Res 1966 - Contracting Exemption for Aquatic Center RepairsCOUNCIL BILL NO. 2825
RESOLUTION NO. 1966
A RESOLUTION EXEMPTING THE AQUATIC CENTER ROOF AND BUILDING SHELL
REPAIRS CONTRACT FROM COMPETITIVE BIDDING REQUIREMENTS AND
AUTHORIZING USE OF THE CONSTRUCTION MANAGER/GENERAL CONTRACTOR
PROCUREMENT METHOD
WHEREAS, the City Council, acting as the Local Contract Review Board,
held a public hearing on March 22, 2010 for the purpose of receiving public
input on exempting the Woodburn Aquatic Center Roof and Building Shell
Repairs contract from the requirements of competitive bidding; and
WHEREAS, notice of the public hearing was published on March 1, 2010
pursuant to ORS 279C.335(5) in the Daily Journal of Commerce of Portland,
Oregon, a trade newspaper with general statewide circulation; and
WHEREAS, the repairs to the Aquatic Center roof and building shell is a
Public Improvement Contract subject to the competitive bidding process; and
WHEREAS, the City Council believes that it is in the public interest to
exempt the Aquatic Center Roof and Building Shell Repairs contract from
competitive bidding requirements and to authorize the use of Construction
Manager/General Contractor procurement as an alternative contract method;
and
WHEREAS, a public hearing was held pursuant to OAR 137-049-0630 and
Findings have been prepared to justify the City Council's decision; NOW,
THEREFORE,
THE CITY OF WOODBURN RESOLVES AS FOLLOWS:
Section 1. The City Council, acting as the Public Contract Review Board,
hereby exempts the Aquatic Center Roof and Building Shell Repairs contract
from competitive bidding requirements and authorizes the use of Construction
Manager/General Contractor as an Alternative Contract Method.
Section 2. This contract exemption is based upon the Findings attached
as Exhibit "A" and incorporated herein.
Page 1 - Council Bill No. 2825
Resolution No. 1966
Approved as to form.
City Attorney
Approv
Passed by the Council
Submitted to the Mayor
Approved by the Mayor
Filed in the Offic of the Record
ATTEST:
hristina Shearer ity corder
City of Woodburn, Oregon
Page 2 - Council Bill No. 2825
Resolution No. 1966
Exhibit A
FINDINGS SUPPORTING AN EXEMPTION FROM COMPETITIVE BIDDING
REQUIREMENTS AND USE OF THE CONSTRUCTION MANAGER/GENERAL
CONTRACTOR (CM/GC) METHOD OF PROCUREMENT FOR THE AQUATIC
CENTER ROOF AND BUILDING SHELL REPAIRS
Before the Local Contract Review Board, City of Woodburn Oregon
In the Matter of the Exemption ) FINDINGS OF FACT
Request of the Public Works )
Department, City of Woodburn )
Oregon — Aquatic Center Roof and ) •
Building Shell Repairs )
ORS 279C.335(1) requires, with certain exceptions, that all Public Improvement
contracts be based on competitive bids and, under ORS 279C.375, awarded to the
lowest responsive and responsible bidder. ORS 279C.335(2) permits the Local Contract
Review Board, as the municipality's contract review authority, to grant, under certain
conditions, specific exemptions from the requirement for competitive bidding upon the
approval of specified findings.
OAR 137-049-0620, allows Local Contract Review Board to exempt a Public
Improvement contract from the requirements to be competitively bid, provided written
findings supporting the use of a non-competitive bid process show compliance with
OAR 137-049-0600 to 137-049-0690 and applicable statutes.
The hearing for review of these findings will be held at 7:00 PM on March 22, 2010, in
the City Hall Council Chambers at 270 Montgomery Street, Woodburn, Oregon, 97071,
as published in the public notice in the Daily Journal of Commerce on March 10, 2010.
BACKGROUND
The City of Woodburn is in need to repair deteriorated section of roof structure and
building shell of the Aquatic Center. This structural damage is believed to be caused by
failure of the Heating, Ventilation, and Air Conditioning (HVAC) system that was
recently replaced to eliminate the source of moisture causing the deterioration. The
extent of the damage is not fully visible and selective demolition is needed to assess
the degree of damage and most appropriate repair. Because the scope of work can not
be clearly defined and the most appropriate repairs properly defined for potential
bidders, this project is not well suited for the conventional competitive bid contracting
procedure.
The use of an alternative contracting procedure is needed to provide deliberate and
collaborative contracting process that does not distribute risk unfairly to the contractor
or victimize the City to excessively high bids because potential contractors are trying to
account for the risk associated without a clear understanding of the scope of work
involved. The State of Oregon recognizes the need for alternative means of contracting
when addressing projects that are not fully defined or would benefit in a collaborative
effort between owner, engineer, and contractor to identify the most cost effective
solution to problem that may or may not be fully identified. This alternative method of
contracting is referred to as the Construction Manager/General Contractor
methodology.
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FINDINGS REGARDING REQUIRED CRITERIA
ORS 279C.330 provides that: "`[F]indings' means the justification for a contracting
agency conclusion that includes, but is not limited to, information regarding: (a)
Operational, budget and financial data; (b) Public benefits; (c) Value Engineering; (d)
Specialized expertise required; (e) Public safety; (t) Market conditions; (g) Technical
complexity; and (h) Funding sources." Public Works Department finds that many of
these criteria support the decision to use the CM/GC contracting method for repair the
roof and building shell of the Aquatic Center. This finding is supported by the following:
1) Operational, Budget and Financial Data: Limited funding is available for the
repairs needed to the Aquatic Center roof and building shell. Every dollar
available must be carefully expended to provide the maximum value to the
preservation of this facility. The CM/GC allows the owner, engineer, and
contractor to collaborate on assessing the problem and optimizing the most
cost effective solution. This allows the City to optimize its expenditures and
direction those expenditures to the most important needs of the building.
The CM/GC being part of that process can provide cost information and
constructability reviews that will result in fewer change orders and an overall
project cost reduction.
2) Public Benefits: Utilization of the CM/GC contract delivery process will
allow the City to collaborate and negotiate with the contractor that will be
performing work. This is in contrast to preparing contract documents that
attempt to dictate solutions to problems and how the contractor should
construct those solutions. The CM/GC also provides an opportunity for the
City to negotiate with the contractor how continued operation of the Aquatic
Center can continue during repair work. The CM/GC process eliminates the
adversarial relationship between the contractor and owner/designer. Risk is
shared and addressed in a positive relationship intended to address
problems, not transfer the risk to another party.
3) Value Engineering: The CM/GC brings within the project delivery team an
element that can provide immediate value engineering. The CM/GC
selection process will seek candidates that demonstrate the ability to
provide value engineering to the project delivery team.
4) Specialized Expertise Required: Specialized expertise will be required to
coordinate, procure, and install various products for repair and future
moisture control to minimize facility deterioration. The CM/GC must also
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have the expertise to coordinate and schedule work around a facility
providing a public service.
5) Public Safety: Public safety will be maintained by the CM/GC during repair
activities ensuring interruptions to the Aquatic Center operations are
minimized and that there is no risk to facility users during building repairs.
6) Market Conditions: The current market conditions make the CM/GC
contract delivery method attractive because it saves time and allows for
more efficient scheduling of sub -contractors.
7) Technical Complexity: The technical complexity of this project is properly
identifying the most cost effective means to correct premature building
deterioration to high levels of indoor humidity and a corrosive atmosphere
due to pool chlorination. Modifications of construction details and materials
selection may be needed fully and permanently correct the problems
associated with the current building deterioration.
III
FINDINGS REGARDING COMPETITION
ORS 279C.335(2) requires that an agency make certain findings as a part of exempting
public improvement contracts or classes of public improvement contracts from
competitive bidding. ORS 279C.335(2)(a) requires an agency to find that: "It is unlikely
that the exemption will encourage favoritism in the awarding of public improvement
contracts or substantially diminish competition for public improvement contracts."
Public Works Department finds that selecting the contractor through an exempted
competitive proposal selection process in accordance with OAR 125-249-0620 and
125-249-0630 will not inhibit competition or encourage favoritism. This finding is
supported by the following facts:
1) The proposed CM/GC alternative contract delivery methodology is a
competitive proposal process that allows the City to select a firm to provide
all labor, material, and equipment, as well as construction management, to
perform building repairs for the Aquatic Center. Competitively bidding this
type of work creates a confrontational environment in which high levels of
uncertainty must be accounted for. A disproportionate distribution of
uncertainty and risk results in poor relationships between the owner,
engineer, and contractor. The competitive bid process can be promoted by
the CM/GC in his awarding of sub -contracted work.
1) The CM/GC will be selected through an open and competitive process as
prescribed by ORS 279C.400 to 410 and related administrative rules.
IV
FINDINGS REGARDING SIGNIFICANT COST SAVINGS
ORS 279C.335(2) requires that a contracting agency make certain findings in
requesting approval of the exemption of a certain public improvement contract or class
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of public improvement contracts from competitive bidding. ORS 279C.335(2)(b)
requires an agency to find that "The awarding of public improvement contracts under
the exemption will result in substantial cost savings to the public contracting agency."
This finding is supported by the following facts:
1) Because the scope of work can not be fully defined until selective
demolition is completed, utilizing the conventional competitive bid process
would require breaking this project into multiple contracts. The delays
encountered with the issuance of multiple competitive contracts will
increase the cost of the project. Additionally, there may be a break in
continuity between if different contractors are the successful low bidders for
each phase of the project. This break in continuity with contractor
eliminates possible efficiencies gained in being part of the full project
delivery process. The competitive bid process will incur the cost of
preparation of contract documents that provide sufficient detail to allow
competitive bidding
2) An exemption from competitive bidding will allow the City to take advantage
of CM/GC expertise and value engineering during the proposal phase of the
project versus having to address future change orders.
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SUMMARY
Use of the CM/GC method of contracting for repairing the roof and building shell of the
Aquatic Center is an appropriate use of that alternative contracting method under OAR
137-049-0620. Additionally, an exemption from competitive bidding requirements is
justified under the criteria outlined in ORS 279C.330, findings have been developed in
compliance with ORS 279C.335(2), and the Public Works Department will perform the
post project evaluation required by ORS 279C.355. Based upon the previously listed
findings, the Public Works Department specifically concludes that:
1) It is unlikely the exemption will encourage favoritism in the awarding of
public contracts or substantially diminish competition for public contracts;
and
2) The exemption will result in substantial cost savings to the affected City
services provided.
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