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POL Government Elected Officials Auditor Griffin-Valade Charter, Code & Policies City Code & Charter Online Code & Charter Title 5 Revenue and Finan Chapter 5.34 Public Improvements and Construction Services
Chapter 5.34 Public Improvements and Construction Services
Table of Contents (Printable Version)

 - Note
 5.34.010 Definitions.
 5.34.020 Application and Authority.
 5.34.040 Affirmative Action.
 5.34.060 Contracts for Construction Other than Public Improvements
 5.34.100 Overview of Source Selection and Contractor Selection.
 5.34.110 Emergency Contracts; Bidding and Bonding Exemptions.
 5.34.120 Selection of Substitute Contractor.
 5.34.130 Joint Cooperative Purchasing.
 5.34.140 General Rules for Joint Cooperative Procurements; Fees.
 5.34.150 Competitive Bidding Requirement.
 5.34.160 Intermediate Procurements; Competitive Quotations.
 5.34.300 Solicitation Documents; Required Provisions; Assignment or Transfer.
 5.34.310 Notice and Advertising Requirements; Posting.
 5.34.320 Specifications and Brand Names.
 5.34.330 Facsimile Bids and Proposals.
 5.34.340 Electronic Procurement.
 5.34.410 Bid or Proposal Security.
 5.34.420 Pre-Offer Conferences.
 5.34.430 Addenda to Solicitation Documents.
 5.34.440 Request for Clarification or Change.
 5.34.450 Offer Submissions.
 5.34.460 Pre-Closing Modification or Withdrawal of Offers.
 5.34.470 Receipt, Opening and Recording of Offers.
 5.34.480 Late Bids, Late Withdrawals and Late Modifications.
 5.34.490 Mistakes.
 5.34.493 First-Tier Subcontractors; Disclosure and Substitution.
 5.34.500 Responsibility of Offerors.
 5.34.510 Prequalification of Offerors.
 5.34.520 Eligibility to Bid or Propose; Registration or License.
 5.34.530 Disqualification of Persons.
 5.34.600 Bid or Proposal Evaluation Criteria.
 5.34.610 Offer Evaluation and Award; Determination of Responsibility.
 5.34.620 Negotiation With Bidders Prohibited.
 5.34.625 Contract Preferences; Resident Bidders.
 5.34.630 Reciprocal Preferences.
 5.34.640 Negotiation When Bids Exceed Cost Estimate.
 5.34.645 Rejection of Offers.
 5.34.650 Notice of Intent to Award.
 5.34.660 Cancellation, Delay or Suspension of Solicitation.
 5.34.670 Disposition of Offers if Solicitation Canceled.
 5.34.675 Documentation of Award.
 5.34.680 Time for City Acceptance; Extension.
 5.34.685 Availability of Award Decisions.
 5.34.690 Performance and Payment Security; Waiver.
 5.34.695 Notification to State of Nonresident Contractor.
 5.34.700 Protests and Judicial Review of Individual and Class Exemptions.
 5.34.710 Protests and Judicial Review of Multi-Tiered Solicitations.
 5.34.720 Protests and Judicial Review of Solicitation Documents and the Solicitation Processes other than Multi-Tier Processes.
 5.34.725 Administrative Reconsideration as a Result of Rejection for Failure to Meet DBE Requirements.
 5.34.730 Protest of Contractor Selection, Contract Award.
 5.34.740 Protests of Other Violations.
 5.34.750 Review of Prequalification and Disqualification Decisions.
 5.34.760 Procurement Board of Appeals.
 5.34.770 Powers of the Board.
 5.34.780 Appeal to Board.
 5.34.800 Purpose.
 5.34.810 Definitions for Alternative Contracting Methods.
 5.34.820 Use of Alternative Contracting Methods.
 5.34.830 Findings, Notice and Hearing.
 5.34.840 Competitive Proposals; General Procedures.
 5.34.845 Requests for Qualifications (RFQ)
 5.34.850 Requests for Proposals (RFP).
 5.34.860 RFP Pricing Mechanisms.
 5.34.870 Design-Build Contracts.
 5.34.880 Energy Savings Performance Contracts (ESPC).
 5.34.890 Construction Manager/General Contractor (CM/GC).
 5.34.900 Required Contract Clauses.
 5.34.910 Waiver of Delay Damages Against Public Policy.
 5.34.915 BOLI Public Works Bond.
 5.34.920 Retainage.
 5.34.930 Social Equity Contracting and Employment Programs.
 5.34.940 Public Works Contracts.
 5.34.950 City Payment for Unpaid Labor or Supplies.
 5.34.960 Records Maintenance; Right to Audit Records.
 5.34.970 Right to Inspect Plant or Place of Business.
 5.34.980 Contract Cancellation, Contractor Termination Procedures.


- Note

 

(Chapter replaced by Ordinance No. 180350, effective August 25, 2006.)

5.34.010 Definitions.

(Amended by Ordinance No. 185898, efffective February 20, 2013.)

 

A.  The definitions contained in Sections 5.33.010 and 5.33.140 are applicable to Chapter 5.34.

 

1.   “Change Order” means a written agreement between the City and Contractor that alters the specifications of the Contract.

 

2.  “Conduct Disqualification” means a Disqualification pursuant to ORS 279C.440.

 

3.  “Disqualification” means the preclusion of a Person from contracting with the City for a period of time in accordance with Section 5.34.530.   Disqualification may be a Conduct Disqualification or DBE Disqualification.

 

4.  “Foreign Contractor” means a Contractor that is not domiciled in or registered to do business in the State of Oregon.

 

5.  “Notice” means any of the alternative forms of public announcement of Procurements, as described in Section 5.34.310.

 

6.  “Work” means all material, labor, tools, equipment, and all appliances, machinery, systems, transportation, and appurtenances necessary to perform and complete the Contract, and such additional items not specifically indicated or described which can be reasonably inferred as belonging to the item described or indicated and as required by good practice to provide a complete, functioning, and satisfactory system or structure.


5.34.020 Application and Authority.

(Amended by Ordinance  Nos. 181547, 183445 and 185898, effective February 20, 2013.)

 

A.  Public improvements.  Chapter 5.34 applies to the Award of Contracts for public improvements and construction services for public improvements.   Contracts for emergency work are governed by Chapter 5.33 and ORS 279B.080.

 

B.  Contracts for minor alteration, ordinary repair or maintenance of public improvements, as well as other Contracts for construction services that are not defined as a public improvement under Section 5.33.010 shall be Awarded and executed pursuant to Chapter 5.33 and ORS 279B and not this Chapter.  However, some portions of ORS 279C and this chapter may still be applicable to the resulting Contracts.       

 

C.  Authority and Ethics

 

1.  The Authority of the City Council as the Local Contract Review Board is the same in regard to Chapter 5.34 as it is for Chapter 5.33, including the authorization of Contract amendments. 

 

2.  The Authority of the Chief Procurement Officer is the same for Chapter 5.34 in regard to public improvement and construction services Contracts as it is for Goods and Services as set forth in Chapter 5.33.

 

3.  The authority of Bureau and Office directors and appropriation unit managers to authorize and execute Contracts and Contract amendments is the same in regard to Chapter 5.34 as it is in Chapter 5.33.

 

4.  The rules stated in Section 5.33.070 regarding the purchase of Goods and Services from City employees shall also apply to Public Improvements covered by Chapter 5.34.   


5.34.040 Affirmative Action.

(Amended by Ordinance Nos. 184403 and 185065, effective January  1, 2012.)

 

A.  Pursuant to ORS 279A.100, the City may limit competition on Contracts to carry out affirmative action policies, in accordance with policies and procedures established by the City.

 

B.  Pursuant to ORS 279A.105, the City may require a Contractor to subcontract some part of a Contract to, or to obtain materials to be used in performing the Contract from:

 

1.    A business enterprise that is certified under ORS 200.055 as an emerging small business; or

 

2.    A business enterprise that is:

 

a.    Certified under ORS 200.055 as an emerging small business; and

 

b.    Is located in or draws its workforce from economically distressed areas, as designated by the Oregon Economic and Community Development Department (OECDD); or

 

c.  Owned or controlled by a disabled veteran, as defined in ORS 408.225.

 

C.    A Subcontractor certified under ORS 200.055 as an emerging small business is located in or draws its workforce from economically distressed areas if:

 

1.    Its principal place of business is located in an area designated as economically distressed by the OECDD pursuant to administrative rules adopted by the OECDD; or

 

2.    The Contractor certifies in Writing to the City that a substantial number of the Subcontractor’s employees or Subcontractors that will manufacture the Goods or complete the Services under the Contract reside in an area designated as economically distressed by the OECDD pursuant to administrative rules adopted by OECDD. For the purposes of making the

foregoing determination, the City shall determine in each particular instance what proportion of a Contractor’s Subcontractor’s employees or Subcontractors constitute a substantial number.

 

3.    The City shall include in each Solicitation Document a requirement that Offerors certify in their Offers in a form prescribed by the City, that the Offeror has not and will not discriminate against a Subcontractor in the Awarding of a Subcontract because the Subcontractor is a minority, women or emerging small business enterprise certified under ORS 200.055.

 

D.  The City may disqualify a Person from consideration of Award of the City’s Contracts under ORS 200.065(5) or suspend a Person’s right to be on or participate in any Public Contract pursuant to ORS 200.075(1) after providing the Person with notice and a reasonable opportunity to be heard in accordance with these rules.


5.34.060 Contracts for Construction Other than Public Improvements

(Amended by Ordinance Nos. 181547 and 185898, effective February 20, 2013.)  Pursuant to ORS 279C.320, Public Contracts for construction Services that are not Public Improvement Contracts, may be procured and amended as general trade Services under the provisions of ORS Chapter 279B rather than under the provisions of ORS Chapter 279C and Chapter 5.34.


5.34.100 Overview of Source Selection and Contractor Selection.

(Amended by Ordinance No. 185898, effective February 20, 2013.) The City shall Award a Public Contract for Public Improvements pursuant to Chapter 5.34 using any method authorized by state law or City Code. Such different methods are called methods of “source selection.”  Source selection methods for Public Improvements include:

 

A.    Emergency Procurements;

 

B.    Substitution of Contractors by a Surety; 

 

C.     Joint Cooperative Procurements;

 

D.  Competitive Quotations;

 

E.   Competitive Bidding; and 

 

F.    Alternative Contracting Methods found in Section 5.34.800 et seq.   Class exemptions are located in Subsection 5.34.830 G. while individual Contracts must be authorized by the City Council by ordinance. 


5.34.110 Emergency Contracts; Bidding and Bonding Exemptions.

(Amended by Ordinance Nos. 181547, 183445 and 184403, effective February 2, 2011.)

 

A.  The City may declare that Emergency circumstances exist that require prompt execution of a Public Contract for Emergency construction.  Those contracts are governed by ORS 279B.080 and Chapter 5.33 of this Code.  Emergency contracts pursuant to a Proclamation of a State of Emergency or Disaster, however, are governed by Section 5.33.135.

 

B.  The Council or Person authorizing the Emergency Procurement shall document the nature of the Emergency and describe the method used for the selection of the particular Contractor.  The Emergency declaration may exempt the Public Contract from the competitive bidding requirements of ORS 279C.335(1) and shall thereafter be kept on file as a public record.

 

C.  The City shall seek competition for Emergency Contracts as reasonable and appropriate under the Emergency circumstances, and may include Written requests for Offers, oral requests for Offers or direct appointment without competition in cases of extreme necessity, in whatever Solicitation time periods the City considers reasonable in responding to the Emergency.

 

D.  The authority to declare an Emergency and authorize an Emergency Contract shall be as follows:

 

1.  The Chief Procurement Officer may declare the existence of an Emergency and authorize the City or any of its bureaus to enter into an Emergency Contract not to exceed $150,000.

 

2.  A bureau director may declare the existence of an Emergency and authorize the bureau to enter into an Emergency Procurement Contract not to exceed $150,000 only if the Chief Procurement Officer or Person to whom the powers of the Chief Procurement Officer have been delegated, is not available when the purchase needs to be made.

 

3.  A Commissioner-in-Charge of a bureau may declare the existence of an Emergency and authorize the City and the bureaus of which the Commissioner has responsibility to enter into an Emergency Contract not to exceed $500,000. 

 

4.  A Commissioner-in-Charge of a bureau may declare the existence of an Emergency and authorize the City and the bureaus of which the Commissioner has responsibility to enter into an Emergency Contract over $500,000. 

 

a.  Following the declaration of an Emergency the Commissioner shall immediately prepare an ordinance for approval of the Emergency Contract by the City Council at its next regularly scheduled session or as soon as possible thereafter.  That Contract shall be added to the regular agenda of the Commissioner without the need for approval for inclusion on the agenda by other Commissioners. 

 

b.  If the Council adopts the ordinance, the City will pay for the Work required by the Contract.  If Council disapproves the ordinance, the City only will pay for Work performed prior to the date that the Council considered the ordinance for approval.  If for any reason presentation of the ordinance to the Council is delayed, the City still will only be liable for Work performed prior to the time when the ordinance first was presented to the Council.

 

E.  Any Contract Awarded under this section shall be Awarded within 60 Days, unless the City Council authorizes a longer period of time.

 

F.  All documentation of Emergency Contracts shall be sent to the Chief Procurement Officer for record keeping purposes.

 

G.  All Emergency Contracts Awarded when there was no Emergency or reasonable perception of Emergency are void unless the Contract was otherwise valid under another portion of the City’s Purchasing Rules. 

 

H.  After the Award of an Emergency Contract, the City shall execute a Written Contract with the Contractor as soon as possible.

 

I.  All such Contracts, whether or not signed by the Contractor, shall be deemed to contain a termination for convenience clause permitting the City to immediately terminate the Contract at its discretion and, unless the Contract was void, the City shall pay the Contractor only for Work performed prior to the date of termination plus the Contractor’s unavoidable costs incurred as a result of the termination. In no event will the City pay for anticipated lost profits or consequential damages as a result of the termination.

 

J.  Emergency Contracts may be modified by change order or amendment to address the conditions described in the original declaration or an amended declaration that further describes additional Work necessary and appropriate for related Emergency circumstances.

 

K.  Pursuant to ORS 279C.380(4) and this rule, the Emergency declaration may also state that the City waives the requirement of furnishing a performance bond and payment bond for the Emergency Contract. After making such an Emergency declaration those bonding requirements are excused for the Procurement, but this Emergency declaration does not affect the separate Public Works bond requirement for the benefit of the Bureau of Labor and Industries (BOLI) in enforcing prevailing wage rate and overtime payment requirements.  In addition, nothing herein shall prevent the Chief Procurement Officer or City Council from subsequently requesting such from bonds the Contractor after work begins.


5.34.120 Selection of Substitute Contractor.
 
If a Contractor provided a performance bond, the City may afford the Contractor's surety the opportunity to provide a substitute Contractor to complete performance of the Contract. A substitute Contractor shall perform all remaining Contract Work and comply with all terms and conditions of the Contract, including the provisions of the performance bond and the payment bond. Such substitute performance does not involve the Award of a new Contract and shall not be subject to the Competitive Procurement provisions of ORS Chapter 279C or these rules. 

5.34.130 Joint Cooperative Purchasing.

(Amended by Ordinance No. 185898, effective February 20, 2013.)

 

A.  The City may participate in, sponsor, conduct or administer Joint Cooperative Procurements for the acquisition of Public Improvements, provided that the Administering Contracting Agency’s Solicitation and Award process for the original Contract was an open and impartial Competitive process that used source selection methods substantially equivalent to those found in Chapter 5.34. 

 

B.  A Solicitation and Award process uses source selection methods substantially equivalent to those identified in ORS 279C and Chapter 5.34 if the Solicitation and Award process:

 

1.   Calls for Award of a Contract on the basis of a lowest Responsible Bidder or a lowest and best Bidder determination in the case of Competitive Bids, or on the basis of a determination of the Proposer whose Proposal is most Advantageous based on evaluation factors set forth in the Request for Proposals in the case of Competitive Proposals when permitted by an exemption established by the City Council;

 

2.   Does not permit the application of any geographic preference that is more favorable to Bidders or Proposers who reside in the jurisdiction or locality favored by the preference than the preferences provided in ORS 279A.120(2); and

 

3.   Uses reasonably clear and precise Specifications that promote suitability for the purposes intended and that reasonably encourage competition.

 

C.   The City shall determine, in Writing, whether the Solicitation and Award process for an Original Contract arising out of a Cooperative Procurement for a Public improvement is substantially equivalent to those identified in ORS 279C and Chapter 5.34.  

 

D.   Protests.  Protests regarding the use of all types of cooperative Procurements shall be governed by the applicable provisions of Section 5.34.700 et seq.


5.34.140 General Rules for Joint Cooperative Procurements; Fees.

(Amended by Ordinance No. 183445, effective January 6, 2010.)

 

A.    If the City is the Administering Contracting Agency, then:

 

1.   It may charge a fair and reasonable fee to Purchasing Contract Agencies that represent the excess costs of administering the Contract in light of the Purchasing Contracting Agencies use of that Contract; and

 

2.    Determine whether the Purchasing Contract Agency must enter into a Written agreement with it.

 

B.    If the City is a Purchasing Contracting Agency it is authorized to pay a fee to the Administering Contracting Agency that the Chief Procurement Officer determines is fair and reasonable in light of all the circumstances surrounding the Procurement, including the savings that may be obtained if a cooperative Procurement is used, the cost of the Procurement in relationship to the fee, and other factors as may be considered.  If a fee is paid, it will be borne by the Bureau or portion of the City on whose behalf the Procurement is being made.


5.34.150 Competitive Bidding Requirement.

(Amended by Ordinance Nos. 181547 and 185898, effective February 20, 2013.) The City shall solicit Bids for Public Improvement Contracts by Invitation to Bid ("ITB"), except:

 

A.  Contracts made with Qualified Nonprofit Agencies providing employment opportunities for disabled individuals, in which case the rules stated in Section 5.33.110 shall apply.

 

B.  Contracts, or classes of Contracts, exempted by the City Council pursuant to state law, including those stated in Section 5.34.830;

 

C.  A public improvement contract with a value of less than $5,000;

 

D.  Contracts not exceeding $100,000, if made under procedures for Competitive quotations pursuant to Section 5.34.160;

 

E.  Public improvement contracts Awarded as Emergency Contracts; 

 

F.  Energy Savings performance contracts entered into in accordance with Chapter 5.34; 

 

G.  Contracts where federal law overrides this Chapter;

 

H.  Contracts governed by ORS 279A.100 and Section 5.34.040 regarding affirmative action, and contracts identified in the Prime Contractor Development Program;

 

I.  Any other Contract that is not governed by ORS 279A, 279B and 279C; and

 

J.  Contracts exempted by the City Council acting as the Local Contract Review Board, from using an ITB process pursuant to ordinance, in which case the selection shall follow the rules set forth in Section 5.34.800 et seq. in regard to the alternative Contract method selected, unless the exemption authorizes a different method.


5.34.160 Intermediate Procurements; Competitive Quotations.

(Amended by Ordinance Nos. 181547, 183445 and 185898, effective February 20, 2013.)

 

A.  Public Improvement Contracts estimated by the City not to exceed $100,000, may be Awarded through the requirements of this rule.

 

B.  All requests for a price quotation for a public improvement anticipated to exceed $50,000 shall be in Writing and include the selection criteria to be utilized in selecting a Contractor and, if the criteria are not of equal value, their relative value or ranking.  The criteria may be limited to price or some combination of price, experience, specific expertise, availability, project understanding, Contractor capacity, responsibility and similar factors.

 

1.  Written requests shall include the Bureau of Labor and Industries (BOLI) provisions regarding the prevailing wage, if the estimated cost exceeds $50,000. 

 

2.  If the estimated cost is less than $50,000, but all price quotations equal or exceed $50,000, then the Solicitation shall be cancelled and a new request for Written price quotations, containing the BOLI provisions regarding prevailing wage shall be included.

 

C.  Requests for quotations for public improvements estimated to be $50,000 or less can be made orally, provided the City seeks at least three competitive quotations, and keeps a Written record of the sources and amounts of the quotations received. If three quotations are not reasonably available the City shall make a Written record of the effort made to obtain those quotations.

 

D.  The City shall Award the Contract to the prospective Contractor whose Price Quotation will best serve the interests of the City, taking into account the announced selection criteria. If Award is not made to the Offeror offering the lowest price, the City shall make a Written record of the basis for Award.

 

E.  Intermediate level Public Improvement Contracts obtained by competitive quotations may be increased above the original amount of Award by change order or amendment within the limitations pursuant to Subsection 5.34.020 C.3.


5.34.300 Solicitation Documents; Required Provisions; Assignment or Transfer.

(Amended by Ordinance Nos. 181547 and 185898, effective February 20, 2013.)

 

A.     The Solicitation Document for a public improvement Contract shall include the following:

 

1.  Identification of the Public Improvement project, including the character of the Work, and applicable plans, Specifications and other Contract documents;

 

2.   Notice of any pre-Offer conference as follows:

 

a.  The time, date and location of any pre-Offer conference;

 

b.  Whether attendance at the conference will be mandatory or voluntary; and

 

c.  That statements made by the City’s representatives at the conference are not binding upon the City unless confirmed by Written Addendum;

 

3.  The deadline for submitting mandatory Prequalification applications and the class or classes of Work for which Offerors must be Prequalified if Prequalification is a requirement;

 

4.  The name and title of the authorized City representative designated for receipt of Offers and contact representative (if different);

 

5.  Instructions and information concerning the form and submission of Offers, including the address of the office to which Offers must be delivered, any Bid or Proposal Security requirements, and any other required information or special information, e.g., whether Offers may be submitted by Facsimile or Electronic means (see Section 5.34.330 regarding Facsimile Bids or Proposals and  Section 5.34.340 regarding Electronic Procurement);

 

6.  The time, date and place of Opening;

 

7.   The time and date of Closing after which the City will not accept Offers, which time shall be not less than five (5) Days after the date of the last publication of the advertisement, and may, in the sole discretion of the City, direct or permit the submission and receipt of bids by electronic means.  If the City is issuing an ITB that may result in a Public Improvement Contract with a value in excess of $100,000, the City shall designate a time of Closing consistent with the first-tier Subcontractor disclosure requirements of ORS 279C.370(1)(b) and Section 5.34.493. For timing issues relating to Addenda, see Section 5.34.430;

 

8.  The office where the Specifications for the Work may be reviewed;

 

9.   A statement that each Bidder to an ITB must identify whether the Bidder is a "Resident Bidder," as defined in Subsection 5.33.010 A.55.;

 

10.  If the Contract resulting from a Solicitation will be a Contract for a Public Work subject to ORS 279C.800 to 279C.870 or the Davis-Bacon Act (40 U.S.C.§ 3141 to 3148), or both the state and federal prevailing rates of wage, a statement that no Offer will be received or considered by the City unless the Offer contains a statement by the Offeror as a part of its Offer that "Contractor agrees to be bound by and will comply with the provisions of ORS 279.838 or ORS 279C.840 or 40 U.S.C.§ 3141 to 3148, or both";

 

11.   A statement that the City will not receive or consider an Offer for a Public Improvement Contract unless the Offeror is registered with the Construction Contractors Board, or is licensed by the State Landscape Contractors Board.

 

12.   Whether a Contractor or a Subcontractor under the Contract must be licensed under ORS 468A.720 regarding asbestos abatement projects;

 

13.  Contractor's certification of nondiscrimination in obtaining required Subcontractors in accordance with ORS 279A.110(4) and Section 5.34.040;

 

14.   How the City will notify Offerors of Addenda and how the City will make Addenda available (see Section 5.34.430); and

 

15.    When applicable, instructions and forms regarding First-Tier Subcontractor Disclosure requirements, as set forth in Section 5.34.493.

 

16.  A statement that the Offeror must obtain EEO certification and have a valid City business license, if required. 

 

B.    The Solicitation Document shall also contain the following information about the evaluation process:

 

1.    A statement that the City may reject any Offer not in compliance with all prescribed Public Contracting procedures and requirements, and may reject for good cause all Offers upon the City’s finding that it is in the public interest to do so;

 

2.  The anticipated Solicitation schedule, deadlines, protest process and evaluation process, if any;

 

3.    Evaluation criteria, including the relative value applicable to each criterion, that the City will use to determine the Responsible Bidder with the lowest Responsive Bid (where Award is based solely on price) or the Responsible Proposer or Proposers with the best Responsive Proposal or Proposals (where use of Competitive Proposals is authorized), along with the process the City will use to determine acceptability of the Work;

 

a.  If the Solicitation Document is an Invitation to Bid, the City shall set forth any special price evaluation factors in the Solicitation Document. Examples of such factors include, but are not limited to, conversion costs, transportation cost, volume weighing, trade-in allowances, cash discounts, depreciation allowances, cartage penalties, and ownership or life-cycle cost formulas. Price evaluation factors need not be precise predictors of actual future costs; but, to the extent possible, such evaluation factors shall be objective, reasonable estimates based upon information the City has available concerning future use;

 

b.  If the Solicitation Document is a Request for Proposals, the City shall refer to the additional requirements of Section 5.34.850;

 

C.  The City shall include all Contract terms and conditions, including warranties, insurance and bonding requirements, that the City considers appropriate for the Public Improvement project.

 

D.  The City must include all applicable Contract provisions required by Oregon law as follows:

 

1.    Prompt payment to all Persons supplying labor or material; contributions to Industrial Accident Fund; liens and withholding taxes (ORS 279C.505(1)); and all provisions regarding accelerated or twice-monthly payment if required by the City’s Standard Construction Specifications;

 

2.   Demonstrate that an employee drug testing program is in place (ORS 279C.505(2));

 

3.    If the Contract calls for demolition Work described in ORS 279C.510(1), a condition requiring the Contractor to salvage or recycle construction and demolition debris, if feasible and cost-effective;

 

4.   If the Contract calls for lawn or landscape maintenance, a condition requiring the Contractor to compost or mulch yard waste material at an approved site, if feasible and cost effective (ORS 279C.510(2);

 

5.    Payment of claims by public officers (ORS 279C.515(1));

 

6.    Contractor and first-tier Subcontractor liability for late payment on Public Improvement Contracts pursuant to ORS 279C.515(2), including the rate of interest;

 

7.    A Person's right to file a complaint with the Construction Contractors Board for all Contracts related to a Public Improvement Contract  as provided in ORS 279C.515(3);

 

8.    Hours of labor in compliance with ORS 279C.520;

 

9.    Environmental and natural resources regulations (ORS 279C.525);

 

10.   Payment for medical care and attention to employees (ORS 279C.530(1));

 

11.   A Contract provision substantially as follows: "All employers, including Contractor, that employ subject workers who work under this Contract in the State of Oregon shall comply with ORS 656.017 and provide the required Workers' Compensation coverage, unless such employers are exempt under ORS 656.126. Contractor shall ensure that each of its Subcontractors complies with these requirements." (ORS 279C.530(2));

 

12.   Maximum hours, holidays and overtime (ORS 279C.540);

 

13.   Time limitation on claims for overtime (ORS 279C.545);

 

14.   Prevailing wage rates (ORS 279C.800 to 279C.870);

 

15.   Fee paid to BOLI (ORS 279C.830);

 

16.  BOLI Public Works Bond (ORS 279C.830(3));

 

17.   Retainage (ORS 279C.550 to 279C.570);

 

18.   Prompt payment policy, progress payments, rate of interest (ORS 279C.570);

 

19.   Contractor's relations with Subcontractors (ORS 279C.580);

 

20.   Notice of claim (ORS 279C.605);

 

21.    Contractor's certification of compliance with the Oregon tax laws in accordance with ORS 305.385; and

 

22.   Contractor's certification that all Subcontractors performing Work described in ORS 701.005(2) (i.e., construction Work) will be registered with the Construction Contractors Board. or licensed by the State Landscape Contractors Board in accordance with ORS 701.035 to 701.055 before the Subcontractors commence Work under the Contract.

 

E.  Unless otherwise provided in the Contract, the Contractor shall not assign, sell, dispose of, or transfer rights, nor delegate duties under the Contract, either in whole or in part, without the City’s prior Written consent, which must be approved as to form by the City Attorney’s Office. Unless approved in Writing and approved as to form, such consent shall not relieve the Contractor of any obligations under the Contract.  Any assignee or transferee shall be considered the agent of the Contractor and be bound to abide by all provisions of the Contract. If the City consents in Writing to an assignment, sale, disposal or transfer of the Contractor's rights or delegation of Contractor's duties, the Contractor and its surety, if any, shall remain liable to the City for complete performance of the Contract as if no such assignment, sale, disposal, transfer or delegation had occurred unless the City otherwise agrees in Writing.


5.34.310 Notice and Advertising Requirements; Posting.

(Amended by Ordinance Nos. 181547, 183445 and 185898, effective February 20, 2013.)

 

A.  The City shall furnish “Notice” as set forth in Subsections 5.34.310 A.1. through 3. to a number of Persons sufficient for the purpose of fostering and promoting competition. The Notice shall indicate where, when, how and for how long the Solicitation Document may be obtained and generally describe the Public Improvement project or Work. The Notice may contain any other appropriate information. The City may charge a fee or require a deposit for the Solicitation Document. The City may furnish Notice using any method determined to foster and promote competition, including:

 

1.   Mailing Notice of the availability of Solicitation Documents to Persons that have expressed an interest in the City’s Procurements;

 

2.  Placing Notice on the Oregon Department of Administrative Services’ Electronic Procurement System known as “ORPIN”(Oregon Procurement Information Network) or a successor electronic System; or

 

3.   Placing Notice on the City’s Internet Web site.

 

B.   Pursuant to ORS 279C.360 and this rule, the City shall advertise every Solicitation for competitive bids or competitive proposals for a Public Improvement Contract, unless the City Council has exempted the Solicitation from the advertisement requirement as part of a competitive bidding exemption under ORS 279C.335 and Section 5.34.820.

 

1.   Unless the City publishes by Electronic Advertisement as permitted by Subsection 5.34.310 B.2., the City shall publish the advertisement for Offers at least once in at least one newspaper of general circulation in the area where the Contract is to be performed and in as many additional issues and publications as the City may determine to be necessary or desirable to foster and promote competition.

 

2.   The City Council finds that publishing Notice Electronically is likely to be cost effective.  The City may publish by Electronic Advertisement if:

 

a.   The City has published a Notice that it may publish future advertisements for Offers by Electronic Advertisement. The City shall publish such Notice weekly, for no less than four (4) consecutive weeks. The City Notice shall include the World Wide Web location (i.e., Uniform Resource Locator or URL) where the City will publish future Electronic Advertisements or alternatively, the Web location where the City will publish information on accessing the Electronic Advertisement via a Telnet application;

 

b.   The City posts in its business office a Notice that the City will publish advertisements for Offers by Electronic Advertisement for no less than four consecutive weeks.  The Notice shall include the World Wide Web location (i.e., Uniform Resource Locator or URL) where the City publishes Electronic Advertisements or alternatively, the Web location where the City publishes information on accessing the Electronic Advertisement via Telnet; and

 

c.   In addition to the City’s publication required under Subsection 5.34.310 B.2.a. or b., the City shall also publish an advertisement for Offers in at least one trade newspaper of general statewide circulation if the Contract is for a Public Improvement with an estimated cost in excess of $125,000.

 

d.   All advertisements for Offers shall set forth:

 

(1)  The Public Improvement project;

 

(2)    The office where Contract terms, conditions and Specifications may be reviewed;

 

(3)   The date that Persons must file applications for Prequalification under ORS 279C.340, if Prequalification is a requirement, and the class or classes of Work for which Persons must be Prequalified;

 

(4)   The scheduled Closing, which shall not be less than five (5) Days after the date of the last publication of the advertisement;

 

(5)  The name, title and address of the City Person authorized to receive Offers;

 

(6)   The scheduled Opening; and

 

(7)   If applicable, that the Contract is for a Public Work subject to ORS 279C.800 to 279C.870 or the Davis-Bacon Act (40 U.S.C. § 3141 to 3148).

 

C.    The City shall post a copy of each advertisement for Offers at Procurement Services.  An Offeror may obtain a copy of the advertisement for Offers upon request to the Bureau.

 


5.34.320 Specifications and Brand Names.

(Amended by Ordinance Nos. 183445, 184403 and 185898, effective February 20, 2013.)

 

A.  Specification content is in the sole discretion of the City of Portland, subject to statutory restrictions on the use of brand names.  

 

B.   The City may consult with technical experts, suppliers, prospective contractors and representative of the industries with which the City will Contract.  The City shall take reasonable measure to ensure that no Person who prepares or assists in the preparation of Solicitation Documents, Specifications, plans or Scope of Work (collectively, “documents”), and that no business with which the Person is associated realizes a material competitive advantage that arises from the City’s use of those documents. 

 

C.  A “brand name or equal” Specification may be used when it 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 City’s determination of what constitutes a product that is equal or superior to the product specified is final.  Unless otherwise specified,  the use of a brand name shall mean “brand name or equal”.

 

D.  A “brand name” Specification may be used requiring a Contractor to provide a specific brand when the Chief Procurement Officer, or designee, makes the following findings:   

 

1.  The use of a brand name Specification is unlikely to encourage favoritism in the Awarding of a Public Contract or substantially diminish competition for Public Contracts: or

 

2.  The use of a brand name Specification would result in a substantial cost savings to the City; or

 

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

 

4.  Efficient utilization of existing equipment, or supplies requires the acquisition of compatible equipment or supplies

 

E.  The City's use of a brand name specification is subject to protest and review only as provided in Section 5.34.720.


5.34.330 Facsimile Bids and Proposals.

(Amended by Ordinance No. 183445, effective January 6, 2010.)

 

A.   Authorization.  The Chief Procurement Officer may authorize Offerors to submit Facsimile Offers. If the Chief Procurement Officer determines that Bid or Proposal Security is or will be required, the City shall not authorize Facsimile Offers unless the City has established a method for receipt of such security. Prior to authorization the City must determine whether the City’s equipment and personnel are capable of receiving the size and volume of anticipated Offers within a short period of time and establish administrative procedures and controls:

 

1.  For receiving, identifying, recording and safeguarding Facsimile Offers, and

 

2.  To ensure timely delivery of Offers to the location of Opening and to preserve the "sealed" requirement of competitive Procurement.

 

B.   Provisions To Be Included in Solicitation Document. In addition to all other requirements, if the City authorizes a Facsimile Offer, the City shall include in the Solicitation Document (other than a request for price quotations) provisions substantially similar to the following:

 

1.   A “Facsimile Offer”, as used in this Solicitation, means an Offer, modification of an Offer, or withdrawal of an Offer that is transmitted to and received by the City via a Facsimile machine.

 

2.   Offerors may submit Facsimile Offers in response to this Solicitation. The entire response must arrive at the place and by the time specified in this Solicitation Document.

 

3.  Facsimile Offers must be Signed by the Offeror.

 

4.  The City reserves the right to Award the Contract solely on the Facsimile Offer. However, upon the City’s request the apparently successful Offeror shall promptly submit its complete original Signed Offer.

 

5.  The data and compatibility characteristics of the City’s receiving Facsimile machine are as follows:

 

a.  Telephone number;

 

b.  Compatibility characteristics, e.g., make and model number, receiving speed, and communications protocol.

 

6.  The City is not responsible for any failure attributable to the transmission or receipt of the Facsimile Offer including, but not limited to the following:

 

a.  Receipt of garbled or incomplete documents.

 

b.  Availability or condition of the receiving Facsimile machine.

 

c.  Incompatibility between the sending and receiving Facsimile machine.

 

d.  Delay in transmission or receipt of documents.

 

e.  Failure of the Offeror to properly identify the Offer documents.

 

f.  Illegibility of Offer documents.

 

g.  Security and confidentiality of data.


5.34.340 Electronic Procurement.

(Amended by Ordinance Nos. 183445 and 185898, effective February 20, 2013.)

 

A.  General. If the Public Improvement Contract has an estimated cost in excess of $125,000, the advertisement must be published in at least one trade newspaper of general statewide circulation, except in circumstances where the Chief Procurement Officer finds that Electronic Advertisements are likely to be cost effective.

 

B.  The City may post a notice of Intent to Award a Contract Electronically at least seven (7) Days before the Award of a Public Contract. 

 

C.  Required Factors.  In determining whether to authorize Electronic Bids or Proposals, the City shall consider factors such as:

 

1.  Anticipated Bid or Proposal size and volume;

 

2.  Whether there is an urgent need for the Work being procured;

 

3.  Frequency of price changes;

 

4.  Availability, reliability, speed, and capacity of the receiving Electronic equipment;

 

5.  Adequacy of administrative procedures and controls for receiving, identifying, recording, and safeguarding Electronic Bids or Proposals, and ensuring their timely delivery to the Bid or Proposal Opening location; and,

 

6.  The means and method for sealing or securing the transmitted documents to preserve the sealed requirement of competitive Procurement.

 

D.  Security.  If Bid or Proposal Security is required, Electronic submission shall not be authorized unless the City has provided another method for receipt of the security.

 

E.  Authorization; Contents of Solicitation Document.  Bids or Proposals may be submitted Electronically only if specifically authorized by the Solicitation Document.  If Electronic transmission is authorized, the City shall include provisions substantially similar to the following in the City’s Solicitation Document:

 

1.  Definition. Electronic Bid or Proposal, as used in this Solicitation Document, means a Bid or Proposal, modification of a Bid or Proposal, or withdrawal of a Bid or Proposal that is Electronically transmitted to and received by the City, in the manner specified in the Solicitation Document. 

 

2.  Timely Submission. Bidders or Proposers may submit Electronic Bids or Proposals in response to this Solicitation Document. The entire Electronic Bid or Proposal shall arrive at the place and by the time specified in the Solicitation Document.

 

3.   Rejection of Bids or Proposals. Electronic Bids or Proposals that fail to furnish required representations or information, that are contingent or that reject or take exception to any of the terms, conditions, and provisions of the Solicitation Document, may be rejected and excluded from consideration, as otherwise provided by this Chapter.

 

4.  Signatures. Electronic Bids or Proposals shall contain the required signatures.

 

5.  Request for Original. The City reserves the right to Award the Contract solely on the Electronic Bid or Proposal. However, if requested to do so by the City, the apparently successful Bidder or Proposer agrees to promptly submit the complete original signed Bid or Proposal.

 

6.  Transmission Information. Data and compatibility characteristics.

 

7.  Non-Responsibility for Transmission Failure. If the Bidder or Proposer chooses to transmit an Electronic Bid or Proposal, the City shall not be responsible for any failure attributable to the transmission or receipt of the Electronic Bid or Proposal regardless of cause.


5.34.410 Bid or Proposal Security.

(Amended by Ordinance Nos. 181547, 183445 and 185898, effective February 20, 2013.)

 

A.  Security Amount. If The City requires Bid or Proposal Security, it shall be not more than 10 percent of the Offeror's Bid or Proposal. The City shall not use Bid or Proposal Security to discourage competition. The City shall clearly state any Bid or Proposal Security requirements in its Solicitation Document. The Offeror shall forfeit Bid or Proposal Security after Award if the Offeror fails to execute the Contract and promptly return it with any required Performance Bond, Payment Bond and any required proof of insurance. See ORS 279C.365(45) and ORS 279C.385.  See also, Section 5.34.915 and BOLI rules regarding the separate requirement for a Public Works Bond.

 

B.  Requirement for Bid Security (Optional for Proposals). Unless The City Council has exempted a Solicitation, or class of Solicitations, from Bid security pursuant to ORS 279C.390, the City shall require Bid security for its Solicitation of Bids for Public Improvements. This requirement applies only to Public Improvement Contracts with a value, estimated by the City, of more than $150,000. The Chief Procurement Officer nonetheless may require Bid security from any Offeror, or for any project, even if the City Council has exempted a class of Solicitations from Bid security if the Chief Procurement Officer believes it necessary to secure payment and performance.  The Chief Procurement Officer may require Proposal Security in RFPs.  (see ORS 279C.400(5)).

 

C.   Form of Bid or Proposal Security. The City may accept only the following forms of Bid or Proposal Security:

 

1.  A surety bond, signed by the surety’s authorized Attorney in Fact, from a company authorized to do business in the State of Oregon and that is duly listed in the United States Treasury list as published in the Federal Register, or which is otherwise approved by the City Attorney.  The surety company’s seal shall be affixed to the bond and a Power of Attorney for the Attorney in Fact shall be submitted.  The City Attorney has the authority to waive the requirement of the corporate seal: or

 

2.  A signed irrevocable letter of credit issued by an insured institution as defined in ORS 706.008(12); or

 

3.  A Cashier's check, or Offeror’s certified check.

 

D.  Return of Security. The City shall return or release the Bid or Proposal Security of all unsuccessful Offerors after a Contract has been fully executed and all required Bonds have been provided, or after all Offers have been rejected. The City may return the Bid or Proposal Security of unsuccessful Offerors prior to Award if the return does not prejudice Contract Award and the Security of at least the Bidders with the three lowest Bids, or the Proposers with the three highest scoring Proposals, is retained pending execution of a Contract.

 


5.34.420 Pre-Offer Conferences.

(Amended by Ordinance No. 185898, effective February 20, 2013.)

 

A.  The City may hold pre-Offer conferences with prospective Offerors prior to Closing, to explain the Procurement requirements, obtain information or to conduct site inspections.

 

B.  The City may require attendance at the pre-Offer conference as a condition for making an Offer. Unless otherwise specified in the Solicitation Document, a mandatory attendance requirement is considered to have been met if, at any time during the mandatory meeting, a representative of an offering firm is present.

 

C.  If the City holds a pre-Offer conference, it shall be held within a reasonable time after the Solicitation Document has been issued, but sufficiently before the Closing to allow Offerors to consider information provided at that conference.

 

D.  Statements made by the City’s representative at the pre-Offer conference, or elsewhere do not change the Solicitation Document unless the City confirms such statements with a Written Addendum to the Solicitation Document.

 

E.  The City must set forth notice of any pre-Offer conference in the Solicitation Document in accordance with Section 5.34.300.

 


5.34.430 Addenda to Solicitation Documents.

(Amended by Ordinance Nos. 183445 and 185898, effective February 20, 2013.)

 

A.  Issuance; Receipt. A Solicitation Document may be changed only by a Written Addendum. An Offeror shall provide Written acknowledgment of receipt of all issued Addenda with its Offer, unless the City otherwise specifies in the Addenda or Solicitation Document.   If an Offeror submits an Offer and the Solicitation Document states that the Offeror is bound by all Addenda published in accordance with these rules, then the Offeror shall be bound by all Addenda so issued. 

 

B.  Notice and Distribution. The City shall notify prospective Offerors of Addenda consistent with the standards of Notice set forth in Section 5.34.310. The Solicitation Document shall specify how the City will provide Notice of Addenda and how the City will make the Addenda available (see, Section 5.34.300).  For example, the Solicitation Document could say: “City will not mail Notice of Addenda, but will publish Notice of any Addenda on City's Web site.” Addenda may be downloaded off the City's Web site. Offerors should frequently check the City's Web site until Closing, (i.e., at least once weekly until the week of Closing and at least once daily the week of the Closing).

 

C.  Timelines; Extensions. The City shall issue Addenda within a reasonable time to allow prospective Offerors to consider the Addenda in preparing their Offers. The City should extend the Closing if the Chief Procurement Officer determines prospective Offerors need additional time to review and respond to Addenda. Except to the extent that the Chief Procurement Officer determines that the public interest requires it, the City shall not issue an Addendum less than 72 hours before the Closing unless the Addendum also extends the Closing.  Notice of the Addenda shall be deemed to occur when the Addendum is posted on the City’s web site or upon mailing, whichever is applicable.  If both occur, the notification is complete when the first of these two events occur.  

 

D.  Request for Change or Protest. Unless a different deadline is set forth in the Addendum, an Offeror must submit a Written request for change or protest to the Addendum, as provided in Section 5.34.440 by the close of the City's next business Day after issuance of the Addendum. The City shall consider only an Offeror's request for change or protest to the Addendum; the City shall not consider a request for change or protest to matters not added or modified by the Addendum. Notwithstanding any provision of this Paragraph, the City is not required to provide a protest period for Addenda issued during a multi-tiered Solicitation process pursuant to Section 5.34.850.


5.34.440 Request for Clarification or Change.

(Amended by Ordinance Nos. 183445 and 185898, effective February 20, 2013.)

 

A.  Time for submission of request for change.  Unless otherwise provided in the Solicitation Document, an Offeror shall deliver any request for change to the Solicitation Document, Specifications or Contract provisions to the City in Writing within seven (7) Days prior to Bid or Proposal Closing.  Requests for change in regard to Addenda shall be submitted in accordance within the time permitted by Subsection 5.34.430 D.

 

B.  Any request for change shall include a detailed statement of the legal and factual reasons for the request for change; any proposed changes to Specifications or Contract provisions; and a description of any prejudice to the Offeror; and a statement of the form of relief requested.  No request for change of the content of the Solicitation Document, Specifications or Contract provisions shall be considered after the deadline established for submitting such request. The City shall notify the Offeror if the City entirely rejects the request.  If the City agrees with the request, in whole or in part, the City shall either issue an Addendum reflecting the change or cancel the Solicitation.

 

C.  Extension of Closing date. If any request for change is timely received in accordance with these rules the Closing may be extended by the Chief Procurement Officer if it is determined that an extension is necessary to allow consideration of the request or issuance of any Addendum to the Solicitation Document.

 

D.  Identification of request for change. Envelopes containing requests for change of the Solicitation Document, Specifications or Contract provisions shall be marked with the following information:

 

1.    Solicitation Specification or Contract Provision Request for Change or Clarification; and

 

2.    Solicitation Document Number or Other Identification.

 

E.   A Proposer may request a change to add alternate terms and conditions for negotiation if the Solicitation Document permits negotiation.  In this circumstance, request for change procedure shall be governed by the Solicitation Document and Subsections 5.34.840 E. and 5.34.850 F. 

 

F.   Clarification.  Prior to the deadline for submitting a request for change, an Offeror may request in Writing that the City clarify any provision of the Solicitation Document or Contract.  The City’s clarification, whether oral or in Writing, does not change the Solicitation Document or Contract and is not binding on the City unless the City amends the Solicitation Document or Contract by Written Addenda.

 


5.34.450 Offer Submissions.

(Amended by Ordinance Nos. 181547 and 185898, effective February 20, 2013.)

 

A.  Offer and Acceptance. A Bid, Proposal or Price Quotation is an Offer to enter into a Contract. The Offer is a “Firm Offer,” i.e., the Offer shall be held open by the Offeror for the City’s acceptance for not less than 30 Days from closing unless otherwise specified in the Solicitation Document.  After the 30 Days the Offer shall lapse unless extended. The extension may occur after the expiration of the 30-Day period.

 

B.  The Offer may be extended beyond 30 Days if the Offeror and the City so agree. If agreement is reached the time period for extension shall be reduced to Writing and the Offer will remain valid, irrevocable and binding on the Offeror for the agreed-upon extension period.

 

C.  The City’s Award of the Contract constitutes acceptance of the Offer and binds the Offeror to the Contract.

 

D.  Responsive Offer. The City may Award a Contract only to a Responsible Offeror with a Responsive Offer.

 

E.  A competitive Proposal is a “Firm Offer” for the period specified as provided in section A above, but the City may elect to discuss or negotiate certain contractual provisions, as identified in these rules or in the Solicitation Document with the Proposer. Where negotiation is permitted by the rules or the Solicitation Document, Proposers are bound to an obligation to negotiate in good faith and only on those terms and the rules or the Solicitation Document has reserved for negotiation.

 

F.  The City may Award a Contract only to a Responsible Offeror with a Responsive Offer.

 

G.  Contingent Offers. Except to the extent that a Proposer is authorized to propose certain terms and conditions pursuant to Section 5.34.850, a Proposer shall not make, and the City shall not accept, an Offer contingent upon the City’s acceptance of any terms or conditions (including Specifications) other than those contained in the Solicitation Document.

 

H.  Offeror's Acknowledgement. By signing and returning the Offer, the Offeror acknowledges it has read and understands the terms and conditions contained in the Solicitation Document and that it accepts and agrees to be bound by the terms and conditions of the Solicitation Document. If the Request for Proposals permits Proposal of alternative terms under Section 5.34.850, the Offeror's Offer includes the nonnegotiable terms and conditions and any proposed terms and conditions offered for negotiation upon and to the extent accepted by the City in Writing.

 

I.  Instructions. An Offeror shall submit and Sign its Offer in accordance with the Solicitation Document. Bids requiring a Written and non-electronic signature shall be signed in ink by an Authorized Representative of the Offeror.  An Offeror shall initial and submit any correction or erasure to its Offer prior to the Opening in accordance with the requirements for submitting an Offer under the Solicitation Document.

 

J.  Forms. An Offeror shall submit its Offer on the form(s) provided in the Solicitation Document, unless an Offeror is otherwise instructed in the Solicitation Document.

 

K.  Documents. An Offeror shall provide the City with all documents and Descriptive Literature required under the Solicitation Document.

 

L.  Facsimile or Electronic Submissions If the City permits Facsimile or Electronic Offers in the Solicitation Document, the Offeror may submit Facsimile or Electronic Offers in accordance with the Solicitation Document. The City shall not consider Facsimile or Electronic Offers unless authorized by the Solicitation Document.

 

M.  Product Samples and Descriptive Literature. The City may require Product Samples or Descriptive Literature if it is necessary or desirable to evaluate the quality, features or characteristics of the offered items. The City will dispose of Product Samples, or return or make available for return Product Samples to the Offeror in accordance with the Solicitation Document.

 

N.  Identification of Offers.

 

1.  To ensure proper identification and handling, Offers shall be submitted in a sealed envelope appropriately marked or in the envelope provided by the City, whichever is applicable.

 

2.  The City is not responsible for Offers submitted in any manner, format or to any delivery point other than as required in the Solicitation Document.

 

O.  Receipt of Offers. The Offeror is responsible for ensuring that the City receives its Offer at the required delivery point prior to the Closing, regardless of the method used to submit or transmit the Offer.


5.34.460 Pre-Closing Modification or Withdrawal of Offers.

(Amended by Ordinance No. 185898, effective February 20, 2013.)

 

A.  Modifications. Once submitted, Bids or Proposals may only be modified in Writing prior to the time and date set for Bid or Proposal Closing. Unless otherwise provided in the Solicitation Document, any modifications shall be prepared on the Bidder's or Proposer's letterhead, signed by an Authorized Representative of the Bidder or Proposer, state that the new document supersedes or modifies the prior Bid or Proposal and be submitted in a sealed envelope, appropriately marked. The City may accept modifications Electronically only if it has authorized Electronic submittal in the Solicitation Document. To ensure the integrity of the Bidding process, the envelope or Electronic submission containing any modifications to a Bid or Proposal shall be marked with the following information:

 

1.  Bid or Proposal Modification.

 

2.  Solicitation Number or Other Identification.

 

B.  Withdrawals:

 

1.    Bids or Proposals may be withdrawn by a Written notification of the Bidder or Proposer.  The notice shall be signed by an Authorized Representative of the Bidder or Proposer, and must be received prior to the time and date set for Bid or Proposal Closing.

 

2.    Written notifications to withdraw Bid or Proposal  shall be marked with the following information:

 

a.    Bid or Proposal Withdrawal.

 

b.    Solicitation Number or Other Identification.

 

C.  Documentation. All documents relating to the modification or withdrawal of Bids or Proposals shall be made a part of the appropriate Bid or Proposal Solicitation file.

 

D.  Late Requests for Modification or Withdrawal.  Any request for modification or withdrawal of a Bid or Proposal made after the time for Bid or Proposal Closing is late as provided by Section 5.34.480. Any late submission shall be returned to the Bidder or Proposer unopened.  If any late submission is opened inadvertently, the procedure provided by Section 5.34.470 shall apply except the submission shall be returned to the sender.   


5.34.470 Receipt, Opening and Recording of Offers.

(Amended by Ordinance No. 183445, effective January 6, 2010.)

 

A.    Receipt. Each Offer, and modifications to Offers, shall, upon receipt, be Electronically or mechanically time-stamped by Procurement Services time clock, or marked by hand, but not opened, and shall be stored in a secure place until Bid or Proposal Opening. If Offers or modifications are opened inadvertently or opened prior to the time and date set for Bid or Proposal Opening because they were improperly identified by the Offeror, the opened Offers or modification documents shall be resealed and stored for Opening at the correct time. When this occurs, documentation of the resealing shall be placed in the file.

 

B.    Opening and Recording. Offers and modifications to Offers shall be opened publicly, at the time, date, and place designated in the Solicitation Document. In the case of Invitations to Bid, to the extent practicable, the name of each Bidder, the Bid price(s), and such other information as considered appropriate shall be read aloud. In the case of Requests for Proposals or on voluminous Bids, the City may advise Bidders and Proposers, as part of the Solicitation Documents, that the Bid or Proposal items and prices will not be read aloud.

 

C.    Availability. After Opening, the City shall make Bids available for public inspection, but pursuant to ORS 279C.410.  Proposals are not subject to disclosure until after notice of intent to Award is issued.  In any event, the City may withhold from disclosure those portions of an Offer that the Offeror designates trade secrets or as confidential proprietary data in accordance with the Oregon Public Records Law, ORS 192.410 et seq. Application of the Oregon Public Records Law ORS 192.410 et seq. shall determine if the information designated as confidential and claimed to be exempt is in fact exempt from disclosure.  To the extent the City determines the designated information is not in accordance with applicable law, the City shall make those portions available for public inspection.  In order to facilitate public inspection of the non-confidential portion of the Bid or Proposal, material designated as confidential shall accompany the Offer, but the Offeror shall separate it, if requested, from the remainder of the Offer.  Prices, makes, model or catalog numbers of items offered, scheduled delivery dates, and terms of payment shall be publicly available regardless of the Offeror’s designation to the contrary.  Copies of public records will be made available upon payment of the City’s charges. 


5.34.480 Late Bids, Late Withdrawals and Late Modifications.

(Amended by Ordinance Nos. 183445 and 185898, effective February 20, 2013.)

 

A.  Any Offer received after Closing is late. An Offeror's request for withdrawal or modification of an Offer received after Closing is late. The City shall not consider late Offers, withdrawals or modifications, except as permitted by Sections 5.34.490 (Mistakes) or 5.33.610 (Offer Evaluation and Award).

 

B.  For manual submissions of Offers, Procurement Services’ time clock shall be the clock of record and the date and time imprint of that clock on an Offer shall determine the timeliness of the submission.  Late manual submissions shall be returned to the Offeror unopened with a copy of the envelope containing the Bureau’s time stamp on the Offer retained for the Solicitation file 

 

C.  For Electronic submissions, when permitted, the time shown by the City as to the date of arrival of the Electronic submission shall determine the timeliness of the submission.  Late Electronic submissions shall be deleted from the City’s files, returned Electronically to the Offeror and the time of the submission and the time of return shall be documented in the Solicitation file.   

 

D.  For Facsimile submissions, when permitted, the time recorded at the top of the last page of the submission shall determine the timeliness of the submission.  Late Facsimile transmissions shall be returned to the Offeror after keeping a copy of the last page of the transmission for the Solicitation file. 

 

E.  Failure to properly return or dispose of a late submission does not mean an Offer or submission arrived on time.


5.34.490 Mistakes.
 
A.  General. To protect the integrity of the competitive Solicitation process and to assure fair treatment of Offerors, the City should carefully consider whether to permit a waiver, correction or withdrawal of an Offer for certain mistakes.
 
B.  Treatment of Mistakes.  Errors in judgment do not permit an Offeror to correct or withdraw an Offer.  Mistakes that constitute a minor informality may be waived or corrected.  Mistakes that constitute clerical errors may be corrected or withdrawn in the City’s discretion pursuant to this rule.   
 
C.  City notification.  If the City believes the Offer contains a mistake the City shall notify the Offeror, note the apparent mistake and request that the Offeror verify the Offer in writing, or by electronic transmission within one business day after notification.    
 
D.  Failure of Offeror to Respond.  If the Offeror fails to respond within one business day after notification of the apparent mistake, the City shall consider the Offer as submitted unless the amount of the Offer is so far out of line with the amounts of other bids received, or with the amount estimated by the City, or there are other indications of error so clear, as to reasonably justify the conclusion or that acceptance of the Offer would be unfair to the Offeror or to other bona fide Offerors, in which case the City shall be entitled to reject the Offer.  The City may extend the time for response for good cause shown.    
 
E.  Verification.  If the Offeror verifies its Offer, the City must consider the Offer as originally submitted.  However, in fairness to other Offerors, verification does not preclude the City from rejecting the Offer if it is clear that a mistake has been made and the City determines the intended Offer is not evident.
 
F.  Minor Informality.  If the Offeror verifies its Offer, and the City sees no reason for rejection, the City may waive or permit the Offeror to correct a mistake that constitutes a minor informality.  A minor informality is a matter of form, rather than substance, that is evident on the face of the Offer and which can be corrected or waived without prejudice to the public or other Offerors.  Examples of a minor informality include a failure to:
1.  Return the correct number of Signed Offers or the correct number of other documents required by the Solicitation Document;
 
2.  Sign the Offer in the designated block, provided, however, that a Signature appears elsewhere in the Offer that evidences the Offeror’s intent to be bound; or 
 
3.  Acknowledge receipt of an Addendum to the Solicitation Document, provided it is clear on the face of the Offer that the Offeror received the Addendum and intended to be bound by its terms.
G.  Clerical Mistakes. If the Offeror does not verify its Offer, but contends a clerical mistake caused a different Offer than intended to be submitted, or verifies the Offer but contends a clerical mistake should be corrected within a portion of the Offer, the City may in its discretion permit correction if the conditions of this section are met.   
1.  Only clerical mistakes can be corrected. A clerical mistake is not a mistake of judgment. Examples of clerical mistakes include typographical mistakes, errors in extending unit prices, transposition errors, arithmetical errors, misplacement of a decimal point, and instances in which the intended correct price is evident by simple arithmetic calculations. 
 
2.  If correction of the Offer would result in displacement of one or more lower Offers submitted by other Offerors, the correction is permitted if, and only if, both the existence of the mistake and the Offer actually intended are ascertainable from the Solicitation Document and the Offer itself. 
 
3.  If correction of the Offer would not result in the displacement of one or more lower Offers submitted by other Offerors, correction may be permitted if the Offeror provides the City with clear and convincing supporting evidence of the mistake and intended Offer within two business days after the City’s initial notification of the mistake.  The City may extend the time for response for good cause shown.       
a.  Supporting evidence shall include all pertinent evidence, such as the Offeror’s file copy of its Offer, the original worksheets and other data used in preparing the Offer, subcontractors’ quotations, if any, and any other evidence that establishes the existence of a clerical mistake, the manner in which it occurred and the Offer actually intended. 
 
b.  The closer the corrected Offer is to the next lowest Offer the greater the need for the City to be sure that it has clear and convincing evidence that permits a correction to ensure the integrity of the competitive process.

5.34.493 First-Tier Subcontractors; Disclosure and Substitution.

(Amended by Ordinance No. 183445, effective January 6, 2010.)

 

A.  Required Disclosure. Within two working hours after the Bid Closing on an ITB for a Public Improvement having a Contract Price estimated by the City to exceed $100,000, all Bidders shall submit to the City a disclosure form as described by ORS 279C.370(2), identifying any first-tier Subcontractors that will be furnishing labor or labor and materials on the Contract, if Awarded, whose subcontract value would be equal to or greater than:

 

1.   Five percent of the total Contract Price, but at least $15,000; or

 

2.  $350,000, regardless of the percentage of the total Contract Price.

 

B.  Bid Closing, Disclosure Deadline and Bid Opening. For each ITB to which this rule applies, the City shall:

 

1.   Set the Bid Closing on a Tuesday, Wednesday or Thursday, and at a time between 2 p.m. and 5 p.m., except that these Bid Closing restrictions do not apply to an ITB for maintenance or construction of highways, bridges or other transportation facilities, and provided that the two-hour disclosure deadline described by this rule would not then fall on a legal holiday;

 

2.   Open Bids publicly immediately after the Bid Closing; and

 

3.  Consider for Contract Award only those Bids for which the required disclosure has been submitted by the announced deadline on forms prescribed by the City.

 

C.  Bidder Instructions and Disclosure Form. For the purposes of this rule, the City in its Solicitation shall:

 

1.   Prescribe the disclosure form that must be utilized, substantially in the form set forth in ORS 279C.370(2); and

 

2.   Provide instructions in a notice substantially similar to the following:

 

“Instructions for First-Tier Subcontractor Disclosure

Bidders are required to disclose information about certain first-tier Subcontractors (see ORS 279C.370). Specifically, when the Contract Amount of a first-tier Subcontractor furnishing labor or labor and materials would be greater than or equal to:

 

a.  5% of the project Bid, but at least $15,000; or

 

b.   $350,000 regardless of the percentage, the Bidder must disclose the following information about that subcontract either in its Bid submission, or within two hours after Bid Closing:

 

(1)  The Subcontractor's name,

 

(2)  The category of Work that the Subcontractor would be performing, and

 

(3)  The dollar value of the subcontract.

 

If the Bidder will not be using any Subcontractors that are subject to the above disclosure requirements, the Bidder is required to indicate "NONE" on the accompanying form.

 

THE CITY MUST REJECT A BID IF THE BIDDER FAILS TO SUBMIT THE DISCLOSURE FORM WITH THIS INFORMATION BY THE STATED DEADLINE."

 

D.  Submission. A Bidder shall submit the disclosure form required by this rule either in its Bid submission, or within two (2) working hours after Bid Closing in the manner specified by the ITB.

 

E.  Responsiveness. Compliance with the disclosure and submittal requirements of ORS 279C.370 and this rule is a matter of Responsiveness. Bids that are submitted by Bid Closing, but for which the disclosure submittal has not been made by the specified deadline, are not Responsive and shall not be considered for Contract Award.

 

F.  City Role. The City shall obtain, and make available for public inspection, the disclosure forms required by ORS 279C.370 and this rule. The City also shall provide copies of disclosure forms to the Bureau of Labor and Industries as required by ORS 279C.835. The City is not required to determine the accuracy or completeness of the information provided on disclosure forms.

 

G.  Substitution. Substitution of affected first-tier Subcontractors shall be made only in accordance with ORS 279C.585. Contracting Agencies shall accept Written submissions filed under that statute as public records. Aside from issues involving inadvertent clerical error under ORS 279C.585, the City is not under an obligation to review, approve or resolve disputes concerning such substitutions. See ORS 279C.590 regarding complaints to the Construction Contractors Board on improper substitution.    Substitution of Minority, Women and Emerging Small Businesses are also subject to the City’s Solicitation Document.


5.34.500 Responsibility of Offerors.

(Amended by Ordinance Nos. 181547, 183445 and 185898, effective February 20, 2013.)

 

A.  Contracts shall be Awarded only to Responsible Offerors.  Pursuant to ORS 279C.375, the City shall consider whether the Offeror has:

 

1.  Available the appropriate financial, material, equipment, facility and personnel resources and expertise, necessary to indicate the capability of the prospective Offeror to meet all contractual responsibilities;

 

2.  Has completed previous contracts of a similar nature with a satisfactory record of performance.  A satisfactory record of performance means that to the extent the costs associated with and time available to perform a previous contract were within the Offeror’s control, the Offeror stayed within the time and budget allotted for the procurement and otherwise performed the contract in a satisfactory manner.  The City should carefully scrutinize an Offeror’s record of contract performance if the Offeror is or recently has been materially deficient in contract performance.  In reviewing the Offeror’s performance, the City should determine whether the Offeror’s deficient performance was expressly excused under the terms of the contract, or whether the Offeror took appropriate corrective action.  The City may review the Offeror’s performance on both private and Public Contracts in determining the Offeror’s record of contract performance.   Among the matters the City may review in this regard is whether the Offeror has a record of material violations of state or federal prevailing wage laws.  The City shall document the record of performance of a prospective Offeror if the City finds the prospective Offeror non-Responsible under this Paragraph;

 

3.  A satisfactory record of integrity.  The City may find an Offeror not Responsible based on the lack of integrity of any Person having influence or control over the Offeror (such as a key employee of the Offeror that has the authority to significantly influence the Offeror’s performance of the Contract or a parent company, predecessor or successor Person.)  The standards for Conduct Disqualification may be used to determine an Offeror’s integrity.  The City may find an Offeror not Responsible based on previous convictions of offenses related to obtaining or attempting to obtain a Contract or subcontractor or in connection with the Offeror’s performance of a Contract or subcontract.  The City shall document the record of integrity of a prospective Offeror if the City finds the prospective Offeror non-Responsible under this Paragraph;

 

4.  Is legally qualified to Contract with the City, including, but not limited to, an EEO Certification and a current, valid, business license from the City.  Procurement Services may determine that a Person is not legally qualified if:

 

a.  The Person does not have a business license with the City; or

 

b.  The Person failed to make payments required by Title 7 of the City Code and has failed to make appropriate payment arrangements with the Revenue Bureau within seven (7) Days of the receipt of a Bid or Proposal, unless the City waives that requirement and decides to pursue collection through retention of Contract funds, or through other means.

 

5.  Supplied all necessary information in connection with the inquiry concerning responsibility.  If a prospective Offeror fails to promptly supply information requested by the City concerning responsibility, the City shall base the determination of responsibility upon any available information or may find the prospective Offeror non-Responsible;

 

6.  Not been disqualified by the City pursuant to ORS 279C.440 and Section 5.34.530.

 

B.  In the event the City determines an Offeror is not Responsible it shall prepare a Written determination of non-responsibility as required by ORS 279C.375.


5.34.510 Prequalification of Offerors.

(Amended by Ordinance Nos. 183445, 184403, 185065 and 185898, effective February 20, 2013.)

 

A.  The City of Portland requires prequalification of all prime construction contractors on public improvement contracts with an estimated value of $250,000 or greater, per ORS 279C.430(1) which allows public agencies the option to adopt their own rules for mandatory prequalification of contractors desiring to bid for public improvement contracts let by that agency.  The Chief Procurement Officer has the authority to require Prequalification for public improvement contracts under $250,000.  The City shall not consider a Bid from a Bidder that is not prequalified, if the City required Prequalification.

 

B.  Prequalification Application Forms. Contractors seeking to prequalify shall submit a City of Portland Prequalification application to Procurement Services. Within 30 days after receipt of a fully completed prequalification application, the City will evaluate the application as necessary to determine if the contractor is qualified in the classes of work requested. The determination shall be made in less than 30 days, if practicable, if the contractor requests an early decision to allow the contractor as much time as possible to prepare a bid on a contract that has been advertised.

 

C.    Standards for Prequalification.  To qualify, a Bidder must demonstrate to the City’s satisfaction, that they are a Responsible Bidder based on criteria set forth in ORS 279C.375 (3)(b) and Section 5.34.500. If the City determines the Bidder is qualified, notification shall be sent stating the Bidder’s qualified bidding limits, classes of work and the validity period of the Bidder’s prequalification.

 

D.  Special Prequalification.  A separate special Prequalification may be required for a specific project, as contained in the Solication Document, when the City determines that the project is of a size, scope or complexity that Special Prequalification is required or such other circumstances exist, that in the opinion of the City, a Special Prequalification would be of assistance in the selection of qualified contractors. 

 

E.    Prequalification Presumed.  If a Bidder is currently Prequalified by either the Oregon Department of Transportation or the Oregon Department of Administrative Services to perform Contracts, the Bidder shall be rebuttably presumed qualified to perform the same Work for the City upon submission of proof of such Prequalification.  If a Bidder submits proof of Prequalification, then the Bidder is rebuttably presumed qualified under ORS 279C.435.  Nothing contained in this paragraph shall waive the City requirements for Prequalification, the City’s authority to require additional information or detail, or prior approval as otherwise set forth in this rule.  

 

F.  Scope of Prequalification.  The Chief Procurement Officer shall determine whether the applicant for Prequalification shall be considered Prequalified for City Bids, and the extent of Prequalification if approved or impose any other restrictions which the Chief Procurement finds appropriate under the circumstances. Thereafter, if the Bidder has Prequalified, Bids may be received from the Bidder only within the limitations and restrictions imposed by the Prequalification decision.

 

1.  Unless otherwise specified by the Chief Procurement Officer, any Bidder whose application for Prequalification has been wholly disapproved may resubmit an application for a Prequalification no sooner than three months after the Chief Procurement Officer’s notice of disapproval.  A Bidder, whose application has been approved in part or who seeks a broadening of its Prequalification, or elimination of any restriction, may resubmit an application at any time provided a change of circumstances has occurred and the Bidder submits new information to support its re-application.

 

2.  With or without a request from the Prequalified Bidder, the Prequalification standing and any limitation on class of Work or size of project may be reviewed further by the Chief Procurement Officer and broadened or restricted as determined by the Chief Procurement Officer to be appropriate.  

 

G.    Notice.  If the City determines a Bidder’s Prequalification is not approved in whole or in part, or is restricted or revoked, the City shall notify the Bidder, specify the reasons found under ORS 279C.375(3)(b) and Section 5.34.500, and inform the Bidder of the right to a hearing before the Chief Procurement Officer,  per ORS 279C.450.  The Chief Procurement Officer may exercise the powers of the City Council for this purpose., or may refer this matter to the Board of Appeals, per Subsection 5.34.750 C.

 

H.  If the City has reasonable cause to believe there has been a substantial change in the conditions of a prequalified Bidder and that the Bidder is no longer qualified or is less qualified, the City may revoke or may revise and reissue the prequalification after reasonable notice to the prequalified contractor, per ORS 279C.430(4).  The notice shall state the reasons found under ORS 279C.375 (3)(b) for revocation or revision of the prequalification of the Bidder and inform the Bidder of the right to a hearing under ORS 279C.450. 

 

I.  Appeal.  The Chief Procurement Officer may adopt rules of procedure for the hearing, shall conduct the hearing and has the authority of the City Council as provided in ORS 279C.450.  The appeal shall be conducted within 30 Days or a date mutually agreed upon by both parties.   

 

J.  Clarification.  A Bidder may seek clarification of a Prequalification decision by Written request received by the Chief Procurement Officer no later than 10 Days following issuance of a determination by the Chief Procurement Officer.


5.34.520 Eligibility to Bid or Propose; Registration or License.
 
A.  The City shall not consider a Person's Offer to do Work as a Contractor, as defined in ORS 701.005(2), unless the Person has a current, valid certificate of registration issued by the Construction Contractors Board at the time the Offer is made.
 
B.  The City shall not consider a Person's Offer to do Work as a landscape Contractor as defined in ORS 671.520(2), unless the Person has a current, valid landscape contractors license issued pursuant to ORS 671.560 by the State Landscape Contractors Board at the time the Offer is made.
 
C.  An Offer received from a Person that fails to comply with this rule is nonresponsive and shall be rejected as stated in ORS 279C.365(1)(k), unless contrary to federal law or subject to different timing requirements set by federal funding agencies.

5.34.530 Disqualification of Persons.

(Amended by Ordinance Nos. 183445 and 185898, effective February 20, 2013.)

 

A.   Authority. The City may disqualify a Person from consideration of Award of the City’s Contracts after providing the Person with notice and a reasonable opportunity to be heard in accordance with this rule.

 

1.   Standards for Conduct Disqualification. As provided in ORS 279C.440, the City may disqualify a Person for:

 

a.   Conviction for the commission of a criminal offense as an incident in obtaining or attempting to obtain a public or private Contract or subcontract, or in the performance of such Contract or subcontract;

 

b.   Conviction under state or federal statutes of embezzlement, theft, forgery, bribery, falsification or destruction of records, receiving stolen property or any other offense indicating a lack of business integrity or business honesty that currently, seriously and directly affects the Person's responsibility as a Contractor;

 

c.   Conviction under state or federal antitrust statutes; or 

 

d.   Violation of a Contract provision that is regarded by the City to be so serious as to justify Conduct Disqualification. A violation under Subsection 5.34.530 A.1.d. may include but is not limited to material failure to perform the terms of a Contract or an unsatisfactory performance in accordance with the terms of the Contract. However, a Person's failure to perform or unsatisfactory performance caused by acts beyond the Person's control is not a basis for Disqualification.

 

2.   Standards for DBE Disqualification. As provided in ORS 200.065, 200.075 or 279A.110, the City may disqualify a Person's right to submit an Offer or to participate in a Contract (e.g., as Subcontractors) as follows:

 

a.   For a DBE Disqualification under ORS 200.065, the City may disqualify a Person upon finding that:

 

(1)   The Person fraudulently obtained or retained or attempted to obtain or retain or aided another Person to fraudulently obtain or retain or attempt to obtain or retain certification as a disadvantaged, minority, women or emerging small business enterprise; or

 

(2)   The Person knowingly made a false claim that any Person is qualified for certification or is certified under ORS 200.055 for the purpose of gaining a Contract or subcontract or other benefit; or

 

(3)   The Person has been disqualified by another public contracting agency pursuant to ORS 200.065.

 

b.   For a DBE Disqualification under ORS 200.075, the City may disqualify a Person upon finding that:

 

(1)   The Person has entered into an agreement representing that a disadvantaged, minority, women, or emerging small business enterprise, certified pursuant to ORS 200.055 ("Certified Enterprise"), will perform or supply materials under a Public Improvement Contract without the knowledge and consent of the Certified Enterprise; or

 

(2)   The Person exercises management and decision-making control over the internal operations, as defined by ORS 200.075(1)(b), of any Certified Enterprise; or

 

(3)  The Person uses a Certified Enterprise to perform Work  under a Public Improvement Contract to meet an established Certified Enterprise goal, and such enterprise does not perform a commercially useful function, as defined by ORS 200.075(3), in performing its obligations under the Contract.

 

c.  If a Person is Disqualified for a DBE Disqualification under ORS 200.075, the City shall not permit such Person to participate in the City’s Contracts.

 

d.   For a DBE Disqualification under ORS 279A.110, the City may disqualify a Person if the City finds that the Person discriminated against minority, women or emerging small business enterprises in Awarding a subcontract under a Contract with that City.

 

B.   Notice of Intent to Disqualify. The City shall notify the Person in Writing of a proposed Disqualification personally or by registered or certified mail, return receipt requested. This notice shall:

 

1.   State that the City intends to disqualify the Person;

 

2.   Set forth the reasons for the Disqualification;

 

3.   Include a statement of the Person's right to a hearing if requested in Writing within the time stated in the notice and that if the Chief Procurement Officer does not receive the Person's Written request for a hearing within the time stated, the Person shall have waived its right to a hearing;

 

4.   Include a statement of the authority and jurisdiction under which the hearing will be held;

 

5.   Include a reference to the particular sections of the statutes and rules involved;

 

6.   State the proposed Disqualification period; and

 

7.   State that the Person may be represented by legal counsel.

 

C.  Hearing.  The Chief Procurement Officer shall schedule a hearing upon the receipt of the Person's timely request. The Chief Procurement Officer shall notify the Person of the time and place of the hearing and provide information on the procedures, right of representation and other rights related to the conduct of the hearing prior to hearing.

 

D.   Notice of Disqualification. The Chief Procurement Officer will notify the Person in Writing of its Disqualification, personally or by registered or certified mail, return receipt requested. The notice shall contain:

 

1.   The effective date and period of Disqualification;

 

2.   The grounds for Disqualification; and

 

3.   A statement of the Person's appeal rights and applicable appeal deadlines. For a Conduct Disqualification or a DBE Disqualification under ORS 279A.110, the disqualified Person must notify the Chief Procurement Officer in Writing within three (3) business Days after receipt of the notice of Disqualification if the Person intends to appeal the City’s decision.


5.34.600 Bid or Proposal Evaluation Criteria.
 
A.  General. A Public Improvement Contract, if Awarded, shall be Awarded to the Responsible Bidder submitting the lowest Responsive Bid, or to the Responsible Proposer submitting the best Responsive Proposal.
 
B.   Bid Evaluation Criteria. Invitations to Bid may solicit lump-sum Offers, unit-price Offers or a combination of the two.
1.    Lump Sum. If the ITB requires a lump-sum Bid, without additive or deductive alternates, or if the City elects not to Award additive or deductive alternates, Bids shall be compared on the basis of lump-sum prices, or lump-sum base Bid prices, as applicable. If the ITB calls for a lump-sum base Bid, plus additive or deductive alternates, the total Bid price shall be calculated by adding to or deducting from the base Bid those alternates selected by the City, for the purpose of comparing Bids.
 
2.  Unit Price. If the Bid includes unit pricing for estimated quantities, the total Bid price shall be calculated by multiplying the estimated quantities by the unit prices submitted by the Bidder, and adjusting for any additive or deductive alternates selected by the City, for the purpose of comparing Bids. The City shall specify within the Solicitation Document the estimated quantity of the Procurement to be used for determination of the low Bidder. In the event of mathematical discrepancies between unit price and any extended price calculations submitted by the Bidder, the unit price shall govern.
C.  Proposal Evaluation Criteria. If the City Council has exempted a Public Improvement from the Competitive Bidding requirements of ORS 279C.335(1), and has directed the use of an Alternative Contracting Method under ORS 279C.335(3), evaluation criteria shall be set forth in the Solicitation Documents.

5.34.610 Offer Evaluation and Award; Determination of Responsibility.

(Amended by Ordinance Nos. 181547, 183445 and 185898, effective February 20, 2013.)

 

A.  General. If Awarded, the City shall Award the Contract to the Responsible Bidder submitting the lowest, Responsive Bid or the Responsible Proposer or Proposers submitting the best, Responsive Proposal or Proposals, provided that such Person is not listed by the Construction Contractors Board as disqualified to hold a Public Improvement Contract. See ORS 279C.375(2)(a), or is ineligible for Award as a Nonresident (as defined in ORS 279A.120), education service district. The City may Award by item, groups of items or the entire Offer provided such Award is consistent with the Solicitation Document and in the public interest.

 

B.  Determination of Responsibility. Offerors are required to demonstrate their ability to perform satisfactorily under a Contract. Before Awarding a Contract, the City must have information that indicates that the Offeror meets the standards of responsibility set forth in ORS 279.375C(3)(b). To be a Responsible Offeror, the City must determine that the Offeror:

 

1.   Has available the appropriate financial, material, equipment, facility and personnel resources and expertise, or ability to obtain the resources and expertise, necessary to demonstrate the capability of the Offeror to meet all contractual responsibilities;

 

2.   Has a satisfactory record of Contract performance. The City should carefully scrutinize an Offeror's record of Contract performance if the Offeror is or recently has been materially deficient in Contract performance. In reviewing the Offeror's performance, the City should determine whether the Offeror's deficient performance was expressly excused under the terms of Contract, or whether the Offeror took appropriate corrective action. The City may review the Offeror's performance on both private and Public Contracts in determining the Offeror's record of Contract performance. The City shall make its basis for determining an Offeror not Responsible under this paragraph part of the Solicitation file;

 

3.  Has a satisfactory record of integrity. An Offeror may lack integrity if The City determines the Offeror demonstrates a lack of business ethics such as violation of state environmental laws or false certifications made to the City. The City may find an Offeror not Responsible based on the lack of integrity of any Person having influence or control over the Offeror (such as a key employee of the Offeror that has the authority to significantly influence the Offeror's performance of the Contract or a parent company, predecessor or successor Person). The standards for Conduct Disqualification under Section 5.34.540 may be used to determine an Offeror's integrity. The City shall make its basis for determining that an Offeror is not Responsible under this paragraph part of the Solicitation file;

 

4.  Is qualified legally to Contract with the City, including having a current City business license and EEO certification.  The Procurement Services may determine that such a Person is not legally qualified if:

 

a.  The Person does not have a business license with the City; or

 

b.  The Person failed to make payments required by Title 7 of the City Code and has failed to make appropriate payment arrangements with the Revenue Bureau within seven (7) Days of the receipt of a Bid or Proposal, unless the City waives that requirement and decides to pursue collection through retention of Contract funds, or through other means.

 

5.  Has supplied all necessary information in connection with the inquiry concerning responsibility. If the Offeror fails to promptly supply information requested by the City concerning responsibility, the City shall base the determination of responsibility upon any available information, or may find the Offeror not Responsible.

 

C.  Documenting City Determinations: The City shall document its compliance with ORS 279C.375(3) and the above sections of this rule on a Responsibility Determination Form substantially as set forth in ORS 279.375(3)(c) and file that form the with Construction Contractors Board within 30 days after Contract Award, 

 

D.  City Evaluation. The City shall evaluate an Offer only as set forth in the Solicitation Document and in accordance with applicable law. The City shall not evaluate an Offer using any other requirement or criterion.

 

E.  Offeror Submissions.

 

1.   The City may require an Offeror to submit Product Samples, Descriptive Literature, technical data, or other material and may also require any of the following prior to Award:

 

a.  Demonstration, inspection or testing of a product prior to Award for characteristics such as compatibility, quality or workmanship;

 

b.  Examination of such elements as appearance or finish; or

 

c.  Other examinations to determine whether the product conforms to Specifications.

 

2.   The City shall evaluate product acceptability only in accordance with the criteria disclosed in the Solicitation Document to determine that a product is acceptable. The City shall reject an Offer providing any product that does not meet the Solicitation Document requirements. The City's rejection of an Offer because it offers nonconforming Work or materials is not Disqualification and is not appealable under ORS 279C.445 or these rules.

 

F.  Evaluation of Bids. The City shall use only objective criteria to evaluate Bids as set forth in the ITB. The City shall evaluate Bids to determine the Responsible Offeror offering the lowest Responsive Bid.

 

G.   Clarifications. In evaluating Bids, The City may seek information from a Bidder only to clarify the Bidder's Bid. Such clarification shall not vary, contradict or supplement the Bid. A Bidder must submit Written and Signed clarifications and such clarifications shall become part of the Bidder's Bid.

 

H.  Evaluation of Proposals. See Section 5.34.850 regarding rules applicable to Requests for Proposals.

 

I.  The City may award a public improvement contract or may award multiple public improvement contracts when specified in the Invitation to Bid or the Request for Proposals.


5.34.620 Negotiation With Bidders Prohibited.

(Amended by Ordinance No. 185898, effective February 20, 2013.)

 

A.  Bids. Except as permitted by ORS 279C.340 and Section 5.34.640, when all Bids exceed the Cost Estimate, the City shall not negotiate with any Bidder prior to Contract Award. After Award of the Contract, the City and Contractor may modify the Contract only by change order or amendment to the Contract in accordance with  these rules, or any applicable Contract provisions or ordinance.

 

B.  Requests for Proposals. The City may conduct discussions or negotiations with Proposers only in accordance with the applicable requirements of Section 5.34.850.


5.34.625 Contract Preferences; Resident Bidders.

(Amended by Ordinance No. 185898, effective February 20, 2013.)

 

A.   Award When Offers Identical. When the City receives Offers identical in price, fitness, availability and quality, and chooses to Award a Contract, the City shall Award the Contract based on the following order of precedence:

 

1.   The City shall Award the Contract to the Offeror among those submitting identical Offers that is offering Goods or Services that have been manufactured or produced in Oregon.

 

2.  If two or more Offerors submit identical Offers, and both offer Goods or Services manufactured or produced in Oregon, the City shall Award the Contract by drawing lots among the identical Offers offering Goods or Services that have been manufactured or produced in Oregon. The Offerors that submitted the identical Offers subject to the drawing of lots shall be given notice and an opportunity to be present when the lots are drawn.

 

3.  If the City receives identical Offers, and none of the identical Offers offer Goods or Services manufactured or produced in Oregon, then the City shall Award the Contract by drawing lots among the identical Offers. The Offerors that submitted the identical Offers subject to the drawing of lots shall be given notice and an opportunity to be present when the lots are drawn.

 

B.  Determining if Offers are Identical. The City shall consider Offers identical in price, fitness, availability and quality as follows:

 

1.   Bids received in response to an Invitation to Bid issued under ORS 279C. 335 and Chapter 5.34 are identical in price, fitness, availability and quality if the Bids are Responsive, and offer the services described in the Invitation to Bid at the same price.

 

2.   Proposals received in response to a Request for Proposals issued under ORS 279C.400 and Chapter 5.34 are identical in price, fitness, availability and quality if they are Responsive and achieve equal scores when scored in accordance with the evaluation criteria set forth in the Request for Proposals.

 

C.  Determining if Goods or Services are Manufactured or Produced in Oregon.  For the purposes of complying with Subsection 5.34.625 A., the City may request, either in a Solicitation Document, following Closing, or at any other time determined appropriate by the City, any information it determines is appropriate and necessary to allow it to determine if the Goods or Services are manufactured or produced in Oregon. The City may use any reasonable criteria to determine if Goods or Services are manufactured or produced in Oregon, provided that the criteria reasonably relate to that determination, and provided that the same criteria apply equally to each Bidder or Proposer.

 

D.   Procedure for Drawing Lots. In any instance when this Rule calls for the drawing of lots, the City shall draw lots by a procedure that affords each Offeror subject to the drawing a substantially equal probability of being selected, and that does not allow the Person making the selection the opportunity to manipulate the drawing of lots to increase the probability of selecting one Offeror over another.


5.34.630 Reciprocal Preferences.

(Amended by Ordinance No. 185898, effective February 20, 2013.)

 

A.  When evaluating Bids pursuant to Section 5.34.610, the City shall add a percentage increase to the Bid of a Nonresident Bidder equal to the percentage, if any, of the preference that would be given to that Bidder in the state in which the Bidder resides.

 

B.  The City shall use the list prepared and maintained by the Oregon Department of Administrative Services pursuant to ORS 279A.120(4) to determine both

 

a.  whether the Nonresident Bidder’s state gives preference to in-state Bidders, and

 

b.  the amount of such preference.  Bidders or Proposers who believe that information is inaccurate shall notify the City prior to submitting their Bid to permit a reasonable investigation.  Otherwise, the City shall rely on that information in making its determination. 

 


5.34.640 Negotiation When Bids Exceed Cost Estimate.

(Amended by Ordinance No. 185898, effective February 20, 2013.)

 

A.  Generally. In accordance with ORS 279C.340, if all Responsive Bids from Responsible Bidders on a competitively Bid Project exceed the City’s Cost Estimate, prior to Contract Award the City may negotiate Value Engineering and Other Options with the Responsible Bidder submitting the lowest, Responsive Bid in an attempt to bring the Project within the City’s Cost Estimate. The Subcontractor disclosure and substitution requirements of Section 5.34.493 do not apply to negotiations under this rule.

 

B.  Definitions. The following definitions apply to this administrative rule:

 

1.   “Cost Estimate” means the City’s most recent pre-Bid, good faith assessment of anticipated Contract costs, consisting either of an estimate of an architect, engineer or other qualified professional, or confidential cost calculation Worksheets, where available, and otherwise consisting of formal planning or budgetary documents.

 

2.   “Other Options” means those items generally considered appropriate for negotiation in the RFP process, relating to the details of Contract performance as specified in  Section 5.34.850, but excluding any material requirements previously announced in the Solicitation process that would likely affect the field of competition.

 

3.  “Project” means a Public Improvement.

 

4.  “Value Engineering” means the identification of alternative methods, materials or systems which provide for comparable function at reduced initial or life-time cost. It includes proposed changes to the plans, Specifications, or other Contract requirements which may be made, consistent with industry practice, under the original Contract by mutual agreement in order to take advantage of potential cost savings without impairing the essential functions or characteristics of the Public Improvement. Cost savings include those resulting from Life Cycle Costing, which may either increase or decrease absolute costs over varying time periods.

 

C.  Rejection of Bids. In determining whether all Responsive Bids from Responsible Bidders exceed the Cost Estimate, only those Bids that have been formally rejected, or Bids from Bidders who have been formally disqualified by the City, shall be excluded from consideration.

 

D.  Scope of Negotiations. Contracting Agencies shall not proceed with Contract Award if the Scope of the Project is significantly changed from the original Bid. The Scope is considered to have been significantly changed if the pool of competition would likely have been affected by the change; that is, if other Bidders would have been expected by the City to participate in the Bidding process had the change been made during the Solicitation process rather than during negotiation. This rule shall not be construed to prohibit resolicitation of trade subcontracts.

 

E.  Discontinuing Negotiations. The City may discontinue negotiations at any time, and shall do so if it appears to the City that the apparent low Bidder is not negotiating in good faith or fails to share cost and pricing information upon request. Failure to rebid any portion of the project, or to obtain Subcontractor pricing information upon request, shall be considered a lack of good faith.

 

F.  Limitation. Negotiations may be undertaken only with the lowest Responsive, Responsible Bidder pursuant to ORS 279C.340.

 

G.  Public Records. ORS 279C.340 shall not be construed as creating any additional public records where that result is not otherwise contemplated by the Public Records law, ORS Chapter 192. Records of a Bidder used in Contract negotiations may not become public records unless they are also submitted to the City.


5.34.645 Rejection of Offers.

(Amended by Ordinance Nos. 185065 and 185898, effective February 20, 2013.)

 

A.  Rejection of an Offer.

 

1.   The City may reject any Offer upon finding that to accept the Offer may impair the integrity of the Solicitation process or that rejecting the Offer is in the public interest.  An example of rejection in the public interest is the City’s determination that any of the unit Bid prices are significantly unbalanced to the City’s potential detriment.

 

2.  The City shall reject an Offer upon the City's finding that the Offer:

 

a.  Is contingent upon the City's acceptance of terms and conditions (including Specifications) that differ from the Solicitation Document;

 

b.  Takes exception to terms and conditions (including Specifications);

 

c.  Attempts to prevent public disclosure of matters in contravention of the terms and conditions of Solicitation Document or in contravention of applicable law;

 

d.  Offers Work that fails to meet the Specifications of the Solicitation Document;

 

e.  Is late;

 

f.  Is not in substantial compliance with the Solicitation Documents;

 

g.  Is not in substantial compliance with all prescribed public Solicitation procedures.

 

h.   Omits, or is unclear as to, the price; or the price cannot be determined in the Solicitation Documents;

 

i.  Requires a delivery date different from that required by the Solicitation Document;

 

j.  The Offeror failed to substantially comply with any Good Faith Efforts Specifications; 

 

3.  The City shall reject an Offer upon the City’s finding that the Offeror:

 

a.  Has not been Prequalified under ORS 279C.430 and the City required mandatory Prequalification;

 

b.  Has been Disqualified;

 

c.  Has been declared ineligible under ORS 279C.860 by the Commissioner of Bureau of Labor and Industries and the Contract is for a Public Work;

 

d.  Is listed as not qualified by the Construction Contractors Board or the Landscape Contractors Board, when required;

 

e.  Has not met the requirements of ORS 279A.105 if required by the Solicitation Document; 

 

f.  Has not submitted properly executed Bid or Proposal Security as required by the Solicitation Document;

 

g.  Has failed to provide the certification required under Subsection 5.34.645 C.;

 

h.  Is not Responsible. 

 

B.  Form of Business. For purposes of this rule, the City may investigate any Person submitting an Offer. The investigation may include that Person's officers, Directors, owners, affiliates, or any other Person acquiring ownership of the Person to determine application of this rule or to apply the Disqualification provisions of ORS 279C.440 to 279C.450 and Section  5.34.550.

 

C.  Certification of Non-Discrimination. The Offeror shall certify and deliver to the City Written certification, as part of the Offer that the Offeror has not discriminated and will not discriminate against a disadvantaged business enterprise, or minority, women or emerging small business enterprises in obtaining any required subcontracts. Failure to do so shall be grounds for rejection. 

 

D.  Rejection of all Offers. The City may reject all Offers for good cause upon the City’s Written finding it is in the public interest to do so. The City shall notify all Offerors of the rejection of all Offers, along with the good cause justification and finding.

 

E.  Criteria for Rejection of All Offers. The City may reject all Offers upon a Written finding that:

 

1.  The content of, an error in, or the omission from the Solicitation Document, or the Solicitation process unnecessarily restricted competition for the Contract;

 

2.  The price, quality or performance presented by the Offerors is too costly or of insufficient quality to justify acceptance of the Offer;

 

3.  Misconduct, error, or ambiguous or misleading provisions in the Solicitation Document threaten the fairness and integrity, or the appearance of fairness and integrity of the Competitive process;

 

4.  Causes other than legitimate market forces threaten the integrity of the Competitive Procurement process. These causes include, but are not limited to, those that tend to limit competition such as restrictions on competition, collusion, corruption, unlawful anti-Competitive conduct and inadvertent or intentional errors in the Solicitation Document;

 

5.  The City cancels the Solicitation in accordance with Section 5.34.660; or

 

6.  Any other circumstance indicating that Awarding the Contract would not be in the public interest.

 


5.34.650 Notice of Intent to Award.

(Amended by Ordinance Nos. 181547, 183445 and 185898, effective February 20, 2013.)

 

A.  Notice:  The City shall issue a Notice of Intent to Award a public improvement Contract to all Offerors.  

 

1.  If the Solicitation was posted by Electronic means, the City may post the Intent to Award Electronically in the same manner as the Solicitation.    

 

2.  If the Solicitation was not posted by Electronic means, and unless otherwise provided in the Solicitation Document, the City shall post notice of the City’s intent to Award Contracts on the City’s website or by Written notice posted at the office of Procurement Services.  For Contracts in excess of $500,000, a Written notice of intent to Award shall be mailed by regular mail to all Bidders or Proposers in addition to posting as provided above.

 

3.  The Notice shall be posted at least seven (7) Days before the Award of a Contract, unless the Chief Procurement Officer determines that a compelling governmental interest, such as loss of funding, safety, public inconvenience or loss of taxpayer or ratepayer funds requires prompt execution of the Public Improvement Contract. If so, the Chief Procurement Officer shall specify in the Notice of the Intent the time period when the Contract will be Awarded and shall cause the Solicitation file to be documented with the specific reasons for the shorter notice period.

 

4.  As provided in ORS 279C.375(2), the Notice requirements of this rule do not apply to contracts excepted or exempted from competitive bidding under ORS 279C.335(1)(c ) or (d).

 

B.   The City's Award shall not be final until the later of the following three dates:

 

1.   Seven (7) Days after the date of notice of intent to Award, unless the Solicitation Document provided a different period for protest of Contract Award or the Chief Procurement Officer determined that a shorter period of time was necessary pursuant to Subsection 5.34.650 A.2.  For purposes of this paragraph, the Day on which the Notice is posted from which the seven Days or other time period shall begin to run shall not be included, but the last Day of the period shall be included; 

 

2.   The City provides a Written response to all timely-filed protests that denies the protest and affirms the Award; or

 

3.  Upon the conclusion of any administrative appeal pursuant to Section 5.34.740 if the Chief Procurement Officer decides to permit an appeal.


5.34.660 Cancellation, Delay or Suspension of Solicitation.

(Amended by Ordinance No. 185898, effective February 20, 2013.)

 

A.  Cancellation in the Public Interest.  The City may cancel a Solicitation for good cause if the City finds that the cancellation is in the public interest.  The reasons for cancellation shall be made part of the Solicitation file.   

 

B.  Delay or Suspension.  Any Solicitation may be delayed or suspended in whole, or in part, when the delay or suspension is in the best interest of the City as determined by the City.  

 

C.   Costs.  The City is not liable to any Offeror for costs, expenses or losses caused by the cancellation, delay or suspension.

 

D.  Notice.  If the City cancels, delays or suspends a Solicitation prior to Opening, the City shall provide notice of cancellation in accordance with Section 5.34.310. Such notice of cancellation shall:

 

1.  Identify the Solicitation;

 

2.   Briefly explain the reason for cancellation; and

 

3.   If appropriate, explain that an opportunity will be given to compete on any re-solicitation.


5.34.670 Disposition of Offers if Solicitation Canceled.
 
A.  Prior to Offer Opening. If the City cancels a Solicitation prior to Offer Opening, the City will return all Offers it received to Offerors unopened, provided the Offeror submitted its Offer in a hard copy format with a clearly visible return address. If there is no return address on the envelope, the City will open the Offer to determine the source and then return it to the Offeror.
 
B.  After Offer Opening. If the City rejects all Offers, the City will retain all such Offers as part of the City's Solicitation file. If a Request for Proposals is cancelled after Proposals are received, the City may return a Proposal to the Proposer that submitted it. The City shall keep a list of returned Proposals in the file for the Solicitation.   

5.34.675 Documentation of Award.

(Amended by Ordinance No. 185898, effective February 20, 2013.)

 

A.  Basis of Award. After Award, the City shall make a record showing the basis for determining the successful Offeror part of the City's Solicitation file.

 

B.  Contents of Award Record. The City's record shall include 

 

1.    Bids.

 

a.   Completed Bid tabulation sheet; and

 

b.  Written justification for any rejection of lower Bids or Bids rejected as a result of a failure to meet mandatory Bid requirements.

 

2.  Proposals.

 

a.  The completed evaluation of the Proposals;

 

b.  Written justification for any rejection of higher scoring Proposals or for failing to meet mandatory requirements of the Request for Proposal; and

 

c.   If the City permitted negotiations in accordance with Section 5.34.850 the City's completed evaluation of the initial Proposals and the City's completed evaluation of final Proposals. 


5.34.680 Time for City Acceptance; Extension.

(Amended by Ordinance No. 185898, effective February 20, 2013.)

 

A.  Time for Offer Acceptance.  An Offer submitted as a Firm Offer is irrevocable, valid and binding on the Offeror for not less than 30 Days from Closing unless otherwise specified in the Solicitation Document. After 30 Days, or such other period of time specified in the Solicitation Document, the Offer shall lapse unless extended.

 

B.  Extension of Acceptance Time.  The City may request, orally or in Writing, that Offerors extend, in Writing, the time during which the City may consider and accept their Offer(s).  If an Offeror agrees to such extension, the Offer shall continue as a Firm Offer, irrevocable, valid and binding on the Offeror for the agree-upon extension period.  The extension may occur after the 30-Day time period referenced in Subsection 5.34.680 A.

 


5.34.685 Availability of Award Decisions.
 
A.  Contract Documents. To the extent required, the City shall deliver to the successful Offeror, a Signed purchase order, Price Agreement, or other Contract document(s), as applicable.
 
B.  Notification to Unsuccessful Offerors. A Person may obtain tabulations of Awarded Bids or evaluation summaries of Proposals for a nominal charge, in Person or by submitting to the City a Written request accompanied by payment. Such request shall provide the Solicitation Document number and enclose a self-addressed, stamped envelope.
 
C. Bid Tabulations and Award Summaries. Upon request of any Person the City shall provide tabulations of Awarded Bids or evaluation summaries of Proposals for a nominal charge that may be payable in advance.  Requests must contain the Solicitation Document number and, if requested, be accompanied by a self-addressed, stamped envelope.  The City may also provide tabulations of Bids and Proposals Awarded on designated Web sites or on the City’s web site.
 
D. Copies from Solicitation Files.  Any Person may obtain copies of material from Solicitation files upon payment of a reasonable copying charge.

5.34.690 Performance and Payment Security; Waiver.

(Amended by Ordinance Nos. 181547, 183445 and 185898, effective February 20, 2013.)

 

A.  Public Improvement Contracts. Unless the required performance bond is waived under ORS 279C.380(1)(a), excused in cases of Emergency under ORS 279C.380(4), or unless the City Council, acting as the Local Contract Review Board, exempts a Contract or classes of Contracts from the required performance bond and payment bond pursuant to ORS 279C.390, the Contractor shall execute and deliver to the City a performance bond and a separate payment bond each in a sum equal to the Contract Price for all Public Improvement Contracts.  This requirement applies only to Public Improvement Contracts with a value, estimated by the City, of more than $150,000. Notwithstanding any exemption, the Chief Procurement Officer may require a performance bond, or payment bond, or both, in the Chief Procurement Officer’s sole discretion (see also, Section 5.34.915 regarding the separate public works bond).

 

B.  Other Construction Contracts. The City may require performance security for other construction Contracts that are not Public Improvement Contracts. Such requirements shall be expressly set forth in the Solicitation Document.

 

C.  Requirement for Surety Bond. The City shall accept only a performance bond and payment bond furnished by a surety company authorized to do business in Oregon and who is duly listed in the United States Treasury List as published in the Federal Register or is otherwise approved by the City Attorney each in the amount of 100 percent of the Contract price unless otherwise specified in the Solicitation Document or such substitute security is approved by the City Attorney’s office.  The surety bond shall have the company’s seal affixed to it, be signed by the surety’s Attorney in Fact, and have attached the Power of Attorney for the Attorney in Fact.  The City Attorney may waive the requirement of the corporate seal.

 

D.  Time for Submission. The apparent successful Offeror must furnish the required performance and payment security within 10 Days after notification by the City.  If the Offeror fails to furnish the performance security as requested, the City may reject the Offer and Award the Contract to the Responsible Bidder with the next lowest Responsive Bid or the Responsible Proposer with the next highest-scoring Responsive Proposal, and, at the City's discretion, the Offeror shall forfeit its Bid or Proposal Security.


5.34.695 Notification to State of Nonresident Contractor.
 
If the Contract Price exceeds $10,000 and the Contractor is a Nonresident Contractor, the Contractor shall promptly report to the Oregon Department of Revenue on forms provided by the Department of Revenue, the Contract Price, terms of payment, Contract duration and such other information as the Department of Revenue may require before final payment can be made on the Contract. A copy of the report shall be forwarded to the City. The City shall satisfy itself that the above requirements have been complied with before it issues final payment on the Contract.

5.34.700 Protests and Judicial Review of Individual and Class Exemptions.

(Amended by Ordinance Nos. 183445 and 185898, effective February 20, 2013.)

 

A.  An Affected Person may protest the City's approval of an individual or Class Exemption.

 

B.  Method of Protest 

 

1.  Time:  A Written protest of the City's approval shall be provided to the Chief Procurement Officer not later than seven (7) Days after the approval of the Individual or Class Exemption unless a different time period is provided in the Notice.  The Chief Procurement Officer shall not consider a protest submitted after the timeline established for submitting such protest under this rule or such different time period.

 

2.    Contents.  The Written protest must include:

 

a.  Sufficient information to identify the Request that is the subject of the protest;

 

b.   A detailed statement of all the legal and factual grounds for the protest;

 

c.  Evidence or supporting documentation that supports the grounds on which the protest is based;

 

d.  A description of the resulting harm to the Affected Person; and

 

e.  The relief requested.

 

C.  Required City Response. The City shall take the following actions, as appropriate:

 

1.   The City shall inform the Affected Person in Writing if the protest was not timely filed;

 

2.   The City shall inform the Affected Person if it failed to meet the requirements of Subsection 5.34.700 B.2. and the reasons for that failure;

 

3.   If the protest was timely filed and provides the information required by Subsection 5.34.700 B.2., the City shall issue a decision in Writing and provide that decision to the Affected Person within seven (7) business days unless a Written determination is made by the City that circumstances exist that require a shorter time limit.

 

4.   If the City denies the protest, it shall inform the Affected Person if the decision is final or whether the Chief Procurement Officer has decided to refer the protest to the Purchasing Board of Appeals or City Council. 

 

D.   Optional City Response: In addition to the requirements of Subsection 5.34.700 C., the Chief Procurement Officer may do any of the following:

 

1.   Agree with the protest and take any corrective action necessary;

 

2.   Issue a Written response to the protest and provide that decision to the Affected Person;

 

3.   Refer the protest and any response to the Board of Appeals for decision;

 

4.   Refer the protest and any response to the City Council for decision; or

 

5.   Take any other action that is in the best interest of the City while giving full consideration to the merits of the protest.  

 

E.  Judicial Review.

 

1.  An Affected Person may not seek judicial review of the City Council’s approval of an Individual or Class Exemption unless it  Files an appeal in accordance with this rule and has exhausted all avenues of appeal provided by the Chief Procurement Officer.

 

2.  Judicial review is not available if the Request is denied by the City Council, Contract Board of Appeals or is withdrawn by the Chief Procurement Officer.    


5.34.710 Protests and Judicial Review of Multi-Tiered Solicitations.

(Amended by Ordinance Nos. 183445 and 185898, effective February 20, 2013.)

 

A.  An Affected Person may protest their exclusion from multi-tiered Solicitations.  Protest of Contract terms and conditions, however, shall be made pursuant to Section 5.34.720. 

 

B.   Offerors may protest in one of two ways: 

 

1.    If no other protest remedies are provided in the Solicitation Document, an Affected Person  can file a Written protest to the Award within seven (7) Days after the issuance of the Notice of Intent to Award if the protest meets the requirements of Subsection 5.34.710 C., pursuant to Section 5.34.730 [Protests of Contractor Selection, Contract Award]; or 

 

2.   If expressly required or permitted by the Solicitation Document, an Affected Person can file a Written protest after being excluded from the Competitive Range or after being excluded from any subsequent stages of Procurement. 

 

C.    Basis of Protest.  An Affected Person may protest its exclusion from the Competitive Range or from subsequent stages of a Procurement only if:

 

1.  The Affected Person is a Responsible and submitted a Responsive Offer;

 

2.  The City made a mistake that, if corrected, would have made the Affected Person eligible to participate in the next stage of the Solicitation process.  

 

D.  Method of Protest.

 

1.  Time. If the Solicitation Document permits or requires protests prior to the City’s issuance of a Notice of Intent to Award, an Affected Person must submit a Written protest specifying its basis within seven (7) Days after the Affected Person was excluded from participating further in the Procurement, unless the Solicitation Document specifies a shorter period of time.     

 

2.  Contents: The protest must include the following information:

 

a.  Sufficient information to identify the errors that led to the Affected Person’s exclusion from the Competitive Range or from subsequent stages of a Procurement; 

 

b.  A detailed statement of all the legal and factual grounds for the protest;

 

c.  Evidence or supporting documentation that supports the grounds on which the protest is based;

 

d.  A description of the resulting harm to the Affected Person; and

 

e.  The relief requested.

 

E.  Required City Response. The City shall take the following actions, as appropriate:

 

1.   The City shall inform the Affected Person in Writing if the protest was not timely filed;

 

2.   The City shall inform the Affected Person if it failed to meet the requirements of Subsection 5.34.710 D.2., and the reasons for that failure;

 

3.   If the protest was timely filed and provides the information required by Subsection 5.34.710 D.2., the Chief Procurement Officer shall issue a decision in Writing and provide that decision to the Affected Person within seven (7) business days unless a Written determination is made by the City that circumstances exist that require a shorter time limit.

 

4.   If the City denies the protest, it shall inform the Affected Person if the decision is final or whether the Chief Procurement Officer has decided to refer the protest to the Purchasing Board of Appeals or City Council.

 

F.  Optional City Response:  In addition to the requirements of Subsection 5.34.710 E., the City may take any or all of the following actions:

 

1.  Agree with the Protest, in whole or in part, and permit the Affected Person to participate in the next stage of the Solicitation process; 

 

2.  Issue a Written response to the protest and provide that determination to the Affected Person. 

 

3.  Refer the protest to the Board of Appeals.   

 

4.  Refer the protest to the City Council for consideration along with the Chief Procurement Officer’s Award; or

 

5.  Take any other action that is in the best interest of the City while giving full consideration to the merits of the protest.

 

G.  Judicial Review.  An Affected Person may not seek judicial review of its elimination from a preliminary stage of   a multi-tiered process unless it files a protest in accordance with this rule and has exhausted all avenues of appeal provided by the Chief Procurement Officer.


5.34.720 Protests and Judicial Review of Solicitation Documents and the Solicitation Processes other than Multi-Tier Processes.

(Amended by Ordinance Nos. 183445 and 185898, effective February 20, 2013.)

 

A.    An Affected Person may protest the Solicitation process or the Solicitation Document for Offers solicited pursuant to Competitive sealed Bidding or through an alternative contracting process.

 

1.  The exclusive method for protesting individual and class exemptions, is through Section 5.34.700 and not this rule.  The exclusive process of protesting a multi-tiered Solicitation process is pursuant to Section 5.34.710 and not this rule.

 

2.  Prior to submitting a protest regarding Solicitation Documents or the Solicitation process, an Affected Person may seek clarification of any provision of the Solicitation Document.  The City's clarification to an Offeror, whether orally or in Writing, does not change the Solicitation Document and is not binding on the City unless the City amends the Solicitation Document by Addendum.

 

B.   Method of Protest.

 

1.  Time:  A Written protest regarding a Solicitation Document or the procurement process shall be provided to the Chief Procurement Officer within seven (7) Days after a Solicitation Document is advertised unless the Solicitation Document requires a shorter period of time. The Chief Procurement Officer shall not consider a protest submitted after the timeline established for submitting such protest under this rule. 

 

2.  Contents:  The protest must include the following information:

 

a.   Sufficient information to identify the portion or portions of the Solicitation Document that are being protested or the solicitation process or processes that are the subject of the protest;

 

b.   A detailed statement of all the legal and factual grounds for the protest;

 

c.   Evidence or supporting documentation that supports the grounds on which the protest is based;

 

d.   A description of the resulting harm to the Affected Person; and

 

e.   The relief requested.

 

C.  Required City Response. 

 

1.    The City shall inform the Affected Person in Writing if the protest was not timely filed;

 

2.    The City shall inform the Affected Person if it failed to meet the requirements of Subsection 5.34.720 B.2. and the reasons for that failure;

 

3.    If the protest was timely filed and provides the information required by Subsection 5.34.720 B.2., the Chief Procurement Officer shall issue a decision in Writing and provide that decision to the Affected Person no less than three (3) business Days before Offers are due, unless a Written determination is made by the Chief Procurement Officer that circumstances exist that require a shorter time limit.

 

4.    The Chief Procurement Officer’s response shall inform the Affected Person if the decision is final or whether the Chief Procurement Officer has decided to refer the protest to the Purchasing Board of Appeals or City Council.  When the decision is final, the Affected Person must seek judicial review before the Opening of Bids, Proposals or Offers.

 

5.    If the Chief Procurement Officer receives protest from an Affected Person in accordance with this rule, the Chief Procurement Officer may extend Closing if the City determines an extension is necessary to consider the protest and to issue an Addendum to the Solicitation Document.

 

D.  Optional City Response:  In addition to the requirements of Subsection 5.34.720 C., the Chief Procurement Officer may take any or all of the following:

 

1.    Agree with the protest and make any necessary corrections to the Solicitation Document or Procurement process;  

 

2.   Issue a Written response to the protest and provide that decision to the Affected Person. 

 

3.    Refer the protest and any response to the Board of Appeals; 

 

4.    Refer the protest and any response to the City Council for decision; or

 

5.    Any other action that is in the best interest of the City while giving full consideration to the merits of the protest.

 

E.    Judicial Review.  An Affected Person may not seek judicial review of the City’s final decision regarding its protest of the contents of a Solicitation Document or the Solicitation process unless it fully has complied with the Protest requirements of this rule  and has exhausted all avenues of appeal provided by the Chief Procurement Officer.


5.34.725 Administrative Reconsideration as a Result of Rejection for Failure to Meet DBE Requirements.

(Amended by Ordinance No. 183445, effective January 6, 2010.)

 

A.     This Code provision applies only to City Solicitation Documents concerning Federal-Aid Certified projects that contain Supplemental Contract provisions implementing the requirements of the United States Department of Transportation and Part 26, Title 49 of the Code of Federal Regulations concerning Disadvantaged Business Enterprises (DBEs).     

 

B.    An Affected Person whose Offer is rejected as nonresponsive as a result of noncompliance with the DBE requirements of the Solicitation Document may seek administrative reconsideration of that decision from the Oregon Department of Transportation (ODOT) in the time and manner set forth in the Solicitation Document. 

 

C.    An Affected Person whose Offer has been rejected as nonresponsive to a Solicitation Document described in Paragraph A for reasons other than noncompliance with the DBE requirements of the Solicitation Document shall submit a protest to the Chief Procurement Officer in accordance with the applicable provisions of City Code and not to ODOT.  Similarly, protests of any matters other than bid rejection for failure to meet DBE requirements shall be considered by the Chief Procurement Officer in accordance with the applicable provision of City Code and not by ODOT.        

 

D.    An Affected Person whose Offer has been rejected as nonresponsive on multiple grounds, including a failure to meet the DBE requirements of the Solicitation Document, shall seek administrative reconsideration from ODOT regarding the rejection regarding DBE requirements and shall file a protest with the Chief Procurement Officer regarding any other grounds on which rejection was made in accordance with the applicable provision of City Code. 

 

E.    An Affected person may not seek judicial review unless it fully has complied with the requirements of this rule and exhausted all avenues of administrative reconsideration, protest, or both.


5.34.730 Protest of Contractor Selection, Contract Award.

(Amended by Ordinance Nos. 183445, 184403 and 185898, effective February 20, 2013.)

 

A.  An Affected Person may protest the Award or the intent to Award a Contract resulting from a Competitive Sealed Bid or Competitive Sealed Proposal, whichever occurs first, if:

 

1.  The Affected Person would be eligible to be Awarded the Public Contract in the event that the protest were successful; and

 

2.  The reason for the protest is that:

 

a.  All other Offers are nonresponsive;

 

b.  The City failed to conduct the evaluation of Proposals in accordance with the criteria or processes described in the Solicitation Document:

 

c.  The City abused its discretion in rejecting the Affected Person’s Bid or Proposal as nonresponsive; or

 

d.  The City’s evaluation of Offers or the City’s subsequent determination of Award is otherwise in violation of these rules, ORS Chapter 279C or ORS Chapter 279A.

 

B.    Method of Protest.

 

1.  Time:  A Written protest of the Notice of Intent to Award or Award itself shall be provided to the Chief Procurement Officer within seven (7) Days after the City posts a notice that it will make a Contract Award, or the Contract is Awarded, whichever occurs first, unless the Solicitation Document specified a shorter period of time.  The Chief Procurement Officer shall not consider a protest submitted after the timeline established for submitting such protest under this rule or such different time period as may be provided in the Solicitation Document.  

 

2.  Contents:  The protest must include the following information:

 

a.   Sufficient information to identify the Contract or Notice of Intent to Award that is the subject of the protest;

 

b.   A detailed statement of all the legal and factual grounds for the protest. 

 

c.   Evidence or supporting documentation that supports the grounds on which the protest is based; d.   A description of the resulting harm to the Affected Person  submitting the protest; and

 

e.   The relief requested.

 

C.    Required City Response.  The City shall take the following actions, as appropriate:

 

1.  The City shall inform the Affected Person in Writing if the protest was not timely filed;

 

2.  The City shall inform the Affected Person if it failed to meet the requirements of Subsection 5.34.730 B.2, and the reasons for that failure;

 

3.  If the protest was timely filed and provides the information required by Subsection 5.34.730 B.2., the Chief Procurement Officer shall issue a decision in Writing and provide that decision to the Affected Person within a reasonable time of the receipt of the protest.

 

4.  If the City denies the protest, it shall inform the Affected Person if the decision is final or whether the Chief Procurement Officer has decided to refer the protest to the Purchasing Board of Appeals or City Council.

 

D.    Optional City Response:  In addition to the requirements of Subsection 5.34.730 C., the City may take any or all of the following:

 

1.  Agree with the Protest and issue a revised Notice of Intent to Award or take any other corrective action that may be necessary to ensure that the Contract is Awarded to the appropriate Offeror;   

 

2.  Issue a Written response to the protest and provide that decision to the Affected Person. 

 

3.  Refer the protest and any response to the Board of Appeals for decision;

 

4.  Refer the protest and any response to the City Council for decision; or

 

5.  Take any other action that is in the best interest of the City while giving full consideration to the merits of the protest.

 

E.  Judicial Review.  An Affected Person may not seek judicial review unless it fully has complied with the protest requirements of this rule and has exhausted all avenues of appeal provided by the Chief Procurement Officer. 


5.34.740 Protests of Other Violations.

(Amended by Ordinance Nos. 183445, 184403 and 185898, effective February 20, 2013.)  Protests of any violation of ORS Chapter 279C, for which no administrative remedy is otherwise provided by this Code, are subject to this rule:

 

A.    An Affected Person can file a protest under this section only if a Public Contract is about to be Awarded or has been Awarded and:

 

1.  An alleged violation of ORS 279C has occurred in the Solicitation process and violation has resulted or will result in the unlawful Award of a Contract or the unlawful failure to Award the Contract;

 

2.  The alleged violation deprived the Affected Person of the Award of the Contract or the opportunity to compete for the Award of the Contract;

 

3.  The Affected Person would have been a Responsible Bidder, Proposer or Offeror qualified to receive the Award of the Contract;

 

4.  The Affected Person gave Written notice to the City describing the alleged violation no later than seven (7) Days after the date on which the alleged violation occurred and in no event more than seven (7) Days after the date of the execution of the Contract; and

 

5.  If the alleged violation is of ORS 279C, then it is one for which no judicial review is provided by another section of Chapter 5.34.

 

B.    Method of Protest.

 

1.  Time:  The Chief Procurement Officer shall not consider a protest submitted after the timeline established for submitting such protest under this rule and shall not consider a protest under this section if a right to protest is elsewhere provided by this Code.

 

2.  Contents:  The protest must include the following information:

 

a.   Sufficient information to identify the Solicitation that is the subject of the protest;

 

b.   A detailed statement of the alleged violation and all the legal and factual grounds for the protest.  

 

c.   Evidence or supporting documentation that supports the grounds on which the protest is based;

 

d.   A description of the resulting harm to the Affected Person; and

 

e.   The relief requested

 

C.  Required City Response. The City shall take the following actions, as appropriate:

 

1.  The City shall inform the Affected Person in Writing if the protest was not timely filed;

 

2.  The City shall inform the Affected Person if it failed to meet the requirements of Subsection 5.34.740 B.2. and the reasons for that failure;

 

3.  If the protest was timely filed and provides the information required by Subsection 5.34.740 B.2., the City shall issue a decision in Writing and provide that decision to the Affected Person within a reasonable time of the receipt of the protest.

 

4.  If the City denies the protest, it shall inform the Affected Person if the decision is final or whether the Chief Procurement Officer has decided to refer the protest to the Purchasing Board of Appeals or City Council.

 

D.  Optional City Response:  In addition to the requirements of Subsection 5.34.740 C., the City may take any or all of the following:

 

1.  Agree with the Protest and take any corrective action necessary;     

 

2.  Issue a Written response to the protest and provide that decision to the Affected Person; 

 

3.  Refer the protest and any response to the Board of Appeals for decision.  

 

4.  Refer the protest and any response to the City Council for decision; or

 

5.  Take any other action that is in the best interest of the City while giving full consideration to the merits of the protest

 

E.  Judicial Review.  An Affected Person may not seek judicial review of any violations covered by this rule unless it fully has complied with the protest requirements of this rule and has exhausted all avenues of appeal provided by the Chief Procurement Officer.


5.34.750 Review of Prequalification and Disqualification Decisions.

(Amended by Ordinance Nos. 183445 and 185898, effective February 20, 2013.)

 

A.  A Bidder who has received notification of a Prequalification denial, revocation or revision and wishes to appeal the decision must submit Written appeal to the City within three (3) business Days after receipt of the City’s notice.  

 

B.  The City Council delegates its authority to the Chief Procurement Officer for the purposes of receiving notice that a Person has appealed.   Upon receipt of the notice the Chief Procurement Officer shall notify the Person appealing of a time and place of a hearing designed to consider the appeal within 30 Days or a date mutually agreed upon by both parties. 

 

C.  The City Council delegates its authority to conduct a hearing to the Chief Procurement Officer.  The Chief Procurement Officer may subdelegate the authority to conduct a hearing to any Person(s) the Chief Procurement Officer deems appropriate, including the Board of Appeals.  


5.34.760 Procurement Board of Appeals.

(Amended by Ordinance Nos. 183445 and 185898, effective February 20, 2013.)

 

A.    Purpose.  The purpose of this rule is to provide for the prompt, effective and efficient resolution of appeals and protests of Affected Persons in regard to City decisions when such matters are referred to it by the Chief Procurement Officer or when authorized or required by this Chapter.

 

B.  Board Created.  Pursuant to Portland City Charter Section 2-103, City Council hereby creates the Procurment Board of Appeals for the purposes described above.

 

C.  Jurisdiction of Board.   The Procurement Board of Appeals shall hear and resolve protests and appeals arising from City decisions arising under this Chapter only when such matters are referred to it by the Chief Procurement Officer.

 

D.  Composition of Board. 

 

1.  The Procurement Board of Appeals shall consist of three members.  A quorum shall consist of three members. 

 

2.  The members of the Board shall be:

 

a.  A representative from the public purchasing sector;

 

b.  The City Engineer or designee;

 

c.  A member of the general public with affiliation to the purchasing industry. 

 

3.  The public members shall be appointed by the Mayor, subject to confirmation by City Council and shall serve for a period of up to two years, which may be extended by the Chief Procurement Officer. 

 

4.  A member of the board shall serve as chairperson. 

 

E.  Compensation.  All members of the Board shall serve without pay, except that they may receive their regular salaries during time spent on Board matters. 

 

F.  Vacancies.  A vacancy on the Board shall be filled as soon as possible in accordance with the procedures described above.

 

G.  Procedure and Rules.  The Chief Procurement Officer shall establish administrative rules of procedure for the Board and the Board shall follow that procedure for all matters heard by the Board.

 

H.  Staff.  Procurement Services shall provide staff and appropriate assistance for the Board.


5.34.770 Powers of the Board.

(Amended by Ordinance No. 183445, effective January 6, 2010.)

 

A.  The Board shall be responsible for reviewing the decisions of the City arising under this Chapter. In regard to appeals of decisions regarding Prequalification or disqualification of Bidders or Proposers, the Board shall comply with Oregon state law and these rules.

 

B.  The Board shall consider only those matters that were raised by the Affected Person in its protest to the Chief Procurement Officer . 

 

C.  The Board shall not consider the appeal of any Affected Person who did not file a timely appeal.

 

D.  The Board shall hear appeals based on administrative rules of procedure established by the Chief Procurement Officer.  The administrative rules shall provide for notice and prompt hearing of appeals and protests, record-making, right to counsel and other procedural matters. 

 

E.  Following completion of a hearing, the Board shall prepare a Written decision that shall be mailed to all parties to the hearing by certified mail, return receipt requested.


5.34.780 Appeal to Board.

(Amended by Ordinance Nos. 183445 and 185898, effective February 20, 2013.)

 

A.  Time. Any request for hearing by the Board shall be received by the Chief Procurement Officer no more than seven (7) Days from the date of the Chief Procurement Officer’s decision unless a different timeline is provided in the Solicitation Document.  The request shall be delivered to Procurement Services, Attn:  Chief Procurement Officer and marked “Request for Hearing by the Purchasing Board of Appeals.” 

 

B.  Contents. The request shall set forth the specific reasons for requesting a hearing by City Council. Only those matters that were raised with the Chief Procurement Officer and the Procurement Board of Appeals shall be stated as grounds for appeal.   

 

C.  Time of Hearing.  The Chief Procurement Officer shall schedule the time and place for the Board to meet giving consideration to the schedule of the Board. 

 

D.  Further Appeal.   An Affected Person who is not satisfied with the decision of the Board may file a further Written appeal, but only if permitted by the Chief Procurement Officer.   If not permitted by the Chief Procurement Officer, the Affected Person has exhausted its administrative appeals. Any request for further appeal shall be received by the Chief Procurement Officer no later than three (3) Days from the date the Affected Person receives the Board’s Written decision.  The request shall be delivered to Procurement Services, Attn:  Chief Procurement Officer and marked “Request for Hearing by City Council.” 

 

E.  If so referred, City Council shall decide at its next available regularly scheduled hearing whether to hear the appeal.  If City Council decides not to hear the appeal, the decision of the Board is final.  If City Council decides to hear the appeal it shall be scheduled by the Council Clerk for hearing by City Council.  The City Council’s decision on the appeal shall be final upon issuance of City Council’s order deciding the appeal.  The City Council may also adopt the decision of the Board without further hearing by City Council.  In this situation, the appeal to City Council shall be final upon issuance of City Council’s order adopting the decision of the Board.  The rules of City Council provided at PCC Chapter 3.02 shall be the rules for any hearing on appeal. 

 

F.  If so permitted, the decision of City Council shall conclude an Affected Person’s administrative remedies and further redress sought by an Affected Person shall be pursuant to state law.   Otherwise, the Board’s decision shall be final for any remedies that might be available to Affected Person under state law.

 

G.  Costs:  The Chief Procurement Officer may impose a reasonable fee on the Affected Person requesting a hearing before the Board or Council to defray costs of the appeal.  The fee shall be paid at the time the hearing is requested or the protest shall be considered waived.  In the event that the Person contesting the hearing prevails in its protest, the fee shall be refunded.


5.34.800 Purpose.

(Amended by Ordinance Nos. 183445 and 185898, effective February 20, 2013.)  Section 5.34.800 et seq. is intended to provide guidance to Bureaus and Divisions of the City of Portland regarding the use of Alternative Contracting Methods for Public Improvement Contracts, as may be directed by the City’s Chief Procurement Officer. Those methods include, but are not limited to, Design-Build, Energy Savings Performance Contract (ESPC) and Construction Manager/General Contractor (CM/GC) forms of contracting. As to ESPC contracting, Section 5.34.880 implements the requirements of ORS 279C.335 pertaining to the adoption of model rules appropriate for use by the City govern the procedures for entering into ESPCs.


5.34.810 Definitions for Alternative Contracting Methods.

(Amended by Ordinance No. 185898, effective February 20, 2013.) The following definitions shall apply to Sections 5.34.800 through 5.34.890, unless the context requires otherwise:

 

A.  Alternative Contracting Methods. Innovative Procurement techniques for obtaining Public Improvement Contracts, utilizing processes other than the traditional method of design-Bid-build with Award based solely on price (in which a final design is issued with formal Bid documents, construction  Work is obtained by sealed Bid Awarded to the lowest Responsive, Responsible Bidder, and the project is built in accordance with those documents). In industry practice, such methods commonly include variations of Design-Build contracting, CM/GC forms of contracting and ESPCs, which are specifically addressed in Section 5.34.880, as well as other developing techniques such as general "performance contracting" and "cost plus time" contracting, for which procedural requirements are identified under Sections 5.34.800 through 5.34.890.

 

B.  Construction Manager/General Contractor (or "CM/GC"). A form of Procurement that results in a Public Improvement Contract for a Construction Manager/General Contractor to undertake project team involvement with design development; constructability reviews; value engineering, scheduling, estimating and subcontracting services; establish a Guaranteed Maximum Price to complete the Contract Work; act as General Contractor; coordinate and manage the building process; provide general Contractor expertise; and act as a member of the project team along with the City, architect/engineers and other consultants. CM/GC also refers to a Contractor under this form of Contract.

 

C.  Design-Build. A form of Procurement that results in a Public Improvement Contract in which the construction Contractor also provides or obtains specified design services, participates on the project team with the City, and manages both design and construction. In this form of Contract, a single Person provides the City with all of the Personal Services and Work necessary to both design and construct the project.

 

D.  Energy Conservation Measures (or "ECMs") (also known as "energy efficiency measures"). As used in ESPC Procurement, any equipment, fixture or furnishing to be added or used in an existing building, structure or building/structure system, and any repair, alteration or improvement to an existing building, structure or building/structure system that is designed to reduce energy consumption and related costs, including those costs related to electrical energy, thermal energy, water consumption, waste disposal, and future contract-labor costs and materials costs associated with maintenance of the building or structure. Maintenance services are not Energy Conservation Measures, for purposes of  Section 5.34.880.

 

E.  Energy Savings Guarantee. The energy savings and performance guarantee provided by the ESCO under an ESPC Procurement, which guarantees to the City that certain energy savings and performance will be achieved for the project covered by the RFP, through the installation and implementation of the agreed-upon ECMs for the project. The Energy Savings Guarantee shall include, but shall not be limited to, the specific energy savings and performance levels and amounts that will be guaranteed, provisions related to the financial remedies available to the City in the event the guaranteed savings and performance are not achieved, the specific conditions under which the ESCO will guarantee energy savings and performance (including the specific responsibilities of the City after final completion of the design and construction phase), and the term of the energy savings and performance guarantee.

 

F.  Energy Savings Performance Contract (or "ESPC"). A Public Improvement Contract between The City and a Qualified Energy Service Company for the identification, evaluation, recommendation, design and construction of Energy Conservation Measures, including a Design-Build Contract, that guarantee energy savings or performance.

 

G.  Guaranteed Maximum Price (or "GMP"). The total maximum price provided to the City by the Contractor, and accepted by the City, that includes all reimbursable costs of and fees for completion of the Contract Work, as defined by the Public Improvement Contract, except for material changes in the Scope of Work. It may also include particularly identified contingency amounts.

 

H.  Measurement and Verification (or "M & V"). As used in ESPC Procurement, the examination of installed ECMs using the International Performance Measurement and Verification Protocol ("IPMVP"), or any other comparable protocol or process, to monitor and verify the operation of energy-using systems pre-installation and post-installation.

 

I.  Project Development Plan. A secondary phase of Personal Services and Work performed by an ESCO in an ESPC Procurement when the ESCO performs more extensive design of the agreed-upon ECMs for the project, provides the detailed provisions of the ESCO's Energy Savings Guarantee that the fully installed and commissioned ECMs will achieve a particular energy savings level for the building or structure, and prepares an overall report or plan summarizing the ESCO's Work during this secondary phase of the Work and otherwise explaining how the agreed-upon ECMs will be implemented during the design and construction phase of the Work; The term "Project Development Plan" can also refer to the report or plan provided by the ESCO at the conclusion of this phase of the Work.

 

J.  Qualified Energy Service Company (or "ESCO"). As used in ESPC Procurement, a company, firm or other legal Person with the following characteristics: demonstrated technical, operational, financial and managerial capabilities to design, install, construct, commission, manage, measure and verify, and otherwise implement Energy Conservation Measures and other Work on building systems or building components that are directly related to the ECMs in existing buildings and structures; a prior record of successfully performing ESPCs on projects involving existing buildings and structures that are comparable to the project under consideration by the City; and the financial strength to effectively guarantee energy savings and performance under the ESPC for the project in question, or the ability to secure necessary financial measures to effectively guarantee energy savings under an ESPC for that project.

 

K.  Technical Energy Audit. As used in ESPC Procurement, the initial phase of Personal Services to be performed by an ESCO that includes a detailed evaluation of an existing building or structure, an evaluation of the potential ECMs that could be effectively utilized at the facility, and preparation of a report to the City of the ESCO's Findings during this initial phase of the Work; the term "Technical Energy Audit" can also refer to the report provided by the ESCO at the conclusion of this phase of the Work.


5.34.820 Use of Alternative Contracting Methods.

(Amended by Ordinance Nos. 183445 and 185898, effective February 20, 2013.)

 

A.  Competitive Bidding Exemptions. ORS Chapter 279C requires a competitive bidding process for Public Improvement Contracts unless a statutory exception applies, a class of Contracts has been exempted or an individual Contract has been exempted in accordance with ORS 279C.335 and Section 5.34.830. Use of Alternative Contracting Methods may be directed by the City’s Chief Procurement Officer as an exception to the prescribed Public Contracting practices in Oregon, and their use must be justified in accordance with City Code.

 

B.  Energy Savings Performance Contracts. Unlike other Alternative Contracting Methods covered by Section 5.34.800 et seq.  ESPCs are exempt from the competitive bidding requirement for Public Improvement Contracts pursuant to ORS 279C.335(1)(f), if the City complies with the procedures set forth in Section 5.34.880 related to the Solicitation, negotiation and contracting for ESPC Work.  If those procedures are not followed, an ESPC procurement may still be exempted form competitive bidding requirements by following the general exemption procedures within ORS 279C.335.

 

C.  Post-Project Evaluation. ORS 279C.355 requires that the City prepare a formal post-project evaluation of Public Improvement projects in excess of $100,000 for which the competitive bidding process was not used. The purpose of this evaluation is to determine whether it was actually in the City’s best interest to use an Alternative Contracting Method. The evaluation must be delivered to City Council on behalf of the City’s Chief Procurement Officer within 30 Days after the date the City "accepts" the Public Improvement project, which event is typically defined in the Contract. The Chief Procurement Officer shall forward such reports to the City Council in a timely manner.  In the absence of a definition of “acceptance”, the later of the date of final payment or the date of final completion of the Work will govern. ORS 279C.355 describes the timing and content of this evaluation, with three required elements:

 

1.  Financial information, consisting of Cost Estimates, any Guaranteed Maximum Price, changes and actual costs;

 

2.  A narrative description of successes and failures during design, engineering and construction; and

 

3.  An objective assessment of the use of the Alternative Contracting Method as compared to the exemption Findings.


5.34.830 Findings, Notice and Hearing.

(Amended by Ordinance Nos. 181547 and 185898, effective February 20, 2013.)

 

A.  The City Council may by ordinance exempt a Contract from the requirements of an ITB process if it makes the following findings:

 

1.  It is unlikely that the exemption will encourage favoritism in the Awarding of Public Improvement Contracts or substantially diminish competition for public improvement Contracts as further described in Subsection 5.34.830 F.; and

 

2.  The exemption will likely result in substantial costs savings to the City.  The "substantial cost savings" criterion at ORS 279C.335(2)(b) requires consideration of the type, cost, amount of the Contract, number of Entities available to Bid, and "such other factors as may be deemed appropriate" as further described in Subsection 5.34.830 E.;  or

 

3.  If the Public Improvement relate to the operation, maintenance or construction of highways, bridges and other transportation facilities, that the exemption will result in substantial cost savings to the City or to the public. 

 

4.  As an alternative to the findings regarding substantial cost savings, the City may make a finding that identifies the project as a pilot project for which the City intends to determine whether the use of the alternate contracting process actually results in substantial cost savings to the City, or, if it is for a public improvement described in Subsection 5.34.830 A.3. above, to the public, provided the City has not previously used the proposed alternate contracting method.

 

B.  The City council may consider the type, cost and amount of the Contract the number of Persons available to bid and other such factors as may be deemed appropriate in declaring the exemption.

 

C.  Findings supporting a competitive bidding exemption must describe with specificity the Alternative Contracting Method to be used in lieu of competitive bidding, including, but not limited to, whether a one step (Request for Proposals) or two step (beginning with Requests for Qualifications) solicitation process will be utilized.  The Findings may also describe anticipated characteristics or features of the resulting Public Improvement Contract.  However, the purpose of an exemption from competitive bidding is limited to a determination of the Procurement method.  Any unnecessary or incidental descriptions of the specific details of the anticipated Contract within the supporting Findings are not binding upon the City.  The parameters of the Public Improvement Contract are those characteristics or specifics that are announced in the Solicitation Document.  The representations in and the accuracy of the findings, including any general description of the resulting public improvement contract, are the bases for approving the findings and granting the exception.  The findings may describe the anticipated features of the resulting public improvement contract, but the final parameters of the contract are those characteristics or specifics announced in the solicitation document.

 

D.  The City Council shall require and approve additional findings in the following areas in order to declare the exemption:

 

1.  Operational, budget and financial data;

 

2.  Public benefits;

 

3.  Value Engineering;

 

4.  Specialized expertise required;

 

5.  Public safety;

 

6.  Market conditions;

 

7.  Technical complexity; and

 

8.  Funding sources.

 

E.  The City shall hold a public hearing before final adoption of the findings and a declaration of the exemption.  Notification of the public hearing shall be published in at least one trade newspaper of general statewide circulation a minimum of 14 Days before the hearing;

 

1.  The Notice shall state that the public hearing is for the purpose of taking comments on the City’s draft findings for an exemption from the Competitive Bidding requirement of using an ITB.  At the time of the notice, copies of the draft findings shall be made available to the public.

 

2.  At the hearing, the City shall offer an opportunity for any interested persons to appear and present comment;

 

3.  Notice of the hearing may be published simultaneously with the City’s Solicitation of contractors for the alternative public contracting method when the City is required to act promptly due to circumstances beyond the City’s control that do not constitute an Emergency as long as responses to the Solicitation are due at least five (5) Days after the meeting and approval of the findings;

 

F.  Addressing Cost Savings. Accordingly, when the Contract or class of Contracts under consideration for an exemption contemplates the use of Alternative Contracting Methods, the "substantial cost savings" requirement may be addressed by a combination of:

 

1.  Specified Findings that address the factors and other information specifically identified by statute; and

 

2.  Additional Findings that address industry practices, surveys, trends, past experiences, evaluations of completed projects required by ORS 279C.355 and related information regarding the expected benefits and drawbacks of particular Alternative Contracting Methods. To the extent practicable, such Findings should relate back to the specific characteristics of the project or projects at issue in the exemption request.

 

G.  Favoritism and Competition. The criteria at ORS 279C.335(2)(a) that it is "unlikely" that the exemption will "encourage favoritism" or "substantially diminish competition" may be addressed in contemplating the use of Alternative Contracting Methods by specifying the manner in which an RFP process will be utilized, that the Procurement will be formally advertised, competition will be encouraged, and Award made based upon identified selection criteria.

 

H.  Class Exemptions. In making the findings supporting a class exemption the City shall clearly identify the class with respect to its defining characteristics. Those characteristics shall include some combination of Project descriptions or locations, time periods, Contract values or method of Procurement or other factors that distinguish the limited and related class of Projects from the City’s overall construction program. Classes shall not be defined solely by funding sources, such as a particular bond fund, or by method of Procurement, but must be defined by characteristics that reasonably relate to the exemption criteria set forth in ORS 279C.335(2).   The following classes of Contracts are hereby exempt from the Competitive low Bidding requirements of this Chapter:

 

1.  Contract Amendments.  Contract amendments, pursuant to the authority granted by Subsection 5.34.020 C., and provided that the original Contract was executed in accordance with this chapter;

 

2.  Tenant improvements.  Tenant Improvements on City owned property are exempt from the requirements of Competitive low Bidding, but may be subject to other provisions of this Chapter or ORS 279C. Tenant improvements are exempt when:

 

a.  The improvements are paid for in part, or in whole, by the tenant;

 

b.  The improvements are primarily for the tenant’s benefit; and

 

c.  The tenant hires the Contractor to perform the Work, whether or not a competitive process is used by the tenant.

 

3.   Deficiency Corrections/Contractor on site.   The City may hire a private Contractor to perform Work if:

 

a.  The City finds that a Contractor hired by a private developer or Person is at or near the site where City Work needs to be performed and the cost proposed by the private Contractor is reasonable and the cost of the Work will be less than $25,000; or

 

b.  The City finds that a Contractor hired by the City is at or near the site where City Work needs to be performed; and

 

(1)  The new Work is not within the Scope the original Contract and was not anticipated at the time that the original Contract was Awarded; and

 

(2)  If the original Contract was less than $25,000 the new work does not cause the total payment to the Contractor to exceed $25,000; or

 

(3)  If the original Contract was more than $25,000, the new Work does increase the total amount paid to the Contractor by more than $50,000.  


5.34.840 Competitive Proposals; General Procedures.

(Amended by Ordinance No. 185898, effective February 20, 2013.)

 

A.  General Application:  The City  may utilize the RFP outlined in Subsections 5.34.840 C. through E. below for Public Improvement Contracts, allowing flexibility in both Proposal evaluation and Contract negotiation, only in accordance with ORS 279C.400 to 279C.410 and Sections 5.34.800 to 5.34.890, unless other applicable statutes control the City’s use of competitive Proposals for Public Improvement Contracts.  Nothing in this rule shall limit the use of evaluation factors or other matters expressly permitted by those additional rules or authorized by ordinance.

 

B.  ESPCs:  For ESPCs, the RFP outlined in Subsections 5.34.840 C. through E. below  shall be utilized if the City desires the Procurement process to be exempt from the competitive bidding requirements of ORS 279C.335. The RFP process for the Alternative Contracting Methods identified in Subsections 5.34.800 to 5.34.890 includes the following steps:

 

C.  Proposal Evaluation. Factors in addition to price may be considered in the selection process, but only as set forth in the RFP.  Evaluation factors need not be precise predictors of future costs and performance, but to the extent possible such evaluation factors shall: 

 

1.  Be reasonable estimates based on information available to the City;

 

2.  Treat all Proposals equitably; and

 

3.  Recognize that public policy requires that Public Improvements be constructed at the least overall cost to the City (see ORS 279C.305).

 

D.   Evaluation Factors.

 

1.  In basic negotiated construction contracting, where the only reason for an RFP is to consider factors other than price, those factors may consist of firm and personnel experience on similar projects, adequacy of equipment and physical plant, sources of supply, availability of key personnel, financial capacity, past performance, safety records, project understanding, proposed methods of construction, proposed milestone dates, references, service, the status of its Equal Employment Opportunity (EEO) certification, its efforts to diversify its workforce in order to reach all of the City’s citizens and other related matters that affect cost or quality.

 

2.  In CM/GC contracting, in addition to Subsection 5.33.840 D.1., those factors may also include the ability to respond to the technical complexity or unique character of the project, coordination of multiple disciplines, the time required to commence and complete the improvement, and related matters that affect cost or quality.

 

3.  In Design-Build contracting, in addition to Subsections 5.33.840 D.1. and 2., those factors may also include design professional qualifications, specialized experience, preliminary design submittals, technical merit, design-builder team experience and related matters that affect cost or quality.

 

4.  In Energy Savings Performance Contracting (ESPC), in addition to the factors set forth in Subsections 5.33.840 D.1., 2. and 3., those factors may also include sample Technical Energy Audits from similar projects, sample M & V reports, financial statements and related information of the ESCO for a time period established in the RFP, financial statements and related information of joint ventures comprising the ESCO, the ESCO's capabilities and experience in performing energy baseline studies for facilities (independently or in cooperation with an independent third-party energy baseline consultant), past performance of the ESCO in meeting energy guarantee Contract levels, the specific Person that will provide the Energy Savings Guarantee to be offered by the ESCO, the ESCO's management plan for the project, information on the specific methods, techniques and equipment that the ESCO will use in the performance of the Work under the ESPC, the ESCO's team members and consultants to be assigned to the project, the ESCO's experience in the Energy Savings Performance Contracting field, the ESCO's experience acting as the prime Contractor on previous ESPC projects (as opposed to a sub-contractor or consultant to a prime ESCO), the ESCO's vendor and product neutrality related to the development of ECMs, the ESCO's project history related to removal from an ESPC project or the inability or unwillingness of the ESCO to complete an ESPC project, the ESCO's M & V capabilities and experience (independently or in cooperation with an independent third-party M & V consultant), the ESCO's ability to explain the unique risks associated with ESPC projects and the assignment of risk in the particular project between the City and the ESCO, the ESCO's equipment performance guarantee policies and procedures, the ESCO's energy savings and cost savings guarantee policies and procedures, the ESCO's project cost guarantee policies and procedures, the ESCO's pricing methodologies, the price that the ESCO will charge for the Technical Energy Audit phase of the Work and the ESCO's fee structure for all phases of the ESPC.

 

E.  Contract Negotiations. Contract terms may be negotiated to the extent allowed by the RFP and Sections 5.34.800 to 5.34.890, provided that the general Work Scope remains the same and that the field of competition does not change as a result of material changes to the requirements stated in the Solicitation Document. See Section 5.34.850. Terms that may be negotiated consist of details of Contract performance, methods of construction, timing, assignment of risk in specified areas, fee, and other matters that affect cost or quality. In ESPC contracting, terms that may be negotiated also include the Scope of preliminary design of ECMs to be evaluated by the parties during the Technical Energy Audit phase of the Work, the Scope of Personal Services and Work to be performed by the ESCO during the Project Development Plan phase of the Work, the detailed provisions of the Energy Savings Guarantee to be provided by the ESCO and Scope of Work, methodologies and compensation terms and conditions during the design and construction phase and M & V phase of the Work, consistent with the requirements of Section 5.34.880 below.


5.34.845 Requests for Qualifications (RFQ)

(Amended by Ordinance Nos. 181547 and 183445, effective January 6, 2010.)  As provided by ORS 279C.405(1), the City may utilize Requests for Qualifications (RFQs) to obtain information useful in the preparation or distribution of a Request for Proposals (RFPs).  When using RFQs as the first step in a two step solicitation process, in which distribution of the RFPs will be limited to the firms identified as most qualified through their submitted statements of qualification, the City shall first advertise and provide notice of the RFQ in the same manner in which RFP’s are advertised, specifically stating that RFPs will be distributed only to the qualified firms in the RFQ process.  The Chief Procurement Officer shall decide whether to permit protests at the end of the RFQ process.  Thereafter, the City may distribute RFPs to those qualified firms without further advertisement of the solicitation.


5.34.850 Requests for Proposals (RFP).

(Amended by Ordinance Nos. 184403, 185065 and 185898, effective February 20, 2013.)

 

A.  Generally. The use of competitive Proposals must be specifically authorized for a Public Improvement Contract under the Competitive Bidding requirement of ORS 279C.335(1), Section 5.34.150 and Sections 5.34.800 to 5.34.890. Also see ORS 279C.400 to 279C.410 for statutory requirements regarding competitive Proposals, and Section 5.34.840 regarding competitive Proposal procedures.

 

B.  Solicitation Documents. In addition to the Solicitation Document requirements of Section 5.34.300, this rule applies to the requirements for Requests for Proposals. RFP Solicitation Documents shall conform to the following standards:

 

1.  The City shall set forth selection criteria in the Solicitation Document. Examples of evaluation criteria include price or cost, quality of a product or service, past performance, management, capability, personnel qualification, prior experience, compatibility, reliability, operating efficiency, expansion potential, experience of key personnel, adequacy of equipment or physical plant, financial wherewithal, sources of supply, references and warranty provisions. See Section 5.34.840. Evaluation factors need not be precise predictors of actual future costs and performance, but to the extent possible, such factors shall be reasonable estimates based on information available to the City.  Subject to ORS 279C.410(4) the Solicitation Document may provide for discussions with Proposers to be conducted for the purpose of Proposal evaluation prior to aware or prior to establishing any Competitive Range; 

 

2.  When the City is willing to negotiate terms and conditions of the Contract or allow submission of revised Proposals following discussions, the City must identify the specific terms and conditions in or provisions of the Solicitation Document that are subject to negotiation or discussion and authorize Offerors to propose certain alternative terms and conditions in lieu of the terms and conditions the City has identified as authorized for negotiation. The City must describe the evaluation and discussion or negotiation process, including how the City will establish the Competitive Range;

 

3.  The anticipated size of the Competitive Range shall be stated in the Solicitation document, but may be decreased if the number of Proposers that submit Responsive Proposals is less than the specified number, or may be increased as provided in Subsection 5.34.850 D.1.b.

 

4.  When the City intends to Award Contracts to more than one Proposer, the City must identify in the Solicitation Document the manner in which it will determine the number of Contracts it will Award. The City shall also include the criteria it will use to determine how the City will endeavor to achieve optimal value, utility and substantial fairness when selecting a particular Contractor to provide Personal Services or Work from those Contractors Awarded Contracts.

 

C.  Evaluation of Proposals.

 

1.  Evaluation. The City shall evaluate Proposals only in accordance with criteria set forth in the RFP and applicable law. The City shall evaluate Proposals to determine the Responsible Proposer or Proposers submitting the best Responsive Proposal or Proposals.

 

a.  Clarifications. In evaluating Proposals, The City may seek information from a Proposer to clarify the Proposer's Proposal. A Proposer must submit Written and Signed clarifications and such clarifications shall become part of the Proposer's Proposal.

 

b.  Limited Negotiation. If the City did not permit negotiation in its Request for Proposals, the City may, nonetheless, negotiate with the highest-ranked Proposer, but may then only negotiate the:  

 

(1)  Statement of Work; and

 

(2)  Contract Price as it is affected by negotiating the statement of Work.

 

(3)  The process for discussions or negotiations that is outlined and explained in Subsections 5.34.850 E.2. and  5.34.850 F. does not apply to this limited negotiation.

 

2.  Discussions; Negotiations. If the City permitted discussions or negotiations in the Request for Proposals, the City shall evaluate Proposals and establish the Competitive Range, and may then conduct discussions and negotiations in accordance with this rule.

 

a.  If the Solicitation Document provided that discussions or negotiations may occur at City’s discretion, the City may forego discussions and negotiations and evaluate all Proposals in accordance with this rule.

 

b.  If the City proceeds with discussions or negotiations, the City shall establish a negotiation team tailored for the acquisition. The City’s team may include legal, technical and negotiating personnel.

 

3.  Cancellation. Nothing in this rule shall restrict or prohibit the City from canceling the Solicitation at any time.

 

D.  Competitive Range; Protest; Award.

 

1.  Determining Competitive Range.

 

a.  If the City does not cancel the Solicitation, after the Opening the City will evaluate all Proposals in accordance with the evaluation criteria set forth in the Request for Proposals. After evaluation of all Proposals in accordance with the criteria set forth in the Request for Proposals, the City will determine and rank the Proposers in the Competitive Range.

 

b.  The City may increase the number of Proposers in the Competitive Range if the City’s evaluation of Proposals establishes a natural break in the scores of Proposers indicating a number of Proposers greater than the initial Competitive Range are closely Competitive, or have a reasonable chance of being determined the best Proposer after the City’s evaluation of revised Proposals submitted in accordance with the process described in this rule.

 

2.  Protesting Competitive Range. The City shall provide Written notice to all Proposers identifying Proposers in the Competitive Range. A Proposer that is not within the Competitive Range may protest the City’s evaluation and determination of the Competitive Range in accordance with Section 5.34.710.

 

3.  Intent to Award; Discuss or Negotiate. After the protest period provided in accordance with these rules expires, or after the City has provided a final response to any protest, whichever date is later, the City may either:

 

a.  Provide Written notice to all Proposers in the Competitive Range of its intent to Award the Contract to the highest-ranked Proposer in the Competitive Range.

 

(1)   An unsuccessful Proposer may protest the City’s intent to Award in accordance with Section 5.34.740.

 

(2)   After the protest period provided in accordance with  Section 5.34.740 expires, or after the City has provided a final response to any protest, whichever date is later, the City shall commence final Contract negotiations with the highest-ranked Proposer in the Competitive Range; or

 

b.  Engage in Negotiations with all Proposers in the Competitive Range, as provided in Subsection 5.34.850 F. below; or

 

c.  Engage in discussions with Proposers in the Competitive Range, as provided in Subsection 5.34.850

E. below, accept revised Proposals from them, and, following such discussions and receipt and evaluation of revised Proposals, either select the highest ranking Proposer or conduct further negotiations with the Proposers in the Competitive Range;

 

d.  Otherwise proceed in any other legal manner designed to select a or as specified by the RFP or ordinance.

 

E.  Discussions; Revised Proposals. If the City chooses to enter into discussions with and receive revised Proposals from the Proposers in the Competitive Range, the City shall proceed as follows:

 

1.   Initiating Discussions. The City shall initiate oral or Written discussions with all of the Proposers in the Competitive Range regarding their Proposals with respect to the provisions of the RFP that the City identified in the RFP as the subject of discussions. The City may conduct discussions for the following purposes:

 

a.  Informing Proposers of deficiencies in their initial Proposals;

 

b.  Notifying Proposers of parts of their Proposals for which the City would like additional information; and

 

c.  Otherwise allowing Proposers to develop revised Proposals that will allow the City to obtain the best Proposal based on the requirements and evaluation criteria set forth in the Request for Proposals.

 

2.  Conducting Discussions. The City may conduct discussions with each Proposer in the Competitive Range necessary to fulfill the purposes of this section, but need not conduct the same amount of discussions with each Proposer. The City may terminate discussions with any Proposer in the Competitive Range at any time. However, the City shall offer all Proposers in the Competitive Range the opportunity to discuss their Proposals with City before the City notifies Proposers of the date and time pursuant to this section that revised Proposals will be due.

 

a.  In conducting discussions, the City :

 

(1)   Shall treat all Proposers fairly and shall not favor any Proposer over another;

 

(2)   Shall not discuss other Proposers' Proposals;

 

(3)   Shall not suggest specific revisions that a Proposer should make to its Proposal, and shall not otherwise direct the Proposer to make any specific revisions to its Proposal. Nothing in this paragraph, however, shall prevent the City from identifying deficiencies in a Proposal, as provided in Subsection 5.34.850 E.1.a. above. 

 

b.  At any time during the time allowed for discussions, the City may:  

 

(1)   Continue discussions with a particular Proposer;

 

(2)   Terminate discussions with a particular Proposer and continue discussions with other Proposers in the Competitive Range; or

 

(3)   Conclude discussions with all remaining Proposers in the Competitive Range and provide notice to the Proposers in the Competitive Range to submit revised Proposals.

 

3.  Revised Proposals. If the City does not cancel the Solicitation at the conclusion of the City’s discussions with all remaining Proposers in the Competitive Range, the City shall give all remaining Proposers in the Competitive Range notice of the date and time by which they must submit revised Proposals. This notice constitutes the City’s termination of discussions, and Proposers must submit revised Proposals by the date and time set forth in the City’s notice.

 

a.  Upon receipt of the revised Proposals, the City shall score the revised Proposals based upon the evaluation criteria set forth in the Request for Proposals, and rank the revised Proposals based on the City’s scoring.

 

b.  The City may conduct discussions with and accept only one revised Proposal from each Proposer in the Competitive Range unless otherwise set forth in the Request for Proposals.

 

4.  Intent to Award; Protest. The City shall provide Written notice to all Proposers in the Competitive Range of the City’s intent to Award the Contract. An unsuccessful Proposer may protest the City’s intent to Award in accordance with Section 5.34.740. After the protest period provided in accordance with that rule expires, or after the City has provided a final response to any protest, whichever date is later, the City shall commence final Contract negotiations.

 

F.  Negotiations.

 

1.   Initiating Negotiations. The City may determine to commence negotiations with the highest-ranked Proposer in the Competitive Range following the:

 

a.  Initial determination of the Competitive Range; or

 

b.  Conclusion of discussions with all Proposers in the Competitive Range and evaluation of revised Proposals.

 

2.  Conducting Negotiations, Scope. The City may negotiate:

 

a.  The statement of Work;

 

b.  The Contract Price as it is affected by negotiating the statement of Work; and

 

c.   Any other terms and conditions reasonably related to those expressly authorized for negotiation in the Request for Proposals. Accordingly, Proposers shall not submit, and City shall not accept, for negotiation any alternative terms and conditions that are not reasonably related to those expressly authorized for negotiation in the Request for Proposals.

 

3.  Continuing Negotiations. If the City terminates discussions or negotiations with a Proposer, the City may then commence negotiations with the next highest scoring Proposer in the Competitive Range, and continue the process described in this rule until the City has either:

 

a.  Determined to Award the Contract to the Proposer with whom it is currently discussing or negotiating; or

 

b.  Completed one round of discussions or negotiations with all Proposers in the Competitive Range, unless the City provided for more than one round of discussions or negotiations in the Request for Proposals, in which case the Contracting Agency may proceed with any authorized further rounds of discussions or negotiations.

 

4.  Terminating Discussions or Negotiations.  At any time during discussions or negotiations conducted in accordance with this Rule, the City may terminate discussions or negotiations with the Proposer with whom it is currently conducting discussions or negotiations if the City reasonably believes that;

 

a.  The Proposer is not discussing or negotiating in good faith; or

 

b.  Further discussions or negotiations with the Proposer will not result in the parties agreeing to the terms and conditions of a final Contract in a timely manner that will be in the best interests of the City.  The determination of a timely manner and the best interests of the City are matters solely within the discretion of the City.


5.34.860 RFP Pricing Mechanisms.

(Amended by Ordinance No. 184403, effective February 2, 2011.)

 

A.  A Request for Proposals may result in a lump sum Contract Price, as in the case of competitive Bidding. Alternatively, a cost reimbursement Contract may be negotiated.

 

B.  Economic incentives or disincentives may be included to reflect stated City purposes related to time of completion, safety or other Public Contracting objectives, including total least cost mechanisms such as Life Cycle Costing.

 

C.  A Guaranteed Maximum Price (GMP) is used as the pricing mechanism for CM/GC where a total Contract Price is provided in the design phase in order to assist the City in determining whether the project Scope is within the City’s budget, and allowing for design changes during preliminary design rather than after final design Work has been completed.

 

1.  If this collaborative process is successful, the Contractor shall propose a final GMP, which may be accepted by the City and included within the Contract.

 

2.  If this collaborative process is not successful, and no mutually agreeable resolution on GMP can be achieved with the Contractor, then the City shall terminate the Contract. The City may then proceed to negotiate a new Contract (and GMP) with the firm that was next ranked in the original selection process, or employ other means for continuing the project under ORS Chapter 279C.

 

D.  When cost reimbursement Contracts are utilized, regardless of whether a GMP is included, the City shall provide for audit controls that will effectively verify rates and ensure that costs are reasonable, allowable and properly allocated.


5.34.870 Design-Build Contracts.

(Amended by Ordinance No. 185898, effective February 20, 2013.)

 

A.  General. The Design-Build form of contracting, as defined in Subsection 5.34.810 C., has technical complexities that are not readily apparent. In order to use the Design-Build process, the City must be able to reasonably anticipate the following types of benefits:

 

1.   Obtaining, through a Design-Build team, engineering design, plan preparation, value engineering, construction engineering, construction, quality control and required documentation as a fully integrated function with a single point of responsibility;

 

2.  Integrating value engineering suggestions into the design phase, as the construction Contractor joins the project team early with design responsibilities under a team approach, with the potential of reducing Contract changes;

 

3.  Reducing the risk of design flaws, misunderstandings and conflicts inherent in construction Contractors building from designs in which they have had no opportunity for input, with the potential of reducing Contract claims;

 

4.  Shortening project time as construction activity (early submittals, mobilization, subcontracting and advance Work) commences prior to completion of a "Biddable" design, or where a design solution is still required (as in complex or phased projects); and

 

5.  Obtaining innovative design solutions through the collaboration of the Contractor and design team, which would not otherwise be possible if the Contractor had not yet been selected.

 

B.  Authority. Contracting Agencies shall utilize the Design-Build form of contracting only in accordance with the requirements of Sections 5.34.800 to 5.34.890 of these rules. See particularly Section 5.34.820 on "Use of Alternative Contracting Methods" and Section 5.34.880 pertaining to ESPCs.

 

C.  Selection. Design-Build selection criteria may include those factors set forth above in Subsections 5.34.840 B.1., 2. and 3.

 

D.  QBS Inapplicable. Because the value of construction services predominates the Design-Build form of contracting, the qualifications based selection (QBS) process is not applicable.

 

E.  Licensing. If a Design-Build Contractor is not an Oregon licensed design professional, the City shall require that the Design-Build Contractor disclose in its Written Offer that it is not an Oregon licensed design professional, and identify the Oregon licensed design professional(s) who will provide design services. See ORS 671.030(2)(g) regarding the offer of architectural services, and ORS 672.060(11) regarding the offer of engineering services that are appurtenant to construction Work.

 

F.  Performance Security. ORS 279C.380(1)(a) provides that for Design-Build Contracts the surety's obligation on performance bonds, or the Bidder's obligation on cashier's or certified checks accepted in lieu thereof, includes the preparation and completion of design and related Personal Services specified in the Contract. This additional obligation, beyond performance of construction services, extends only to the provision of professional services and related design revisions, corrective Work and associated costs prior to final completion of the Contract (or for such longer time as may be defined in the Contract). The obligation is not intended to be a substitute for professional liability insurance, and does not include errors and omissions or latent defects coverage.

 

G.  Contract Requirements. The City shall conform its Design-Build contracting practices to the following requirements:

 

1.   Design Services. The level or type of design services required must be clearly defined within the Procurement documents and Contract, along with a description of the level or type of design services previously performed for the project. The Personal Services and Work to be performed shall be clearly delineated as either design Specifications or performance standards, and performance measurements must be identified.

 

2.  Professional Liability. The Contract shall clearly identify the liability of design professionals with respect to the Design-Build Contractor and the City, as well as requirements for professional liability insurance.

 

3.  Risk Allocation. The Contract shall clearly identify the extent to which the City requires an express indemnification from the Design-Build Contractor for any failure to perform, including professional errors and omissions, design warranties, construction operations and faulty Work claims.

 

4.  Warranties. The Contract shall clearly identify any express warranties made to the City regarding characteristics or capabilities of the completed project (regardless of whether errors occur as the result of improper design, construction, or both), including any warranty that a design will be produced that meets the stated project performance and budget guidelines.

 

5.  Incentives. The Contract shall clearly identify any economic incentives and disincentives, the specific criteria that apply and their relationship to other financial elements of the Contract.

 

6.  Honoraria. If allowed by the RFP, honoraria or stipends may be provided for early design submittals from qualified finalists during the Solicitation process on the basis that the City is benefited from such deliverables.


5.34.880 Energy Savings Performance Contracts (ESPC).

(Amended by Ordinance No. 185898, effective February 20, 2013.)

 

A.  Generally. Sections 5.34.800 to 5.34.890 include a limited, efficient method for the City to enter into ESPCs outside the competitive bidding requirements of ORS 279C.335 for existing buildings or structures, but not for new construction. If the City chooses not to utilize these rules, the City may still enter into an ESPC by complying with the competitive bidding exemption process set forth in ORS 279C.335, or by otherwise complying with the Procurement requirements applicable to any City not subject to all the requirements of ORS 279C.335.

 

B.  ESPC Contracting Method. The ESPC form of contracting, as defined in Subsection 5.34.810 F., has unique technical complexities associated with the determination of what ECMs are feasible for the City, as well as the additional technical complexities associated with a Design-Build Contract. The City shall only utilize the ESPC contracting method with the assistance of knowledgeable staff or consultants who are experienced in its use. In order to utilize the ESPC contracting process, the City must be able to reasonably anticipate one or more of the following types of benefits:

 

1.   Obtaining, through an ESCO, the following types of integrated Personal Services and Work: facility profiling, energy baseline studies, ECMs, Technical Energy Audits, project development planning, engineering design, plan preparation, cost estimating, Life Cycle Costing, construction administration, project management, construction, quality control, operations and maintenance staff training, commissioning services, M & V services and required documentation as a fully integrated function with a single point of responsibility;

 

2.  Obtaining, through an ESCO, an Energy Savings Guarantee;

 

3.  Integrating the Technical Energy Audit phase and the Project Development Plan phase into the design and construction phase of Work on the project;

 

4.  Reducing the risk of design flaws, misunderstandings and conflicts inherent in the construction process, through the integration of ESPC Personal Services and Work;

 

5.  Obtaining innovative design solutions through the collaboration of the members of the ESCO integrated ESPC services team;

 

6.  Integrating cost-effective ECMs into an existing building or structure, so that the ECMs pay for themselves through savings realized over the useful life of the ECMs;

 

7.  Preliminary design, development, implementation and an Energy Savings Guarantee of ECMs into an existing building or structure through an ESPC, as a distinct part of a major remodel of that building or structure that is being performed under a separate remodeling Contract; and

 

8.  Satisfying local energy efficiency design criteria or requirements.

 

C.  Authority. Bureaus wanting to pursue an exemption from the Competitive Bidding requirements of ORS 279C.335 (and, if applicable, ORS 351.086), shall utilize the ESPC form of contracting only in accordance with the requirements of Sections 5.34.800 through 5.34.890.

 

D.  No Findings. The City is only required to comply with the ESPC contracting procedures set forth in Sections 5.34.800 through 5.34.890  in order for the ESPC to be exempt from the competitive bidding processes of ORS 279C.335. No Findings are required for an ESPC to be exempt from the competitive bidding process for Public Improvement Contracts pursuant to ORS 279C.335, unless the City is subject to the requirements of ORS 279C.335 and chooses not to comply with the ESPC contracting procedures set for in these rules.

 

E.  Selection. ESPC selection criteria may include those factors set forth above in Subsections 5.34.840 B.1., 2., 3., and 4. Since the Energy Savings Guarantee is such a fundamental component in the ESPC contracting process, Proposers must disclose in their Proposals the identity of any Person providing (directly or indirectly) any Energy Savings Guarantee that may be offered by the successful ESCO during the course of the performance of the ESPC, along with any financial statements and related information pertaining to any such Person.

 

F.  QBS Inapplicable. Because the value of construction Work predominates in the ESPC method of contracting, the qualifications based selection (QBS) process mandated by ORS 279C.110 is not applicable.

 

G.  Licensing. If the ESCO is not an Oregon licensed design professional, the City shall require that the ESCO disclose in the ESPC that it is not an Oregon licensed design professional, and identify the Oregon licensed design professional(s) who will provide design services. See ORS 671.030(5) regarding the offer of architectural services, and ORS 672.060(11) regarding the offer of engineering services that are appurtenant to construction Work.

 

H.  Performance Security. At the point in the ESPC when the parties enter into a binding Contract that constitutes a Design-Build Contract, the ESCO must provide a performance bond and payment bond, each for 100 percent of the full Contract Price, including the construction Work and design and related Personal Services specified in the ESPC Design-Build Contract, pursuant to ORS 279C.380(1)(a). For ESPC Design-Build Contracts, these "design and related professional services" include conventional design services, commissioning services, training services for the City’s operations and maintenance staff, and any similar Personal Services or Work provided by the ESCO under the ESPC Design-Build Contract prior to final completion of construction. M & V services, and any Personal Services and Work associated with the ESCO's Energy Savings Guarantee are not included in these ORS 279C.380(1)(a) "design and related professional services." Nevertheless, The City may require that the ESCO provide performance security for M & V services and any Personal Services and Work associated with the ESCO's Energy Savings Guarantee, if the City so provides in the RFP.

 

I.  Contracting Requirements. Contracting Agencies shall conform their ESPC contracting practices to the following requirements:

 

1.   General ESPC Contracting Practices. An ESPC involves a multi-phase project, which includes the following contractual elements:

 

a.  A contractual structure which includes general Contract terms describing the relationship of the parties, the various phases of the Work, the contractual terms governing the Technical Energy Audit for the project, the contractual terms governing the Project Development Plan for the project, the contractual terms governing the final design and construction of the project, the contractual terms governing the performance of the M & V services for the project, and the detailed provisions of the ESCO's Energy Savings Guarantee for the project.

 

b.  The various phases of the ESCO's Work will include the following:

 

(1)   The Technical Energy Audit phase of the Work;

 

(2)   The Project Development Plan phase of the Work;

 

(3)   A third phase of the Work that constitutes a Design-Build Contract, during which the ESCO completes any plans and Specifications required to implement the ECMs that have been agreed to by the parties to the ESPC, and the ESCO performs all construction, commissioning, construction administration and related Personal Services or Work to actually construct the project; and

 

(4)   A final phase of the Work, whereby the ESCO, independently or in cooperation with an independent consultant hired by the City, performs M & V services to ensure that the Energy Savings Guarantee identified by the ESCO in the earlier phases of the Work and agreed to by the parties has actually been achieved.

 

2.  Design-Build Contracting Requirements in ESPCs. At the point in the ESPC when the parties enter into a binding Contract that constitutes a Design-Build Contract, the City shall conform its Design-Build contracting practices to the Design-Build contracting requirements set forth in Subsection 5.34.870 G. above.

 

3.  Pricing Alternatives. The City may utilize one of the following pricing alternatives in an ESPC:

 

a.  A fixed price for each phase of the Personal Services and Work to be provided by the ESCO;

 

b.  A cost reimbursement pricing mechanism, with a maximum not-to-exceed price or a GMP; or

 

c.  A combination of a fixed fee for certain components of the Personal Services to be performed, a cost reimbursement pricing mechanism for the construction Work to be performed with a GMP, a single or annual fixed fee for M & V services to be performed for an identified time period after final completion of the construction Work, and a single or annual Energy Savings Guarantee fixed fee payable for an identified time period after final completion of the construction Work that is conditioned on certain energy savings being achieved at the facility by the ECMs that have been implemented by the ESCO during the project (in the event an annual M & V services fee and annual Energy Savings Guarantee fee is utilized by the parties, the parties may provide in the Design-Build Contract that, at the sole option of the City, the ESCO's M & V services may be terminated prior to the completion of the M & V/Energy Savings Guarantee period and the City’s future obligation to pay the M & V services fee and Energy Savings Guarantee fee will likewise be terminated, under terms agreed to by the parties).

 

4.  Permitted ESPC Scope of Work. The Scope of Work under the ESPC is restricted to implementation and installation of ECMs, as well as other Work on building systems or building components that are directly related to the ECMs, and that, as an integrated unit, will pay for themselves over the useful life of the ECMs installed. The permitted Scope of Work for ESPCs resulting from a Solicitation under Sections 5.34.800 to 5.34.890 rules does not include maintenance services for the project facility.


5.34.890 Construction Manager/General Contractor (CM/GC).

(Amended by Ordinance Nos. 181547 and 185898, effective February 20, 2013.)

 

A.  General. The CM/GC form of contracting, as defined in Subsection  5.34.810 B., is a technically complex project delivery system.   Unlike the Design-Build form of contracting, the CM/GC form of contracting does not contemplate a "single point of responsibility" under which the Contractor is responsible for successful completion of all Work related to a performance Specification. The CM/GC has defined Contract obligations, including responsibilities as part of the project team along with the City and design professional, although in CM/GC there is a separate Contract between the City and design professional. In order to utilize the CM/GC method, the City must be able to reasonably anticipate the following types of benefits:

 

1.   Time Savings. The Public Improvement has significant schedule ramifications, such that concurrent design and construction are necessary in order to meet critical deadlines and shorten the overall duration of construction. The City may consider operational and financial data that show significant savings or increased opportunities for generating revenue as a result of early completion, as well as less disruption to public facilities as a result of shortened construction periods;

 

2.  Cost Savings. Early Contractor input during the design process is expected to contribute to significant cost savings. The City may consider value engineering, building systems analysis, Life Cycle Costing analysis and construction planning that lead to cost savings. The City shall specify any special factors influencing this analysis, including high rates of inflation, market uncertainty due to material and labor fluctuations or scarcities, and the need for specialized construction expertise due to technical challenges; and

 

3.  Technical Complexity. The Public Improvement presents significant technical complexities that are best addressed by a collaborative or team effort between the City, design professionals and Contractor, in which the Contractor will assist in addressing specific project challenges through pre-construction services. The City may consider the need for Contractor input on issues such as operations of the facility during construction, tenant occupancy, public safety, delivery of an early budget or GMP, financing, historic preservation, difficult remodeling projects and projects requiring complex phasing or highly coordinated scheduling.

 

B.  Authority. The City shall use the CM/GC form of contracting only in accordance with the requirements of these rules. See particularly, Section 5.34.820 on "Use of Alternative Contracting Methods".

 

C.  Selection. CM/GC selection criteria may include those factors set forth above in Subsection 5.34.840 B.2.

 

D.  Basis for Payment. The CM/GC process adds specified Construction Manager Personal Services to traditional General Contractor Work, requiring full Contract performance within a negotiated Guaranteed Maximum Price (GMP). The basis for payment is reimbursable direct costs as defined under the Contract, plus a fee constituting full payment for Work and Personal Services rendered, which together shall not exceed the GMP. See GMP definition at Subsection 5.34.810 G. and Pricing Mechanisms in Section 5.34.860.

 

E.  Contract Requirements. Contracting Agencies shall conform their CM/GC contracting practices to the following requirements:

 

1.   Setting the GMP. The GMP shall be set at an identified time consistent with industry practice, after supporting information reasonably considered necessary to its use has been developed, and the supporting information shall define with particularity both what is included and excluded from the GMP. A set of drawings and Specifications shall be produced establishing the GMP Scope.

 

2.  Adjustments to the GMP. The Contract shall clearly identify the standards or factors under which changes or additional Work will be considered outside of the Work Scope that warrants an increase in the GMP, as well as criteria for decreasing the GMP. The GMP shall not be increased without a concomitant increase to the Scope defined at the establishment of the GMP or most recent GMP amendment.

 

3.  Cost Savings. The Contract shall clearly identify the disposition of any cost savings resulting from completion of the Work below the GMP; that is, under what circumstances, if any, the CM/GC might share in those cost savings, or whether they accrue only to the City’s benefit. (Note that unless there is a clearly articulated reason for sharing such cost savings, they should accrue to the City .)

 

4.  Cost Reimbursement. The Contract shall clearly identify what items or categories of items are eligible for cost reimbursement within the GMP, including any category of "General Conditions" (a general grouping of direct costs that are not separately invoiced, subcontracted or included within either overhead or fee), and may also incorporate a mutually-agreeable cost-reimbursement standard.

 

5.  Audit. Cost reimbursements shall be made subject to final audit adjustment, and the Contract shall establish an audit process to ensure that Contract costs are allowable, properly allocated and reasonable.

 

6.  Fee. Compensation for the CM/GC's Personal Services and Work shall be paid on the basis of a fee that is inclusive of profit, overhead and all other indirect or non-reimbursable costs. Costs determined to be included within the fee should be expressly defined wherever possible. The fee, first expressed as a proposed percentage of all reimbursable costs, shall be identified during and become an element of the selection process. It shall subsequently be expressed as a fixed amount when the GMP is established.

 

7.  Incentives. The Contract shall clearly identify any economic incentives, the specific criteria that apply and their relationship to other financial elements of the Contract (including the GMP).

 

8.  Controlled Insurance Programs. For projects anticipated to exceed $75 Million, the Contract shall clearly identify whether an Owner Controlled or Contractor Controlled Insurance Program is anticipated or allowable. If so, the Contract shall clearly identify:

 

a.  anticipated cost savings from reduced premiums, claims reductions and other factors;

 

b.  the allocation of cost savings; and

 

c.  safety responsibilities and/or incentives.

 

9.  Early Work. The RFP shall clearly identify, whenever feasible, the circumstances under which any of the following activities may be authorized and undertaken for compensation prior to establishing the GMP:

 

a.  Early Procurement of materials and supplies;

 

b.  Early release of Bid packages for such things as site development; and

 

c.  Other advance Work related to critical components of the Contract.

 

10.  Subcontractor Selection. The Contract shall clearly describe the methods by which the CM/GC shall publicly receive, open and record Bids or price quotations, and competitively select Subcontractors to perform the Contract Work based upon price, as well as the mechanisms by which the City may waive those requirements. The documents shall also describe completely the methods by which the CM/GC and its affiliated or subsidiary entities may compete to perform the Work, including, at a minimum, advance notice to the public of the CM/GC's intent to compete and a public Opening of Bids or quotations by an independent party.

 

11.  Subcontractor Approvals and Protests. The Contract shall clearly establish whether the City must approve subcontract Awards, and to what extent, if any, the City will resolve Procurement protests of Subcontractors and suppliers. The related procedures and reporting mechanisms shall be established with certainty, including whether the CM/GC acts as the City’s representative in this process and whether the CM/GC's subcontracting records are considered to be public records. In any event, the City shall retain the right to monitor the subcontracting process in order to protect City’s interests.

 

12.  CM/GC Self-Performance. Whenever feasible, the Contract shall establish the elements of Work the CM/GC may self-perform without competition, including, for example, the Work of the job-site general conditions. In the alternative, the Contract shall include a process for City approval of CM/GC self-performance.

 

13.  Socio-Economic Programs. The Contract shall clearly identify conditions relating to any required socio-economic programs (such as Good Faith Efforts and Workforce Training and Hiring), including the manner in which such programs affect the CM/GC's subcontracting requirements, the enforcement mechanisms available, and the respective responsibilities of the CM/GC and City.


5.34.900 Required Contract Clauses.

(Amended by Ordinance No. 185898, effective February 20, 2013.) The City shall include in all formal Solicitations for Public Improvement Contracts all of the ORS Chapter 279C required Contract clauses, as set forth in the checklist contained in Section 5.34.300 regarding Solicitation Documents. The following series of rules provide further guidance regarding particular Public Contract provisions.


5.34.910 Waiver of Delay Damages Against Public Policy.
 
Any clause in a Public Improvement Contract purporting to waive, release, or extinguish the rights of a Contractor to damages resulting from The City’s unreasonable delay in performing the Contract is void and unenforceable, as against public policy. However, Contract provisions requiring notice of delay, providing for alternative dispute resolution such as arbitration (where allowable) or mediation, providing other procedures for settling Contract disputes, or providing for reasonable liquidated damages, are permissible.

5.34.915 BOLI Public Works Bond.

(Amended by Ordinance No. 184403, effective February 2, 2011.)  Pursuant to ORS 279C.830(2), the specifications for every Public Works Contract shall contain a provision stating that the Contractor and every subcontractor must have a Public Works bond filed with the Construction Contractors Board before starting Work on the project, unless otherwise exempt.  This bond is in addition to performance bond and payment bonds requirements.

 


5.34.920 Retainage.

(Amended by Ordinance Nos. 181547, 183445 and 185898, effective February 20, 2013.)

 

A.  Retainage of 5 Percent. The amount to be retained from any given progress payment shall not exceed 5 percent of the payment. If the Contract Work is 50 percent completed and the Work is progressing satisfactorily, the City may, at its discretion, reduce or eliminate the retainage on the remaining progress payments. Any reduction or elimination of retainage shall be allowed only upon Written application of the Contractor, which application shall include Written approval of the Contractor’s surety; except that when the Contract Work is 97.5 percent completed, the City may, at its discretion and without application by the Contractor, reduce the retained amount to 100 percent of the value of the Contract Work remaining to be done. Upon receipt of a Written application by the Contractor, the City shall respond in Writing within a reasonable time.  If retainage has been reduced or eliminated, the City reserves the right in protecting its interests to reinstate at any time retainage from further progress payments.

 

B.  Form of Retainage.  Unless the City finds in writing that accepting a bond or instrument described in 1. and 2. of this Subsection poses an extraordinary risk that is not typically associated with the bond or instrument, the City, in lieu of withholding moneys from payment, shall accept from the Contractor:

 

1.  Bonds, securities, or other instruments that are deposited and accepted as provided in  Subsection 5.34.920 D.1. of this rule; or

 

2.  A surety bond deposited as provided in Subsection 5.34.920 D. of this rule.

 

C.  Deposit in Interest-bearing accounts.  Upon request of the Contractor, the City shall deposit cash retainage in an interest-bearing account in a bank, savings bank, trust company, or savings association, for the benefit of the City.  Earnings on such account shall accrue to the Contractor. The City may determine the account into which the retainage is placed.

 

D.  Alternatives to Cash Retainage. In lieu of cash retainage to be held by the City, the Contractor may select one of the following options:

 

1.  Deposit of bonds, securities and other instruments:

 

a.  The Contractor may deposit bonds, securities or other instruments with the City as set forth in Section 5.34.920 or in any bank or trust company to be held for the benefit of the City.  If the City accepts the deposit, the City shall reduce the retainage in an amount equal to the value of the bonds and securities. This reduction in retainage shall be made in the progress payments made subsequent to the time the Contractor deposits the bonds and securities;

 

b.  The value of the bonds and securities shall be determined periodically by the City, in the manner described in Subsection  5.34.920 D.1.c., and the amount retained on progress payments shall be adjusted accordingly. The bonds and securities deposited by the Contractor shall be fully assigned to the City or be payable to the City on demand and shall be of a character approved by the City Treasurer and in a form approved by the City Attorney including, but not limited to, the following:

 

(1)  Bills, certificates, notes or bonds of the United States;

 

(2)  Other obligations of the United States or agencies of the United States;

 

(3)  Obligations of any corporation wholly owned by the federal government;

 

(4)  Indebtedness of the Federal National Mortgage Association;

 

(5)   General obligation bonds of the State of Oregon or a political subdivision of the State of Oregon; or

 

(6)   Irrevocable letters of credit issued by an insured institution, as defined in ORS 706.008.

 

c.  The value of bonds and securities deposited by the Contractor shall be calculated as follows:

 

(1)  As to bonds or securities for which the “Bid” and “asked” prices are published on a regular basis in the Wall Street Journal or in the New York Times, the value shall be the average of the “Bid” and “asked” prices for the bonds or securities so published on (or most recently prior to) the date value is determined;

 

(2)  As to bonds or securities for which the “Bid” and “asked” prices are not published in the Wall Street Journal or the New York Times, the value shall be either: the average “Bid” price for the bond or security, on the date value is determined, as established by any two nationally recognized government securities dealers (selected by the City in its sole discretion) making a market in such investments; or, the “Bid” price published by a nationally recognized pricing service;

 

(3)  As to certificates of deposit and bankers acceptances, the value shall be the face amount thereof, plus accrued interest.

 

d.  At the time the City determines that all requirements for the protection of the City’s interest have been fulfilled, all bonds and securities deposited as above provided shall be released to the Contractor.

 

2.  Execution of Escrow Agreement. The Chief Procurement Officer is authorized to execute any escrow agreement necessary to safeguard deposit of securities with the City subject to approval as to form by the City Attorney.

 

3.  Deposit in Interest-Bearing Accounts. Upon Written request of the Contractor, the City shall deposit any amounts withheld as retainage in an interest-bearing account in a bank, savings bank, trust company or savings association for the benefit of the City. Earnings on such account shall accrue to the Contractor but the interest shall remain in the account until the City authorizes its release. The account shall be established through the City Treasurer.

 

E.  Recovery of Costs. If the City incurs additional costs as a result of the exercise of any of the options for retainage, the City may recover such costs from the Contractor by reduction of the final payment. As Work on the Contract progresses, the City shall, upon request, inform the Contractor of all accrued costs.

 

F.    Additional Retainage When Certified Payroll Statements not Filed.  Pursuant to ORS 279C.845(7), if a Contractor is required to file certified payroll statements and fails to do so, the City shall retain 25 percent of any amount earned by the Contractor on  a Public Works Contract until the Contractor has filed such statements with the City.  The City shall pay the Contractor the amount retained under this provision within 14 days after the Contractor files the certified statements, regardless of whether a subcontractor has filed such statements.


5.34.930 Social Equity Contracting and Employment Programs.

(Amended by Ordinance No. 185898, effective February 20, 2013.) From time to time, the City may adopt programs designed to promote competition, enhance economic opportunity and stimulate hiring among all of Portland’s citizens.  When such programs are adopted, they shall be included or sufficiently referenced in the Solicitation and Contract Documents so that Persons desiring to enter into Contracts with the City are aware of their requirements.


5.34.940 Public Works Contracts.

(Amended by Ordinance Nos. 181547, 183445 and 185065, effective January 1, 2012.)

 

A.  Required Contract Conditions. Every Public Works Contract must contain the following provisions:

 

1.  City authority to pay certain unpaid claims and charge such amounts to Contractors, as set forth in ORS 279C.515A.   

 

2.  Maximum hours of labor and overtime, as set forth in ORS 279C.520(1).

 

3.  Employer notice to employees of hours and days that employees may be required to Work, as set forth in ORS 279C.520(2).

 

4.  Contractor required payments for certain services related to sickness or injury, as set forth in ORS 279C.530.

 

5.  Requirement for payment of prevailing rate of wage, as set forth in ORS 279C.830(1).

 

B.  Requirements for Specifications. The Specifications for every Public Works Contract, consisting of the procurement package (such as the Project Manual, Bid or Proposal Booklets, Request for Quotations or similar Procurement Specifications), must contain the following provisions:

 

1.  The state prevailing rate of wage, and, if applicable, the federal prevailing rate of wage, as required by ORS 279C.830(1)(a):

 

a.  physically contained within or attached to hard copies of Procurement Specifications;

 

b.  included by a statement incorporating the applicable wage rate publication in the Specifications by reference; or

 

c.  when the rates are available electronically or by Internet access, the rates may be incorporated into the Specifications by referring to the rates and providing adequate information on how to access them.

 

2.  If both state and federal prevailing rates of wage apply, a requirement that the contractor shall pay the higher of the applicable state or federal prevailing rate of wage to all workers.


5.34.950 City Payment for Unpaid Labor or Supplies.
 
A.   Contract incomplete. If the Contract is still in force, the City may, in accordance with ORS 279C.515(1), pay a valid claim to the Person furnishing the labor or services, and charge the amount against payments due or to become due to the Contractor under the Contract. If the City chooses to make such a payment as provided in ORS 279C.515(1), the Contractor and the Contractor's surety shall not be relieved from liability for unpaid claims.
 
B.    Contract completed. If the Contract has been completed and all funds disbursed to the prime Contractor, all claims shall be referred to the Contractor's surety for resolution. The City shall not make payments to Subcontractors or suppliers for Work already paid for by the City.

5.34.960 Records Maintenance; Right to Audit Records.

(Amended by Ordinance No. 185898, effective February 20, 2013.)

 

A.  Contractors and Subcontractors shall maintain all fiscal records relating to a Contract executed with the City in accordance with generally accepted accounting principles.  In addition, Contractors and Subcontractors shall maintain any other records necessary to clearly document:

 

1.  Their performance. Performance includes, but is not limited to, compliance with plans and  Specifications, compliance with fair contracting and employment programs, compliance with Oregon law on payment of wages and accelerated payment provisions, and any and all requirements imposed on the Contractor or Subcontractor under the Contract or subcontract;

 

2.  Any claims arising from or relating to their performance under a Public Contract;

 

3.  Any cost and pricing data; and,

 

4.  Payment to suppliers and Subcontractors. 

 

B.  Such records shall be maintained for a period of six years from the date of final completion of the Contract or until the conclusion of any audit, controversy or litigation arising out of or related to a Contract, whichever is longer, unless a shorter period of time is authorized in Writing by the City. 

 

C.  Contractors and Subcontractors shall make all their records available to the City within the boundaries of the City of Portland, Oregon, at reasonable times and places regardless of whether litigation has been filed on any claims.  If the records are not made available within the boundaries of the City, the Contractor or Subcontractor shall pay all costs for City employees, and any necessary consultants hired by the City, including travel, per diem costs, salary, and any other expenses incurred by City in sending its employees or consultants to examine, audit, inspect, and copy those records.  If the Contractor elects to have such records outside these boundaries, the costs paid by the Contractor to the City for inspection, auditing, examining and copying those records are not recoverable costs in any legal proceeding.

 

D.  The City and its Authorized Representatives shall be entitled to inspect, examine, copy and audit the books and records of any Contractor or Subcontractor upon request by the City for any reason, including any documents that may be placed in escrow according to any Contract requirements.  The records that may be inspected and copied include financial documents of the Contractor, including tax returns and financial statements.  The City will keep such documents confidential to the extent permitted by Oregon law, subject to Subsection 5.34.960 E. below.

 

E.  Contractors and Subcontractors agree to disclose the records requested by the City and agree to their admission as evidence in any proceeding between the parties, including, but not limited to a court proceeding, arbitration, mediation or other alternative dispute resolution process.

 

F.  In the event that the records disclose that the City is owed money or establishes that any portion of any claim made against the City is not warranted, the Contractor or Subcontractor shall pay all costs incurred by the City in conducting the audit and inspection.  Such costs may be withheld from any sum due or that becomes due to the Contractor by the City.

 

G.  Failure of the Contractor or Subcontractor to keep or disclose records as required  may result in a finding that the Contractor or Subcontractor is not a Responsible Bidder or Proposer as provided in Subsection 5.34.610 B.


5.34.970 Right to Inspect Plant or Place of Business.
 
A.  Time for Inspection. The City may, at reasonable times, inspect the part of the plant or place of business of a Contractor or any Subcontractor or supplier which is related to the performance of any Contract Awarded.
 
B.  Access to Plant or Place of Business. As a condition of submitting an Offer, Offerors agree that representatives of the City may enter a Contractor’s or Subcontractor’s or supplier’s plant, place of business, work site or construction site during normal business hours for the following purposes:
1.  To inspect and/or test supplies or services for acceptance by the City pursuant to the terms of the Bid or Proposal;
 
2.  To investigate in connection with an Offer’s Offer, a minority business or EEO certification, or Offeror qualification.
 
3.  To inspect for compliance with City programs required by the Solicitation Document.
 
4.  To inspect for Contract compliance. 
C.   Contractual Provisions. Contracts may provide that the City may inspect supplies and services at the Contractor’s or Subcontractor’s or supplier’s office or facility and perform tests to determine whether they conform to the Solicitation Document, or, after Award, to the Contract requirements, and are acceptable. Such inspections and tests shall be conducted in accordance with the terms of the Contract.
 
D.  Procedures for Inspection, Trial Use and Testing. The City may establish operational procedures governing the inspection, testing and trial use of equipment, materials and the application of resulting information and data to Specifications or Procurements.
 
E.  Conduct of Inspections and Tests:
1.  Inspectors and testers. Inspections or tests shall be performed so as not to unduly delay the Work of the Contractor or Subcontractor. No change of any provision of the Specifications or the Contract may be required by the inspector or tester without Written authorization of the City, unless
otherwise specified in the Solicitation Document. The presence or absence of an inspector or tester shall not relieve the Contractor or Subcontractor from any requirement of the Contract;
 
2.  Location. When an inspection is made in the plant or place of business of a Contractor or Subcontractor, such Contractor or Subcontractor shall provide without charge all reasonable facilities and assistance for the safety and convenience of the inspector or tester;
 
3. Time of inspection or testing. Inspection or testing of supplies and services performed at the plant or place of business of any Contractor or Subcontractor shall be performed at reasonable times during normal business hours.

5.34.980 Contract Cancellation, Contractor Termination Procedures.

(Amended by Ordinance No. 185898, effective February 20, 2013.)

 

A.  Grounds for Cancellation or Termination. The City may, at its option, cancel a Contract or terminate the Contractor's performance, if cancellation or termination is in the best interest of the City; or, for any material violation of the provisions of the Contract. Such provisions generally include, but are not limited to:

 

1.  Standard terms and conditions included in Contracts;

 

2.   Product or service Specifications;

 

3.  Delivery or completion requirements; or

 

4.  Contracted pricing and price escalation/de-escalation clauses.

 

B.  The City and the Contractor may cancel the Contract at any time by mutual Written agreement.

 

C.  Termination For Convenience.

 

1.  Reasons for Termination. The City may, in its sole discretion, by a Written order or upon Written request from the Contractor, cancel the Contract or a portion thereof if any of the following occur:

 

a.  The Contractor is prevented from completing the Work for reasons beyond the control of the City; or

 

b.  The Contractor is prevented from completing the Work for reasons beyond the control of the Contractor; or

 

c.  For any reason considered by the City to be in the public interest, other than a labor dispute or any third party judicial proceeding relating to the Work filed in regards to a labor dispute. These reasons may include, but are not limited to, non-availability of materials, phenomena of nature of catastrophic proportions or intensity, executive orders of the President related to national defense, congressional,  state or local acts related to funding; or

 

d.  Any third party judicial proceeding relating to the Work other than a suit or action filed in regards to a labor dispute; or

 

e.  If the circumstances or conditions are such that it is impracticable within a reasonable time to proceed with a substantial portion of a public improvement. 

 

D.  Payment When Contract is Canceled.  When the Contract, or any portion thereof, is canceled before completion of all items of Work in the Contract, payment shall be made, based on the Contract price, for the actual items of Work completed under the Contract, or by mutual agreement, for items of Work partially completed. No claim for loss of anticipated profits or overhead shall be allowed;

 

E.  Responsibility for Completed Work if Contract Canceled.  Cancellation of a Contract or a portion thereof shall not relieve the Contractor of responsibility for the Work completed, nor shall it relieve the surety of its obligation for any just claims arising from the Work performed.

 

F.  Termination of the Contractor's Performance for Default.

 

1.  Declaration of Default. The City may, after giving the Contractor and its surety seven (7) Days Written notice and an opportunity to cure deficient performance, terminate the Contractor's performance for any reasonable cause, including but not limited to those set forth in Subsections 5.34.980 F.1.a. to g.  Upon such termination, the City may immediately take possession of the premises and of all materials, tools and appliances thereon as well as all other materials, whether on the premises or not, on which the Contractor has received partial payment. The City may finish the Work by whatever method it may deem expedient;

 

a.  If the Contractor should repeatedly refuse or fail to supply an adequate number of skilled workers or proper materials to carry on the Work as required by the Contract documents, or otherwise fail to pursue the Work in a timely manner; or

 

b.  If the Contractor should repeatedly fail to make prompt payment to Subcontractors or for material or labor; or

 

c.  If permitted by law, if the Contractor should voluntarily or involuntarily seek protection under the United States Bankruptcy Code and its Debtor in Possession or Trustee for the estate fails to assume the Contract within a reasonable time, or as provided by the Bankruptcy Court; or

 

d.  If the Contractor should make a general assignment for the benefit of the Contractor's creditors; or

 

e.  If a receiver should be appointed on account of the Contractor's insolvency; or

 

f.  If the Contractor is otherwise in material breach of any part of the Contract; or

 

g.  If the Contractor should disregard laws, rules, or the instructions of the City or its Authorized Representative. 

 

2.  Required Response to Declaration of Default. If a default is declared and the Contractor's performance terminated, the Contractor or the surety shall provide the City with immediate and peaceful possession of all of the materials, tools and appliances located on the premises, as well as all other materials whether on the premises or not, on which the Contractor has received any progress payment. Further, the Contractor shall not be entitled to receive any further payment until the Work is completed. On the completion of the Work, the City shall determine the total amount of compensation the Contractor would have been entitled to receive for the Work, under the terms of the Contract, had the Contractor completed the Work. If the difference between this total amount and the sum of all amounts previously paid to the Contractor, (the unpaid balance) exceeds the expense incurred by the City in completing the Work, including expense for additional managerial and administrative services, such excess will be paid to the Contractor, with the consent of the surety;

 

3.  Expense of Completion. The expense incurred by the City shall be as determined and certified by the City;

 

G.  Refusal to Perform. In addition to and apart from the above-mentioned right of the City to terminate the Contractor's performance, the Contract may be canceled by the City for any willful failure or refusal on the part of the Contractor and its surety to perform faithfully the Contract according to all of its terms and conditions; however, in such event neither the Contractor nor the surety shall be relieved from damages or losses suffered by the City on account of the Contractor’s breach of Contract;

 

H.  Remedies Cumulative. The City may, at its discretion, avail itself of any or all of the above rights or remedies and invoke anyone of the above rights or remedies without prejudice and without precluding the City from subsequently invoking any other right or remedy set forth above, or in the Contract, or available at law or in equity;

 

I.  Notice. The City shall provide the Contractor Written notice of the grounds for Contract cancellation or Contractor termination and of its intention to cancel the Contract or terminate the Contractor's performance. If the Contractor provided a performance and payment bond, the surety shall also be provided with a copy of the notice of Contract cancellation or Contractor termination. The notice shall include:

 

1.  The effective date of the intended cancellation or termination,

 

2.  The grounds for cancellation or termination, and

 

3.  Notice of the amount of time (if any) in which the City shall permit the Contractor to correct the failure to perform.

 

J.  The Contract documents may provide Contract cancellation or Contractor termination procedures that are different from, or in addition to, those provided in Section 5.34.980. If a Contract contains a cancellation or termination clause, that clause rather than Section 5.34.980 shall determine the respective rights and responsibilities of the parties in the event of cancellation or termination.


Title 5 Revenue and Finan
Chapter 5.01 (Repealed)
Chapter 5.04 Funds
Chapter 5.08 Payment Of Salaries, Wages And Expenses
Chapter 5.09 Deferred Compensation Plan
Chapter 5.10 City Charitable Campaign
Chapter 5.12 Assignment or Garnishment of Salaries, Wages or Claims
Chapter 5.16 Emergency Checks
Chapter 5.20 Budget Procedure
Chapter 5.24 Auditor's Records and Reports
Chapter 5.30 Collections and Foreclosure Process
Chapter 5.31 Collections & Foreclosure Process For Delinquent Sewer Safety Net Liens
Chapter 5.32 (Repealed)
Chapter 5.33 Goods and Services
Chapter 5.34 Public Improvements and Construction Services
Chapter 5.36 Property Control
Chapter 5.40 Demands and Disbursements
Chapter 5.44 (Repealed)
Chapter 5.48 Charges for Services Performed
Chapter 5.50 Collections Section
Chapter 5.52 Petty Cash and Checks
Chapter 5.56 Ambulance Service
Chapter 5.60 Miscellaneous Charges
Chapter 5.64 Miscellaneous Fiscal Provisions
Chapter 5.68 Professional, Technical and Expert Service Contracts
Chapter 5.72 Economic Development Projects
Chapter 5.73 Arts Education and Access Income Tax
Chapter 5.74 Acquisition of Public Art
Chapter 5.75 Claims Under ORS Chapter 195 and 197