(Amended by Ordinance Nos. 183445, 185065, 185898 and 189878, effective March 4, 2020.)
A. The City may procure Goods and Services by Competitive Sealed Proposals as set forth in ORS 279B.060 and this rule. The City shall use a Request for Proposal to initiate a competitive sealed Proposal Solicitation. The Request for Proposal must contain the information required by ORS 279B.060(2) and Paragraph B. of this rule. The City shall provide Public Notice of the Competitive Sealed Proposal Solicitation as provided in Section 5.33.300.
B. Mandatory provisions in RFP Solicitation Documents. The RFP must include the following:
1. General Information.
a. A time, date and location when the sealed Proposals must be submitted and received;
b. The name and title of the person designated for the receipt of Proposals and the person designated by the City as the contact person for the Procurement, if different;
c. A Procurement description;
d. A time, date, and place that Prequalification applications, if any, must be filed and the classes of Work, if any, for which Proposers must be prequalified in accordance with ORS 279B.100 and Section 5.33.510;
e. A statement that the City may cancel the Procurement or reject any or all Proposals in accordance with ORS 279B.100 and Section 5.33.645;
f. A statement that requires the Contractor or Subcontractor to possess an asbestos abatement license, if required under ORS 468A.710;
g. All Contractual terms and conditions applicable to the Procurement, including warranties and bonding requirements, if necessary. If the City intends to allow discussions or negotiations regarding terms and conditions it must either specify the terms and conditions subject to negotiation or the subject matter reasonably related to the terms and conditions that it will negotiate;
h. Notice of any pre-Offer conference as follows:
(1) The time, date and location of any pre-Offer conference; and
(2) Whether attendance at the conference will be mandatory or voluntary; and
(3) That statements made by the City’s representatives at the conference or elsewhere are not binding upon the City unless confirmed by Written Addendum;
i. The form and submission of Offers and any other special information, (e.g., whether Offers may be submitted by Electronic means);
j. The scheduled Closing;
k. The location where the Specifications for the Goods or Services may be reviewed;
l. Contractor’s certification of nondiscrimination in obtaining required Subcontractors in accordance with Section 5.33.075; and
m. How the City will notify Offerors of Addenda and how the City will make Addenda available.
n. The successful proposer moving forward from the solicitation phase to the contract phase will be required to be in compliance with all City contracting requirements;
o. If the City intends to Award Contracts to more than one Proposer, the City must identify in the Solicitation Document the manner in which it will determine the number of Contracts it will Award. The criteria shall require the City to purchase the Goods and Services considered most advantageous to the City available from the multiple Contracts;
2. City Need to Purchase. The character of the Goods or Services the City is purchasing including, if applicable, a description of the acquisition, Specifications, delivery or performance schedule, inspection and acceptance requirements. As required by ORS 279B.060(2)(c) the City’s description of its need to purchase must:
a. Identify the scope of the work to be performed under the resulting Contract, if the City awards one;
b. Outline the anticipated duties of the Contractor under any resulting Contract;
c. Establish the expectations for the Contractor’s performance of any resulting contract; and
d. Unless the contractor under any resulting Contract will provide architectural, engineering, photogrammetric mapping, transportation, planning or land surveying services, or related services that are subject to ORS 289C.100 to 279C.125, or the City for Good Cause specifies otherwise, the scope of work must require the Contractor to meet the highest standards prevalent in the industry or business most closely involved in providing the Goods or Services that the City is purchasing.
3. Proposal and Evaluation process.
a. The anticipated Solicitation schedule, deadlines, protest process, and evaluation process, if any;
b. The City shall set forth selection criteria in the Solicitation Document in accordance with the requirements of Section 5.33.210. Evaluation factors need not be precise predictors of actual future costs and performance, but to the extent possible, such factors shall be reasonable estimates based on information available to the City;
c. If the City’s solicitation process calls for the City to establish a Competitive Range, the City shall generally describe, in the Solicitation Document, the criteria or parameters the City will apply to determine the Competitive Range. The City may increase or decrease the number of Proposers in the Competitive Range in accordance with Subsection 5.33.211 F.1.b.
4. Applicable preferences, including those described in ORS 279A.120, ORS 279A.125(2) and ORS 279A.128 and Sections 5.33.080 and 5.33.085.
5. All Contractual terms and conditions in the form of Contract provisions the City determines are applicable to the Procurement. The City’s determination of contractual terms and conditions that are applicable to the Procurement may take into consideration, as authorized by ORS 279B.060(3), those contractual terms and conditions the City will not include in the Request for Proposal because the City either will reserve them for negotiation, or will request Proposers to offer or suggest those terms or conditions.
6. As required by ORS 279B.060(2)(h), the Contract terms and conditions must specify the consequences of the Contractor’s failure to perform the scope of work or to meet the performance standards established by the resulting contract. Those consequences may include, but are not limited to:
a. The City’s reduction or withholding of payment under the Contract;
b. The City’s right to require the contractor to perform, at the contractor’s expense, any additional work necessary to perform the statement of work or to meet the performance standards established by the resulting Contract; and
c. The City’s rights, which the City may assert individually or in combination, to declare a default of the resulting contract, to terminate the resulting Contract, and to seek damages and other relief available under the resulting Contractor or applicable law.
7. The City may include the applicable contract terms and conditions in the form of Contract provisions, or legal concepts to be included in the resulting Contract. Further, the City may specify that it will include or use Proposers’ terms and conditions that have been pre-negotiated, but the City may only include those terms and conditions in the resulting Contract to the extent those terms and conditions do not materially conflict with the applicable contractual terms and conditions. The City shall not agree to any Proposer’s terms and conditions that were expressly rejected in a solicitation protest filed by the Proposer.
8. For multiple Award Contracts the City may enter into Contracts with different terms and conditions with each Contractor to the extent those terms and conditions do not materially conflict with the applicable contractual terms and conditions. The City shall not agree to any Proposer’s terms and conditions that were expressly rejected in a solicitation protest filed by the Proposer.
C. Good Cause. For the purposes of this rule, “Good Cause” means a reasonable explanation for not requiring Contractor to meet the highest standards prevalent in the industry or business most closely involved in providing the Goods or Services under the Contract, and may include an explanation of circumstances that support a finding that the requirement would unreasonably limit competition or is not in the best interest of the City. The City shall document in the Procurement file the basis for the determination of Good Cause for specifying otherwise. The City will have Good Cause to specify otherwise when the City determines:
1. The purpose to which the Goods or Services will be used does not justify a requirement that the Contractor meet the highest prevalent standards in performing the contract;
2. Imposing express technical, standard, dimensional or mathematical specifications will better ensure that the Goods or Services will be compatible with or will operate efficiently or effectively with components, equipment, parts, Services or information technology including hardware, Services or software with which the Goods or Services will be used, integrated, or coordinated;
3. The circumstances of the industry or business that provides the Goods or Services are sufficiently volatile in terms of innovation or evaluation of products, performance techniques, scientific developments, that a reliable highest prevalent standard does not exist or has not been developed.
4. That other circumstances exist in which City’s interest in achieving economy, efficiency, compatibility or availability in the procurement of the Goods or Services reasonably outweighs the City’s practical need for the highest prevalent standard if the applicable or closest industry or business that supplies the Goods or Services to be delivered under the resulting Contract.