2005-146-Ordinance No. 2005-010 Recorded 2/28/2005_&10EW
0
W WED
CODE RE�/IEW COMMITTEE
DESCHUTES COUNTY OFFICIRL RECORDS
NANCY BLANKENSHIP, COUNTY CLERK
COMMISSIONERS' JOURNAL AVIA/lAAR MOIR PM
2005-146
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Ordinance Adding Chapter 2.37 to the
Deschutes County Code, Deschutes County ORDINANCE NO. 2005 -0 10
Contracting Code, Adopting Findings, Providing
an Effective Date and Declaring an Emergency.
WHEREAS, in 2003 the Oregon Legislature adopted revised public contracting statutes, codified in
Chapter 279A, 279B and 279C (2003 ch. 794), herein "Public Contracting Code;" and
WHEREAS, as a part the Public Contracting Code the Legislature directed the Oregon Attorney
General to prepare and adopt new model rules to implement the Public Contracting Code; and
WHEREAS, pursuant to the Legislature's directive, the Attorney General has prepared new model
public contracting rules, which have been adopted and filed with the Oregon Secretary of State as Oregon
Administrative Rules Chapter 137, Divisions 46, 47, 48 and 49, herein "Model Rules;" and
WHEREAS, the Public Contracting Code, while adopted in 2003, is scheduled to take effect, along with
the Model Rules on March 1, 2005; and
WHEREAS, the Public Contracting Code requires that in order to adopt exemptions and classes of
special procurements to the Public Contracting Code, it is necessary for the County to publish notice and
provide an opportunity for comment on proposed findings supporting such exemptions and classes of special
procurements; and
WHEREAS, the County has on February 18, 2005 published notice in the Bend Bulletin and the Daily
Journal of Commerce of its intention to approve findings in support of, and adopt certain exemptions and classes
of special procurements, which have been made available for review and comment; and
WHEREAS, the Board has provided an opportunity for comment and considered such comments as
were received relative to the proposed findings in support of exemptions and classes of special procurements
contained in a proposed County Contracting Code; and
WHEREAS, the Public Contracting Code and Model Rules will cause the current County Code
provisions relating to public contracting, 2.36 and 4.06, to become obsolete as to contracts advertised after
March 1, 2005 or, if not advertised, entered into after March 1, 2005; and
WHEREAS, it is therefore necessary for the County to adopt revisions to the County Code to implement
the Public Contracting Code and Model Rules; now, therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS
as follows:
Section 1. ADDING NEW CHAPTER. The Deschutes County Code is amended by adding a new
chapter, Chapter 2.37, the Deschutes County Contracting Code, set forth in Exhibit "A," attached hereto and by
PAGE I OF 2 - ORDINANCE NO. 2005-010 (02/28/05)
this reference incorporated herein. Chapter 2.37 becomes operative and applies only to public contracts first
advertised, but if not advertised then entered into, on or after March 1, 2005.
Section 2. FINDINGS. The exemptions and classes of special procurements contained in the
Deschutes County Contracting Code are supported by findings, set forth in Exhibit "B," attached hereto and by
this reference incorporated herein.
Section 3. SEVERABILITY. If any portion of this ordinance is deemed invalid by a court of
competent jurisdiction, the invalid portion shall be severed from the ordinance and the rest shall remain in full
force and effect.
Section 4. EMERGENCY. This Ordinance being necessary for the immediate preservation of the
public peace, health and safety, an emergency is declared to exist, and this Ordinance takes effect on March 1,
2005.
DATED this _2eday of 2005.
0
BOARD OF COUNTY COMMISSIONERS
OF DESCHUT COUNTY, 0 -,GON
T Tnx n WnT F
OM DEWOLF, Chan
141�-
Date of I" Reading: X dayof 2005.
-) V-1�1
Date of 2 nd Reading: �4 -- day of 2005,
Record of Adoption Vote
Commissioner Yes No Abstained Excused
Tom DeWolf
Michael M. Daly
Dennis R. Luke
Effective date: a�—day of ��. 12005.
ATTEST:
Recording Secretary
PAGE 2 OF 2 - ORDINANCE NO. 2005-010 (02/28/05)
Chapter 2.37. PUBLIC CONTRACTING
CODE
2.37.010.
Purpose -Statutory Authority.
2.37.020.
Model Public Contract Rules.
2.37.030.
Public Contract Review Board.
2.37.040.
Purchasing Agent.
2.37.500.
Definitions.
2.37.060.
Signature Authority.
2.37.070.
Class Special Procurements.
2.37.080.
Exemption for Certain Personal
Services.
2.37.090. Exemption from Sealed Bids or
Proposals.
2.37.100. Purchases through federal
programs.
2.37.110. Contracts for Disposal of Personal
Property.
2.37.120. Contract Amendments and
Renewal.
2.37.130. Qualified Pool.
2.37.140. Contested Case Procedures.
2.37.010. Purpose -Statutory Authority.
The purpose of CDD 2.37 is to implement the
provisions of ORS 279A, 279B and 279C,
which may be collectively referred to herein as
the Public Contracting Code. This chapter shall
be known as the Deschutes County Contracting
Code and may be referred to herein as "this
chapter."
(Ord. 2005-010 §1, 2005)
2.37.020. Model Public Contract Rules.
Except as otherwise provided in this chapter or by
rule or order of the Board, the Model Rules of
Public Contract Procedure, OAR 137, divisions
46, 47, 48 and 49, herein referred to as the Model
Rules, adopted by the Oregon Attorney General
and from time to time amended, shall be the rules
of the Deschutes County Contract Review Board.
Where reference is made in these rules to any
provision of the Public Contracting Code, unless
this chapter provides otherwise, the
corresponding provisions of the Model Rules
shall also apply.
(Ord. 2005-010§1, 2005)
2.37.030. Public Contract Review Board.
Except as expressly delegated under this chapter,
or by Resolution by the Board of County
Chapter 2.37
Commissioners, "Board," acting in its capacity as
the governing body of the County and each and
every Deschutes County service district, reserves
to itself the exercise of all duties and authority of
a contract review board and a contracting agency
under state law. Where this chapter refers to the
"County," unless the context indicates a different
meaning, the reference shall mean and include
Deschutes County and the particular county
service district for which the Board is the
governing body
(Ord. 2005-010 §1, 2005)
2.37.040. Purchasing Agent.
A. The County Administrator is designated as
the Purchasing Agent of the County and is
hereby authorized to issue all solicitations
and to award all County contracts for which
the contract price does not exceed $150,000.
Subject to the provisions of this chapter, the
Purchasing Agent may adopt and amend all
solicitation materials, contracts and forms
required or permitted to be adopted by
contracting agencies under the Public
Contracting Code or otherwise convenient for
the County's contracting needs.
B. hi the context of requests for proposals the
Purchasing Agent and in the case of county
service districts, each administrator or
director, is authorized to determine the
method of contractor selection and selection
criteria, including without limitation: award
without negotiation, negotiation with the
highest ranked proposer, competitive
negotiations, multiple -tiered competition
designed either to identify a class of
proposers that fall within a competitive range
or to otherwise eliminate from consideration
a class of lower ranked proposers, or any
combination of methods.
C. The Purchasing Agent and in the case of
county service districts, each administrator or
director, is authorized to determine that goods
or services, or classes of goods or services,
are available from only one source, pursuant
to ORS 279B.075(2).
D. In the case of county service districts the
director or administrator is designated as the
purchasing agent of the district and is hereby
(03/2005)
A
authorized to issue all solicitations and to
award all district contracts for which the
contract price does not exceed $25,000 unless
otherwise specifically set forth in the
operating agreement between the County and
the district. Subject to the provisions of this
chapter, the purchasing agent of the district
may adopt and amend all solicitation
materials, contracts and forrns required or
permitted to be adopted by contracting
agencies under the Public Contracting Code
or otherwise convenient for the district's
contracting needs.
E. Whenever the Oregon State Legislative
Assembly enacts laws that cause the attorney
general to modify its Model Rules, the
County Legal Counsel shall review this
chapter and recommend to the Board any
modifications required to ensure compliance
with statutory changes.
(Ord. 2005 -0 10 § 1, 2005)
2.37.50 Definitions.
The following terms used in this chapter shall
have the meanings set forth below:
A. "Award" means the selection of a person to
provide goods, services or public
improvements under a public contract. The
award of a contract is not binding on the
County until the contract is executed by the
person and the County.
B. "Bid" means a binding, sealed, written offer
to provide goods, services or public
improvements for a specified price or prices.
C. "Concession agreement" means 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 County, and under which the
concessionaire makes payments to the
County 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.
D. "Contract price" means the total amount paid
or to be paid under a contract, including any
approved alternates, and any fully executed
change orders or amendments.
E. "Debarment" means a declaration by the
Purchasing Agent or the Board under ORS
279B.130 or ORS 279C.440 that prohibits a
potential contractor from competing for the
County's public contracts for a prescribed
period of time.
F. "Disposal" means any arrangement for the
transfer of personal property by the County
under which the County relinquishes
ownership.
G. "Findings" are the statements of fact that
provide justification for a determination.
Findings may include, but are not limited to,
information regarding operation, budget and
financial data; public benefits; cost savings;
competition in public contracts; quality and
aesthetic considerations, value engineering;
specialized expertise needed; public safety;
market conditions; technical complexity;
availability, perfort-nance and funding
sources.
H. "Goods" means any item or combination of
supplies, equipment, materials or other
personal property, including any tangible,
intangible and intellectual property and rights
and licenses in relation thereto.
1. "Informal solicitation" means a solicitation
made in accordance with the Contracting
Code and this chapter to a limited number of
potential contractors, in which the
Solicitation Agent attempts to obtain at least
three quotes or proposals.
J. "hivitation to bid" means a publicly
advertised request for competitive sealed
bids.
K. "Offeror" means a person who submits a bid
quote or proposal to enter into a public
contract with the County.
L. "Personal services contract" means 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
Chapter 2.37 2 (03/2005)
judgment or 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 or
the Board shall have discretion to determine
whether additional types of services not
specifically mentioned in this paragraph fit
within the definition of personal services.
M. "Proposal" means 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.
N. "Qualified pool" means a pool of vendors
who are pre -qualified to compete for the
award of contracts for certain types of
contracts or to provide certain types of
services.
0. "Quote" means a price offer made in
response to an informal or qualified pool
solicitation to provide goods, services or
public improvements.
P. "Request for proposals" means a publicly
advertised request for sealed competitive
proposals.
Q. "Services" means and includes all types of
services (including construction labor) other
than personal services.
R. "Solicitation" means an invitation to one or
more potential contractors to submit a bid,
proposal, quote, statement of qualifications or
letter of interest to the County with respect to
a proposed project, procurement or other
contracting opportunity. The word
"solicitation" also refers to the process by
which the County requests, receives and
evaluates potential contractors and awards
public contracts.
S. "Solicitation Agent" means with respect to a
particular solicitation or contract, the County
employee charged with responsibility for
conducting the solicitation and making an
award, or making a recommendation on
award to a department head, the Purchasing
Agent or the Board.
T. "Solicitation documents" means all
informational materials issued by the County
for a solicitation, including, but not limited to
advertisements, instructions, submission
requirements and schedules, award criteria,
contract terms and specifications, and all
laws, regulations and documents incorporated
by reference.
U. "Surplus property" means personal property
owned by the County which is no longer
needed for use by the department to which
such property has been assigned.
(Ord. 2005-010 §1, 2005)
2.37.060. Signature Authority.
A. Each County Department Head and each
elected County official designated as a
department head is authorized to award
competitive bids and proposals and enter into
contracts in an amount not to exceed $25,000
for each contract, provided sufficient sums
are appropriated and unencumbered in the
County or, as applicable, district budget and
there are sufficient cash resources available to
pay the maximum consideration set forth in
each and every contract
B. The County Administrator is authorized to
award competitive bids and proposals and
enter into contracts in an amount not to
exceed $150,000 for any single contract,
provided sufficient sums are appropriated and
unencumbered in the County budget and
there are sufficient cash resources available to
pay the maximum consideration set forth in
each and every contract.
(Ord. 2005-010 § 1, 2005)
2.37.070. Class Special Procurements.
A. The County may award a public contract
under a Class Special Procurement pursuant
to the requirements of ORS 279B.085. Such
procurements allow the County to enter into
one or more contracts over time without
Chapter 2.37 3 (02/2005)
following the requirements of competitive
near the site of work being performed by
sealed bidding, competitive sealed proposals
another County contractor, the County
or intermediate procurements.
may hire that contractor to perform the
B. The Board of County Commissioners
work, provided:
declares the following as classes of special
a. The contractor was hired through a
procurements. Such contracts may be
selection process permitted by
awarded in any manner which the Solicitation
County Code;
Agent deems appropriate to the County's
b. The Solicitation Agent first obtains
needs, including by direct appointment or
a price quotation for the additional
purchase. Except where otherwise provided
work from the contractor that is
the Solicitation Agent shall make a record of
competitive and reasonable;
the method of award.
C. The total cost of the proposed work
I . Manufacturer Direct Supplies. The
and the original work will not
County may purchase goods directly
exceed the Bureau of Labor and
from a manufacturer without competitive
Industries' threshold of $25,000;
bidding if a large volume purchase is
and
required and the cost from the
d. The original contract is amended to
manufacturer is the same or less than the
reflect the new work and is
cost the manufacturer charges to its
approved by the Purchasing Agent
distributor(s). Procurements of this type
before work begins.
are made on a contract -by -contract basis
7. Purchase of Used Personal Property or
and are not requirements contracts.
Equipment. The County may directly
2. Purchase of Advertising Contracts.
purchase used personal property and
Contracts for the placing of notices or
equipment if such property is suitable for
advertisements may be published in any
the County's needs and can be purchased
medium.
for a lower cost than substantially
3. Contracts Up to $5,000. Contracts of any
similarly new property. For this purpose
type for which the contract price does not
the cost of used property shall be based
exceed $5,000 without a record of the
upon the life -cycle cost of the property
method of award.
over the period for which the property
4. Copyrighted Materials; Library
will be used by the County.
Materials. The County may purchase
8. Hazardous Material Removal and Oil
copyrighted materials where there is only
Clean-up. The County may directly
one known supplier available for such
acquire services to remove or clean up
goods. This includes, but is not limited
hazardous material or oil from any
to, new books, periodicals, curriculum
vendor when ordered to do so by the
materials, reference materials, audio and
Oregon Department of Environmental
visual media, and non-mass marketed
Quality pursuant to its authority under
software from a particular publisher or its
ORS Chapter 466. In doing so, the
designated distributor.
following conditions apply:
5. Requirements Contracts. The County
a. To the extent reasonable under the
may competitively select a vendor to
circumstances, encourage
provide specified goods and services that
competition by attempting to obtain
are routine or repetitive over a defined
informal price quotations or
contract term at particular prices even
proposals from potential suppliers of
though the precise volume or number of
goods and services.
such purchases is not known in advance.
b. The Department responsible for
6. Use of Existing Contractors. When a
managing or coordinating the clean -
public improvement is in need of minor
up shall prepare a written description
alteration, repair or maintenance at or
of the circumstances that require it
and a copy of the DEQ order for the
Chapter 2.37 4 (02/2005)
9
cleanup to the Purchasing Agent,
together with a request for contract
authorization;
c. The Department responsible for
managing or coordinating the clean-
up shall record whether there was
time for competition, and, if so, the
measures taken to encourage
competition, the amount of the price
quotations obtained, if any, and the
reason for selecting the contractor to
whom award is made; and
d. The timeline for cleanup does not
pen -nit use of intermediate
procurement procedures.
Amendments to contracts and price
agreements. The County may execute
contact amendments, as follows:
a. An original valid contract exists
between the parties;
b. Unit prices or "add alternates" were
provided in the solicitation document
that established the cost basis for the
additional work or product or in a
lump sum contract the contractor has
provided an estimate of the
additional cost which has been
verified by the Department seeking
the amendment; and
c. The solicitation document provided
for such amendments; or
d. Emergency: The original contract
was let pursuant to a declaration of
emergency, in accordance with ORS
279B.080; or
e. Unplanned Environmental Cleanup:
The additional work is required by
reason of existing regulations or
ordinances of federal, state or local
agencies, dealing with the prevention
of environmental pollution and the
preservation of natural resources, that
affect performance of the original
contract and such regulations or
ordinances either were not cited in
the original contract, as provided in
ORS 279.318, 279C.525, or were
enacted or amended after submission
of the successful bid or proposal; or
f. The original contractor is allegedly in
default and the contractor's surety
can provide substitute performance
pursuant to the original contract to
complete or correct the work at hand.
10. Concession Agreements. Contracts
entered into by the Fair and Expo Center
which grant a franchise or concession to
a private entity or individual to promote
or sell, for its own business purposes,
specified types of goods or services from
all or a portion of the fairgrounds and
under which the concessionaire or
promoter makes payments to the Fair and
Expo Center based, at least in part, on the
concessionaire's revenues from sales or
the value of such promotion to the
sponsor's business, whether on or off the
fairgrounds property. The Director of the
Fair and Expo Center shall, subject to
approval of the Deschutes County Fair
Board, prepare and implement selection
criteria, based upon the proprietary
nature of the Fair and Expo Center. A
Concession Agreement does not include
an agreement which represents a rental,
lease, license, permit or other
arrangement for the use of public
property. The Fair and Expo Center
Director may award concession
agreements in connection with the annual
fair by any method deemed appropriate
by the Director, including without
limitation, by direct appointment, private
negotiation, from a qualified pool, or
using a competitive process.
11. Public improvement contracts for up to
$100,000, or not to exceed $50,000 in the
case of contracts for highways, bridges
and other transportation projects, may be
awarded under an intermediate
procurement process under 2003 Oregon
Laws, chapter 794, §§ 132 and 133. See
OAR 137-049-0160. This provision
shall survive the sunset of 2003 Oregon
Laws, chapter 794, § 332a,
12. 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.
Chapter 2.37 5 (02/2005)
13. Abandoned, Seized and Non -Owned
present or planned use of the
Personal Property. Contracts or
property or the public interest.
arrangements for the sale or other
(Ord. 2005-010 §1, 2005)
disposal of abandoned, seized or other
personal property not owned by the
2.37.080. Exemption for Certain Personal
County at the time the County obtains
Services.
possession are not subject to competitive
A. The County may award contracts for personal
procurement procedures.
services, as defined in DCC 2.37.050, under
14. Sponsorship Agreements. Sponsorship
the procedures of ORS 27913.050 to
agreements, under which the County
27913.085 and the Model Rules which
receives a gift, donation or consideration
implement such statutes, or subsection B of
in exchange for official recognition of the
this section without following the selection
person making the donation or payment
procedures set forth elsewhere in the Model
may be i awarded by any method deemed
Rules.
appropriate by the County, including
without limitation, by direct appointment,
B. Direct Appointment. In any of the following
private negotiation, from a qualified pool,
circumstances a qualified provider of
or using a competitive process.
personal services may be appointed under
15. Renewals. Contracts that are being
any method deemed in the County's best
renewed in accordance with their terms
interest by the Solicitation Agent, including
are not considered to be newly issued
by direct appointment.
Contracts and are not subject to
1. Under circumstances which could not
competitive procurement procedures.
reasonably have been foreseen which
16. Temporary Extensions or Renewals.
create a substantial risk of loss, damage,
Contracts for a single period of one year
interruption of services or threat to the
or less, for the temporary extension or
public health and safety and require the
renewal of an expiring and non-
prompt performance of the services to
renewable, or recently expired, contract,
remedy the situation; or
other than a contract for public
2. Where the estimated fee does not exceed
improvements.
$25,000 in any fiscal year or $150,000
17. Temporary Use of County -Owned
over the full term, including optional
Property. The County may negotiate and
renewals; or
enter into a license, permit or other
3. Contracts of not more than $150,000 for
contract for the temporary use of County-
the continuation of work by a contractor
owned property without using a
who performed preliminary studies,
competitive selection process if:
analysis or planning for the work under a
a. The contract results from an
prior contract may be awarded without
unsolicited proposal to the County
competition if the prior contract was
based on the unique attributes of the
awarded under a competitive process and
property or the unique needs of the
the Solicitation Agent determines that
proposer;
use of the original contractor will
b. The proposed use of the property is
significantly reduce the costs of or risks
consistent with the County's use of
associated with the work.
the property and the public interest;
4. Contracts for maintenance, repair and
and
technical support for computer hardware,
c. The County reserves the right to
software and networking systems.
tenninate the contract without
5. Mental Health services provided by a
penalty, in the event that the County
psychologist, psychiatrist or psychiatric
determines that the contract is no
nurse practitioner.
longer consistent with the County's
Chapter 2.37 6 (02/2005)
C. Direct appointment pursuant to this section
shall be competitive to the extent practicable
and may be based upon criteria which include
without limitation the provider's experience,
available resources, the project's location and
the provider's pricing.
D. The County may select a provider of personal
services under this section from a qualified
pool, or from:
1 . The County's current list of qualified
providers;
2. From another public contracting agency's
current list of qualified providers
pursuant to an intergovernmental
agreement; or
3. From among all qualified providers
offering the necessary services that the
County can reasonably locate under the
circumstances.
E. Design Build or Construction Manager/
General Contractor. Contracts for the
construction of public improvements using a
designibuild or construction manager/general
contractor construction method shall be
awarded under a request for proposals. The
determination to construct a project using a
design/build or construction manager/general
contractor construction method must be
approved by the Board or its designee, upon
application of the Purchasing Agent, in which
the Purchasing 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
County.
(Ord. 2005 -0 10 § 1, 2005)
2.37.090 Exemption from Sealed Bids or
Proposals.
In addition to the contracts not subject to the
Public Contracting Code, pursuant to ORS
279A.025, and contracts which are exempt from
competitive bidding and proposal requirements
under this chapter, contracts may be awarded as
follows:
A. Contracts, other than contracts for personal
services, may be awarded without
competitive sealed bids under ORS 279B.
055 and without competitive sealed proposals
under ORS 27913.060, pursuant to ORS
27913.065, 27913.070, 27913.075, 27913.080,
or 27913.085 and the Model Rules for the
following classes of cases:
1. Emergency contracts.
2. Contracts under $5000 need not be
awarded competitively.
3. Contracts exceeding $5000 but not
exceeding $75,000, where competitive
quotes or proposals are obtained.
4. Contracts exceeding $75,000, but not
exceeding $150,000, where competitive
written quotes or proposals are obtained.
B. Where a contract is awarded under this
section the department awarding the contract
shall obtain at least three (3) informally
solicited quotes or proposals, if possible;
shall document in its records the quotes and
proposals received, and if fewer than three,
the effort that was made to obtain quotes or
proposals.
C. A quote or proposal received by telephone
shall be considered a written quote when it is
recorded in records of the County. A quote or
proposal received by e-mail or fax shall be
considered a written quote or proposal when
it is received by the County.
D. If a contract is awarded under this section, the
County shall award the contract to the offeror
whose quote or proposal will best serve the
County's interests, taking into account price,
as well as, considerations including, but not
limited to experience, expertise, product
functionality, suitability for a particular
purpose and contractor responsibility under
ORS 279B. I 10.
2.37.100 Purchases through federal
programs.
Goods and services may be purchased without
competitive procedures under a local government
purchasing program administered by the United
States General Services Administration ("GSA")
as provided in this section.
Chapter 2.37 7 (02/2005)
A.
The procurement must be made in
1. Governments. Without competition, by
accordance with procedures established by
transfer or sale to another County
GSA for procurements by local governments,
department or public agency.
and under purchase orders or contracts
2. Auction. By publicly advertised auction
submitted to and approved by the Purchasing
to the highest bidder.
Agent or the Board. The Solicitation Agent
3. Bids. By publicly advertised invitation to
shall provide the Purchasing Agent with a
bid.
copy of the letter, memorandum or other
4. Liquidation Sale. By liquidation sale
documentation from GSA establishing
using a commercially recognized third -
permission to the County to purchase under
party liquidator selected in accordance
the federal program.
with rules for the award of personal
B.
The price of the goods or services must be
services contracts.
established under price agreements between
5. Fixed Price Sale. The Solicitation Agent
the federally approved vendor and GSA.
may establish a selling price based upon
an independent appraisal or published
C.
The price of the goods or services must be
schedule of values generally accepted by
less than the price at which such goods or
the insurance industry, schedule and
services are available under state or local
advertise a sale date, and sell to the first
cooperative purchasing programs that are
buyer meeting the sales terms.
available to the County.
6. Trade -In. By trade-in, in conjunction
D.
If a single purchase of goods or services
with acquisition of other pnice-based
exceeds $150,000, the Solicitation Agent
items under a competitive solicitation.
must obtain informal written quotes or
The solicitation shall require the offer to
proposals from at least two additional
state the total value assigned to the
vendors (if reasonably available) and find, in
surplus property to be traded.
writing, that the goods or services offered by
7. Donation. By donation to any
GSA represent the best value for the County.
organization operating within or
This subsection does not apply to the
providing a service to residents of the
purchase of equipment manufactured or sold
County which is recognized by the
solely for military or law enforcement
Internal Revenue Service as an
purposes.
organization descrii ed ion
b in sect'
(Ord. 2005-010 §1, 2005)
501(c)(3) of the Internal Revenue Code
of 1986, as amended.
2.37.110
Contracts for Disposal of Personal
B. Disposal of Property with Minimal Value.
Property.
Surplus property which has a value of less
A.
General Methods. Surplus property may be
than $500, or for which the costs of sale are
disposed of by any of the following methods
likely to exceed sale proceeds may be
upon a determination by the Solicitation
disposed of by any means determined to be
Agent that the method of disposal is in the
cost-effective, including by disposal as waste.
best interest of the County. Factors that may
The official making the disposal shall make a
be considered by the Solicitation Agent
record of the value of the item and the
include costs of sale, administrative costs,
manner of disposal.
and public benefits to the County. The
C. Personal -Use Items. '-An item (or indivisible
Solicitation Agent shall maintain a record of
set) of specialized and personal use with a
the reason for the disposal method selected,
current value of less than $100, other than
and the manner of disposal, including the
police officer's handguns which may exceed
name of the person to whom the surplus
$100 in value, may be sold to the employee
property was transferred.
or retired or terminated employee for whose
use it was purchased. These items may be
sold for fair market value without bid and by
Chapter 2.37 8 (02/2005)
a process deemed most efficient by the
Purchasing Agent or the Board.
D. Restriction on Sale to County Employees.
County employees shall not be restricted
from competing, as members of the public,
for the purchase of publicly sold surplus
property, but shall not be pen-nitted to offer to
purchase property to be sold to the first
qualifying bidder until at least three days
after the first date on which notice of the sale
is first publicly advertised.
(Ord. 2005 -0 10 § 1, 2005)
2.37.120 Contract Amendments and
Renewal.
A. A contract procurement obtained pursuant to
intermediate procurement procedures (ORS
27913.070) may be amended in accordance
with:
I . OAR 137-047-0800; or
2. Where additional goods or services are to
be purchased even though the original
contract did not provide unit prices; or
3. May be extended or renewed for a single
term not to exceed one year.
B. A procurement of goods or services under
intermediate procurement procedures may be
amended to exceed $150,000 (OAR 137-047-
0270), but not more than 25% above the
original contract price.
C. A contract of goods or services under small
procurement procedures may be amended to
exceed $5,000 (OAR 137-047-0265), but the
cumulative amendments shall not increase
the total contract price to greater than $6,000.
(Ord. 2005-010 §1, 2005)
2.37.130 Qualified Pool.
A. General. To create a qualified pool, the
Purchasing Agent or Board may invite
prospective contractors to submit their
qualifications to the County for inclusion as
participants in a pool of contractors qualified
to provide certain types of goods, services, or
projects including personal services, and
public improvements.
B. The invitation to participate in a qualified
pool shall be advertised in the manner
provided for advertisements of invitations to
bid and requests for proposals by publication
in at least one newspaper of general statewide
circulation. If qualification will be for a term
that exceeds one year or allows open entry on
a continuous basis, the invitation to
participate in the pool must be re -published at
least once per year and shall be posted at the
County's main office and on its website.
C. Contents of Solicitation. Requests for
participation in a qualified pool shall describe
the scope of goods or services or projects for
which the pool will be maintained, and the
minimum qualifications for participation in
the pool, which may include, but shall not be
limited to qualifications related to financial
stability, contracts with manufacturers or
distributors, certification as an emerging
small business, insurance, licensure,
education, training, experience and
demonstrated skills of key personnel, access
to equipment, and other relevant
qualifications that are important to the
contracting needs of the County.
D. The operation of each qualified pool may be
governed by the provisions of a pool contract
to which the County and all pool participants
are parties. The Contract shall contain all
ternis required by the County, including,
without limitation, terms related to price,
performance, business registration or
licensure, continuing education, insurance,
and requirements for the submission, on an
annual or other periodic basis, of evidence of
continuing qualification. The qualified pool
contract shall describe the selection
procedures that the County may use to issue
contract job orders. The selection procedures
shall be objective and open to all pool
participants and afford all participants the
opportunity to compete for or receive job
awards. Unless expressly provided in the
contract, participation in a qualified pool will
not entitle a participant to the award of any
County contract.
E. Use of Qualified Pools. Subject to the
provisions of these regulations concerning
methods of solicitation for classes of
contracts, the Solicitation Agent or the Board
Chapter 2.37 9 (02/2005)
shall award all contracts for goods or services
of the type for which a qualified pool is
created from among the pool's participants,
unless the Solicitation Agent or the Board
determines that best interests of the County
require solicitation by public advertisement,
in which case, pool participants shall be
notified of the solicitation and invited to
submit competitive proposals.
F. Amendment and Termination. The
Purchasing Agent or the County may
discontinue a qualified pool at any time, or
may change the requirements for eligibility as
a participant in the pool at any time, by
giving notice to all participants in the
qualified pool.
G. Protest of Failure to Qualify. The Purchasing
Agent shall notify any applicant who fails to
qualify for participation in a pool that it may
appeal a qualified pool decision to the Board
in the manner described in section 2.37.130.
(Ord. 2005 -0 10 § 1, 2005)
2.37.140 Contested Case Procedures
A. Any person who has been debarred from
competing for County contracts or for whom
prequalification has been denied, revoked or
revised, or who would be entitled under the
Public Contracting Code and who wishes to
file a protest must appeal the County's
decision to the Board as provided in this
section. The Board may conduct a de novo
hearing or appoint a hearing officer to
conduct such a hearing and recommend a
decision, in which case the Board shall
consider the matter on the record developed
by the hearing officer, and, if specifically
allowed by the Board, on de novo review or
limited de novo review.
B. For purposes of this section, "Party" means:
I . Each person entitled as of right to a
hearing before the Board;
2. Each person named by the County to be a
party; or
3. Any person requesting to participate
before the agency as a party or in a
limited party status which the County
determines either has an interest in the
outcome of the County's proceeding or
represents a public interest in such result.
C. Filmig of Appeal. The person must file a
written notice of appeal with the Purchasing
Agent within three business days after the
prospective contractor's receipt of notice of
the determination of debarment or denial of
prequalification or after the County's
decision which is the subject of the protest.
Except as otherwise provided in this section,
the contents and filing of protests shall be in
accordance with the Public Contracting Code
(ORS 279B.400 to 279B.425) and the Model
Rules (OAR 137-047-0700 to 137-047-
0800).
D. Parties may elect to be represented by
counsel and to respond and present evidence
and argument on all issues involved.
E. Unless precluded by law, informal
disposition may be made of any case by
stipulation, agreed settlement, consent order,
default or written agreement.
F. Members of the Board or hearing officer
shall place on the record a statement of the
substance of any written or oral ex parte
communications on a fact in issue made to
the member or officer during the pendency of
the proceeding and notify the parties of the
communication and of their right to rebut
such communications.
G. The record in support of a decision shall be
made at the time set for hearing or any
extension thereof approved by the Board or
hearing officer. Testimony may be given
without oath or affirmation. Cross-
examination of witnesses by parties shall not
be allowed. Provided however, the Board or
hearing officer may question any witness
appearing before it. A verbatim oral, written
or mechanical record shall be made of all
motions, rulings and testimony. The Board or
hearing officer presiding at the hearing shall
ensure that the record developed at the
hearing shows a full and fair inquiry into the
facts necessary for consideration of all issues
properly before the presiding officer. The
record need not be transcribed unless
requested for purposes of court review. The
Chapter 2.37 10 (02/2005)
party requesting transcription shall pay the
cost thereof unless the Board or hearing
officer determines on affidavit the indigency
of the requesting party.
H. Evidence in contested cases. In contested
cases:
1. Irrelevant, immaterial or unduly
repetitious evidence shall be excluded but
erroneous rulings on evidence shall not
preclude action on the record unless
shown to have substantially prejudiced
the rights of a party. All other evidence
of a type commonly relied upon by
reasonably prudent persons in the
conduct of their serious affairs shall be
admissible. The Board and hearing
officer shall give effect to the rules of
privilege recognized by law. Objections
to evidentiary offers may be made and
shall be noted in the record. Any part of
the evidence may be received in written
forin.
2. All evidence shall be offered and made a
part of the record in the case, and except
for matters stipulated to and except as
provided in paragraph (4) of this
subsection, no other factual information
or evidence shall be considered in the
determination of the case. Documentary
evidence may be received in the form of
copies or excerpts, or by incorporation by
reference. The burden of presenting
evidence to support a fact or position in a
case rests on the proponent of the fact or
position.
3. Every party shall have the right to submit
rebuttal evidence.
4. The Board or hearing officer may take
notice of judicially cognizable facts.
Parties shall be notified at any time
during the proceeding but in any event
prior to the final decision of material
officially noticed and they shall be
afforded an opportunity to contest the
facts so noticed.
1. Costs. The Board may allocate the County's
costs for the hearing between the appellant
and the County. The allocation shall be
based upon facts found by the Board and
stated in the Board's decision that, in the
Board's opinion, warrant such allocation of
costs. If the County does not allocate costs,
the costs shall be paid by the appellant, if the
decision is upheld, or by the County, if the
decision is overturned.
J. The Board shall issue a written, proposed
final order, including findings of fact and
conclusions of law, and furnish a copy
thereof on all parties. The proposed order
shall become final no later than seven (7)
days following the date of the proposed
order, unless the Board within that period
issues an amended order.
(Ord. 2005-010 § 1, 2005)
Chapter 2.37 11 (02/2005)
EXHIBIT "B"
FINDINGS IN SUPPORT OF ORDINANCE NO. 2005-010
ADOPTING SPECIAL CLASS PROCUREMENTS AS PART OF NEW PUBLIC
CONTRACTING CODE PROVISIONS
ORS 279B.085 and 279C.335 authorize the Board of County Commissioners, 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 Board of County Commissioners has, after notice and an
opportunity to comment at a regular meeting of the Board, adopted Ordinance No. 2005-010,
which enacts a new public contracting code and establishes classes of contracts and the
solicitation methods for their award, together with the following specific findings in support
thereof, or a determination that no findings are required.
Speciflc Findins for Public Improvement Exemptions
The Board of County Commissioners 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:
1. Is unlikely to encourage favoritism in the awarding of public improvements 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 County.
Speciflc FindinLys for Special Classes and Methods of Award for Contracts Other than
Public Improvements.
The Board of County Commissioners 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 the methods approved for their award:
Is unlikely to encourage favoritism in the awarding of public contracts or
substantially diminish competition for public contracts; and
2. The awarding of public contracts under the exemption will result in substantial
cost savings to the County, or otherwise substantially promote the public interest
in a manner that could not practicably be realized by complying with
requirements that are applicable under ORS 279B.055, 279B.060, 279B.065 or
279B.070 or under any rules adopted thereunder.
PAGE 1 OF 12 - EXHIBIT B - ORDINANCE 2005-010 (02/28/2005)
cx"�t "�B
2.37.070.B(l) - Manufacturer Direct Supplies
Alternate Award Process. The solicitation agent verifies that the cost from the
manufacturer is the same or less than the cost the manufacturer charges to its
distributor(s).
Cost Savings and Other Benefits. If a large volume purchase is required, the County
may be able to purchase goods directly from the manufacturer at the same cost the
manufacturer charges to its distributor. In that circumstance, the cost to the County is not
marked up to include a distributor's price, and since all persons purchase at that price,
competition is not affected. Purchases of this type are made on a contract -by -contract
basis and are not requirements contracts. If the County does not receive an acceptable
informal price quotation directly from a manufacturer, the County can proceed with the
purchase through competitive bidding or an alternative process.
It is unlikely that this special procurement will encourage favoritism or substantially
diminish competition for County contracts as required by ORS 279B.085(3)(a).
Purchases made directly from the manufacturer will result in saving the cost of the
competitive bidding process as required by ORS 279B.085(3)(b) since there is no
beneficial offset provided by the competitive process.
2.37.070.B(2) - Advertising Contracts.
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 County) 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.
2.37.070.B(3) - Contracts up to $5,000
Cost Savings and Other Benefits. Based upon its adoption of ORS 27913.065 and ORS
279C.335, the Legislature has determined that since these are small contracts, that any
procurement method deemed practical or convenient by the county will satisfy the
purposes of the public contracting code.
PAGE 2 OF 12 - ExHIBIT B - ORDINANCE 2005-010 (02/28/2005)
2.37.070.B(4) - Copyrighted and library materials.
Alternate Award Process. Solicitation agent's discretion.
Cost Savings and Other Benefits. Necessary to allow County 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.
2.37.070.B(5) - Requirements Contracts.
Alternate Award Process. The County initially awards requirements contracts as a
result of open competitive bidding or request for proposals processes, unless otherwise
exempted. The County limits the term of requirements contracts, including all renewal
options, to a maximum of five (5) years before competitive bidding must be done, unless
otherwise exempted. The County may use the requirements contracts established by other
public agencies, subject to certain conditions of state law and County policy.
Effect on Competition. This special procurement permits the County to enter into
requirements contracts (also known as annual supply contracts or price agreements), in
which the vendor agrees to provide specific goods and services over the term of the
contract at the bid price or discount rate. A requirements contact is useful when the
purchase of the goods or services is routine and repetitive. For example, office, custodial
and facilities maintenance supplies are customarily purchased through requirements
contracts although the exact quantity of goods and services that will be purchased is
usually unknown. Requirements contracts are a common method of minimizing paper
work, achieving continuity of product, securing a source of supply, reducing inventory,
obtaining volume discounts, standardizing usage among departments and reducing lead
time for ordering.
It is unlikely that this exemption will result in favoritism in the awarding of County
contracts or diminish competition for County contracts as required by ORS
279B.085(3)(a). The County initially enters requirements contracts through competitive
bidding processes and subsequent purchases will not diminish competition since it was
provided in the original process. This condition applies also to the use of requirements
contracts established by other public contracting agencies.
The awarding of County requirements contracts will result in cost savings to the County
as required by ORS 279B.085(3)(b). Requirements contracts provide cost savings
because they take advantage of discounts offered for volume purchases that are not
available for smaller, individual purchase of routine goods and services. In addition, the
PAGE 3 OF 12 - EXHIBIT B - ORDINANCE 2005-010 (02/28/2005)
County avoids costs that are incurred with repetitive competitive bidding. It would be
costly and inefficient to make routine, repetitive purchases of goods and services through
individual transactions. Also, the guaranteed volume of a requirements contract allows
the County to get better prices from bidders.
2.37.070.B(6) - Use of Existing Contractors.
Alternate Award Process. From time to time, the County needs to repair, maintain, or
construct a public improvement at or near a site where a contractor, already hired by the
County through a competitive selection process, is performing other work. The selection
process may be one established by state law, or an alternative process established by the
County pursuant to state law or a special procurement. The County may obtain an
informal price quotation from the contractor already at or near the site to perfonn the
additional work. If the project manager determines that the informal price quotation is
competitive for work of that type then the contractor may be awarded this additional
work without the need for competitive bidding provided that the value of the additional
work, as estimated by the contractor, does not exceed $25,000.
Effect on Competition. It is unlikely that this special procurement will encourage
favoritism or substantially diminish competition in the award of County contracts, as
provided by ORS 279B.085(3)(a), because the contractor was originally selected through
a competitive bidding process, the occurrence of such additional work is haphazard and
often was not foreseen, and the County is not required to provide the contractor with the
work if its estimated price is not competitive.
The County will achieve cost savings, as provided by ORS 279B.085(3)(b), because the
cost of the additional work will be lower than if the work was competitively bid because
the contractor is already mobilized at or near the site of the work and will not need to
recover the costs of mobilization as a new contractor would need to do.
2.37.070.B(7) - Used property.
Alternate Award Process. No selection.
Cost Savings and Other Benefits. The County is responsible to manage expenditures in
the best interests of the public. Cost savings can be achieved through the purchase of
used property and equipment. The County purchases used property and equipment when
it meets the County's needs and is cost-effective. Considerations include type, quantity
and estimated useful life of the used item.
Used equipment and property becomes available sporadically and without notice. Used
equipment and property is generally sold on a first-come, first -serve basis. When used
property or equipment does become available, the County must be able to respond
immediately in order to obtain the property or equipment.
PAGE 4 OF 12 - EXHIBIT B - ORDINANCE 2005-010 (02/28/2005)
Some types of property or equipment may not be readily available in the new goods
market. The County may have to look for items to fill the need.
The use of this special procurement will result in cost savings to the County as required
by ORS 279B.085(3)(b). Because of the sporadic availability of used equipment and
used property, competitive bidding is not a feasible advance procurement method.
Competitive bidding is also not a feasible method of procurement at the time the
equipment is discovered to exist since it may be sold elsewhere before the required
advertising time period has expired. Cost savings can be achieved by substituting used
equipment for new equipment but only if the County has the ability to make a quick
purchase of the equipment, as it becomes available.
Allows County to take advantage of unique opportunity to require needed good and
services for discounted prices.
Effect on Competition. No impact. Responds to unique opportunities. Competition to
provide used property and equipment may be very limited and inconsistent, depending on
the type of product.
Effect on Favoritism. No impact. Responds to unique opportunities. It is unlikely that
this special procurement will encourage favoritism in the award of County contracts or
substantially diminish competition for County contracts as required by ORS
279B.085(3)(a). The purchase of used property or equipment depends on an inconsistent,
sporadic market. When a used item is available, there is often little competition
available, and sources for used items of the type, quality and quantity required by the
County are inconsistent.
2.37.070.B(8) - Hazardous Materials Cleanup
Alternate Award Process. Solicitation Agent's discretion.
When the DEQ orders the County to remove or cleanup hazardous materials or oil, the
County must respond within a very short time, as provided by the DEQ order. This time
period does not generally allow the County to take the time necessary to solicit written
bids or proposals for the work to be performed. The County would be liable to DEQ for
any delay in responding to DEQ orders to perform hazardous material removal or cleanup
and might also increase the risk of exposure to lawsuits filed by persons who were
allegedly hurt when the cleanup was not performed in the required time.
This exemption will not be used in those situations where there is no DEQ order to
remedy the situation. Routine competitive procurement methods will be used where
there is no DEQ order to act immediately.
Effect on Favoritism. It is unlikely that this exemption will encourage favoritism in the
award of County contracts or substantially diminish competition for County contracts as
required by ORS 279B.085(3)(a). If it is under DEQ order to act immediately, the
County will still attempt to obtain competitive price quotations for the work to be
PAGE 5 OF 12 - EXHIBIT B - ORDWANCE 2005-010 (02/28/2005)
performed as it has the ability and time to do so. Unless the County is faced with the
quasi -emergency situation of a DEQ order to remove or cleanup hazardous waste or oil, it
will follow normal competitive procedures to obtain these services.
Effect on Competition. The County must comply with the law and avoid and minimize
risk to persons and property. Cost savings are achieved as required by ORS
279B.085(3)(b), through this exemption because the County can be liable for DEQ
penalties and fines if it does not timely remove hazardous materials or oil as ordered.
There is also serious risk in these situations that property damage or personal injury could
result if the County is slow to act. Where possible, the County will seek informal price
quotations for the work to be performed and will award the contract to the lowest,
responsive and responsible bidder.
2.37.070.B(9) - Amendments to Contracts and Price Agreements.
This class special procurement permits the County to make contract amendments,
including but not limited to change orders, extra work, field orders, or other charges in
the original specifications that increase the original contract price, without further
competitive bidding, subject to the limitations and the procedures provided by state law.
The special procurement allows contract amendments to be made to existing contracts for
goods and services where the initial contact was obtained through competitive means and
awarded to the lowest, responsive and responsible bidder or to the best, responsive and
responsible proposer. This practice ensures that the cost savings achieved by the County
in the initial award to the most competitive bidder or best proposer will be carried
forward in the contract amendments.
The special procurement is necessary because in the course of the contract, it is
impossible for the County staff to know or plan for all possible contingencies, including
additional requirements, emergencies, unplanned environmental cleanup and other
unforeseen circumstances. The County must have the flexibility it needs to respond to
contingent circumstances in a prompt and cost-effective manner.
The special procurement permits contract amendments within limits which are reasonable
as more fully defined in OAR 137-047-0800, in order to guarantee that competition for
public contract is not substantially diminished. The special procurement permits contract
amendments for greater amounts but imposes tighter controls to protect the competitive
process.
Substitute performance by a contractor's surety, as described in the special procurement,
must be allowed as an exempted practice so the County can realize the full benefit of the
performance bond which secured the initial contract award. In such cases, the
contractor's surety must be enabled to fulfill its obligations to the County on behalf of the
secured contractor. In such cases, the original contract was competitively solicited. The
surety requirement was included in the original solicitation which provides for tender to
the surety upon contractor default. Such substitute performance and any amendment of
PAGE 6 OF 12 - EXHIBIT B - ORDINANCE 2005-010 (02/28/2005)
the original contract that makes a substitute contactor a party to the contract, is not an
award of a public contract for purposes of ORS 279B.085(3)(a) and is not subject to
competitive bidding regardless of dollar value.
This special procurement generally allows the County to complete the work at hand, or to
purchase additional needed products, without the additional costs in time, project start-up,
and project coordination if the additional work or product required must be competitively
bid. There is also a substantial, though indirect, cost component represented by the
knowledge and awareness of the on-site contractor about the additional work needed.
However, the conditions and dollar limits of this special procurement ensure that
competitive means will be used to procure work to be performed or product to be
provided in cases which do not meet the requirements of this special procurement.
Effect on Favoritism. It is unlikely that this class special procurement will encourage
favoritism in the awarding of County contracts or substantially diminish competition for
County contracts as required by ORS 279B.085(3)(a). Amendments will be made under
conditions where pricing or contractual commitment have already been established by
competitive means, or there is an emergency or unplanned environmental cleanup, or
amendments are of a limited dollar amount. Competition is not diminished among
contractors when the County simply turns to a contractor's surety to complete the work or
to make payment and that surety was a condition of the original contract. In those
situations, substitute performance by a contractor's surety is necessary to get the full
value of the perforinance bond requirement in the initial contract.
Cost Savings. The use of this special procurement to amend County contracts under the
specified conditions outlined will result in cost savings of the County as required by ORS
279B.085(3)(b). Cost savings occur because the County can use a contractor who is
already performing work to take on a task already within the scope of the project at hand.
The delay and cost to the contractor at the site, that would be passed on to the County,
and caused by a competitive bidding process, would eliminate whatever cost savings
might accrue, if any, from use of the competitive bidding process. hi fact, the
contractor's presence at the site means that it would incur less cost to perfonn the work
than a contractor who would have to mobilize and incur costs just to reach it. Similarly,
cost savings are achieved when a surety or the County is able to hire a contractor selected
by the surety to complete work to fulfill the surety's obligations. Because the surety is
ultimately paying the cost, there is no reason for the County to incur additional costs by
use of a competitive bidding process.
2.37.070.B(I 0) - Concession Agreements.
Alternate Award Process. The Director of the Fair and Expo Center has adopted rules
for award, as in the case of personal service contracts.
Cost Savings and Other Benefits. Allows County to take advantage of unique revenue
opportunities. Revenue producing contracts at the Fair and Expo Center are excluded
from competitive bidding. The Fair and Expo Director has developed policies designed
PAGE 7 OF 12 - EXHIBIT B - ORDINANCE 2005-010 (02/28/2005)
to maximize the revenues derived from such agreements, while advancing the goals of
product diversity, furnishing quality goods and services to the public, price competition,
and an overall level of satisfaction by visitors to the fairgrounds. With respect to
sponsorship agreements, the limited market for advertising and event sponsors requires
the Fair and Expo Director to diligently search out suitable sponsors, considering both the
revenues to be obtained and the family-oriented image to be maintained.
Effect on Competition. Responds to unique opportunities for which the number of
competitors may range from none to many. It is unlikely that this special procurement
will encourage favoritism or substantially diminish competition for such County contracts
as required by ORS 279B.085(3)(a). Concession Agreements will substantially promote
the public interest in a manner that could not practically be relied by complying with the
requirements that are applicable under ORS 279B.055, 279 B. 060, 279 B. 065 or 279 B.
070 or under any rules adopted there under.
Effect on Favoritism. No impact. Responds to unique opportunities. The Fair and Expo
Center's objectives with respect to sponsorship are substantially the same as those of the
Oregon State Fair and Exposition Center, whose contracts are likewise not subject to the
requirements of the Public Contracting Code.
Other Factors. Not a contract for the acquisition or disposal of good, or services or
public improvements. Most similar to personal services contract because the quality of
the concession may be more important that price factors. Variation in types and sizes of
concession opportunities is too great to provide a single method of solicitation.
2.37.070.B(11) - Non -transportation public improvements up to $100,000, and
Transportation public improvements up to $50,000.
Alternate Award Process. The informal solicitation procedure for this class of contracts
requires the solicitation agent to obtain at least 3 written price quotes. Contracts will be
awarded based on price.
Cost Savings and Other Benefits. The informal solicitation process provides the
following benefits:
Reduction in staff time.
Reduced bidding expenditure.
Elimination of bid bond requirement and small cost of quote preparation as
compared to bid preparation will result in lower quotes.
Flexibility in timing of solicitations will allow solicitation to be made during
construction season when projects can be used as fill-in projects for otherwise
busy contractors. This should result in lower pricing from contractors.
Effect on Competition. Requires competition by award based on price. The size of the
job makes is unlikely that contractors from outside the local area would submit bids if the
job was advertised.
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No Favoritism. Award to lowest of 3 or more quotes, prevents selection based on
favoritism. Willingness of any particular contractor to submit a quote will depend on the
contractor's schedule at the time of the solicitation. It is unlikely that the same contractor
will be able to submit a quote for every solicitation. The ability of the County to obtain
quotes for projects with short lead times will depend on the schedules of contractors and
therefore the County will not be able to obtain quotes from the same contractors over and
over again.
Other Factors. Section 132 of Chapter 794, Oregon Laws, 2003 created this class of
contracts as a special award class under the Oregon Public Contracting Code; however,
the class expires on June 30, 2009. By adopting this classification as a contract review
board exemption, the statutory classification will be protected from automatic repeal.
2.37.070.B(12) - Equipment Repair. The procedures established in this subsection are
based on:
Alternate Award Process. Solicitation agent's discretion.
Cost Savings and Other Benefits.
Pre -contract pricing is impossible. 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. Delay required for solicitation would
impair County's ability to respond to equipment breakdown and be injurious to the public
interest. 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.
2.37.070.B(13) - Non -Owned Property — (See Surplus Property — 2.37.110)
2.37.070.B(14) - Sponsorship Agreements.
Alternate Award Process. Solicitation agent's discretion.
Cost Savings and Other Benefits. This exemption allows the County 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.
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2. Sponsorship often results from the match between a unique attribute of a
County event or asset and unique characteristics of the sponsor for which
no competitive market exists.
Effect on Favoritism. Minimal.
2.37.070.B(15)(16) - 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.
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.
2.37.070.B(l 7) - Temporary Use of County -owned Property.
Alternate Award Process. Solicitation agent's discretion.
Cost Savings and Other Benefits. Allows County 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.
2.37.080B.4 - Maintenance, Repair and Technical Support for Computer Hardware,
Software and Networking Systems
Alternative Award Process. Contracts for the maintenance, repair and technical support
of computer hardware and software are often bundled with the purchase of hardware and
software. Such services are likewise often proprietary to the developer of the hardware
and software. As this special procurement is not intended to relieve the County of the
necessity to undertake a solicitation process for the hardware and software, this will
assure the technical professional services are appropriate and tailored to the software and
hardware the County acquires.
Effect on Favoritism. No impact, as the hardware and software are the subject of a
separate solicitation process, the result of which is a unique product, which either
requires a particular vendor of support service or one which is uniquely qualified to
provide such support. The special procurement for these contracts will substantially
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promote the public interest in a manner that could not practically be relied by complying
with the requirements that are applicable under ORS 279B.055, 279 B. 060, 279 B. 065
or 279 B. 070 or under any rules adopted there under.
Additional Considerations. This class of special procurements has been the subject of a
class exemption and is currently contained in the County's contracting code.
2.37.080B.5 - Mental Health Services Provided by a Psychologist, Psychiatrist or
Psychiatric Nurse Practitioner
Alternate Award Process. Solicitation agent's discretion. As additional qualified
service providers become available they will be considered for contracts to serve new
county patients.
Cost Savings and Other Benefits. This class of special procurements currently is
contained in the County's contracting code. Also, the County currently has several
service providers under contract and these individuals help maintain a consistent and
customized treatment regimen for their patients. Subjecting this unique service to a
competitive solicitation process would likely be disruptive to the treatment being
delivered to such patients.
Additional Considerations. This class of special procurements has been the subject of a
class exemption and is currently contained in the County's contracting code.
2.37.080E - Design/build and CM/GC contracts.
Alternate Award Process. Requires the use of formal, advertised request for proposals.
Cost Savings and Other Benefits. Award of Design/Build or 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 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. In the case of CM/GC contracts, the construction manager must provide design
advice and the experience, management skills and efficiency of the construction manager
are essential qualities than cannot be evaluated on a price basis.
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 County has never awarded a design/build or CNVGC contract under
an invitation to bid. The County is not aware of any other state or federal agency that
awards design/build or CNVGC contracts under an invitation to bid.
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2.37.110 — Surplus Property.
Alternate Award Process. Solicitation agent's discretion.
Cost Savings and Other Benefits.
Avoids unnecessary solicitation expense by allowing solicitation agent to
determine whether cost of solicitation is justified by value of surplus property.
Allows purchasing agent to establish programs for donation to charitable
organizations.
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 to large to have this class of contracts governed by a single
solicitation method
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