ORDINANCE No. 176675

*Amend City Purchasing Code to conform to State regulations, streamline procurement process, and clarify existing procedures. (Ordinance; add Code Sections 5.68.100 through 5.68.120; amend Chapter 5.33)

The City of Portland ordains:

Section 1: The Council finds:

1.  The 2001 Oregon Legislature enacted legislation mandating the use of a qualification based selection process for registered architects, registered engineers and registered land surveyors in regard to construction projects that exceed $400,000 that are funded through State Highway Fund or through a grant or loan from the State.

2.  The State legislation requires the City not to use cost as a preliminary evaluation factor when selecting among architects, engineers and land surveyors. That legislation goes into effect on July 1, 2002. As a result, City Code Chapter 5.68 must be amended to reflect that change.

3.  The City’s Purchasing Code, found in City Code Chapter 5.33 was implemented in January 2001. Since that time, it has been determined by the City Attorney’s Office and the Bureau of Purchases that various revisions and clarifications should be made to the Code in order to clarify matters such as the grounds for appeal and preliminary selection processes such as Requests for Qualifications.

4.  A summary of the revisions and clarifications has previously been provided to the Council.

NOW, THEREFORE, the Council directs:

a.  City Code Chapter 5.68 is amended by adding new sections 5.68.100 Selection of Architectural, Engineering and Land Surveying Consultants for PTE Contracts, 5.68.110 Direct Contracts With Architects, Engineers and Land Surveyors, and 5.68.120 Two-tiered Selection Process. See Exhibit A.

b.  City Code Section 5.33.030 A is amended as follows:

2.  For contracts not exceeding $500,000, award and execute contracts for the purchase or lease of supplies, materials, equipment, labor, contractual services, including construction, personal services not covered by PCC Chapter 5.68, and revenue producing services, without specific authorization by ordinance of City Council. A requirements contract may be executed and awarded by the Purchasing Agent if its yearly cost to the City is less than $500,000.

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5.  Except for emergency contracts, aAuthorize final payment if the amount of the contract is within 125% of the award amount, or if the final payment results in a total contract amount of less than $500,000. If the amount of the contract exceeds 125% of the award amount, Otherwise, final payment shall be authorized by City Council. Prior to authorization of final payment, the Purchasing Agent shall confirm the total amount due and that all work is completed and accepted by the City.

The remainder of this section is unchanged.

c.  City Code Section 5.33.090 D is amended as follows:  

24.  Contract Amendments.

a.  An amendment for additional work or product, including change orders, extra work, field orders, or other changes in the original specifications that increases the amount of the original contract 25% or less may be authorized by the project manager bureau director of the contract without competitive bidding.

b.  An amendment for additional work or product, including change orders, extra work, field orders, or other change in the original specifications that increases the original contract amount in excess of 25% but not to exceed a total contract amount of $500,000, may be authorized by the project manager bureau director without competitive bidding, but such amendments are subject to the approval of the Purchasing Agent. and the Director of the bureau for whom the work is being performed.

c.  Contract amendments in excess of 25% for contracts whose original contract amount was $500,000 or more or whose total contract price after the amendment would exceeds $500,000 as a result of the amendment shall be authorized only by City Council.

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f.  Renewal of a requirements contract is not subject to the rules regarding amendment noted above provided that the renewal was contemplated and authorized in the original contract and the contract previously was authorized in compliance with City Code.

The remainder of this section is unchanged.

d.  City Code Section 5.33.110 B is amended by adding the following:

3.  Prior to the issuance of a Request for Proposal, the City may request expressions of interest, information or a statement of qualifications from interested persons. If the result of this preliminary process is to reduce the number of persons entitled to submit proposals, the City shall provide adequate notice to the public in the same manner as if a request for proposals was being issued.

The remainder of this section is unchanged.

e.  City Code Section 5.33.110 C. 3. d. is amended by adding the following:

(4)  If the City has issued a preliminary document, including but not limited to a Request for Qualifications, and has used that process to evaluate the qualifications of interested persons, the City may use that evaluation in addition to its evaluation of other criteria in a subsequent RFP process.

 The remainder of this section is unchanged.

f.  City Code Section 5.33.110 D. is amended as follows:

2.  “Or Equal” Specification. The City may identify products by brand name, mark or by a particular manufacturer or seller. If so, it shall be understood that if the words “or equal”, “or approved equal”, “or equivalent”, “or approved equivalent”, shall follow such name if or similar such language is included in the solicitation document. This does not guarantee that an equivalent actually exists. The City shall determine in its sole discretion if an alternate product is equal or equivalent.

The remainder of this section is unchanged.

g.  City Code Section 5.33.140 B. 2. is amended as follows:

b.  The closing date and time after which bids or proposals shall not be received, which shall not be less than 5 days after the date of the last publication of the advertisement, or the date the notice was published electronically;

The remainder of this section is unchanged.

h.  City Code Section 5.33.140 is amended by adding the following:

D.  If the City has issued a preliminary document, including but not limited to a Request for Qualifications, that states that it will lead to the issuance of a solicitation document, the City shall give notice of the preliminary document in accordance with this rule. Thereafter, the City is not required to duplicate that notice if a solicitation document is issued.

 The remainder of this section is unchanged.

i.  City Code Section 5.33.190 is amended as follows:

D.  Statements not binding. Statements made by City representatives at the pre-bid or pre-proposal conference about the solicitation, including statements made at pre-bid or pre-proposal conferences are not binding on the City and shall not change the solicitation document unless the City confirms the statements and changes to all prospective bidders or proposers by written addendum to the solicitation document.

The remainder of this section is unchanged.

j.  City Code Section 5.33.280 is amended as follows:

H.  Revisions to Proposals: If the solicitation document permits it, the City may ask all qualified proposers to revise their offers for the purpose of obtaining best and final offers.

H.I.  Restrictions. The City shall not award a contract to a bidder or proposer submitting a higher quality item than that designated in the solicitation document if such bidder or proposer is not also the lowest responsive, responsible bidder or the best responsive, responsible proposer as determined by PCC 5.33.280.

 The remainder of this section is unchanged.

k.  City Code Section 5.33.310 B. is amended as follows:

3.  Misconduct, error, or ambiguous or misleading provisions in the solicitation document that either threaten the fairness and integrity of the competitive process or might have resulted in the submission of different bids or proposals; or

The remainder of this section is unchanged.

l.  City Code Section 5.33.320 is amended as follows:

A.  Purpose. The purpose of PCC 5.33.320 is to require adversely affected or aggrieved bidders or proposers on a City solicitation to exhaust all avenues of administrative review and relief before seeking judicial review of the City's award decision. In addition, this rule applies to persons who were eliminated from consideration of a contract award as part of a preliminary process, including, but not limited to, a Request for Qualifications.

B.  Notice of Intent to Award. 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 the Bureau of Purchases.

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. The City’s notice of intent to award shall be final on the later of the following:

1.  Seven (7) days after the date of the notice on the website or the written posted notice, unless otherwise provided therein; or

2.  When the City provides a written response to all timely filed protests that denies the protests and affirms the award; or

3.  Upon conclusion of any appeal pursuant to PCC 5.33.320 EF.

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D.  Persons who were eliminated from consideration of a contract award as part of a preliminary process, including, but not limited to, a Request for Qualifications cannot wait until a notice of intent to award is issued to protest the City’s action. Those persons shall submit any protest in accordance with the requirements of Paragraph C above within 7 days of their elimination in order to preserve any rights they may have. The protest shall specify the grounds upon which the protest is based. The City shall not consider a protest after the time period established in PCC 5.33.320 C or such different period as may be provided in the City’s preliminary document. Thereafter the Purchasing Agent shall handle the protest in a like manner to that described in Paragraphs E and F below.

DE.  Authority to Resolve Protests. The Purchasing Agent shall have the authority to settle or resolve a written protest submitted in accordance with the requirements of PCC 5.33.320. The Purchasing Agent shall have the authority to extend the period of protest provided by PCC 5.33.320 B.

EF.  Decision. If the protest is not settled or resolved by mutual agreement of the Purchasing Agent and the adversely affected or aggrieved bidder or proposer, the Purchasing Agent shall promptly issue a written decision on the protest. The Purchasing Agent’s written decision on the protest may be appealed in writing to the City and shall be heard by the Purchasing Board of Appeal as provided by PCC 5.33.350. However, only the grounds which have been raised to Purchasing Agent in the written protest under PCC 5.33.320 C. can be appealed.

G. Waiver: If the City terminates a prior solicitation process and chooses to re-issue it, any person who submits a bid or proposal to a new solicitation waives any right to protest any purported errors in the prior solicitation.

FH.  Notice to Successful Bidder or Proposer. The City Auditor shall notify the successful bidder or proposer no later than the next business day following award of a contract.

GI.  Modifications to Contract or Proposals. After an award of the contract, modifications to the contract shall be made only through written change orders or written amendments to the contract and in accordance with PCC 5.33.090 D.24.

 The remainder of this section is unchanged.

m.  City Code Section 5.33.350 is amended as follows :

A.  Purpose. The purpose of PCC 5.33.350 is to provide for the prompt, effective and efficient resolution of appeals and protests of adversely affected or aggrieved bidders or proposers in regard to City decisions about solicitation specifications or contract provisions as provided by PCC 5.33.200; or bidder or proposer responsibility as provided by PCC 5.33.300 B.4.; responsiveness as provided by PCC 5.33.300 B.6.; rejection of all bids or proposals as provided by PCC 5.33.310; elimination from any preliminary process as provided in PCC 5.33.320; contract award as provided by PCC 5.33.320; negotiation as provided by PCC 5.33.340, including competitive range as provided by PCC 5.33.340 B.2.f.; prequalification as provided by PCC 5.33.470; or disqualification as provided by PCC 5.33.330.

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H.  Powers of the Board.

1.  The Board shall be responsible for reviewing the decisions of the City in regard to appeals or protests arising under PCC 5.33.200; 5.33.300.B.4.; 5.33.300 B.6.; 5.33.320; PCC 5.33.310; 5.33.340, including 5.33.340 B.2.f.; 5.33.470; and 5.33.330. In regard to appeals of decisions regarding prequalification or disqualification of bidders or proposers, the Board shall comply with ORS 279.043 and .045. However, only those matters which were raised with the Purchasing Agent shall be considered as grounds for appeal or protest under PCC 5.33.350. A party who, in the opinion of the Purchasing Agent, failed to submit a protest in the time required manner is not entitled to a hearing before the Board of Appeals.

I.  Appeal to City Council as Local Contract Review Board.

1.  A party who is not satisfied with the decision of the Board may file a written request for hearing by City Council. Any request for hearing by City Council shall be received by the City no later than 73 days from the date of the Board’s written decision. The request shall be delivered to the Bureau of Purchases, Attn: Purchasing Agent and marked “Request for Hearing by City Council.”

2.  The request shall set forth the specific reasons for requesting a hearing by City Council. However, oOnly those matters which that were raised with the Purchasing Agent and the Purchasing Board of Appeals shall be considered as grounds for appeal to City Council under PCC 5.33.350.

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J.  Costs: The Purchasing Agent may impose a reasonable fee on the person requesting a hearing 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.

 The remainder of this section is unchanged.

n.  City Code Section 5.33.410 is amended as follows:

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 Paragraph E below.

The remainder of this section is unchanged.

o.  City Code Section 5.33.470 F is amended by adding the following:

5.  The bidder or proposer has supplied all necessary information in connection with the inquiry concerning responsibility. If a prospective bidder fails to promptly supply information requested concerning responsibility, the City shall base the determination of responsibility upon any available information, or may find the prospective bidder not to be responsible.

 The remainder of this section is unchanged.

p.  City Code Section 5.33.500 B. is amended as follows:

4.  Deposit of Surety Bond. The City may, at its discretion, allow the contractor to deposit a surety bond in a form acceptable to the City Attorney in lieu of all or a portion of funds retained, or to be retained. The contractor shall accept like bonds from subcontractors and suppliers when the City allows surety bonds for retainage.

54.  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.

 The remainder of this section is unchanged.

Section 2:  The Council declares that an emergency exists in order to clarify the purchasing code and comply with state law; therefore, this ordinance shall be in full force and effect from and after its passage by Council.

Mayor Vera Katz

J. H. Van Dyke:cj

June 26, 2002

BACKING SHEET INFORMATION

AGENDA NO. 805-2002

ORDINANCE/RESOLUTION/COUNCIL DOCUMENT NO. 176675