HomeMy WebLinkAboutOrdinance No. 20542COUNCIL ORDINANCE NO. 20542
COUNCIL BILL 5128
AN ORDINANCE CONCERNING PUBLIC CONTRACTS;
AMENDING SECTIONS 2.1400, 2.1405, 2.1410, 2.1415,
2.1420, 2.1425, 2.1430 AND 2.1445 OF THE EUGENE
CODE, 1971; REPEALING SECTIONS 2.1435, 2.1440
AND 2.1450 OF THAT CODE; AND ADDING SECTION
2.1451 TO THAT CODE.
ADOPTED: October 27, 2014
SIGNED: October 30, 2014
PASSED: 8:0
REJECTED:
OPPOSED:
ABSENT:
EFFECTIVE: November 30, 2014
ORDINANCE NO. 20542
AN ORDINANCE CONCERNING PUBLIC CONTRACTS; AMENDING
SECTIONS 2.1400, 2.1405, 2.1410, 2.1415, 2.1420, 2.1425, 2.1430 AND
2.1445 OF THE EUGENE CODE, 1971; REPEALING SECTIONS 2.1435,
2.1440 AND 2.1450 OF THAT CODE; AND ADDING SECTION 2.1451
TO THAT CODE.
THE CITY OF EUGENE DOES ORDAIN AS FOLLOWS:
Section 1. Sections 2.1400, 2.1405, 2.1410, 2.1415, 2.1420, 2.1425, 2.1430 and
2.1445 of the Eugene Code, 1971, are amended to provide as follows:
2.1400 Public Contracts — City Polic
(1) Short Title. The provisions of sections 2.1400 to 2.1451 of this code,
and all administrative rules adopted thereunder may be cited as the City
of Eugene Public Contracting Regulations.
(2) Purpose. It is the policy of the city in adopting public contracting
regulations to utilize public contracting practices and methods that
maximize the efficient use of public resources and the purchasing
power of public funds by:
(a) Promoting impartial and open competition;
(b) Using solicitation materials that are complete and contain a clear
statement of contract specifications and requirements; and
(c) Taking full advantage of evolving procurement methods that suit
the contracting needs of the city as they emerge within various
industries.
(3) Interpretation. In furtherance of the purpose of the objectives set forth
in subsection (2), it is the city's intent that sections 2.1400 to 2.1451 be
interpreted to authorize the full use of all contracting powers and
authorities described in ORS Chapters 279A, 279B and 279C (the
Oregon Public Contracting Code).
2.1405 Public Contracts — Exemation from Public Contractina Reaulations.
The City of Eugene Public Contracting Regulations apply to all public
contracts of the city except for the classes of contracts that are declared
exempt from the Oregon Public Contracting Code, as set forth herein and as
specifically described in the rules adopted by the purchasing agent.
2.1410 Public Contracts — Regulation by City Council. Except as expressly
delegated under sections 2.1400 to 2.1451, the city council reserves to itself
the exercise of all of the duties and authority of a contract review board under
the Oregon Public Contracting Code.
Ordinance - Page 1 of 8
2.1415 Public Contracts - Authority of Purchasing Agent.
(1) General Authority. The city manager shall be the purchasing agent for
the city and is hereby authorized to award all city contracts for which
there is an appropriation. Subject to the provisions of sections 2.1400
to 2.1451 of this code, the purchasing agent may adopt and amend all
rules, regulations, procedures and forms required or permitted to be
adopted by contracting agencies under the Oregon Public Contracting
Code or otherwise convenient for the city's contracting needs. Without
limiting the generality of the foregoing, the purchasing agent shall adopt
public contracting rules for the award of personal services contracts and
concession agreements and shall hear all solicitation and award
protests.
(2) Standards for Contracting Rules. When adopting public contracting
rules, the purchasing agent shall establish practices and procedures that:
(a) Do not encourage favoritism or substantially diminish competition;
(b) Allow the city to take advantage of the cost-saving benefits of
alternative contracting methods and practices;
(c) Give preference to goods and services that have been
manufactured or produced in the State of Oregon if price, fitness,
availability and quality are otherwise equal;
(d) Give preference to goods that are certified to be made from
recycled products when such goods are available, can be
substituted for non -recycled products without a loss in quality, and
the cost of goods made from recycled products is not significantly
more than the cost of goods made from non -recycled products;
and
(e) Establish purchasing practices that assure, to the maximum
extent economically feasible, purchase of materials, goods and
supplies that may be recycled or reused when discarded.
(3) Delegation of Authority. Any of the responsibilities or authorities of the
purchasing agent under Sections 2.1400 to 2.1451 of this code may be
delegated and sub -delegated by administrative order.
2.1420 Public Contracts — Definitions. The following terms used in sections
2.1400 to 2.1451 shall have the meanings set forth below, and if not defined
here, the meanings set forth in the Oregon Public Contracting Code.
Concession agreement. A contract that authorizes and requires a private
entity or individual to promote or sell, for its own business purposes,
specified types of goods or services from real property owned or managed
by the city, and under which the concessionaire makes payments to the city
based, at least in part, on the concessionaire's revenues or sales. The term
"concession agreement" does not include a mere rental agreement, license or
lease for the use of premises.
Ordinance - Page 2 of 8
Disposal. Any arrangement for the transfer of property by the city under which
the city relinquishes ownership.
Emergency. Circumstances that could not have been reasonably foreseen;
create a substantial risk of loss, damage or interruption of services or a
substantial threat to property, public health, welfare or safety; and require
prompt execution of a contract to remedy the condition.
Informal solicitation. A solicitation made in accordance with rules adopted
by the purchasing agent to a limited number of potential contractors, in which
the solicitation agent attempts to obtain at least three quotes or proposals.
Proposal. A binding offer to provide goods, services or public improvements
with the understanding that acceptance will depend on the evaluation of
factors other than, or in addition to price. A proposal may be made in
response to a request for proposals or under an informal solicitation.
Personal services contract. A contract with an independent contractor
predominantly for services that require special training or certification, skill,
technical, creative, professional or communication skills or talents, unique
and specialized knowledge, or the exercise of judgment skills, and for which
the quality of the service depends on attributes that are unique to the service
provider. Such services include, but are not limited to the services of architects,
engineers, land surveyors, attorneys, auditors and other licensed professionals,
artists, designers, computer programmers, performers, consultants and
property managers. The purchasing agent shall have discretion to determine
whether additional types of services not specifically mentioned in this
paragraph fit within the definition of personal services.
Purchasing agent. The city manager or a designee appointed by the city
manager to exercise the authority of the purchasing agent under the city's
public contracting regulations.
Quote. A price offer made in response to an informal or qualified pool
solicitation to provide goods, services or public improvements.
Solicitation. An invitation to one or more potential contractors to submit a
bid, proposal, quote, statement of qualifications or letter of interest to the city
with respect to a proposed project, procurement or other contracting
opportunity. The word "solicitation" also refers to the process by which the
city requests, receives and evaluates potential contractors and awards public
contracts.
Solicitation agent. With respect to a particular solicitation or contract, the
city manager or employee delegated responsibility for conducting the
solicitation and awarding the contract.
Ordinance - Page 3 of 8
Surplus property. Personal property owned by the city which is no longer
needed for use by the department to which such property has been
assigned.
Telecommunication services. Two way switched access and transport of
voice communications but does not include: (a) services provided by radio
common carrier, (b) one-way transmission of television signals, (c)
surveying, (d) private telecommunication networks, or (e) communications of
the city which take place on the city's side of on -premises equipment.
2.1425 Public Contracts - Process for Approval of Special Solicitation Methods
and Exemptions.
(1) Special Procurements. Special procurement requests, approvals, and
protests shall be made in accordance with rules adopted by the
purchasing agent and ORS 279B.085.
(2) Public Improvement Contract Exemptions. Public improvement
contract exemption shall be adopted in accordance with rules adopted
by the purchasing agent and ORS 279C.335.
(3) Commencement of Public Improvement Solicitation Prior to
Approval. A solicitation may be issued prior to the approval of a public
improvement contract exemption pursuant to ORS 279C.335(5)(e).
2.1430 Public Contracts - Solicitation Methods for Classes of Contracts. The
following solicitation methods and exempt classes of contracts are hereby
established by the city council.
(1) Requests for Proposals for Public Improvement Contracts. The
city may utilize a formal request for proposal (RFP) solicitation method
for public improvement projects, in accordance with rules adopted by
the purchasing agent for the use of RFPs and contracts awarded
thereunder.
(2) City funded privately -constructed public improvements. The city
may contribute funding to a privately constructed public improvement
project (commonly known as a "PEPI") without subjecting the project to
competitive solicitation requirements if all of the following conditions are
met with respect to the entire public improvement project:
(a) The city's contribution to the project may not exceed 25% of the
total cost of the project;
(b) The city must comply with all applicable laws concerning the
reporting of the project to the Bureau of Labor and Industries as a
public works project;
(c) The general contractor for the project must agree in writing to
comply with all applicable laws concerning reporting and payment
of prevailing wages for the project;
(d) The funds contributed to the project may not provide a pecuniary
benefit to the owner of the development for which the project is
Ordinance - Page 4 of 8
being constructed, other than benefits that are shared by all
members of the community;
(e) The performance of the general contractor and the payment of
labor for the project must be secured by performance and
payment bonds or other cash -equivalent security that is
acceptable to the purchasing agent to protect the city against
defective performance and claims for payment, unless the city's
obligation to make a payment is conditioned upon final completion
of the public improvement and proof of, or security for payment
that is acceptable to the purchasing agent; and,
(f) The contract for construction of the project must be amended, as
necessary, to require the general contractor to maintain adequate
workers compensation and liability insurance and to protect and
provide indemnification to the city for all claims for payment, injury
or property damage arising from or related to the construction of
the project.
(3) Hybrid Contracts. The following classes of contracts include elements
of construction of public improvements as well as personal services and
may be awarded as described below and subject to rules adopted by
the purchasing agent.
(a) Design/build contracts. Contracts for the construction of public
improvements using a design/build construction method shall be
awarded under a request for proposals. The determination to
construct a project using a design/build construction method must
be approved by the city manager or the city manager's designee,
upon application of the solicitation agent, in which the solicitation
agent submits facts that support a finding that the construction of
the improvement under the proposed method is likely to result in
cost savings, higher quality, reduced errors, or other benefits to
the city.
(b) Energy savings performance contracts. Unless the contract
qualifies for award under another classification in this section
2.1430, contractors for energy savings performance contracts
shall be selected under a request for proposals.
(c) Construction Manager/General Contractor (CM/GC) contracts.
Contracts for the construction of public improvements using a
Construction Manager/General Contractor Construction Method
shall be awarded pursuant to ORS 279C.337 and Attorney
General Model Rules adopted thereunder.
(4) Special Procurement Class Exemptions. Subject to regulation under
rules adopted by the purchasing agent, the following classes of
contracts may be awarded in any manner which the solicitation agent
deems appropriate to the city's needs, including by direct appointment
or purchase.
(a) Advertising. Contracts for the placing of notice or advertisements
in any medium.
Ordinance - Page 5 of 8
(b) Amendments. Contract amendments shall not be considered to
be separate contracts if made in accordance with rules adopted
by the purchasing agent.
(c) Animals. Contracts for the purchase of animals.
(d) Copyrighted and library materials. Contracts for the acquisition of
materials entitled to copyright, including, but not limited to, works
of art and design, literature, music and library lending materials.
(e) Equipment repair. Contracts for equipment repair or overhauling,
provided the service or parts required are unknown and the cost
cannot be determined without extensive preliminary dismantling or
testing.
(f) Fuel and oil. Contracts for gasoline, diesel fuel, heating oil,
lubricants and asphalt, subject to an intermediate procurement
process.
(g) Goods for resale. Contracts for goods purchased for resale to
consumers.
(h) Government regulated items. Contracts for the purchase of items
for which prices or selection of suppliers are regulated by a
governmental authority.
(i) Insurance. Insurance and service contracts as provided for under
ORS 414.115, 414.125, 414.135 and 414.145, and liability
insurance contracts.
(j) Manufacturer direct supplies. Contracts for goods purchased
directly from the manufacturer, subject to rules adopted by the
purchasing agent.
(k) Non -owned property. Contracts or arrangements for the sale or
other disposal of used abandoned property or other personal
property not owned by the city.
(1) Renewals. Contracts that are being renewed in accordance with
their terms are not considered to be newly issued contracts and
are not subject to competitive procurement procedures.
(m) Sole source contracts. Contracts for goods or services which are
available from a single source may be awarded without
competition. Pursuant to ORS 27913.075, the purchasing agent
shall adopt rules under which a determination of sole source
availability may be made.
(n) Sponsorship agreements. Sponsorship agreements, under which
the city receives a gift or donation in exchange for recognition of
the donor.
(o) Structures. Contracts for the disposal of structures located on
city -owned property, other than structures suitable for residential
use.
(p) Temporary extensions or renewals. Contracts for a single period
of one year or less, for the temporary extension or renewal of an
expiring and non-renewable, or recently expired, contract, other
than a contract for public improvements.
Ordinance - Page 6 of 8
(q) Temporary use of city -owned property. The city may negotiate
and enter into a license, permit or other contract for the temporary
use of city -owned property without using a competitive selection
process if:
1. The contract results from an unsolicited proposal to the city
based on the unique attributes of the property or the unique
needs of the proposer;
2. The proposed use of the property is consistent with the city's
use of the property and the public interest; and
3. The city reserves the right to terminate the contract without
penalty, in the event that the city determines that the
contract is no longer consistent with the city's present or
planned use of the property or the public interest.
(r) Used property. A solicitation agent, for procurements up to
$20,000, and the purchasing agent, for procurements in excess of
$20,000 may contract for the purchase of used property by
negotiation if such property is suitable for the city's needs and can
be purchased for a lower cost than substantially similar new
property. For this purpose the cost of used property shall be based
upon the life -cycle cost of the property over the period for which the
property will be used by the city. A record shall be made of the
findings that support any purchase over $10,000.
(s) Utilities. Contracts for the purchase of steam, power, heat, water,
telecommunications services, and other utilities, including in-kind
telecommunications services pursuant to EC 3.415(6).
(5) Contracts Required by Emergency Circumstances. The purchasing
agent may declare that an emergency exists pursuant to ORS
27913.080. The purchasing agent shall notify the city council of the
declaration of emergency for contract awards over the applicable
intermediate procurement threshold.
(6) Surplus Property. The purchasing agent shall adopt rules for the
disposal of all surplus property. The purchasing agent's rules shall
include rules under which nonprofit corporations may lease or purchase
structures suitable for use as residential buildings that are declared
surplus property and must be removed from city -owned property. The
rules shall give preferences to nonprofit corporations who will use the
structure to provide housing for persons of low income, or who are
otherwise disadvantaged.
(7) Concession Agreements. The purchasing agent shall adopt rules for
the award of concession agreements.
Section 2. Sections 2.1435 and 2.1440 of the Eugene Code, 1971, are repealed.
Ordinance - Page 7 of 8
Section 3. Section 2.1445 of the Eugene Code, 1971, is amended to provide as
follows..
2.1445 Public Contracts - Electronic Advertisement of Public Contracts. The
purchasing agent is authorized to adopt rules allowing electronic publication
of public contracts instead of publication in a newspaper of general
circulation, if electronic advertisement is likely to be cost effective and will
encourage meaningful competition.
Section 4. Section 2.1450 of the Eugene Code, 1971, is repealed.
Section 5. Section 2.1451 of the Eugene Code, 1971 is added to provide as
follows-
2.1451
ollows:
2.1451 Model Cost Accounting Guidelines. The model cost accounting guidelines
developed by the Oregon Department of Administrative Services, pursuant to
Section 3, Chapter 869, Oregon Laws, 1979, are hereby adopted as the
city's cost accounting system to apply to public improvement projects
exceeding $5,000 and constructed with city's own equipment or personnel.
ORS 279C.310. For such public improvement projects estimated to cost
more than $125,000, city shall also comply with the requirements of ORS
279C.305(3).
Section 6. The findings set forth in Exhibit A attached hereto are adopted as
findings in support of this Ordinance.
Section 7. The City Recorder, at the request of, or with the consent of the City
Attorney, is authorized to administratively correct any reference errors contained herein,
or in other provisions of the Eugene Code, 1971, to the provisions added, amended or
repealed herein.
Passed by the City Council this
2Z of October, 2014
Deputy City Recorder
Ordinance - Page 8 of 8
Approved by the Mayor this
3 v day of October, 2014
Maytfr
EXHIBIT A
FINDINGS IN SUPPORT OF ORDINANCE NO. 20542
ADOPTING PUBLIC CONTRACTING CODE PROVISIONS
ORS 27913.085 and 279C.335 authorize the City Council, upon adoption of appropriate
findings, to establish special selection, evaluation and award procedures for, or exempt
from competition, the award of a specific contract or classes of contracts.
Pursuant to that authority the City Council has, after a public hearing thereon, adopted
Ordinance No. 20542, which establishes classes of contracts and the solicitation
methods for their award, as set forth in Section 2.1430 of the Eugene Code, 1971,
together with the following specific findings in support thereof, or a determination that no
findings are required.
No Findings Required
The City Council is not required to adopt findings with respect to the solicitation
methods and awards of the following classes of contracts identified in Section 2.1430 of
the Eugene Code, 1971 ("EC"):
EC 2.1430(4) — Special Procurement Class Exemptions;
(b) Amendments;
(i) Insurance; and
(1) Renewals.
EC 2.1430(5) — Contracts Required by Emergency Circumstances.
The above Rules govern subjects specifically authorized by state law and therefore
require no local exemption.
Specific Findings for Public Improvement Exemptions
The City Council approves the specific findings for the exemptions for each class of
public improvements established in the provisions described below and also finds that
the establishment of each class of contracts and the methods approved for their award:
Is unlikely to encourage favoritism in the awarding of public improvement
contracts or substantially diminish competition for public improvement
contracts; and
2. The awarding of public improvement contracts under each exemption will
result in substantial cost savings to the city.
EXHIBIT A - FINDINGS PAGE 1 OF 12
These conclusions are based on the following general findings:
A. Operational, budget, and financial data. Where various criteria, which
may or may not include cost, must be weighed in order to select an
appropriate contractor for the desired project, the formal competitive
bidding process costs of up to $7,000 are a significant budgetary waste in
that the most qualified contractor for the project may not be the lowest
responsible bidder,
B. Public benefits. Exempting contracts from competitive bidding
requirements and instead utilizing statutory competitive proposal
procedures will protect and preserve public funds, enable greater
competition between the most qualified contractors, and result in a better
product which meets the public's and city's needs;
C. Value engineering, specialized expertise required, Technical expertise.
Only through a competitive proposal process can the city weigh, evaluate
and select the type of expertise and determine which contractor may best
provide these services. These are qualities not reflected in cost, where a
determination on cost alone could forfeit these valuable and essential
attributes,
D. Public safety. Utilizing a competitive proposal process as opposed to
competitive bidding can ensure high quality, more safely constructed
facilities through the construction period, and after completion.
Capitalizing upon design and construction planning and compatibility can
also allow earlier use of public facilities even while construction continues;
and
E. Market conditions. The increased availability of and need for technical
expertise, value engineering, or other types of specialized expertise, as
well as a need to investigate the compatibility, experience and availability
of contractors require that certain public improvement contracts be
awarded based upon an evaluation of a number of criteria, rather that
simply cost.
Specifically, the Council finds the following:
EC 2.1430(1) — Request for Proposals for Public Improvement Contracts.
Alternate Award Process. Requires the use of a formal, advertised request for
proposals.
Cost Savings and Other Benefits. Certain public improvement projects require
the evaluation of multiple factors, including cost, which avoids serial solicitations,
costs savings during the construction process, and also increases the useful life
of the completed public improvement.
EXHIBIT A - FINDINGS PAGE 2 OF 12
Effect on Competition. None. Requires complete and open competition within
the same pool of potential contractors that would be qualified to respond to an
invitation to bid.
No Favoritism. Requires complete and open competition within the same pool
of potential contractors that would be qualified to respond to an invitation to bid,
while identifying discrete, weighted criteria on which submitted proposals must be
evaluated.
Other Factors. ORS 279C.400 authorizes the use of a formal competitive
proposal solicitation subject to an adopted exemption. This exemption ensures
this method is available for use as deemed appropriate by the purchasing agent
and solicitation agents.
EC 2.1430(2) — City funded privately -constructed public improvements.
Alternate Award Process. Not applicable. City does not award contract.
Cost Savings and Other Benefits.
1. No mobilization cost.
2. Reduced engineering and design costs -ties into existing project.
3. No solicitation expense.
4. Allows city to take advantage of private funding and development
activities to enhance public infrastructure.
Effect on Competition. None. The contract is awarded by private business
owner who has personal motivation to minimize cost of improvements.
No Favoritism. City does not select general contractor. General contractor is
selected by developer.
Other Factors. Initiated by private entities rather than city. City responds to
opportunity.
EC 2.1430(3)(a) Hybrid Contracts — Design/build contracts.
Alternate Award Process. Requires the use of formal, advertised request for
proposals.
Cost Savings and Other Benefits. Award of Design/Build contract to the lowest
bidder under an invitation to bid would dramatically increase the risk of
unsuccessful projects, waste and improper expenditure of public funds. Use of
the RFP process is necessary to allow staff to evaluate the unique qualifications
of the Design/Build team which will include personal service providers as well as
construction experts.
EXHIBIT A - FINDINGS PAGE 3 OF 12
Effect on Competition. Requires complete and open competition to the same
pool of potential contractors that would be qualified to respond to an invitation to
bid.
No Favoritism. Requires complete and open competition to the same pool of
potential contractors that would be qualified to respond to an invitation to bid.
Other Factors. The city has never awarded a Design/Build contract under an
invitation to bid. The city is not aware of any other state or federal agency that
awards Design/Build contracts under an invitation to bid.
EC 2.1430(3)(b) — Hybrid Contracts — Energy savings performance contracts.
Alternate Award Process. Requires the use of formal, advertised request for
proposals.
Cost Savings and Other Benefits. Energy savings performance contracts will
include scientific analysis, engineering and design services, cost -benefit analysis,
construction services and subsequent scientific testing and monitoring services.
ESP projects may be phased in over several years. Award of ESPCs to the
lowest bidder under an invitation to bid would impair the city's ability to evaluate
the skill, experience and educational qualifications of the contractor's team and
dramatically increase the risk of unsuccessful projects, waste and improper
expenditure of public funds
Effect on Competition. Requires complete and open competition to the same
pool of potential contractors that would be qualified to respond to an invitation to
bid.
No Favoritism. Requires complete and open competition to the same pool of
potential contractors that would be qualified to respond to an invitation to bid.
Other Factors. The model rules adopted by the Attorney General for this class
of contracts require evaluation under a request for proposals due to the heavy
scientific analysis and design requirements for this class of contracts.
EC 2.1430(3)(c) — Hybrid Contracts - Construction Manager/General Contractor
(CM/GC) contracts.
Alternate Award Process. Process set by ORS 279C.337.
Cost Savings and Other Benefits. Award of CM/GC contract to the lowest
bidder under an invitation to bid would dramatically increase the risk of
unsuccessful projects, waste and improper expenditure of public funds. Use of
the RFP process per ORS 279C.337 is necessary to allow staff to evaluate the
unique qualifications of the CM/GC team which will include personal service
providers as well as construction experts.
EXHIBIT A - FINDINGS PAGE 4 OF 12
Effect on Competition. Requires complete and open competition to the same
pool of potential contractors that would be qualified to respond to an invitation to
bid.
No Favoritism. Requires complete and open competition to the same pool of
potential contractors that would be qualified to respond to an invitation to bid.
Other Factors. The city has never awarded a CM/GC contract under an
invitation to bid. The city is not aware of any other state or federal agency that
awards CM/GC contracts under an invitation to bid. Allowed by state law, subject
to compliance with ORS 279C.337.
Specific Findings for Special Classes and Methods of Award for Contracts Other
Than Public Improvements.
The City Council approves the specific findings for the establishment of special
solicitation methods for the classes of public contracts described below and also finds
that the establishment of each class of contracts and methods approved for their award -
1 .
ward:
1. Is unlikely to encourage favoritism in the awarding of public contracts or
substantially diminish competition for public contracts because such
exemptions still require alternative contracting procedures, ensuring:
(1) reasonable competition; (2) the best contract price for the public; and (3) a
cost-effective process for both contractors and the city;
2. The awarding of public contracts under the exemption will result in substantial
cost savings to the city because the city will avoid costs associated with
unnecessary documentation and procedures, where it is unmerited by the
type and/or relatively low cost of the project; and
3. The awarding of public contracts pursuant to any of the requested exemptions
also substantially promotes the public interest in a manner that could not
practicably be realized by formal competitive solicitation procedures, given
the fact that such exemptions facilitate smooth operation of city's
administration and operations, include procedures and mechanisms to ensure
the best product, service or outcome is obtained at the least cost to the public
and city, and identified classes address areas of public contracting left
unresolved by state statute which are essential for city operations, such as
the purchase of used personal property, and the disposition of surplus
personal property.
EXHIBIT A - FINDINGS PAGE 5 OF 12
Specifically, the Council finds:
EC 2.1430(4)(a) — Contracts Subject to Award at Purchasing Agent's Discretion.
(a) Advertising.
Alternate Award Process. Solicitation agent's discretion. The process selected
may be competitive or non-competitive.
Cost Savings and Other Benefits. Size of and frequency of average
advertisement (including all notices required to be published by city) does not
justify the cost of solicitation. Period of time from recognition of need to advertise
until advertising date is too short to issue solicitation.
Effect on Competition. The potential market is limited because not all
advertisers work in every market. Choice of advertising medium is somewhat
price sensitive, but primarily driven by location and size of circulation compared
to city's target audience.
No Favoritism. Not applicable due to the lack of competitors and specialized
contracting needs.
Other Factors. This exemption was in the city's prior contracting code.
EC 2.1430(4)(c) — Contracts Subject to Award at Purchasing Agent's Discretion.
(c) Animals.
Alternate Award Process. Solicitation agent's discretion.
Cost Savings and Other Benefits. Each animal is unique. An officer's life may
depend on the inherent personality traits as well as training of the animal. Price
is not the most important factor.
Effect on Competition. The extremely personal nature of the relationship
between the animals and staff assure that animals will be carefully evaluated for
the city's needs.
No Favoritism. Not applicable due to the lack of competitors and specialized
contracting needs.
Other Factors. This exemption was in the city's prior contracting code.
EC 2.1430(4)(d) — Contracts Subject to Award at Purchasing Agent's Discretion.
(d) Copyrighted and library materials.
Alternate Award Process. Solicitation agent's discretion.
EXHIBIT A - FINDINGS PAGE 6 OF 12
Cost Savings and Other Benefits. Necessary to allow city to acquire special
needs products that are unique.
Effect on Competition. None. There is no competitive market for a unique
product. Library products are generally acquired from a sole -source copyright
holder or as used property or by donation.
No Favoritism. Not applicable due to the lack of competitors and specialized
contracting needs.
Other Factors. This exemption was in the city's prior contracting code.
EC 2.1430(4)(e) — Contracts Subject to Award at Purchasing Agent's Discretion.
(e) Equipment repair.
Alternate Award Process. Solicitation agent's discretion.
Cost Savings and Other Benefits.
1. Pre -contract pricing is impossible
2. Solicitation agent has discretion to decide whether costs of solicitation
are justified in relationship to size of contract and availability of skilled
technicians to repair the specific equipment.
3. Delay required for solicitation would impair city's ability to respond to
equipment breakdown and be injurious to the public interest.
4. Experience with contractor is crucial because reliability over the course
of several projects is important.
Effect on Competition. Allows contractor to be selected based on ability to
provide accurate, reliable and fast service.
Effect on Favoritism. Favoritism will not be greater than if statutory request for
proposals process is used.
Other Factors. This exemption was in the city's prior contracting code.
EC 2.1430(4)(f) — Contracts Subject to Award at Purchasing Agent's Discretion.
(f) Fuel and oil.
Alternate Award Process. Intermediate procurement process.
Cost Savings and Other Benefits. Frequency and amount of exempt item
purchases do not justify the cost of solicitation. Period of time from recognition of
need through contract award too long for needed purchases of exempt fungible
goods.
EXHIBIT A - FINDINGS PAGE 7 OF 12
Effect on Competition. Minimal. Intermediate procurement process surveys
market and ensures level of competition appropriate for these frequently
purchased goods.
Effect on Favoritism. Purchase based on cost. Intermediate procurement
process sufficiently avoids any favoritism.
EC 2.1430(4)(g) — Contracts Subject to Award at Purchasing Agent's Discretion.
(g) Goods for resale. Contracts for goods purchased for resale to consumers.
Alternate Award Process. Solicitation agent's discretion.
Cost Savings and Other Benefits. Allows unique goods to be purchased for
city -operated specialty concessions. Generates revenues that would not be
available using standard competitive processes that are successful when goods
are fungible.
Effect on Competition. Enhances competition by stimulating development of
unique goods.
No Favoritism. Too much variation in selection to allow favoritism.
Other Factors. This exemption was in the city's prior contracting code. It is
intended to allow a buyer for a city -operated souvenir or gift shop (e.g., Hult
Center or library or other consumer -oriented enterprise) to make purchases of
items for resale based on highly subjective decisions. Product innovation,
fashion trends and spot -market availability, such as trade -show purchasing, is
crucial to the success of resale operation.
EC 2.1430(4)(h) — Contracts Subject to Award at Purchasing Agent's Discretion.
(h) Government regulated items.
Alternate Award Process. Solicitation agent's discretion.
Cost Savings and Other Benefits. Expense of solicitation would be wasted.
Effect on Competition. No competitive market exists.
Effect on Favoritism. None. Choice is limited by governmental authority.
Other Factors. This exemption was in the city's prior contracting code.
EC 2.1430(4)(j) — Contracts Subject to Award at Purchasing Agent's Discretion.
(j) Manufacturer direct supplies.
Alternate Award Process. Subject to purchasing agent rules.
EXHIBIT A - FINDINGS PAGE 8 OF 12
Cost Savings and Other Benefits. Allowed only after a formal solicitation is
completed and manufacturer's price is less than offers received. Cost of formal
solicitation, therefore not merited.
Effect on Competition. None. Allowed only after complete and open
competition within the same pool of potential contractors that would be qualified
to respond to an invitation to bid.
Effect on Favoritism. None. Allowed only after complete and open competition
within the same pool of potential contractors that would be qualified to respond to
an invitation to bid.
Other Factors. Allowed on a contract -by -contract basis and shall not result in an
ongoing price agreement, further fostering competition.
EC 2.1430(4)(k) — Contracts Subject to Award at Purchasing Agent's Discretion.
(k) Non -owned property.
Alternate Award Process. Other state laws govern disposal process in most
cases.
Cost Savings and Other Benefits. Solicitation would be unnecessary expense.
Effect on Competition. None.
Effect on Favoritism. None.
Other Factors. This exemption was in the city's prior contracting code.
EC 2.1430(4)(m) — Contracts Subject to Award at Purchasing Agent's Discretion.
(m) Sole source contracts.
Alternate Award Process. Solicitation agent's discretion.
Cost Savings and Other Benefits. Avoids unnecessary expenditure.
Effect on Competition. No competitive market exists.
Effect on Favoritism. Not applicable where there is only one source.
Other Factors. This exemption was in the city's prior contracting code.
EC 2.1430(4)(n) — Contracts Subject to Award at Purchasing Agent's Discretion.
(n) Sponsorship agreements.
Alternate Award Process. Solicitation agent's discretion.
EXHIBIT A - FINDINGS PAGE 9 OF 12
Cost Savings and Other Benefits. This exemption allows the city to respond to
unsolicited proposals for revenue opportunities that would otherwise be
unknown, or unavailable.
Effect on Competition.
1. Mandatory open competition likely to discourage creative proposals
from sponsors.
2. Sponsorship often results from the match between a unique attribute of
a city event or asset and unique characteristics of the sponsor for
which no competitive market exists.
Effect on Favoritism. Minimal.
Other Factors. This exemption was in the city's prior contracting code.
EC 2.1430(4)(0) — Contracts Subject to Award at Purchasing Agent's Discretion.
(o) Structures.
Alternate Award Process. Solicitation agent's discretion.
Cost Savings and Other Benefits.
1. Cost of demolition of structure often exceeds value of structure.
2. Destruction is often least costly method of disposal.
3. Fast removal of structure often required to prepare site for public
improvement project. Time required to conduct solicitation could result
in costly delays in public improvement project.
4. Most efficient method of disposal may be incorporation of demolition
into public improvement project.
5. Allowing solicitation agent discretion to solicit sale or removal
necessary to avoid unnecessary solicitation expenditures and project
delays.
Effect on Competition. Competitive market may not exist.
No Favoritism. Unique, non -repetitive nature of transaction does not provide
framework for favoritism.
Other Factors. A similar exemption was in the city's prior contracting code.
EC 2.1430(4)(p) — Contracts Subject to Award at Purchasing Agent's Discretion.
(p) Temporary extensions or renewals.
Alternate Award Process. Renewal. No selection.
Cost Savings and Other Benefits. Gives staff time to prepare for competitive
solicitation when existing contracts expire without notice by staff. Deals with
administrative errors. Protects the public interest against employee error.
EXHIBIT A - FINDINGS PAGE 10 OF 12
Effect on Competition. Delays competition by not more than one year.
Effect on Favoritism. No impact. At expiration of temporary period, standard
competitive procedure will apply.
Other Factors. This exemption was in the city's prior contracting code.
EC 2.1430(4)(q) — Contracts Subject to Award at Purchasing Agent's Discretion.
(q) Temporary use of city -owned property.
Alternate Award Process. Solicitation agent's discretion.
Cost Savings and Other Benefits. Allows city to respond to unsolicited
proposals for unique revenue opportunities.
Effect on Competition. None. No competitive market.
Effect on Favoritism. No impact. Responds to unique opportunities.
Other Factors. This exemption was in the city's prior contracting code.
EC 2.1430(4)(r) — Contracts Subject to Award at Purchasing Agent's Discretion.
(r) Used property.
Alternate Award Process. Renewal. No selection.
Cost Savings and Other Benefits. Allows city to take advantage of unique
opportunity to require needed goods and services for discounted prices.
Effect on Competition. No impact. Responds to unique opportunities.
Effect on Favoritism. No impact. Responds to unique opportunities.
Other Factors. This exemption was in the city's prior contracting code.
EC 2.1430(4)(s) — Contracts Subject to Award at Purchasing Agent's Discretion.
(s) Utilities.
Alternate Award Process. Solicitation agent's discretion.
Cost Savings and Other Benefits. Avoids unnecessary solicitation costs.
Effect on Competition. No impact. Very narrow market. Subject to
governmental and price regulation.
EXHIBIT A - FINDINGS PAGE 11 OF 12
Effect on Favoritism. No impact. Very narrow market.
Other Factors. This exemption was in the city's prior contracting code.
EC 2.1430(6) — Surplus Property.
Alternate Award Process. Solicitation agent's discretion.
Cost Savings and Other Benefits.
1. Avoids unnecessary solicitation expense by allowing solicitation agent
to determine whether cost of solicitation is justified by value of surplus
property.
2. Allows purchasing agent to establish
charitable organizations.
3. Allows purchasing agent to develop
provide needed low-income housing
programs for donation to
rules to enhance opportunities to
Effect on Competition. No impact. Responds to unique opportunities.
Effect on Favoritism. No impact. Responds to unique opportunities.
Other Factors. Variations in the type, quantity, quality and opportunities for
recycling of surplus property are too large to have this class of contracts
governed by a single solicitation method.
EC 2.1430(7) — Concession Agreements.
Alternate Award Process. Purchasing agent to adopt rules for award, as in the
case of personal service contracts.
Cost Savings and Other Benefits. Allows city to take advantage of unique
revenue opportunities.
Effect on Competition. Responds to unique opportunities for which the number
of competitors may range from none to many.
Effect on Favoritism. No impact. Responds to unique opportunities.
Other Factors. Not a contract for the acquisition or disposal of goods, or
services or public improvements. Most similar to personal services contract
because the quality of the concession may be more important than price factors.
Variation in types and sizes of concession opportunities is too great to provide a
single method of solicitation. Statutory public contracting requirements may not
apply. May not be a public contract. Most similar to personal services contract.
Findings may not be required.
EXHIBIT A - FINDINGS PAGE 12 OF 12