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Ord 2381 - Public Contracting COUNCIL BILL NO. 2558 ORDINANCE NO. 2381 AN ORDINANCE ADOPTING RULES FOR PUBLIC CONTRACTING; ESTABLISHING CERTAIN CONTRACT CLASS EXEMPTIONS; PROVIDING PROCEDURES FOR PERSONAL SERVICE CONTRACTS; AND DECLARING AN EMERGENCY. WHEREAS, it is the policy of the City of Woodburn that a sound and responsive public contracting system should allow impartial, meaningful, and open competition, preserving formal competitive selection as the standard for public contracts unless otherwise specifically exempted herein, by state law, or by subsequent ordinance or resolution; and WHEREAS, the Oregon Legislature adopted HB ,2341 (2003 Oregon Laws, Chapter 794) the ("the Oregon Public Contracting Code"), which has an effective date of March 1, 2005, ORS Chapter 279 is repealed (with minor exceptions) and replaced with three new subchapters: ORS 279A, 279B, and 279C; and WHEREAS, all rules and exemptions adopted pursuant to ORS chapter 279 will expire March 1, 2005; and WHEREAS, absent any action by its Local Contract Review Board, the City of Woodburn will be subject to the Model Rules adopted by the Attorney General under ORS subchapters 279A, 279B, and 279C (the "Model Rules"), which include Divisions 46, 47, 48, and 49 in the Attorney General's Public Contracts Manual; and WHEREAS, the Local Contract Review Board may adopt rules for public contracting not covered by the Model Rules but these local rules can not conflict with the Oregon Public Contracting Code; and WHEREAS, the Oregon Public Contracting Code divides powers and duties for contracting into two categories: those that must be performed by the "Local Contract Review Board"; and those that must be performed by the "Contracting Agency"; and WHEREAS, the Local Contract Review Board may establish certain contract class exemptions; and WHEREAS, the Local Contract Review Board finds that the contract class exemptions established herein will not encourage favoritism or substantially diminish competition and that they will result in substantial cost savings; and PAGE 1 - COUNCIL BILL NO. 2558 ORDINANCE NO. 2381 lr WHEREAS, the Local Contract Review Board may designate certain personal service contracts which are not subject to the rules of the Oregon Public Contracting Code or the Model Rules; NOW, THEREFORE, THE CITY OF WOODBURN ORDAINS AS FOLLOWS: Section 1. Definitions. A. "Formal competitive selection procedures" means procedures for public contracting as required by ORS 279B.050(1) (competitive sealed bids or competitive sealed proposals for goods and services), or ORS 279C.335(1) (competitive bids for public improvements) or, for personal service contracts, the same formal procedures required for the selection of goods and services pursuant to ORS 279B.060 (competitive sealed proposals). B. "Formal competitive selection process" means the process of using formal competitive selection procedures for the procurement of goods and services or for public improvements contracts. C. "Personal service contracts" include contracts for services that require specialized technical, artistic, creative, professional or communication skills or talent, unique and specialized knowledge, or the exercise of discretionary judgment skills, and for which the service depends on attributes that are unique to the service provider, other than contracts for an architect, engineer, land surveyor or provider of related services as defined in ORS 279C.100. Section 2. Local Contract Review Board. The City Council of the City of Woodburn is designated as the Local Contract Review Board under the Oregon Public Contracting Code, The Local Contract Review Board may delegate its powers and responsibilities consistent with the Oregon Public Contracting Code, the Model Rules, and the Woodburn City Charter and ordinances. Section 3. ContractinQ Aaency. The City Administrator or his/her designee is designated as the City's "Contracting Agency" for purposes of contracting powers and duties assigned to the City of Woodburn as a "Contracting Agency." Section 4. Model Rules. Except as modified herein, or by subsequent ordinance or resolution, the Model Rules, Divisions 46, 47, 48 and 49, adopted by the Attorney General under ORS 279A, 279B, and 279C, as they now exist, and as they may be amended in the future, are hereby adopted as the City's public contracting rules. Words and phrases used by these rules that are defined in ORS PAGE 2 - COUNCIL BILL NO. 2558 ORDINANCE NO. 2381 T subchapters 279 A, 279B, and 279C and in the Model Rules, have the same meaning as defined in ORS subchapters 279 A, 279B, and 279C and the Model Rules. Section 5. Public Contractina Authoritv. Administrative staff and departments have contracting authority and responsibilities as follows: A. The City Administrator is authorized to: 1. Enter into city contracts not to exceed $75,000 without additional authorization of the Local Contract Review Board. Contracts exceeding $75,000 for public improvements, identified in a Capital Improvement Plan, that have been approved by the City Council through the budgetary process, shall be deemed to be approved by the Local Contract Review Board. 2. Recommend that the Local Contract Review Board approve or disapprove contract awards in excess of $75,000, or to change orders or amendments to contracts of more than $75,000. 3. Adopt forms, computer software, procedures, and administrative policies for all City purchases consistent with the Woodburn City Charter and ordinances. B. All contracting by departments shall conform to approved City purchasing procedures adopted by the City Administrator or the Local Contract Review Board. C. Each department shall plan purchase requirements sufficiently in advance so that orders can be placed in economical quantities. D. The City Administrator shall process requisition forms and negotiate purchases on the most favorable terms in accordance with adopted ordinances, state laws (including the Oregon Public Contracting Code), policies and procedures, Section 6. Formal Competitive Selection Procedures-Exemptions. All public contracts shall be based upon formal competitive selection requirements of ORS 279B.050( 1) or ORS 279C.335(1), except as expressly provided in this subsection, or by subsequent ordinance or resolution. The following classes of public contracts are hereby exempted from the formal competitive selection requirements of ORS 279B.050(1) and ORS 279C.335(1): PAGE 3 - COUNCIL BILL NO. 2558 ORDINANCE NO. 2381 1 A. Any contract exempted by the State of Oregon Public Contracting Code or Model Rules; B. Any contract expressly exempted from formal competitive selection procedures adopted by ordinance or resolution of the Local Contract Review Board pursuant to ORS 279B.085; C. Purchases through federal programs pursuant to ORS 279A.180; D. In the event of an emergency involving an immediate hazard to the public health, safety, or welfare, the City Administrator, Finance Director, Public Works Director, or Chief of Police may secure necessary goods and/or services without a formal competitive selection process, provided that the Local Contract Review Board, at a regularly scheduled meeting within 30 days of the procurement, is furnished with a full report of the circumstances and costs of the materials and/or services secured; E. Contracts for goods or services, or a class of goods or services, which are available from only one source. To the extent reasonably practical, the City Administrator shall negotiate with the sole source to obtain contract terms advantageous to the City. Sole source contracts for goods or services, or classes of goods or services, which are available from only one source which exceed $5,000, but do not exceed $75,000, must be approved by the City Administrator. Sole source contracts for goods or services, or classes of goods or services, which are available from only one source which exceed $75,000 must be approved by the Local Contract Review Board. The determination of a sole source must be based on written findings that may include: 1 . That the efficient utilization of existing goods requires the acquisition of compatible goods or services; 2. That the goods or services required for the exchange of software or data with other public or private agencies are available from only one source; 3. That the goods or services are for use in a pilot or experimental project; 4. Other findings that support the conclusion that the goods or services are available from only one source; or PAGE 4 - COUNCIL BILL NO. 2558 ORDINANCE NO. 2381 If 5. Sole source contracts for goods or services, or classes of goods or services, which are available from only one source which exceed $5,000, but do not exceed $75,000, must be approved by the City Administrator. Sole source contracts for goods or services, or classes of goods or services, which are available from only one source which exceed $75,000 must be approved by the Local Contract Review Board; F. Contracts for products, services or supplies if the value of the contract does not exceed $5,000. Any procurement of goods or services not exceeding $5,000 per item may be awarded in any manner deemed practical or convenient by the City Administrator, including by direct selection or award. A contract awarded under this section may be amended to exceed $5,000 only upon approval of the City Administrator and in no case may exceed $6,000. A procurement may not be artificially divided or fragmented so as to constitute a small procurement under this selection; G. Contracts for the purchase of copyrighted materials where there is only one supplier available within a reasonable purchase area for such goods; H. Contracts for the purchase of advertising, including that intended for the purpose of giving public or legal notice; I. Contracts for the procurement of banking services; J. Contracts for the purchase of services, equipment or supplies for maintenance, repair or conversion of existing equipment if required for efficient utilization of such equipment; K. Contracts for the purpose of investment of public funds or the borrowing of funds; L. Contracts for the purchase of goods or services where the rate or price for the goods or services being purchased is established by federal, state or local regulating authority; M. Contracts not to exceed $75,000 for the purchase of goods, materials, supplies and services. For contracts for the purchase of goods, materials, supplies and services that are more than $5,000, but that do not exceed $75,000, a minimum of three competitive written quotes shall be obtained. The City Administrator shall keep a written record of the source and amount of quotes received. If three quotes are not available, a lesser number will suffice, provided that a written record is made of the effort to obtain the quotes; PAGE 5 - COUNCIL BILL NO. 2558 ORDINANCE NO. 2381 ". N. Contracts not to exceed $75,000 for public improvements, including contracts for services of architects, engineers, land surveyors and related services, (other than contracts for a highway, bridge or other transportation projects), if the following conditions are met: 1 . The contract is for a single project and is not a component of or related to any other project; 2. When the amount of the public improvement contract (other than contracts for a highway, bridge or other transportation projects) is more than $5,000, but does not exceed $75,000, a minimum of three competitive written quotes shall be obtained. The City Administrator shall keep a written record of the source and amount of quotes received. If three quotes are not available, a lesser number will suffice, provided that a written record is made of the effort to obtain the quotes; 3. The City Administrator shall award the contract to the prospective contractor whose quote will best serve the interests of the City, taking into account price and other applicable factors, such as experience, specific expertise, availability, project understanding, contractor capacity and contractor responsibility. If the contract is not awarded on basis of lowest price, the City Administrator shall make a written finding of the basis for the award; O. Contracts for a highway, bridge or other transportation projects more than $5,000, but not to exceed $50,000, if the following conditions are complied with: 1 . The contract is for a single project and is not a component of or related to any other project; 2. When the amount of the contract for a highway, bridge or other transportation projects is more than $5,000, but does not exceed $50,000, a minimum of three competitive written quotes shall be obtained. The City Administrator shall keep a written record of the source and amount of quotes received. If three quotes are not available, a lesser number will suffice, provided that a written record is made of the effort to obtain the quotes; 3. The City Administrator shall award the contract to the prospective contractor whose quote will best serve the interests of the City, taking into account price and other applicable factors, such as experience, specific expertise, availability, project understanding, contractor capacity and contractor responsibility. If the contract is not awarded on basis of lowest price, the City Administrator shall make a written finding of the basis for the award. PAGE 6 - COUNCIL BILL NO. 2558 ORDINANCE NO. 2381 - lr Section 7. Notice of Public Contracts. Notice of public improvement contracts or contracts for the purchase of goods or services may be published electronically where the City Administrator finds that such publication is likely to be cost effective as provided in ORS 279C.360. Section 8. Disposal of Surplus and Abandoned Property. The City Administrator shall have the authority to dispose of surplus property and abandoned personal property not owned by the City by any means determined to be in the best interests of the City, including but not limited to, transfer to other departments, government agencies, non-profit organizations, sale, trade, auction, or destruction; provided however, that disposal of personal property having residual value of more than $10,000 shall be subject to authorization by the Local Contract Review Board. Section 9. Personal Service Contracts. Personal service contracts shall be used to retain the services of independent contractors (other than contracts for an architect, engineer, land surveyor or provider of related services as defined in ORS 279C.100), Nothing in this section shall apply to the employment of regular city employees. Section 10. Procedures for Personal Services Contracts. Personal service contracts are subject to the rules established by this section: A. Unless otherwise approved by the City Administrator, all personal service contracts shall require the contractor to defend, indemnify, and hold harmless the City, its officers, agents and employees against and from any and all claims or demands for damages of any kind arising out of or connected in any way with the contractor's performance thereunder and shall include a waiver of contractor's right to ORS 30.285 and ORS 30.287 indemnification and defense. B. Unless otherwise approved by the City Administrator, personal service contracts shall contain a provision requiring the person or entity providing the service to obtain and maintain liability insurance coverage in at least the amount of the City's tort liability limits, naming the City as an additional named insured, during the life of the contract. C. All personal service contracts shall contain all contract provisions mandated by state law. These provisions may be incorporated in the personal service contract by reference unless otherwise provided by law. PAGE 7 - COUNCIL BILL NO. 2558 ORDINANCE NO. 2381 11" D. The formal competitive selection procedures described in this section may be waived by the City Administrator when an emergency exists that could not have been reasonably foreseen and requires prompt execution of a contract to remedy the situation that there is not sufficient time to permit utilization of the formal competitive selection procedures, E. Personal service contract proposals may be modified or withdrawn at any time prior to the conclusion of discussions with an offeror. F. For personal service contracts that are anticipated to cost $5,000 or less, such contracts must be memorialized by a formal purchase order. G. For personal service contracts that are anticipated to exceed $5,000, but not exceed $75,000, at least three competitive written quotes from prospective contractors who shall appear to have at least minimum qualifications for the proposed assignment, shall be solicited. Each solicited contractor shall be notified in reasonable detail of the proposed assignment. Any or all interested prospective contractors may be interviewed for the assignment by an appropriate City employee or by an interview committee. H. For personal service contracts that are anticipated to cost in excess of $75,000, the department head for the department that needs the services shall make the following determinations: 1 . That the services to be acquired are personal services; 2. That a reasonable inquiry has been conducted as to the availability of City personnel to perform the services, and that the City does not have the personnel nor resources to perform the services required under the proposed contract; and 3. That the department has developed, and fully plans to implement, a written plan for utilizing such services, which will be included in the contractual statement of work. I. All personal service contracts exceeding $75,000 shall be based upon formal competitive selection procedures, except as expressly provided in this subsection, or by subsequent ordinance or resolution. For personal service contracts that are anticipated to cost in excess of $75,000 per year, the department head for the department that needs the services shall follow the formal competitive selection procedures for formal competitive sealed proposals as found in the Model Rules, OAR 137-047-0260. PAGE 8 - COUNCIL BILL NO. 2558 ORDINANCE NO. 2381 lr Section 11. Personal Services Contracts - ExemDtions from Formal ComDetitive Selection Procedures. Contracts for personal services are exempt from formal competitive selection procedures if any of the following conditions exist: A. The contract amount is anticipated to be $75,000 or less. B. Contract amendments, which in the aggregate change the original contract price or alters the work to be performed, may be made with the contractor if such change or alternation is less than twenty-percent (25%) of the initial contract, and are subject to the following conditions: 1 . The original contract imposes binding obligation on the parties covering the terms and conditions regarding changes in the work; or 2. The amended contract does not substantially alter the scope or nature of the project. C. The City Administrator finds that there is only one person or entity within a reasonable area that can provide services of the type and quality required, D. The contract for services is subject to selection procedures established by the State or Federal government. E. The contract is for non-routine or non-repetitive type legal services provided by attorneys outside of the City Attorney's Office. Section 12. Personal Services Contracts-Screenina Criteria. The following criteria shall be considered in the evaluation and selection of a personal service contractor for personal service contracts: A. Specialized experience in the type of work to be performed. B. Capacity and capability to perform the work, including any specialized seNices within the time limitations for the work. C. Educational and professional record, including past record of performance on contracts with governmental agencies and private parties with respect to cost control, quality of work, ability to meet schedules, and contract administration, where applicable. PAGE 9 - COUNCIL BILL NO. 2558 ORDINANCE NO. 2381 lr D. Availability to perform the assignment and familiarity with the area in which the specific work is located, including knowledge of designing or techniques peculiar to it, where applicable. E. Cost of the services. F. Any other factors relevant to the particular contract. Section 13. Personal Services Contracts-Selection Process. The following rules shall be followed in selecting a contractor for personal services: A. Personal service contracts less than $5,000 may be awarded in any manner deemed practical including by direct selection or award by the City Administrator (or any person with purchasing authority). A personal service contact awarded under this section may be amended to exceed $5,000 only upon approval of the City Administrator any in no case may exceed $6,000. A personal service contract may not be artificially divided or fragmented. B. For personal service contracts that exceed $5,000, but do not exceed $75,000, the department head for the department that needs the services shall award the contract to the offeror whose quote or proposal will best serve the interests of the City, taking into account the relevant criteria found in this ordinance. The Department Head shall make written findings justifying the basis for the award. C For personal service contracts that will cost $75,000 or more, the City Administrator shall award the contract based upon the formal competitive selection processes found in the Model Rules. The City Administrator shall make written findings justifying the basis of the award. D. The City official conducting the selection of a personal service contact shall negotiate a contract with the best qualified offeror for the required services at a compensation determined in writing to be fair and reasonable. Section 14. Declaration of Emeraency. This ordinance being necessary for the immediate preservation of the public peace, health and safety for the reason that the Oregon Public Contracting Code is effective on March 1, 2005, and this ordinance is needed to implement its provisions, an emergency is declared to exist and this ordinance shall take effect immediately upon passage by the Council and approval by the Mayor. PAGE 10 - COUNCIL BILL NO. 2558 ORDINANCE NO. 2381 l Approved as to form: City Attorney Approv Passed by the Council Submitted to the Mayor Approved by the Mayor Filed in the Office of the Recorder ATTEST: fJ~' .~'* Mary ~ant City Recorder City of Woodburn, Oregon PAGE 11 - COUNCIL BILL NO. 2558 ORDINANCE NO. 2381 March 2, 2005 March 2, 2005 March 2. 2005 11