Chapter 2.36
LOCAL CONTRACT REVIEW BOARD

Sections:

2.36.005    Public contracts—Definitions.

2.36.010    Local contract review board.

2.36.020    Powers.

2.36.025    Public contracts—Council regulations.

2.36.030    Public contracts—City manager and city contracts.

2.36.035    Public contracts—Model rules.

2.36.040    Public contracts—Exempt contracts.

2.36.045    Public contracts—Goods and services.

2.36.050    Public contracts—Negotiation.

2.36.070    Public contracts—Personal services contracts.

2.36.075    Public contracting—Concession agreements.

2.36.095    Public contracting—Review of prequalification and debarment decisions.

2.36.100    Coordination with state public contracting laws.

2.36.005 Public contracts—Definitions.

As used in this chapter:

“Concession agreement” means a contract between the city and a privately owned business for the operation of a specific retail business in a public facility, and under which the business owner agrees to make periodic payments structured as rental or concession fees. The term “concession agreement” does not include a franchise, license or permit for the use of a public way or any business franchise, license or permit issued under a provision of this code other than this chapter.

“Emergency” means circumstances that create a substantial risk of loss, damage, interruption of services or threat to the public health or safety that require prompt execution of a contract to remedy the condition. In cases of emergency, the city manager may excuse a contractor from the city’s requirement of furnishing a good and sufficient performance bond and a good and sufficient payment bond for the faithful performance of any public improvement contract.

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

“Model rules” means the public contracting rules of procedure promulgated by the Oregon Attorney General, as the same may be, from time to time, amended or revised pursuant to Oregon public contracting laws.

“Personal service contract” means a contract primarily for the provision of services that require specialized technical, creative, professional or communication skills or talents, unique and specialized knowledge, or the exercise of discretionary judgment skills, and for which the quality of the service depends on attributes that are unique to the service provider. Such services include, but are not limited to, the services of architects, engineers, attorneys, auditors and other licensed professionals, artists, designers, computer programmers, performers, consultants, and property managers. For any single contract or class of contracts, the purchasing agent shall have discretion to determine whether additional types of services not specifically mentioned in this paragraph are personal services.

“Public Contracting Code” means the provisions of ORS chapters 279A, 279B, and 279C.

“Purchasing agent” means the city manager or the city manager’s designee.

“Services” means all labor and services other than personal services.

“Solicitation” means any invitation to one or more potential contractors to submit a bid, proposal, price quote, statement of qualifications or letter of interest to the city with respect to a proposed project, procurement or contracting opportunity. The word “solicitation” also refers to any competitive process by which the city screens and selects contractors for public contracts that are subject to this chapter. (Ord. 959 § 1, 2005; Ord. 948 § 1 (part), 2004)

2.36.010 Local contract review board.

The council of the city is designated as the local contract review board pursuant to ORS 279.055. (Ord. 933 § 1 (part), 2001)

2.36.020 Powers.

When the ordinance codified in this chapter is fully adopted and filed with the board of county commissioners, the local contract review board shall exercise all powers and perform all duties of a local contract review board under ORS chapter 279. (Ord. 933 § 1 (part), 2001)

2.36.025 Public contracts—Council regulations.

A. Public Contracting Rules. This chapter declares the regulations, policies and rules of the council in its capacity as contracting agency and contract review board regarding the solicitation and award of public contracts for the procurement of goods and services, including personal services and public improvements, and for the solicitation and award of concession agreements. The regulations, policies and rules of the council are intended to comply with and fully implement all provisions and authority granted to local contracting agencies under the Public Contracting Code and shall be interpreted broadly, in favor of the city’s contracting powers.

B. Manner of Adoption. All regulations and policies of the council described in subsection A of this section or any modification thereto shall be by ordinance or resolution adopted at a regular council meeting in which public testimony is invited. A notice describing the purpose of the proposed ordinance or regulation, the date scheduled for the meeting at which the council will take public testimony, and the place at which the ordinance or resolution may be viewed prior to the meeting shall be published in a newspaper of general circulation in the city. At the meeting, the council shall adopt, modify or reject the ordinance.

C. Annual Review. As part of the city’s annual audit, the city manager’s application and performance of the council’s regulations and policies regarding city contracts and the purchasing agent’s rules, regulations and procedures shall be reviewed.

D. Validity of Rules. All rules adopted by the city council prior to the effective date of the ordinance codified in this section shall continue to be valid until repealed or amended by the city council and shall not be subject to challenge. All rules adopted after the first effective date of the ordinance codified in this section shall be adopted in substantial compliance with the provisions of this section in effect on the date the rule is adopted. (Ord. 959 § 2, 2005; Ord. 948 § 1 (part), 2004)

2.36.030 Public contracts—City manager and city contracts.

A. General Authority. The city manager or the manager’s designee shall be the contracting and purchasing agent for the city and is hereby authorized to award all city contracts for which there is an appropriation and to execute and deliver all such contracts on behalf of the city. The awarding of city public contracts shall conform to this code and to the mandates of state law relating to the awarding of public contracts.

B. Notwithstanding the authority granted to the City Manager as purchasing agent under subsection A of this section, and except as provided below, City Council approval is required for all contracts with a total amount in excess of $25,000 and for all other purchases with a total amount in excess of $15,000. The City Council approval required by this subsection does not apply to payments in excess of $25,000 under a contract previously approved by the City Council or to reoccurring purchases in excess of $15,000 when the City Council previously approved the City’s use of the supplier of the goods or services. The City Council’s approval of contracts or purchases under this subsection requires an affirmative vote of the majority of Council members present at a public meeting.

C. Purchasing Agent Regulations. The purchasing agent may develop forms and promulgate rules, regulations, procedures and modifications thereto reasonably necessary to accomplish the purposes of this chapter and regulations adopted thereunder. In promulgating such rules, regulations and procedures, the purchasing agent shall establish practices and procedures that:

1. Do not encourage favoritism or substantially diminish competition;

2. Allow the city to take advantage of the cost-saving benefits of alternative contracting methods and practices;

3. Give preference to goods and services that have been manufactured or produced in the state of Oregon if price, fitness, availability and quality are otherwise equal; and

4. Give preference to goods that are certified to be made from recycled products when such goods are available, can be substituted for nonrecycled products without a loss in quality, and the cost of goods made from recycled products is not significantly more than the cost of goods made from nonrecycled products.

D. Whenever the Oregon State Legislative Assembly enacts laws that cause the Attorney General to modify its model public contract rules, the purchasing agent shall review the city’s public contract rules to determine whether any modifications to the rules need to be adopted by the city to ensure compliance with statutory changes.

E. The purchasing agent will adopt rules in accordance with the procedures set forth in Chapter 2.09. (Ord. 1031 § 1, 2013; Ord. 1021 §§ 1—4, 2012; Ord. 948 § 1 (part), 2004)

2.36.035 Public contracts—Model rules.

The model rules shall be superseded by any procedure or practice that is described in this chapter, rules or orders of the city’s contract review board, or rules promulgated under Section 2.36.030. In all other cases, the model rules shall be the city’s contracting rules. (Ord. 948 § 1 (part), 2004)

2.36.040 Public contracts—Exempt contracts.

The following classes of contracts are exempt from application of the Public Contracting Code and are also exempt from all provisions of this chapter except for Sections 2.36.025 and 2.36.030 concerning the authority of the city council and the purchasing agent to award and execute city contracts:

A. Contracts between the city and other public bodies or between the city and the federal government;

B. Grants, other than contracts for construction services for which the city has received a grant;

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

D. Acquisitions or dispositions of real property or interests in real property;

E. Contracts for the procurement or distribution of textbooks;

F. Procurements from an Oregon corrections enterprise program;

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

1. The incurring of debt by the city, including but not limited to the issuance of bonds, certificates of participation and other debt repayment obligations, and any associated contracts, agreements or other documents, regardless of whether the obligations that the contracts, agreements or other documents established are general, special or limited;

2. The making of program loans and similar extensions or advances of funds, aid or assistance by the city to a public or private body for the purpose of carrying out, promoting or sustaining activities or programs authorized by law;

3. The investment of funds by the city, as authorized by law, and other financial transactions of the city that in the determination of the purchasing agent cannot practically be established under the competitive contractor selection procedures of ORS 279B.050 through 279B.085;

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

I. Any other public contracting of the city specifically exempted from the Public Contracting Code by another provision of law. (Ord. 959 § 3 (part), 2005)

2.36.045 Public contracts—Goods and services.

A. Contracts for Less Than Twenty-Five Thousand Dollars ($25,000.00). The purchasing agent may award contracts for goods and services in an estimated amount of up to twenty-five thousand dollars ($25,000.00) without competitive bidding.

B. Contracts Between Twenty-Five Thousand Dollars ($25,000.00) and Seventy-Five Thousand Dollars ($75,000.00). Contracts with an estimated value of between twenty-five thousand dollars ($25,000.00) and seventy-five thousand dollars ($75,000.00) shall be awarded using competitive procedures under rules adopted by the purchasing agent.

C. Contracts for More Than Seventy-Five Thousand Dollars ($75,000.00). Contracts with an estimated value of more than seventy-five thousand dollars ($75,000.00) shall be awarded using a written solicitation which is advertised in the same manner as provided for public notices of invitations to bid or request for proposals unless competition is limited to members of a qualified contractor pool in accordance with rules adopted by the purchasing agent.

D. Special Procurements. The following classes of contracts may be awarded by direct appointment or any other method which the purchasing agent deems in the best interest of the city. The purchasing agent shall make a written record documenting the manner of selection and the reason why the selection was in the best interest of the city.

1. Insurance contracts.

2. Contracts for copyrighted materials or advertising products.

3. Equipment repair, conversion and overhaul.

4. Contract amendments if the aggregate increase in the contract price does not exceed twenty (20) percent of the original contract amount.

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

6. Contracts for the purchase of price-regulated items.

7. Contracts, for a single period of one year or less, for the temporary extension of an expiring and nonrenewable price agreement or service contract.

8. Contracts under a local government purchasing program administered by the United States General Services Administration.

9. Contracts under joint and permissive cooperative procurements as provided under ORS chapter 279B.

10. Contracts under which the purchasing agent has determined that an emergency exists and immediate execution of a contract is necessary to prevent substantial damage or injury to persons or property. However, where time permits, the purchasing agent shall attempt to use competitive price and quality evaluation before selecting an emergency contractor. The purchasing agent shall document the nature of the emergency and notify the city council of the declaration of emergency, if made, and the facts and circumstances surrounding the emergency execution of the contract, as soon as possible, in light of the emergency circumstances.

E. Brand Name. Bid documents must not expressly or implicitly require the contractor to provide any product by one brand name or mark, nor the product of one particular manufacturer or seller, except for the following reasons:

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

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

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

4. Efficient utilization or maintenance of existing equipment, supplies or products requires the purchase of one particular manufacturer.

A brand name or equal specification may be used when the use of a brand name or equal specification is advantageous to the city because the brand name describes the standard of quality, performance, functionality and other characteristics of the product needed by the city. The purchasing agent is entitled to determine what constitutes a product that is equal or superior to the product specified, and any such determination is final.

F. Price Agreements. The purchasing agent may enter into contracts for the procurement of goods or services at a set price with no guarantee of a minimum or maximum purchase, or an initial order or minimum purchase combined with a continuing contractor obligation to provide goods or services in which the contracting agency does not guarantee a minimum or maximum additional purchase.

G. Sole Source. Contracts with a goods or services provider who is the sole source of the contract goods or services. The purchasing agent shall make a written record of the facts upon which the provider has been found to be a sole source.

H. Protest of Award. The purchasing agent shall adopt rules for the protest of awards to the city manager. (Ord. 959 § 3 (part), 2005)

2.36.050 Public contracts—Negotiation.

A. When Bids Exceed Estimates. Whenever all bids received under a price-based solicitation method exceed the city’s written cost estimate, the purchasing agent may negotiate the contract price with the bidder that has submitted the lowest responsible bid. The purchasing agent may negotiate changes to the goods, project or services that reduce the price as well as changes to contract provisions that are not required by law, so long as the scope of the contract is not changed. For purposes of this section, the scope of a contract is changed if the pool of potential bidders who would qualify to submit bids under a new solicitation would be different from or larger than the pool of potential bidders who were qualified to submit bids under the initial solicitation. Notwithstanding the foregoing, the purchasing agent shall not negotiate with the lowest responsible bidder if the bid submitted by such bidder exceeds the cost estimate by more than twenty-five (25) percent. (Ord. 959 § 3 (part), 2005)

2.36.070 Public contracts—Personal services contracts.

A. General Provisions. The award of contracts for personal services shall be based on an evaluation of all criteria deemed relevant by the purchasing agent, in which price shall not be the only significant criterion.

B. Exemption from Required Competition. The following personal service contracts may be awarded by any method deemed appropriate by the purchasing agent, including, without limitation, by direct appointment, by private negotiation, by lottery from a qualified pool, or by a competitive process:

1. Contracts Under Twenty-Five Thousand Dollars ($25,000.00). Contracts for which the purchasing agent estimates that payments will not exceed twenty-five thousand dollars ($25,000.00).

2. Contracts Using Qualified Pools. Contracts of not more than seventy-five thousand dollars ($75,000.00), when selection is made from a qualified pool maintained by the purchasing agent.

3. Temporary Extensions. Contracts, for a single period of one year or less, for the temporary extension of an expiring and nonrenewable contract.

4. Renewals. Contracts that are being renewed on an annual basis.

5. Contracts for Continuation of Work. Contracts of not more than seventy-five thousand dollars ($75,000.00) for the continuation of work by a contractor who performed preliminary studies, analysis or planning for the work under a prior contract, if the prior contract was awarded under a competitive process and the purchasing agent determines that use of the original contractor will significantly reduce the costs of, or risks associated with, the work.

6. Arts. Contracts in any amounts for any theatrical or musical performance or for the production of a work of art, music or literature.

7. Sole Source. Contracts with a service provider who is the sole source of the contract services. The purchasing agent shall make a written record of the facts upon which the provider has been found to be a sole source.

C. Contracts for Not More Than Seventy-Five Thousand Dollars ($75,000.00). Contracts with an estimated value that does not exceed seventy-five thousand dollars ($75,000.00) shall be awarded using competitive procedures under rules adopted by the purchasing agent.

D. Formal Solicitation. Contracts with an estimated value of more than seventy-five thousand dollars ($75,000.00) shall be awarded using a written solicitation which is advertised in the same manner as provided for public notices of invitations to bid unless competition is limited to members of a qualified contractor pool in accordance with rules adopted by the purchasing agent.

E. Protest of Award. The purchasing agent shall adopt rules for the protest of awards to the city manager. (Ord. 959 § 4, 2005; Ord. 948 § 1 (part), 2004)

2.36.075 Public contracting—Concession agreements.

A. General. No part of a concession agreement shall contain or constitute a waiver of any generally applicable provision of this code concerning regulation, registration, licensing, inspection, or permit requirements for any construction or business activity.

B. Public Event Concessions. A concession to sell food, beverages, merchandise or services at a single public event shall be awarded based on any method determined by the purchasing agent to provide a fair opportunity to all persons desiring to operate a concession. Such methods may include, but shall not be limited to, direct appointment, price or proposal competition, rotation from a list of prequalified concessionaires, or a lottery selection process.

C. Solicited Concession Agreements. Concession agreements solicited by the city for the use of designated public premises for a term greater than a single event shall be awarded as follows:

1. For concession agreements under which the concessionaire’s projected annual gross revenues are estimated to be three hundred thousand dollars ($300,000.00) or less, the purchasing agent has discretion to use either the informal or formal request for proposal process applicable to contracts for personal services. If the proposals received indicate a probability that the concessionaire’s annual gross revenues will exceed three hundred thousand dollars ($300,000.00), the purchasing agent may, but shall not be required to, reissue the solicitation as a formal solicitation.

2. Concession agreements for which the concessionaire’s projected annual gross revenues are estimated to exceed three hundred thousand dollars ($300,000.00) annually shall be awarded using the formal request for proposal process applicable to contracts for personal services.

D. Sole Sources. The purchasing agent may award a concession agreement without competition if the purchasing agent determines that the concession provider is a sole source. The purchasing agent shall keep a record of the facts upon which the determination of sole source was made. (Ord. 948 § 1 (part), 2004)

2.36.095 Public contracting—Review of prequalification and debarment decisions.

A. Every notice of a decision on prequalification or a decision to debar a prospective contractor from submitting bids or proposals shall describe the procedure for appeal in this section.

B. The prospective bidder or proposer that is the subject of a decision on prequalification or debarment may, within three business days after receipt of the notice of decision, notify the purchasing agent that the prospective bidder or proposer appeals the decision as provided in this section.

C. Immediately upon receipt of the prospective bidder’s or proposer’s notice of appeal, the purchasing agent shall notify the city council.

D. Upon receipt of the notice of appeal, the city council shall set a date for a hearing and promptly notify the person appealing and the purchasing agent of the time and place of the hearing. The city council shall conduct the hearing and decide the appeal within thirty (30) days after receiving the notice from the purchasing agent. The city council shall set forth in writing the reasons for the hearing decision.

E. At the hearing the city council shall consider de novo the notice of denial, revocation or revision of a prequalification or the notice of debarment, the standards of responsibility on which the contracting agency based the denial, revocation or revision of the prequalification or the reasons for the debarment, and any evidence provided by the parties.

F. The city council shall hear and determine the appeal on the basis of the appellant’s written and oral statements and any additional evidence the city council deems appropriate. At the hearing the appellant may present testimony and oral argument personally or by counsel. The rules of evidence as used by courts of law do not apply.

G. The city council may allocate the city’s costs for the hearing between the person appealing and the city. The allocation shall be based upon facts found by the city council and stated in the final order that, in the city council’s opinion, warrant such allocation of costs. If the final order does not allocate the costs for the hearing, the costs shall be paid as follows:

1. If the decision to deny, revoke or revise a prequalification of a person as a bidder or proposer or member of a prequalified pool, or the decision to debar a person is upheld, the costs shall be paid by the person appealing the decision.

2. If the decision to deny, revoke or revise a prequalification of a person as a bidder or proposer or member of a prequalified pool, or the decision to debar a person is reversed, the costs shall be paid by the city. (Ord. 948 § 1 (part), 2004)

2.36.100 Coordination with state public contracting laws.

The city council intends that all sections of this chapter that are enacted or amended under the ordinance codified in this chapter shall be adopted as the city’s public contracting rules under ORS chapter 279 and as the city’s contracting rules under 2003 Oregon Laws, Chapter 794, Sections 8, 10, 11 and 335. (Ord. 948 § 1 (part), 2004)