively simple purchases as a means to expedite the completion of its lowest-dollar small purchase transactions and minimize the associated administrative burden and cost.

(ii) Approval Authority. Micro-purchases must be approved in writing by one of the following City employees: (A) city manager; or (B) finance director.

(iii) Competition. City may acquire products and services valued at less than $10,000 without obtaining competitive quotations. Micro-purchases should be distributed equitably among qualified suppliers. Micro-purchases are exempt from FTA’s Buy America requirements. Davis-Bacon prevailing wage requirements, however, will apply to construction contracts exceeding $2,000, even though the recipient uses micro-purchase procurement procedures.

(iv) Prohibited Divisions. The size or dollar value of procurements may not be divided or reduced merely to come within the micro-purchase limit. The only allowable exception to this restriction is for the express purpose of fostering greater participation of DBEs, small and minority firms and women’s business enterprises in city’s federally assisted procurements.

(v) Documentation. Every micro-purchase must be accompanied by a written determination that the price is fair and reasonable and a description of how that determination was made.

(b) Small Purchases.

(i) Definition. FTA defines “small purchases” as those purchases of products and services, including construction services, that cost greater than $10,000 but not more than $250,000. For purposes of this chapter, city will consider small purchases those that cost greater than $10,000 but not more than $150,000.

(ii) Approval Authority. Small purchases must be approved in writing by one of the following city employees: (A) city manager; or (B) public works director.

(iii) Required Competition. Price or rate quotations must be obtained from an adequate number of qualified sources. It is the responsibility of city to ensure that an adequate number of quotations, bids, or proposals are received.

(iv) Prohibited Divisions. The size or dollar value of procurements may not be divided or reduced merely to come within the small purchase limit. The only allowable exception to this restriction is for the express purpose of fostering greater participation of DBEs, small and minority firms and women’s business enterprises in city’s federally assisted procurements.

(v) Documentation. Every small purchase must be documented in the grantee’s written procurement history file. The level of documentation is stipulated in SMC 2.48.060(6)(a). For small purchases, price quotations may be oral or written.

(vi) Special Considerations. City may acquire products and services directly from state contract vendors in lieu of competitively procuring such products and services itself through the small purchase method of procurement. Small purchases are exempt from FTA’s Buy America requirements. City reserves the right to use formal purchase methods, even if small purchase thresholds are met, if the city manager believes it is in the best interests of city to do so.

(i) Definition. “Formal purchases” means those purchases of products and services that cost greater than the current state of Oregon threshold of $150,000. For purposes of this chapter, city will use formal procedures for all purchases over $150,000.

(ii) Approval Authority. Large purchases must be approved in writing by the city manager. No further delegation of approval authority for large purchases may be made.

(iii) Procurement Methods. There are two primary methods of procurement for large purchases of products and services: (A) sealed bid method; and (B) competitive proposal method.

(iv) Required Competition. Formal bids and competitive proposals must be publicly advertised. For formal purchases by the sealed bid method of procurement, two or more responsible bidders must be willing and able to compete effectively for the business. For formal purchases by the competitive proposal method of procurement, two or more offerors must be willing and able to submit an offer or proposal.

(v) Required Documentation. Every formal purchase must, at a minimum, be supported by a written independent cost estimate, formal bids or proposals, a written cost or price analysis as appropriate, a written justification and detailed rationale for contractor selection (including application of evaluation criteria) and a written determination of the responsibility of the contractor. Additional documentation requirements are dependent upon the formal procurement method that is utilized to make the purchase.

(vi) Special Considerations. City may acquire products and services via state contract in lieu of competitively procuring such products and services itself through the sealed bid and competitive proposal methods of procurement.

(vii) Procedural Methods for Sealed Bids. The sealed bid method of procurement is a formal method in which bids are publicly solicited and a firm fixed price contract is awarded to the responsible bidder whose bid, conforming to all the material terms and conditions of the invitation for bids, is lowest in price. The vehicle through which bids are solicited is an invitation for bids (“IFB”). The IFB document contains technical specifications for the product or service to be purchased, a description of the procedures for submitting a bid, and the forms on which bids must be submitted.

(A) When Appropriate. The sealed bid method of procurement is the preferred method for acquiring products and services that, including construction services, cost greater than $150,000. The sealed bid method of procurement may also be used for small purchases if it is determined to be appropriate. The sealed bid method of procurement is appropriate if the following conditions apply:

1. Precise Specifications. A complete, adequate, precise, and realistic specification or purchase description is available.

2. Adequate Sources. Two or more responsible bidders are willing and able to compete effectively for the business.

3. Fixed Price Contract. The procurement generally lends itself to a firm fixed price contract.

4. Price Determinative. The successful bidder can be selected on the basis of price and those price-related factors listed in the solicitation including, but not limited to, transportation costs, life cycle costs, and discounts expected to be taken. Apart from responsibility determinations, contractor selection may not be determined on the basis of other factors whose costs cannot be measured at the time of award.

5. Discussions Unnecessary. Discussions with one or more bidders after bids have been submitted are expected to be unnecessary, as award of the contract will be made based on price and price-related factors alone.

(B) Requirements for Sealed Bids. The following requirements apply to the sealed bid method of procurement:

1. Publicity. The IFB must be publicly advertised.

a. The city manager will ensure that sufficient time is allowed to prepare bids before the date of bid opening.

b. Notice of bidding opportunities may be provided in other ways in addition, but not as a substitute, to a published notice. The methods may include, but not necessarily be limited to:

i. Direct notice, based on compiled vendor lists or from prequalification list, sent to prospective offerors; or

ii. Use of advertisement by electronic means.

2. Adequate Sources. Bids must be solicited from an adequate number of known suppliers.

3. Adequate Specifications. The IFB, including any specifications and pertinent attachments, must describe the property or services sought in sufficient detail that a prospective bidder will be able to submit a proper bid.

4. Sufficient Time. Bidders must be allowed sufficient time to prepare bids before the date of bid opening.

5. Public Opening. All bids must be publicly opened at the time and place prescribed in the invitation for bids.

6. Fixed Price Contract. A firm fixed price contract must be awarded in writing to the lowest responsive and responsible bidder unless the invitation for bids specifically allowed for award of a fixed price incentive contract or the inclusion of an economic price adjustment provision.

7. Rejection of Bids. Any or all bids may be rejected if there is a sound, documented business reason.

(viii) Competitive Proposals. The competitive proposal method of procurement is a formal method in which written proposals are publicly solicited and a contract is awarded to the responsible offeror whose proposal, taking into consideration price and other factors, is considered to be the most advantageous to city or that is considered to be the “best value” to city. The vehicle through which proposals are solicited is a request for proposals (“RFP”). The RFP document contains technical specifications for the product or service to be purchased, a description of the procedures for submitting a proposal and the forms on which proposals must be submitted, if applicable.

(A) When Appropriate. The competitive proposal method of procurement is appropriate for the acquisition of products and services that cost greater than $150,000 when the nature of the procurement does not lend itself to sealed bidding and city expects that more than one source will be willing and able to submit a proposal. The competitive proposal method of procurement may also be used for small purchases if it is determined to be appropriate. The competitive proposal method of procurement may not be used for the procurement of construction services. The competitive proposal method of procurement is appropriate when any of the following circumstances are present:

1. Type of Specifications. The products or services to be acquired are described in a performance or functional specification or, if described in detailed technical specifications, other circumstances such as the need for discussions or the importance of basing contract award on factors other than price alone are present.

2. Uncertain Number of Sources. Uncertainty about whether more than one bid will be submitted in response to an IFB.

3. Price Alone Not Determinative. Due to the nature of the procurement, contract award need not be based exclusively on price or price-related factors.

4. Discussions Expected. Separate discussions with individual offerors are expected to be necessary after they have submitted their proposals.

(B) Requirements for Competitive Proposals. The following requirements apply to the competitive proposal method of procurement:

1. Publicity. The RFP must be publicly advertised.

2. Evaluation Factors. All evaluation factors and their relative importance must be specified in the solicitation, but numerical or percentage ratings or weights need not be disclosed.

3. Adequate Sources. Proposals must be solicited from an adequate number of qualified sources.

4. Evaluation Method. A specific method must be established and used to conduct technical evaluations of the proposals received and to determine the most qualified offeror.

5. Price and Other Factors. An award must be made to the responsible offeror whose proposal is most advantageous to city or that represents the “best value” to city with price and other factors considered.

6. Best Value. City may award a contract to the offeror whose proposal provides the greatest value to city. To do so, the solicitation must inform potential offerors that the award will be made on a “best value” basis and identify what factors will form the basis for award. City must base its determination of which proposal represents the “best value” on an analysis of the trade-off of qualitative technical factors and price or cost factors.

(ix) Two-Step Procurements. City may use two-step procurement procedures in both sealed bid and competitive proposal procurements, provided the opportunity for full and open competition is retained.

(A) Review of Technical Qualifications and Approach. The first step is a review of the prospective contractors’ technical approach to city’s request and their technical qualifications to carry out that approach followed by the establishment of a competitive range consisting of prospective contractors that demonstrate a technically satisfactory approach and have satisfactory qualifications.

(B) Review of Bids and Proposals Submitted by Qualified Prospective Contractors. The second step consists of soliciting and reviewing complete bids or proposals, including price, submitted by each prospective contractor determined to be qualified. Absent exceptional circumstances, bids or proposals must be solicited from at least three qualified prospective contractors.

(x) Architectural and Engineering (A&E) Services and Other Services. FTA’s enabling legislation at 49 U.S.C. Section 5325(b)(1) requires the use of the qualifications-based procurement procedures contained in the “Brooks Act,” 40 U.S.C. Sections 1101 through 1104, to acquire A&E services.

(A) Qualifications-Based Procurement Procedures Required. City must use qualifications-based procurement procedures to acquire A&E services as well as certain other services that are directly in support of, directly connected to, directly related to, or lead to construction, alteration, or repair of real property. In addition to A&E services, other services that must be procured by qualifications-based procurement procedures include:

1. Program management;

2. Construction management;

3. Feasibility studies;

4. Preliminary engineering;

5. Design, architectural, engineering;

6. Surveying, mapping; and

7. Other related services.

The nature of the work to be performed and its relationship to construction, not the nature of the prospective contractor, determine whether qualifications-based procurement procedures may be used.

(B) Qualifications-Based Procurement Procedures Prohibited. Unless FTA determines otherwise in writing, qualifications-based procurement procedures may not be used to acquire other types of services if those services are not directly in support of, directly connected to, directly related to, or do not lead to construction, alteration, or repair of real property. Qualifications-based procurement procedures may not be used for actual construction, alteration or repair to real property.

1. Qualifications. Unlike other two-step procurement procedures in which price is an evaluation factor, an offeror’s qualifications are evaluated to determine contract award.

2. Price. Price is excluded as an evaluation factor.

3. Most Qualified. Price negotiations are first conducted with only the most qualified offeror.

4. Next Most Qualified. Only after failing to agree on a fair and reasonable price may negotiations be conducted with the next most qualified offeror. Then, if necessary, negotiations with successive offerors in descending order may be conducted until contract award can be made to the offeror whose price the recipient believes is fair and reasonable.

(6) Procurement by Other than Full and Open Competition. Normally, city must provide for full and open competition when soliciting bids or proposals. Federal regulations at 2 CFR Sections 200.320(f)(1) through (f)(4), however, acknowledge that under certain circumstances, a recipient may conduct procurements without providing for full and open competition.

(a) When Appropriate. Noncompetitive procurement procedures may only be used when the procurement is inappropriate for small purchase procedures, sealed bids, or competitive proposals, and at least one of the following circumstances is present:

(i) Competition Adequacy. After soliciting several sources and receiving an inadequate response, city will review its specifications to determine if they are unduly restrictive or if changes can be made to encourage submission of more price quotes, bids or proposals. If city determines that the specifications are not unduly restrictive and changes cannot be made to encourage greater competition, city may determine the original competition adequate and complete the purchase from among the sources that submitted a price quote, bid or proposal. A cost analysis must be performed in lieu of a price analysis when this situation occurs.

(ii) Sole Source. When city requires products or services available from only one responsible source, and no other products or services will satisfy its requirements, city may make a sole source award. In addition, when city requires an existing contractor to make a change to its contract that is beyond the scope of that contract, city will consider the change a sole source award that must be justified. Sole source awards are only appropriate when one of the following conditions apply:

(A) Unique Capability or Availability. The products or services are available from only one source if one of the conditions described below is present:

1. Unique or Innovative Concept. The offeror demonstrates a unique or innovative concept or capability not available from another source. “Unique or innovative concept” means a new, novel, or changed concept, approach, or method that is the product of original thinking, the details of which are kept confidential or are patented or copyrighted, and is available to city only from one source and has not in the past been available to city from another source.

2. Patents or Restricted Data Rights. Patent or data rights restrictions preclude competition.

3. Substantial Duplication Costs. In the case of a follow-on contract for the continued development or production of highly specialized equipment and major components thereof, when it is likely that award to another contractor would result in substantial duplication of costs that are not expected to be recovered through competition.

4. Unacceptable Delay. In the case of a follow-on contract for the continued development or production of a highly specialized equipment and major components thereof, when it is likely that award to another contractor would result in unacceptable delays in fulfilling city’s needs.

(B) Single Bid or Proposal. Upon receiving a single bid or proposal in response to a solicitation, city should determine if competition was adequate. This should include a review of the specifications for undue restrictiveness and might include a survey of potential sources that chose not to submit a bid or proposal.

1. Adequate Competition. Competition is adequate when the reasons for a single response were caused by conditions beyond city’s control.

2. Inadequate Competition. Competition is inadequate when the reasons for a single response were caused by conditions within city’s control.

(C) Unusual and Compelling Urgency. City may limit the number of sources from which it solicits bids or proposals when city has such an unusual and urgent need for the products or services that city would be seriously injured unless it were permitted to limit the solicitation. City may also limit the solicitation when the public exigency or emergency will not permit a delay resulting from competitive solicitation for the products or services.

(D) Authorized by ODOT. City may request permission from ODOT to allow it to use noncompetitive proposals for a particular procurement.

(E) When Prohibited. Less than full and open competition is not justified based on:

1. Failure to Plan. City’s lack of advance planning, resulting in limited competition, is not justification for a sole source or single bid award.

2. Limited Availability of Federal Assistance. Concerns about the amount of federal assistance available to support the procurement.

(F) Procurement Procedures. The following requirements apply when city completes a procurement utilizing less than full and open competition:

1. Potential Sources. City must solicit offers from as many potential sources as is practicable under the circumstances.

2. Sole Source Justification. City must justify all sole source procurements in writing. Sole source procurement justifications must describe the reasons for why a sole source procurement is appropriate, state which of the authorized justifications listed in subsection (6)(a)(ii) of this section are applicable, include a cost analysis and be signed by the city manager. If city decides to solicit an offer from only one source, city must justify its decision in writing. The written justification must include the same elements as a sole source justification except that it must state which of the authorized justifications listed in subsection (6)(a)(ii) of this section are applicable to the sole source purchase.

3. Cost Analysis. City must prepare or obtain a cost analysis verifying the proposed cost data, the projections of the data, and the evaluation of the costs and profits. A price analysis will not be adequate to justify a sole source purchase.

(G) Exception for Procurement Activities Using Non-FTA Funds. When it is determined by the city manager to be in the best interest of city, noncompetitive procurement procedures may be utilized to acquire professional or other transportation-related services that do not involve the use of FTA financial assistance. Any such determination must be made in writing and signed by the city manager.

(7) Evaluation Requirements. The following standards will apply to all evaluations of bids or proposals conducted by city:

(a) General. When evaluating bids or proposals received in response to a solicitation, city will consider all evaluation factors specified in the solicitation documents and will evaluate the bids or proposals only on the evaluation factors included in those solicitation documents. City may not modify its evaluation factors after bids or proposals have been received without reopening the solicitation.

(b) Options. The standards contained in this subsection will apply when awarding contracts that include options.

(i) Evaluation Required. In general, city must evaluate bids or offers for any option quantities or periods contained in a solicitation if it intends to exercise those options after the contract is awarded.

(ii) Evaluation Not Required. City need not evaluate bids or offers for any option quantities when city does not intend to exercise those options after the contract is awarded or if it determines that evaluation would not otherwise be in its best interests.

(iii) Evaluators. In addition to evaluators with experience in technical or public policy matters related to the procurement, other evaluators may also include auditors and financial experts to the extent that the city manager determines would be necessary or helpful. If city lacks qualified personnel within its organization, it may solicit evaluators from other transit organizations or may contract for evaluation services. If it does so, the procurement procedures in this chapter will apply to those contracts and to those contractors selected to perform evaluation functions on behalf of the recipient.

(8) Contract Award Requirements. The standards contained in this subsection will apply to all contract award decisions made by city.

(a) Award to Other than the Lowest Bidder or Offeror. City may award a contract to other than the lowest bidder if the award furthers an objective consistent with the purposes of 49 U.S.C. Chapter 53, including improved long-term operating efficiency and lower long-term costs. City may also award a contract to other than the offeror whose price proposal is lowest, when stated in the evaluation factors of the solicitation. In both cases, city must include a statement in its solicitation document reserving the right to award the contract to other than the low bidder or offeror.

(i) Award Only to a Responsible Bidder or Offeror. City may only award contracts to responsible contractors possessing the ability, willingness, and integrity to perform successfully under the terms and conditions of the contract and who demonstrate that their proposed subcontractors also qualify as responsible. City must consider such matters as contractor integrity, compliance with public policy, record of past performance and financial and technical resources when making a determination of contractor responsibility. City must also ensure that the contractor is not listed as a debarred or suspended contractor on the SAM, which is maintained by GSA, at the time of contract award. Entities that are listed as debarred or suspended contractors on SAM may not be determined to be responsible contractors by city. For every procurement action above the micro-purchase level, city must make a written determination of the responsibility of the contractor and include such determination in the applicable contract file (see SMC 2.48.030(6)).

To designate a prospective contractor “responsible” as required by 49 U.S.C. Section 5325, city, at a minimum, must determine and ensure that the prospective contractor satisfies the following criteria described herein. In addition to being otherwise qualified and eligible to receive the contract award under applicable laws and regulations, a responsible contractor:

(A) Integrity and Ethics. Has a satisfactory record of integrity and business ethics, in compliance with 49 U.S.C. Section 5325(j)(2)(A).

(B) Debarment and Suspension. Is neither debarred nor suspended from federal programs under DOT regulations, “Nonprocurement Suspension and Debarment,” 2 CFR Parts 180 and 1200, or under the FAR at 48 CFR Chapter 1, Part 9.4.

(C) Affirmative Action and DBE. Is in compliance with the Common Grant Rules’ affirmative action and FTA’s Disadvantaged Business Enterprise requirements.

(D) Public Policy. Is in compliance with the public policies of the federal government, as required by 49 U.S.C. Section 5325(j)(2)(B).

(E) Administrative and Technical Capacity. Has the necessary organization, experience, accounting, and operational controls, and technical skills, or the ability to obtain them, in compliance with 49 U.S.C. Section 5325(j)(2)(D).

(F) Licensing and Taxes. Is in compliance with applicable licensing and tax laws and regulations.

(G) Financial Resources. Has, or can obtain, sufficient financial resources to perform the contract, as required by 49 U.S.C. Section 5325(j)(2)(D).

(H) Production Capability. Has, or can obtain, the necessary production, construction, and technical equipment and facilities.

(I) Timeliness. Is able to comply with the required delivery or performance schedule, taking into consideration all existing commercial and governmental business commitments.

(J) Performance Record. Is able to provide a:

1. Current Performance. Satisfactory current performance record; and

2. Past Performance. Satisfactory past performance record in view of its records of long-time performance or performance with a predecessor entity, including:

a. Sufficient Resources. Key personnel with adequate experience, a parent firm with adequate resources and experience, and key subcontractors with adequate experience and past performance;

b. Adequate Past Experience. Past experience in carrying out similar work with particular attention to management approach, staffing, timeliness, technical success, budgetary controls, and other specialized considerations as described in the recipient’s solicitation; and

c. Any Past Deficiencies Not the Fault of the Bidder or Offeror. A prospective bidder or offeror that is or recently has been seriously deficient in contract performance is presumed to be nonresponsible, unless the recipient determines that the circumstances were properly beyond the bidder or offeror’s control, or unless the bidder or offeror has taken appropriate corrective action. Past failure to apply sufficient tenacity, perseverance, and effort to perform acceptably is strong evidence of nonresponsibility. Failure to meet the quality requirements of a contract is a significant factor to consider in determining satisfactory performance. ODOT expects city to consider the number of the bidder or offeror’s contracts involved and the extent of deficient performance in each contract when making this determination.

(ii) Rejection of Bids and Proposals. City may reject all bids or proposals submitted in response to an IFB or RFP. City must include a statement in its solicitation document reserving the right to reject all bids or proposals.

The selection of a contractor to participate in one aspect of a project does not, by itself, constitute a sole source selection of the contractor’s wholly owned affiliates to perform other work in connection with the project.

(9) Independent Cost Estimate and Cost and Price Analysis.

(a) Independent Cost Estimate. For every procurement, city will make a written independent estimate of cost prior to receiving price quotes, bids or proposals.

(b) Cost or Price Analysis. City will perform a cost or price analysis in connection with every procurement over $150,000 and for all contract modifications.

(i) Price Analysis. If city determines that competition was adequate, a written price analysis, rather than a cost analysis, is required to determine the reasonableness of the proposed contract price.

(ii) Cost Analysis. City must perform or obtain a cost analysis when (A) price analysis will not provide sufficient information to determine the reasonableness of the contract cost, (B) the offeror submits elements of the estimated cost, (C) only a sole source is available, even if the procurement is a contract modification, and/or (D) there is a change order.

(iii) Approval of Contracts. All contracts must be signed by the city manager or mayor. [Ord. 502 § 1 (Exh. A § 5), 2020].

2.48.060 Contract administration requirements and considerations.

(1) Staff Responsibilities. Prior to execution of third-party contracts, city will designate a project manager to serve as city’s principal contact with the contractor and as the primary administrator of the contract. The project manager will have responsibility for directing and overseeing the work performed by the contractor; reviewing and approving deliverables and invoices from the contractor; determining percentage of contract completion for progress payments (if applicable); making recommendations on the exercise of contract options (if applicable); recommending contract changes; preparing justifications for contract changes; performing independent cost estimates and cost or price analyses for contract changes; making recommendations on approval or rejection of subcontractors; assisting with the resolution of contract disputes; making recommendations on contract termination or other contractor disciplinary actions; maintaining complete contract files; and other contract administration duties that may be necessary.

(2) Administrative Restrictions on the Acquisition of Property and Services. The following federal laws and regulations identified in this subsection impose administrative requirements, many of which will affect specific third-party procurements.

(a) Legal Eligibility. The property or services acquired must be eligible for support under the restrictions accompanying the federal statute authorizing federal assistance to be used.

(b) Scope of the Project. The property or services acquired must be eligible for support within the scope of the underlying grant or cooperative agreement from which the federal assistance to be used is derived.

(c) Period of Performance. City will use sound business judgment and be judicious in establishing and extending a contract’s period of performance.

(i) General Standards. The period of performance generally should not exceed the time necessary to accomplish the purpose of the contract. City will also consider competition, pricing, fairness, and public perception. City’s procurement files will document its rationale for determining the performance period designated for each contract.

(ii) Time Extensions. Consistent with the general tone of FTA Circular 4220.1F, contract time extensions will be considered in light of whether they are permissible changes or impermissible cardinal changes. Once city awards a third-party contract, an extension of the contract term length that amounts to a cardinal change will require a sole source justification.

(iii) Authority to Extend. The city manager has the sole authority to approve and execute contract modifications. The project manager for the subject contract may recommend contract time extensions. The city manager (with the project manager’s assistance) will prepare a written justification and cost analysis (if applicable) for the contract time extension and will negotiate the appropriate contract modification with the contractor.

(3) Federal Cost Principles. Federal rules require project costs to conform to applicable federal cost principles for allowable costs. In general, costs must be necessary and reasonable, allocable to the project, authorized or not prohibited by federal law or regulation, and must comply with federal cost principles applicable to the recipient. OMB guidance for grants and agreements, “Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards,” 2 CFR Section 200, applies to project costs incurred by city.

(4) Payment Provisions. City will follow the provisions of this subsection when using FTA funds to support its third-party contracts.

(a) Financial Support for the Project. Costs may only be incurred by city if ODOT has awarded a financial assistance contract to city.

(i) Progress Payments. Progress payments are payments for contract work that has not been completed. City may use ODOT assistance to support progress payments, provided the recipient obtains adequate security for those payments and has sufficient written documentation to substantiate the work for which payment is requested.

(ii) Adequate Security for Progress Payments. Adequate security for progress payments may include taking title or obtaining a letter of credit or taking equivalent measures to protect the recipient’s financial interest in the progress payment. Adequate security should reflect the practical realities of different procurement scenarios and factual circumstances. City should always consider the costs associated with providing security (for example, the recipient may need to acquire bonds or letters of credit in the commercial marketplace) and the impact of those costs on the contract price, as well as the consequences of incomplete performance.

(iii) Adequate Documentation. Sufficient documentation is required to demonstrate completion of the amount of work for which progress payments are made.

(iv) Percentage of Completion Method. Federal rules require that any progress payments for construction contracts be made on a percentage of completion method described therein. City, however, may not make progress payments for other than construction contracts based on this percentage method.

(5) Protections against Performance Difficulties. City will include provisions in its third-party contracts that will reduce potential problems that might occur during contract performance, as follows:

(a) Changes. City will include provisions that address changes and changed conditions in all third-party contracts except for routine supply contracts.

(b) Remedies. City will include provisions that address remedies in its third-party contracts. Among other appropriate provisions, provisions related to remedies may include provisions for the following:

(i) Liquidated Damages. City may use liquidated damages if city reasonably expects to suffer damages through delayed contract completion, or if weight requirements are exceeded, and the extent or amount of such damages are uncertain and would be difficult or impossible to determine. Rate and measurement standards must be calculated to reasonably reflect city’s costs should the standards not be met, and must be specified in the solicitation and contract. The assessment for damages may be established at a specific rate per day for each day beyond the contract’s delivery date or performance period. A measurement other than a day or another period of time, however, may be established if that measurement is appropriate, such as weight requirements in a rolling stock purchase. The contract file must include a record of the calculation and rationale for the amount of damages established. Any liquidated damages recovered must be credited to the project account.

(ii) Violation or Breach. Third-party contracts exceeding $100,000 must include administrative, contractual, or legal remedies for violations or breach of the contract by the third-party contractor.

(iii) Suspension of Work. City may include provisions pertaining to suspension of work in its third-party contracts.

(iv) Termination. Termination for cause and termination for convenience provisions must be included in third-party contracts exceeding $10,000.

(6) Contents of Complete Contract Files. The documents identified in this subsection will comprise the contents of a complete contract file for procurements above the micro-purchase level.

(a) Written Record of Procurement History. City will maintain written records detailing the history of the procurement, including records relating to the following identified in this subsection:

(i) Procurement Method. City must provide its rationale for the method of procurement it used for each contract, including a sole source justification for any acquisition that does not qualify as competitive.

(ii) Contract Type. City must state the reasons for selecting the contract type it used.

(iii) Contractor Selection. City must state its reasons for contractor selection or rejection, including written justification and evaluation documents.

(iv) Contractor Responsibility. City must provide a written determination of responsibility for the successful contractor.

(v) Cost or Price. City must evaluate and state its justification for the contract cost or price, including the independent cost estimate and cost or price analysis.

(vi) Reasonable Documentation. City must retain documentation commensurate with the size and complexity of the procurement, including documents related to solicitation, receipt and evaluation of offers, and contract award, negotiation and execution.

(7) Access to Records. Federal rules (49 U.S.C. Section 5325(g)) provide FTA and ODOT officials, the Comptroller General, or any of their representatives, access to and the right to examine and inspect all records, documents, and papers, including contracts, related to any FTA project financed with federal assistance authorized by 49 U.S.C. Chapter 53.

(8) Contract Administration and Closeout Documents. City will maintain written records detailing the performance and closeout of the contract, including records relating to the following:

(a) Contractor Performance. City must maintain documents related to contractor adherence to budget and schedule, compliance with contract terms and conditions, DBE participation, progress reports, disputes and disciplinary actions.

(b) Contract Deliverables. City must maintain copies of all contract deliverables and records relating to approval, rejection and requested modifications of contract deliverables.

(c) Contract Changes. City must maintain copies of all contract modifications, including documentation related to the determination of need, written justification and rationale, cost analysis, negotiation and execution.

(d) Contract Payments. City must retain documentation of invoices, approval of payments, requests for modifications to invoices, determination of percentage of contract completion for partial payments (if applicable), and ownership of title to partial work products.

(e) Contract Closeout. City must retain documentation related to contractor performance and evaluation, approval of final deliverables and payments, transfer of title to complete work products to city, and contract audit and final reconciliation.

(9) Protest Procedures.

(a) Statement of Policy. City is responsible for resolving all contractual and administrative issues, including protests of evaluations and contract awards, arising out of its third-party procurements using good administrative practices and sound business judgment. In general, ODOT will not substitute its judgment for that of city unless the matter is primarily a federal concern. Nevertheless, ODOT and FTA can become involved in city’s administrative decisions when a city protest decision is appealed to ODOT.

City will give timely notification to ODOT when it receives a third-party procurement protest and will keep FTA informed about the status of any such protest. City will disclose all information about any third-party procurement protest to ODOT upon request. City’s procedure for addressing third party procurement protests is described in subsection (9)(b) of this section. City will insert its protest procedure in all solicitation documents for products and services having an estimated value of $100,000 or greater.

(b) City Staff Responsibilities. The following staff responsibilities will be assigned in all protests:

(i) Procurement/Contract Administrator. Responsibilities include: ensuring that the city protest procedure is included in all solicitation documents; and providing information to and assisting the city manager, city attorney, and/or city engineer with the resolution of protests.

(ii) City Attorney. Responsibilities include: reviewing all procurement protests; and advising and assisting the city as needed with the resolution of all procurement protests.

(i) Pre-Proposal Protests. All protests concerning solicitation specifications, criteria, and/or procedures will be submitted in writing (defined as being sent or received via letter or facsimile on official firm/agency letterhead or by electronic mail) to the city manager as specified below no later than 10 business days prior to the deadline for submission of bids/proposals.

The city manager may, within his or her discretion, postpone the deadline for submission of bids/proposals but, in any case, will provide a written response to all protests not later than five business days prior to the deadline for submission of bids/proposals. If the deadline for submission of bids/proposals is postponed by the city manager as the result of a protest, the postponement will be announced through an addendum to the solicitation. The decision by the city manager will be the final agency decision on the matter but will be subject to judicial review as set forth by FTA below.

(ii) Pre-Award Protests. With respect to protests made after the deadline for submission of bids/proposals but before contract award by city, protests will be limited to those protests alleging a violation of federal or state law, a challenge to the bids/proposals evaluation and award process, city’s failure to have or follow its protest procedures or its failure to review a complaint or protest. Such protests will be submitted in writing (defined as being sent or received via letter or facsimile on official firm/agency letterhead or by electronic mail) to the city manager as specified below not later than five business days after the recommendation for contract award announcement by city.

The city manager may, within his or her discretion, postpone the award of the contract but, in any case, will provide a written response to all protests not later than three business days prior to the date that city will announce the contract award. The decision of the city manager will be the final agency decision on the matter but will be subject to judicial review as set forth or review by ODOT as specified below.

(d) Requirements for Protests. All protests must be submitted to city in writing (defined as being sent or received via letter or facsimile on official firm/agency letterhead or by electronic mail), with sufficient documentation, evidence and legal authority to demonstrate that the protester is entitled to the relief requested. The protest must be certified as being true and correct to the best knowledge and information of the protester, and be signed by the protester. The protest must also include a mailing address to which a response should be sent.

Protests received after the deadlines for receipt of protests specified above are subject to denial without any requirement for review or action by city. All protests must be directed in writing (defined as being sent or received via letter or facsimile on official firm/agency letterhead or by electronic mail) to the city manager at the address shown in the solicitation documents.

(e) Protest Response. The city manager will issue written responses to all protests received by the required protest response dates. All protest responses will be transmitted by first-class U.S. Postal Service to the address indicated in the protest letter. For convenience, city will also send a copy of the response to a protest to the protester by facsimile and/or electronic mail if a facsimile number and/or electronic mail address are indicated in the protest letter. The protest response transmitted by U.S. Postal Service will be the official city response to the protest and city will not be responsible for the failure of the protester to receive the protest response by either facsimile or electronic mail.

(f) Review of Protests by ODOT. All protests involving contracts financed with federal assistance will be disclosed to ODOT. Protesters will exhaust all administrative remedies with city prior to pursuing protests with ODOT. ODOT limits its reviews of protests to the following: (i) a grantee’s failure to have or follow its protest procedures; (ii) a grantee’s failure to review a complaint or protest when presented an opportunity to do so; or (iii) violations of federal law or regulation. Appeals to ODOT must be received within five business days after the date the protester has received actual or constructive notice of city’s final decision or within five business days after the date the protester has identified other grounds for appeal to ODOT. [Ord. 502 § 1 (Exh. A § 6), 2020].