3.36.080 Public improvements and construction services

3.36.080 Public improvements and construction services.

This section applies to the award of contracts for public improvements and construction services for public improvements.

(1) Contracts for minor alteration, ordinary repair or maintenance of public improvements, as well as other contracts that are not defined as a public improvement under ORS 279A.010, shall be awarded and executed pursuant to NBCC 3.36.050.

(2) Source Selection. The city shall award a public contract for public improvements pursuant to this section using any method authorized by state law or city ordinance. 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;

(d) Competitive quotations;

(e) Competitive bidding;

(f) Alternative contracting methods as described in OAR 137-049-0600 through 137-049-0690, or through methods specified by ordinance, when permitted by an individual or class exemption adopted by the city council.

(3) Emergency Contracts. Pursuant to ORS 279C.335(5) and this chapter, the city may declare that emergency circumstances exist that require prompt execution of a public contract for emergency construction or repair work.

(a) 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 city shall encourage competition for emergency procurements to the extent reasonable under the circumstances.

(b) The procedures outlined in OAR 137-049-0150 are specifically adopted for the award and administration of any emergency contracts under this subsection.

(4) Selection of a 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 this section.

(5) Cooperative Purchasing. The city may participate in, sponsor, conduct, or administer joint cooperative procurements for the acquisition of public improvements.

(a) A solicitation and award process uses source selection methods substantially equivalent to those identified in ORS Chapter 279C and this section if the solicitation and award process:

(i) Calls for an award of a contract on the basis of the lowest responsible bidder or the 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 upon 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;

(ii) 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);

(iii) Uses reasonably clear and precise specifications that promote suitability for the purposes intended and that reasonably encourage competition.

(b) 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 Chapter 279C and this chapter.

(d) If the city is the administering contracting agency, then:

(i) It may charge a fair and reasonable fee to purchasing contract agencies that represents the excess cost of administering the contract in light of the purchasing contracting agency’s use of that contract;

(ii) Determine whether the purchasing contract agency must enter into a written agreement with it.

(e) If the city is a purchasing contracting agency, it is authorized to pay a fee to the administering contracting agency that the city administrator or his or her designee 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.

(6) Competitive Bidding Requirement. 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 Attorney General’s model rules shall apply.

(b) Contracts, or classes of contracts, exempted by the city council pursuant to state law, including substitute contractors selections set out in subsection (4) of this section.

(d) Contracts not exceeding $100,000.

(e) Contracts for any highway, bridge or other transportation projects not exceeding $50,000 if made under the procedures for competitive quotations pursuant to subsection (7) of this section.

(f) Emergency contracts.

(g) Change orders or contract amendments reasonably related to the scope of work under the original contract up to 25 percent. Change orders or other amendments that increase the initial price of the contract by more than 25 percent must be separately approved by the city council.

(h) Contracts exempted by the city council from using an ITB process shall follow the rules set forth in NBCC 3.36.050(9) unless the exemption specifically authorizes a particular procurement process.

(7) Competitive Proposals. Public improvement contracts estimated not to exceed $100,000, or not to exceed $50,000 in the case of contracts for highways, bridges, and other transportation projects, may be awarded through the requirements of this rule.

(a) All requests for a price quotation for a public improvement 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.

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

(ii) 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 a written price quotation containing BOLI provisions regarding prevailing wages shall be included.

(b) Requests for proposal for public improvements estimated to be $25,000 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.

(c) The city shall award the contract to the prospective contractor whose quote will best serve the interests of the city, taking into account the announced selection criteria. If the award is not made to the offeror offering the lowest price, the city shall make a written record for the basis of the award.

(d) Intermediate-level public improvement contracts obtained by competitive proposals may be increased above the original amount of award by change order or amendment within the following limitations, pursuant to NBCC 3.36.050(1)(e).

(8) Individual and Class Exemptions. The city council may exempt a public improvement contract or a class of public improvement contracts from the competitive bidding requirements of ORS Chapter 279C, pursuant to ORS 279C.330 and 279C.335.

(9) Procurement Process. The city hereby adopts the procurement procedures for public improvement contracts set out in ORS 279C.300 et seq. and the Oregon Administrative Rules from OAR 137-049-0200 through 137-049-0910.

(10) Negotiation. If all responsive offers on a public improvement contract exceed the budget for the project, the city may, prior to contract award, negotiate for a price within the budget under the following procedures:

(a) Negotiation shall start with the lowest responsive, responsible offeror. If negotiations are not successful, then the city may negotiate with the second lowest responsive, responsible offeror, and so on.

(b) Negotiations may include value engineering and other options to attempt to bring the project cost within the budgeted amount.

(c) A contract may not be awarded under this section if the scope of the project is significantly changed from the description in the original solicitation documents.

(d) The records of an offeror used in contract negotiations under this section are not open to public inspection until after the negotiated contract has been awarded or the negotiation process has been terminated.

(11) Disqualification. The city may disqualify any person as an offeror on a contract under the following circumstances:

(a) The person does not have sufficient financial ability to perform the contract. Evidence that the person can acquire in the amount and type required shall be sufficient to establish financial ability.

(b) The person does not have available equipment to perform the contract.

(d) The person has breached previous contractual obligations.

(e) The provisions of ORS Chapter 279C regarding disqualification of persons shall apply in addition to this section with respect to public improvement contracts.

(f) The person who has been disqualified as an offeror may appeal the disqualification to the city council in accordance with procedures in OAR 137-049-0260 and 137-049-0450. (Ord. 1969 § 4, 2009; Ord. 1933 § 8, 2005)