5.33.220 Special Procurements.

City Code Section

(Amended by Ordinances 181547, 183445, 184403, 184404, 185065, 185898, 187373 and 189878, effective March 4, 2020.)

  1. A.  The City may Award a Contract as a Special Procurement pursuant to the requirements of this section, which permits class Special Procurements.  Such Procurements allow the City to enter into a series of Contracts over time pursuant to the authorization provided in regard to the Special Procurement and without necessarily following the requirements of Competitive Sealed Bidding, Competitive Sealed Proposals or Intermediate Procurements.
  2. B.  For purposes of Section 5.33.220 the following definitions are applicable:
    1. 1.  “Class Special Procurement” means a contracting procedure that differs from the procedures described in Sections 5.33.180, 5.33.190, 5.33.200 and 5.33.210 and is for the purpose of entering into a series of contracts over time or for multiple projects.
    2. 2.  “Contract-Specific Special Procurement” means a contracting procedure that differs from the procedures described in Sections 5.33.180, 5.33.190, 5.33.200 and 5.33.210 and is for the purpose of entering into a single Contract or a number of related Contracts on a one-time basis or for a single project.
    3. 3.  “Special Procurement” means, unless the context requires otherwise, a class special Procurement, a contract-specific special Procurement or both.
  3. C.  The City Council, acting as the Local Contract Review Board may approve a special procurement if it finds that the use of a special procurement or an alternative procedure prescribed by the Council:
    1. 1.  Is unlikely to encourage favoritism in the award of public contracts or to substantially diminish competition for public contracts; and
    2. 2.  Is reasonably expected to result in substantial cost savings to the City or to the public; or
    3. 3.  Otherwise substantially promotes the public interest in a manner that could not practicably be realized by complying with the requirements that are applicable under ORS 279B.055, 279B.060, 279B.070 or under the City Rule found in Chapter 5.33.
  4. D.  The City Council declares the following as classes of Special Procurements:
    1. 1.  Manufacturer Direct Supplies:  The City may purchase goods directly from a manufacturer if the cost from the manufacturer is the same or less than the cost the manufacturer charges to its distributor(s).
    2. 2.  Advertisements:  Except as provided by City Charter Section 8-101, the City may purchase advertising in newspapers and Written publications, web-based Internet sites and other electronic formats.
    3. 3.  Copyrighted Materials:  The City may purchase copyrighted materials where there is only one known supplier available for such goods.  This includes, but is not limited to, new books, workbooks, periodicals, subscriptions, curriculum materials, reference materials, audio and visual media, and non-mass marketed software from a particular publisher or its designated distributor.
    4. 4.  Financial Products:  The City may directly purchase financial products such as bond insurance, surety bonds for City bond reserves and liquidity facilities such as letters of lines or credit.  The City may pay fees associated with such transactions, including, but not limited to, registrar, paying agent, and escrow agent fees and fees associated with outstanding debt issues.
    5. 5.  Employee Benefit Contracts:  Contracts relating to employee benefits may be Awarded directly to a Contractor after the City obtains a consultant pursuant to Chapter 5.68 to conduct a competitive process to acquire such contractors.  Such contracts include administrators of employee Flexible Spending Account Administration and Medical Claims Third Party Administration.  The City will hire a consultant to advise it on firms available to provide the Work and the consultant is authorized to solicit firms pursuant to a Request for Proposal process as well as assist the City in placing advertisements in specific publications likely to reach the attention of such contractors or consultants.  The City may then negotiate or enter into the Contract that appears most Advantageous to the City without further advertisement or issuance of its own Request for Proposals.
    6. 6.  Insurance Contracts:  Contracts for insurance, may be Awarded directly to an insurer after the City obtains Proposals from an insurance consultant.  The consultant shall be selected pursuant to Chapter 5.68.  Among the services to be provided by the consultant is the securing of competitive Proposals from insurance carriers for all coverages for which the insurance consultant is given responsibility and advice to the City about the costs and benefits of the various Proposals.  The City may then negotiate or enter into the insurance Contract that appears most Advantageous to the City without advertisement or issuance of its own Request for Proposals.
    7. 7.  Purchase of Used Personal Property or Equipment:  The City may directly purchase used personal property and equipment.  Used property and used equipment is property or equipment that has been placed in use by a previous owner or user for a period of time, and which is recognized in the relevant trade or industry, if there is one, as qualifying the personal property or equipment as “used”.  Used personal property or equipment generally does not include property or equipment if the City was the previous user, whether under a lease, as part of a demonstration, trial or pilot project or similar arrangement.
    8. 8.  Hazardous Material Removal and Oil Clean-up.  The City may directly purchase services to remove or clean up hazardous material or oil from any vendor when ordered to do so by the Oregon Department of Environmental Quality pursuant to its authority under ORS Chapter 466.  In doing so, the following conditions apply:
      1. a.  To the extent reasonable under the circumstances, encourage competition by attempting to obtain informal price quotations or Proposals from potential suppliers of Goods and Services;
      2. b.  The Bureau responsible for managing or coordinating the clean-up shall submit a Written description of the circumstances that require it and a copy of the DEQ order for the cleanup to the Procurement Services together with a requisition authorizing the Contract.
      3. c.  Procurement Services 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
      4. d.  The timeline for cleanup does not permit the use of intermediate Procurement procedures.
    9. 9.  Amendments to Contracts and Price Agreements:  The City may execute Contract amendments, as follows:
      1. a.  An original valid Contract exists between the parties;
      2. 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 Bureau seeking the amendment; and
      3. c.  The Solicitation Document provided for such amendments; or
      4. d.  Emergency: The original Contract was let pursuant to a declaration of Emergency, in accordance with Section 5.33.130; or
      5. 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 or were enacted or amended after submission of the successful Bid or Proposal.
    10. 10.  Renegotiations of Existing Contracts with Incumbent Contractors.
      1. a.  Authorization.  The City may renegotiate and amend existing Contracts with incumbent Contractors only if it is in the best interest of the City and has the approval of the Chief Procurement Officer prior to negotiation.
      2. b.  Process and Criteria.  The City may renegotiate various items of the Contract, including but not limited to: price, term, delivery and shipping, order size, item substitutions, warranties, discounts, on-line ordering systems, price adjustments, product availability, product quality, and reporting requirements.  The City must meet the following conditions in its Renegotiations with incumbent Contractors:
        1. (1)  Favorable Result.  The City must determine that, with all things considered, the renegotiated Contract is at least as favorable to the City as the Original Contract and document this in the Procurement File.  For example, the City and the Contractor may adjust terms and conditions within the Original Contract to meet different needs;
        2. (2)  Within the Scope.  The Goods and Services provided under the renegotiated Contract must be reasonably related to the Original Contract’s Solicitation.  For example, the City may accept functionally equivalent substitutes for any Goods and Services in the Original Contract’s Solicitation.
        3. (3)  Optional Term or Condition.  If a Contractor offered to the City during the original Solicitation a term or condition that was rejected at that time, the City may not renegotiate for a lower price based on this rejected term or condition as a mandatory term or condition in the renegotiated Contract.  If, however, a Contractor offers a lower price pursuant to a rejected term or condition without additional consideration from the City and as only an option to the City, then the City may accept the option of a lower price under the rejected term or condition.  For example, if the City initially rejected a Contractor’s proposed condition that the price required a minimum order, any renegotiated Contract may not mandate this condition; but the City may agree to the option to order lesser amounts or receive a reduced price based upon a minimum order; and
        4. (4)  Market.  In order to avoid encouraging favoritism or diminishing competition, the City may research the accepted competitive practices and expectations of Offerors within the market for the specific Contract(s) or Classes of Contracts to be renegotiated thereby establishing a market norm.  If the City determines that a market norm exists, then the City must document its results in the Procurement File. Based upon this information, the City shall confirm that, if the City follows the market norm, favoritism is not likely to be encouraged, competition is not likely to be diminished, and substantial cost savings may be realized.  Under no condition may the City accept or follow any market norm that likely encourages favoritism or diminishes competition, even if it is accepted or expected in the market.
    11. 11.  Reverse Auctions, pursuant to the process established in Section 5.33.350.
    12. 12.  Software and Hardware Maintenance, Licenses, Subscriptions and Upgrades.  The City may directly enter into a Contract or renew existing Contracts for information technology hardware or software maintenance, licenses, subscriptions and upgrades without Competitive Solicitation where the maintenance, upgrades, subscriptions and licenses are either available from only one source or, if available from more than one provider, are obtained from the City’s current provider in order to utilize the pre-existing knowledge of the vendor regarding the specifics of the City’s hardware or software system.  The City shall document in the Procurement File the facts that justify either that maintenance, license(s), subscriptions and upgrades were available from only one source or, if from more than one source, from the current vendor.
    13. 13.  Equipment Maintenance, Repair and Overhaul.  The City may enter into a Contract for equipment maintenance, repair and/or overhaul without competitive bidding and without obtaining competitive quotations if the extent of repair services, parts, maintenance or overhaul is unknown and cost cannot be determined without preliminary dismantling or testing.
    14. 14.  Price-regulated goods and services, utilities and utility related services.  The City may directly purchase, without a competitive solicitation process, utility services, repair, equipment and/or maintenance work, where the rate or price for such goods and services is established by federal, state, or local regulatory authority or when the services can be provided only by a specific utility.
    15. 15.  Goods, Services or Equipment Required by a Federal Grant Agreements.  The City may directly purchase, without a competitive solicitation process, goods, services or equipment when they are required to be purchased from a specific source or when a specific brand name is required and no competition is otherwise available.
    16. 16.  Membership Dues.  The City may directly purchase, without a competitive solicitation process, dues or memberships in professional or community organizations for the benefit of the City.
    17. 17.  US Postal Service.  The City may directly purchase without a competitive solicitation process, permits and postage meters, pre-stamped postcards, establish on-going postage accounts, etc. from the US Postal Service.
    18. 18.  Services related to legal advice.  The City may directly purchase, without a competitive solicitation process, services related to the provision of legal advice to the City:
      1. a.  When a Contractor or Consultant, such as a court reporter or copy service, has been selected by another person and the City must bear a portion of the cost in order to receive the benefit of the contractor’s work, such as deposition transcripts or photocopies; or
      2. b.  When the Contractor or Consultant, including, but not limited to a mediator, arbitrator, referee or court appointed individual, is selected either by a court, or by joint agreement between the City and another person or persons, in an effort to resolve a claim or dispute that has been or will be asserted by or against the City, regardless of whether litigation has been filed.
    19. 19.  Seminar, training registration and conference fees.  The City may directly purchase, without a competitive solicitation process, seminar registrations and training session fees for attendance at seminars, conferences and training courses hosted by outside entities.
    20. 20.  Event sponsorship agreements.  The City may directly pay to sponsor an event, whether or not the City receives goods or services in return for its payment.
    21. 21.  Stormwater Improvements.  The City may enter into a Contract for stormwater improvements or watershed restoration, or both, without obtaining competitive solicitations if all or a significant portion of the improvements or restoration that the City is funding will be performed
      1. a.  on private property; and
      2. b.  by the property owner or a contractor hired by the property owner.
    22. 22.  Performing Artists.  The City may enter into a Contract for performance art whether vocal, instrumental, or visual required by the City to provide a paid performance of their work for an audience determined by the City.
    23. 23.  Honoraria.  The City may make a one-time payment or gratuity granted in recognition of a special service in which propriety or a competitive selection process is not feasible and made without the service provider recognizing themselves as having any liability or legal obligation for services.
  5. E.  Notice.  The City shall give public notice of the City Council’s approval of an Individual or Class Special Procurement on its website as provided in Subsection 5.33.300 A.3.  The public notice shall describe the Goods or Services or class of Goods or Services to be acquired through the Special Procurement. The City shall give such public notice of the approval of a Special Procurement at least seven (7) Days before Award of the Contract.  If the Special Procurement leads to a Solicitation Document, then the City will post a Notice of Intent to Award the contract pursuant to Section 5.33.650.
  6. F.  If the City plans to conduct a competitive special Procurement, it shall award the contract to the Offeror the City determines to be the most advantageous to the City and thereafter give notice of intent to Award to all prequalified Offerors who sought the Award of a Contract in the manner provided for competitive sealed Bids.