HomeMy WebLinkAbout3013 Public Contracting and Personal Srvc Contracts
ORDINANCE NO. pO \ -'
AN ORDINANCE RELATING TO PUBLIC CONTRACTING AND PERSONAL
SERVICE CONTRACTS, AND REPEALING CHAPTERS 2.50 AND 2.52
Annotated to show deletions and additions to the code sections being modified,
Deletions are bold .-, .. and additions are bold underlined.
WHEREAS, Article 2, Section 1 of the Ashland City Charter provides:
Powers of the Citv The City shall have all powers which the constitutions,
statutes, and common law of the United States and of this State expressly or
impliedly grant or allow municipalities, as fully as though this Charter spe'cifically
enumerated each of those powers, as well as all powers not inconsistent with the
foregoing; and, in addition thereto, shall possess all powers hereinafter
. specifically granted. All the authority thereof shall have perpetual succession.
WHEREAS, the above referenced grant of power has been interpreted as affording all
legislative powers home rule constitutional provisions reserved to Oregon Cities. Citv of
Beaverton v. International Ass'n of Firefiqhters, Local 1660. Beaverton Shop, 20 Or.
App. 293, 531 P 2d 730, 734 (1975); and
THE PEOPLE OF THE CITY OF ASHLAND DO ORDAIN AS FOLLOWS:
SECTION 1. Sections 2,50,010 [Short Title] through 2,50,140 [Protests of Procurement
Process & Solicitation Award] are hereby added to the Ashland Municipal Code read as
follows:
2.50.010 Short Title.
The provisions of this chapter and all rules adopted hereunder may be cited as the
Ashland Public Contracting Code,
2.50.020 Purpose.
The purpose of the Ashland Public Contracting Code is to utilize public contracting
practices and methods that maximize the efficient use of public resources and the
purchasing power of public funds by:
A Promoting open and impartial competition;
B. Using solicitation materials that are complete and contain a clear statement of
contract specifications and requirements;
C. Taking full advantage of. evolving procurement methods that suit the contracting
needs of the City; and
D. Providing direction to city staff regarding purchasing practices and purchasing
authority that results in a systematic and uniform administration of public
contracts.
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kThe City shall endeavor to utilize local suppliers of materials and services
whenever practical and feasible while seeking to obtain the lowest and best
responsible bid, quotation or proposal.
2.50.030 Adoption of State Law.
Except as specifically provided herein, or by subsequent ordinance or resolution, the
Model Rules, Oregon Administrative Rules (OAR) Chapter 137, Divisions 46,47, and
49, adopted by the Attorney General under ORS Chapters 279A, 279B, and 279C, as
they now exist, are hereby adopted as the City of Ashland's Public Contracting Code, A
copy of the Oregon Public Contracting Code and Model Rules shall be maintained in the
City Recorders Office. Words and phrases used in these rules that are defined in
Oregon Revised Statutes (ORS) Chapters 279A, 279B, 279C, and in the Model Rules
shall have the same meaning as in those statutes and rules, except as may be provided
for herein, In the event that the rules adopted by the local contract review board do not
address a particular situation, the Model Rules apply.
2.50.040 Definitions.
Words and phrases that are used and defined in the Model Rules and the Oregon
Public Contracting Code shall have the same meaning as in those statutes and rules,
except for the following:
A. "City Attorney" shall mean the Ashland City Attorney or his/her designee as
specified by written order.
B, "Department" shall mean City of Ashland instead of Oregon Department of
Administrative Services,
C. "Director" shall mean Public Contracting Officer as defined in this section instead
of the Director of Administrative Services.
D. "Findings" are the statements of fact that provide justification for a determination.
Findings may include, but are not limited to, information regarding operation,
budget and financial data; public benefits; cost savings; competition in public
contracts; quality and aesthetic considerations; value engineering; specialized
expertise needed; public safety; market conditions; technical complexity;
availability; performance and funding sources.
E. "Finance Director" shall mean the Ashland Finance Director or his/her designee
as specified by written order.
F, "Local Contract Review Board" shall mean the Ashland City Council.
G, "Public Contracting Officer" means the City Administrator or his/her designee as
specified by written order.
H. "Model Rules" means the public contracting rules adopted by the Attorney
General under ORS 279A065 and adopted by AMC 2,50,030.
I. "Oregon Public Contracting Code" means ORS Chapters 279A, 279B and 279C.
J. "Personal services contract" means a contract with an independent contractor
predominantly for services that require special training or certification, skill,
technical, creative, professional or communication skills or talents, unique and
specialized knowledge, or the exercise of judgment skills, and for which the
quality of the service depends on attributes that are unique to the service
provider. Such services include, but are not limited to, the services of architects,
engineers, land surveyors, attorneys, auditors and other licensed professionals,
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Page 2 of9
artists, designers, computer programmers, performers, consultants and property
managers. The Public Contracting Officer shall have discretion to determine
whether additional types of services not specifically mentioned in this paragraph
fit within the definition of personal services.
2.50.050 Applicability. ,
The Ashland Public Contracting Code shall apply to procurements by all City
departments and divisions, including Ashland Parks and Recreation,
2.50.060 Local Contract Review Board Authority.
The Local Contract Review Board shall have all the duties and authority of a contracting
agency that are granted under state and local law. The Local Contract Review Board
may delegate its powers and responsibilities by ordinance, resolution, or board order
consistent with the Model Rules and the Oregon Public Contracting Code.
2.50.070 Public Contracting Officer Authority.
A. Except as otherwise provided by this code, the Public Contracting Officer shall
have authority to:
1, Purchase and contract for all materials, supplies, equipment, services and
public improvements for which funds have been appropriated by the City
Council and the contract price does not exceed $100,000;
2, Contract for all personal services as long as the contract price does not
exceed $75,000; and
3, Sell or dispose of all personal property of the city in accordance with AMC
2.54.
Contracts approved under this section require no further approvals by the
Local Contract Review Board.
S. Except when this Chapter, or the Oregon Public Contracting Code and Model
Rules, specifically requires the Local Contract Review Board to take action or
exercise its discretion and delegation is not allowed, any act required or
permitted to be performed by an "agency," "head of a contracting agency,"
"local contract review board" or the "director" under the Model Rules or
Oregon Public Contracting Code shall be performed by the Public Contracting
Officer.
C. The Public Contracting Officer may develop such forms that are convenient to
the administration of the City's contracts and may promulgate procedures
reasonably necessary to accomplish the purposes of this Chapter, the Model
Rules, and the Oregon Public Contracting Code. The City Attorney may
promulgate standard forms for use by the Public Contracting Officer.
2.50.080 Formal Processes - Competitive Sealed Bidding and Proposals.
Except as otherwise expressly provided herein, in addition to the requirements of the
Model Rules and the Oregon Public Contracting Code:
A. The Finance Director must sign off that there are appropriate funds for the project
before the project is put out for bids.
B. The City Attorney must determine that the contract is appropriate as to form
before the project is put out for bids.
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C, The Local Contract Review Board shall authorize solicitations of competitive
sealed bids and competitive sealed proposals,
D, The City Attorney shall review all formal competitive solicitations or formal
competitive bids to ensure that the appropriate process is being followed,
E. Electronic Solicitation. Competitive sealed bids and competitive sealed
proposals may be available online, but applicants will NOT be able to submit their
proposals and/or responses online. Bids and proposals must be delivered in
hard copy form to the City in accordance with the requirements for the
competitive solicitation. Individuals that obtain the solicitation materials
electronically are responsible for regularly checking for instructions, addenda,
and related materials.
2.50.090 Exemptions from Formal Competitive Selection Procedures
All Public Contracts shall be based upon Competitive Sealed Bidding (Invitation to Bid)
or Competitive Sealed Proposals (Request for Proposal) pursuant to ORS 279A - 279C
, and the Model Rules except for the following:
A. Contracts listed in ORS 279A.025(2).
B. Purchases through federal programs as set forth in ORS 279A.180,
C. Public Improvement Contracts that qualify for exemption as set forth in
279C,335,
D. Small Procurements - a public contract not exceeding $5,000.
1, Small Procurements shall be awarded in accordance with ORS
279B.065, OAR 137-047-0800, OAR 137-047-0265 and all other
applicable provisions of law.
E. Intermediate Procurements - a public contract for goods and services greater
than $5,000 and less than $100,000,
1. Intermediate Procurements shall be awarded in accordance with ORS
2798.070, OAR 137-047-0800, OAR 137-047-0270 and other
applicable provisions of law,
F, Sole Source Procurements - a public contract in which the Department Head
finds in writing that there is only one provider of a product or service of the
quality and type required available.
1. Sole-source procurements shall be awarded in accordance with ORS
279B,075 and all other applicable provisions of law.
G, Special Procurements - a public contract for a class special procurement, a
contract specific procurement or both, based upon a contracting procedure
that differs from procedures described in ORS 279B.055, 279B,060,
2798.065, 2798.070. The contracting approach may be custom designed to
meet the procurement needs.
1. Special procurements shall be awarded in accordance with ORS
279B,085 and all other applicable provisions of law,
H, Emergency Procurements - a public contract that is necessary because an
emergency exists meaning there are circumstances creating a substantial risk
of loss, damage, interruption of services or threat to public health, safety,
welfare, or property that could not have been reasonably fores,een and
requires prompt execution of a public contract to remedy the condition.
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Page 4 of9
1. Emergency procurements shall be awarded in accordance with ORS
279B.080 and all other applicable provisions of law.
I. The following classes of contracts are hereby specifically exempted from the
Oregon Public Contracting Code and Model Rules pursuant to ORS
279A.025(t):
1. Contracts for the purchase of materials where competitive bids for the
same materials have been obtained by other public agencies or the
federal government whose processes for bid and award are
substantially equivalent to those set forth herein, and the contract is to
be awarded to the party to whom the original contract was awarded so
long as the price of the materials is the same or lower than that in the
original contract
2. Contracts for licenses and maintenance of computer hardware,
computer software, and telecommunications products (including cable,
video and television products).
3, Purchase of items or services of an artistic nature, including, but not
limited to public art,
4, Contracts for removal, cleanup or transport of hazardous materials, As
used in this Subsection, "hazardous materials" include any material or
substance which may pose a present or future threat to human health
or the environment, including Hazardous Waste as that term is used in
the Resources Conservation and Recovery Act (42 USC 6901 et seq.).
5. Contracts for purchase of used motor vehicles, defined as any motor
vehicle that is at least one year old,
6, Contracts for the purchase of used heavy construction equipment
7. Contracts for the purchase of copyrighted materials where there is only
one supplier available within a reasonable purchase area for such
goods. I
8. Contracts for the purchase of advertising, including legal advertising
intended for the purpose of giving public notice.
9. Contracts for the purchase or sale of all utilities including, but not
limited to, electric power, gas, water, sewage, internet, cemetery lots,
cable and telecommunication services, and the sale of
telecommunication materials or products or other services, materials or
products traditionally provided by the City,
10. Contracts for the purchase of goods or services where the rate or price
for the goods or services being purchased is established by federal,
state or local regulating authority,
2.50.095 Additional Requirements for Exemptions Pursuant to 2.20.090(1)
Any contract exempted under 2,20,090(1) shall additionally satisfy these criteria:
A. The performance bond requirements of ORS 279C,375 and 279C.380, unless
an emergency exemption exists in accordance with the Oregon Public
Contracting Code and Model Rules,
B. The construction and landscape contractor registration and requirements of
ORS Chapter 671.630 etseq. and Chapter 701;
Ordinance No,
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C, Any other law applicable to such a contract; and,
D. To the extent that BOll applies, the City and the contractor shall comply with
the prevailing wage provisions of ORS 279C.800 - 279C.870.
2.50.100 Informal Process - Process for Exempt Procurements
The following process shall apply to all contracts that are exempt from formal
competitive selection procedures in AMC 2,50,090.
A The Public Contracting Officer is responsible for determining whether a
project is subject to an exemption pursuant to AMC 2.50.090 that will allow a
process other than a formal solicitation, Except for small procurements and
emergency procurements, it is the responsibility of the Public Contracting
Officer to evaluate whether an exemption exists and write findings consistent
with Oregon law to document the exemption. A copy of the written findings
shall be given to the City Attorney, If an exemption is approved all applicable
provisions of the Oregon Public Contracting Code and the Model Rules must
be followed. Notwithstanding the exemptions, the City Attorney, the Public
Contracting Officer, or Local Contract Review Board may require a formal
competitive solicitation to ensure the purposes of this Chapter.
B. Except for small procurements and emergency procurements, any informal
procurement process, listed in AMC 2,50.090 shall require the Public
Contracting Officer to obtain written authorization from the Finance Director to
ensure that adequate funds are available for the project
C, For intermediate procurements of any amount the contracting agency shall
use a written solicitation to obtain quotes, bids, or proposals.
D, For all contracts over $5,000 the City Attorney must determine that the
contract is appropriate as to form before the contract is awarded, Use of a
City standard form contract negates the need for legal sign off on all informal
contracting processes.
E. After the procurement process is complete, the Public Contracting Officer
must execute the procurement contract, and the Finance Director must
endorse the amount of the contract
F, The Public Contracting Officer must execute any change orders or
amendments to the contract that are authorized under the Oregon Public
Contracting Code or the Model Rules,
2.50.110 Electronic Advertisement of Public Contracts
The City may publish the advertisement for Offers by posting it on the website of the
city, or if applicable, another governmental entity as long as the content required by the
Model Rules and Oregon Public Contracting Code is available, Individuals that obtain
the solicitation materials electronically are responsible for regularly checking for
instructions, addenda, and related materials.
2.50.120 Personal Services Contracts
A A personal service contract that does not exceed $35,000 may be awarded by
direct appointment Personal Services Contracts that are for contract amounts
greater than $35,000, but less than $75,000 shall follow the process for
Intermediate Procurements as outlined above, In addition, the Public Contracting
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Page 60f9
Officer shall make findings that City personnel are not available to perform the
services, and that the City does not have the personnel or resources to perform
the services required under the proposed contract. However, the City Attorney,
the Public Contracting Officer, or Local Contract Review Board, can require a
formal solicitation for bids to ensure that the purposes of this chapter are upheld.
1, Class Exemption - Attorney Services. Personal service contracts for legal
counsel, legal services, expert witnesses, court-appointed attorneys,
stenographers and other legal services are exempt from the competitive
procurement requirements of this section and may be entered .into based upon
the judgment of the City Attorney, The City Attorney shall obtain City Council
approval of any expenditure for legal services paid to a single legal services
provider that is expected to exceed $50,000 prior to entering into the contract. In
addition, except for legal counsel hired by the City to provide legal services to
indigent criminal defendants prosecuted by the City, the City Attorney shall select
and retain all outside legal counsel hired by the City subject to the approval of the
City Council.
2, Pre-qualified Pool Exemption, The City may directly award a personal
services contract that does not exceed $100,000 to a provider that has been
selected to be on a list of:
a, The City's current list of qualified providers through a formal process;
or
b. From another public contracting agency's current list of qualified
providers as long as the public contracting agency uses a process
substantially similar to the City's to derive the list.
3, Continuation of Work Exemption, Personal service contracts of not more than
$100,000 for the continuation of work by a contractor who preformed preliminary ,
studies, analysis or planning for the work under a prior contract may be awarded
without competition if the prior contract was awarded under a competitive
process and the Public Contracting Officer determines that use of the original
contractor will significantly reduce the costs of, or risks associated with, the work.
S. The Local Contract Review Board is hereby opting out of OAR 137-048 regarding
architectural, engineering, and land surveying services,
C. The standard procurement rules adopted above shall apply to such contracts, as
well as the following personal services selection criteria:
1, Specialized experience in the type of work to be performed;
2, Capacity and capability to perform the work, including any specialized
services within the time limitations for the work;
3, Educational and professional record, including past record of performance on
contracts with governmental agencies and private parties with respect to cost
control, quality of work, ability to meet schedules, and contract administration
where applicable;
Ordinance No,
Page 70f9
4. Availability to perform the assignment and familiarity with the area in which
the specific work is located, including knowledge of designing or techniques
peculiar to it, where applicable;
5. Cost of the services; and
6, Any other factors relevant to the particular contract
2.50.125 Cost and Feasibility Determinations
The Public Contracting Officer shall make written cost or feasibility findings pursuant to
ORS 279B. 030. If the Public Contracting Officer is performing a cost analysis pursuant
to ORS 279B.033, the Public Contracting Officer shall add a profit margin of ten percent
(10%) of the cost of the project when estimating the total cost of hiring a contractor.
2.50.130 Record Keeping
To facilitate contract file record keeping and reduce accounting and auditing difficulties
in having dispersed contract files, each city department will maintain a complete file on
all contracts executed on behalf of that department Information to be included in the
file shall include, at a minimum:
A. Any and all invitation for bids, requests for proposals, and any advertisements;
B. Council consent authorizing contract execution when applicable;
C. Copies of the signed contract, any required insurance certificates, bonds, or
other bid security;
D. Any approved Local Contract Review Board waivers; and
E. List of who the solicitation documents were sent out to or the list of plan holders.
The City Recorder's Office shall retain the original executed contract as well as original
copies of any required insurance certificates, performance bonds, and payment bonds
or other bid security, The department which is responsible for the procurement shall
continually monitor insurance certificates to ensure the City remains an additional
insured and that the other party has sufficient coverage,
2.50.140 Protests of Procurement Process & Solicitation Award
A. The Uniform Administrative Appeals Process outlined in AMC 2,30 shall apply to
all protests of the procurement process and award of public contracts except that
the timelines of this section shall govern when determining whether an appeal is
filed timely.
B. Timelines for Submitting Protests.
1. Protests regarding the process or specification shall be received no later
than ten (10) calendar days prior to bid closing,
2, Protests regarding the award of the contract shall be received within
seven (7) ~alendar days from the notice of intent to award the public
contract
C, Failure to strictly comply with the applicable protest requirements, including but
not limited to the required elements for the written protest required by the Model
Rules and the Oregon Public Contracting Code, payment of the applicable
appeal fee pursuant to AMC 2.30, and time for filing as specified in this section,
shall constitute jurisdictional defects resulting in the summary dismissal of the
appeal.
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Page 80f9
SECTION 2. Repeal. The existing Ashland Municipal Code Chapters 2.50 [Rules of
Procedure for Public Contracting] and 2.52 [Rules of Procedure for Personal Service
Contracts] are hereby repealed in their entirety, Any municipal code provisions in
conflict with the provisions contained herein are also hereby repealed.
SECTION 3. Severability. The sections, subsections, paragraphs and clauses of this
ordinance are severable, The invalidity of one section, subsection, paragraph, or clause
shall not affect the validity of the remaining sections, subsections, paragraphs and
clauses,
SECTION 4. Savinas. Notwithstanding this amendmenUrepeal, the City ordinances in
existence at the time any criminal or civil enforcement actions were commenced, shall
remain valid and in full force and effect for purposes of all cases filed or commenced
during the times said ordinance(s) or portions thereof were operative. This section
simply clarifies the existing situation that nothing in this Ordinance affects the validity of
prosecutions commenced and continued under the laws in effect at the time the matters
were originally filed,
SECTION 5. Codification, Provisions of this Ordinance shall be incorporated in the City
Code and the word "ordinance" may be changed to "code", "article", "section", "chapter"
or another word, and the sections of this Ordinance may be renumbered, or re-Iettered,
provided however that any Whereas clauses and boilerplate provisions (Le. Sections 2-
5) need not be codified and the City Recorder is authorized to correct any cross-
references and any typographical errors,
The foregoing ordinance was first read ;fy ti only in ac
Secti n 2(C) of the City Charter on the day of
an uly PASSED and ADOPTED this day of
~ ance with Article X,
,2010
,2010,
/f{~
Barbara M. Christensen, City Recorder
SIGNED and APPROVED thi/9 day of ~ ,2010.
Ordinance No, Page 9 of9