HomeMy WebLinkAbout3039 Public Contracting
ORDINANCE NO. ?;10Y1
AN ORDINANCE RELATING TO PUBLIC CONTRACTING
AND AMENDING AMC 2.50.080, 2.50.090, 2.50.100, 2.50.120, AND 2.50.130
Annotated to show deletions and additions to the code sections being modified. Deletions are
bold lined through and additions are bold underlined.
WHEREAS, Article 2. Section I 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 specifically 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. Citvof
Beaverton v. International Ass'n of Firefighters. Local 1660. Beaverton Shop. 20 Or. App. 293,
531 P 2d 730, 734 (1975);
WHEREAS, AMC 2.50, Local Contract Review Board, was adopted in May 2010;
WHEREAS, the implementation of the new public contracting procedures has resulted in the
need for minor amendments.
THE PEOPLE OF THE CITY OF ASHLAND DO ORDAIN AS FOLLOWS:
SECTION 1. Section 2.50.080 [Formal Processes - Competitive Sealed Bidding and Proposals]
is hereby amended to read as follows:
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 Attomey must determine that the contract is appropriate as to form before the
project is put out for bids. In addition. the City Attornev shall review all formal
competitive solicitations or formal competitive bids to ensure that the appropriate
process is bein!! followed.
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C. The Loeal Contract Review Board shall authorize solicitations of eompetitiye
sealcd hids and competitive sealed proposals.
D. The City "attorney shall review all farmal competitin solieitatioBs or formal
competitive hids to ensure that the appropriate process is heing fallowed.
C. The Local Contract Review Board shall approve the award of all contracts for
which the Ashland Municipal Code or the Orel!on Public Contractinl! Code reauire
formal competitive solicitations or formal competitive bids.
D.-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.
SECTION 2. Section 2.50.090 [Exemptions from Formal Competitive Selection Procedures] is
hereby amended to read as follows:
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.
I. Small Procurements shall be awarded in accordance with ORS 279B.065, OAR
137-047-0800, OAR 137-047-0265 and all other applicable provisions oflaw.
E. Intermediate Procurements - a public contract for goods and services greater than
$5,000 and less than $100,000.
I. Intermediate Procurements shall be awarded in accordance with ORS
279B.070, OAR 137-047-0800, OAR 137-047-0270 and other applicable
provisions oflaw.
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 ofthe quality and type
required available.
I. Sole-source procurements shall be awarded in accordance with ORS 279B.075
and all other applicable provisions oflaw.
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, 279B.065, 279B.070. The contracting
approach may be custom designed to meet the procurement needs.
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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 foreseen and requires prompt execution of a public contract to
remedy the condition.
I. Emergency procurements shall be awarded in accordance with ORS 279B.080
and all other applicable provisions oflaw.
1. The following classes of contracts are hereby specifically exempted from the Oregon
Public Contracting Code and Model Rules pursuant to ORS 279A.025(t):
I. 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 as Ion!! as no material chan!!e is made to the terms,
conditions, or prices of the ori!!inal contract. so long as the priee of the
materials is the some or lower than that in the original eon tract.
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.
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.
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SECTION 3. Section 2.50.100 [Informal Process - Process for Exempt Procurements] is hereby
amended to read as follows:
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 Attomey. 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 equal to or less than $5,000, 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 if the value of the contract exceeds the amount orieinallv approved bv
the Finance Director on the requisition documents.
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.
SECTION 4. Section 2.50.120 [Personal Services Contracts] is hereby amended to read as
follows:
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, for personal services contracts ereater than $5,000, but
less than $75,000, the Public Contracting Officer shall make findings that City personnel
are not available to perform the services, and that the City does not have the personnel or
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resources to perform the services required under the proposed contract. However, the
City Attomey, 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.
I. 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 Attomey 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 ofthe original contractor will significantly
reduce the costs of, or risks associated with, the work.
B. 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:
I. 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;
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,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;
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 !lPplicable;
5. Cost of the services; and
6. Any other factors relevant to the particular contract.
SECTION 5. Section 2.50.100 [Informal Process - Process for Exempt Procurements] is hereby
amended to read as follows:
2.50.130 Record Keeping
All records shall be retained in accordance with OAR 137-047-0620. 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.
SECTION 6. 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 7. 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-lettered, provided however
that any Whereas clauses and boilerplate provisions (i.e. Sections 6-7) need not be codified and
the City Recorder is authorized to correct any cross-references and any typographical errors.
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The foregoing ordinance was first read by title only in accordance with Article X,
Section 2(C) of the City Charter on the ~ day of t'~, 2010,
and duly ASSED and ADOPTED this ~ day of /l0l/. ,2010.
~~
Barbara M. Christensen, City Recorder
SIGNED and APPROVED this...5 day of AJa;~20 1 O.
Megan T mton, Acting City Attomey
Ordinance No.
J
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