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5.34.830 Findings, Notice and Hearing.

City Code Section

(Amended by Ordinance Nos. 181547, 185898 and 187373, effective October 14, 2015.)

A.  The City Council may by ordinance exempt a Contract from the requirements of Competitive Bidding if it makes the following findings:

1.  It is unlikely that the exemption will encourage favoritism in the Awarding of Public Improvement Contracts or substantially diminish competition for Public Improvement Contracts as further described in Subsection 5.34.830 F.; and

2.  The exemption will likely result in substantial costs savings and other substantial benefits to the City in accordance with ORS 279C.335(2)(b).   As set forth in ORS 279C.335(2)(b)A-N and Subsection 5.34.830 D. below, if a particular factor has no application whatsoever to the particular Public Improvement Contract or class of Public Improvement Contracts then it is not required to address the factor other than to state that the factor has no application;  or

3.  If the Public Improvement relate to the operation, maintenance or construction of highways, bridges and other transportation facilities, that the exemption will result in substantial cost savings to the City or to the public. 

4.  As an alternative to the findings regarding substantial cost savings, the City may make a finding that identifies the project as a pilot project for which the City intends to determine whether the use of the Alternate Contracting Method actually results in substantial cost savings to the City, or, if it is for a Public Improvement described in Subsection 5.34.830 A.3. above, to the public, provided the City has not previously used the proposed Alternate Contracting Method.  Nevertheless, findings are still required in accordance with ORS 279C.335(2)(a).

B.  The City council may consider the type, cost and amount of the Contract the number of Persons available to bid and other such factors as may be deemed appropriate in declaring the exemption.

C.  Findings supporting a competitive bidding exemption must describe with specificity the Alternative Contracting Method to be used in lieu of competitive bidding, including, but not limited to, whether a one step (Request for Proposals) or two step (beginning with Requests for Qualifications) solicitation process will be utilized.  The Findings may also describe anticipated characteristics or features of the resulting Public Improvement Contract.  However, the purpose of an exemption from competitive bidding is limited to a determination of the Procurement method.  Any unnecessary or incidental descriptions of the specific details of the anticipated Contract within the supporting Findings are not binding upon the City.  The parameters of the Public Improvement Contract are those characteristics or specifics that are announced in the Solicitation Document.  The representations in and the accuracy of the findings, including any general description of the resulting public improvement contract, are the bases for approving the findings and granting the exception.  The findings may describe the anticipated features of the resulting public improvement contract, but the final parameters of the contract are those characteristics or specifics announced in the solicitation document.

D.  The City Council shall require and approve additional findings in the following areas in order to declare the exemption:

1.  How many persons are available to bid;

2.  The construction budget and the projected operating costs for the completed Public Improvement;

3.  Public benefits that may result from granting the exemption;

4.  Whether value engineering techniques may decrease the cost of the Public Improvement;

5.  The cost and availability of specialized expertise that is necessary for the Public Improvement;

6.  Any likely increases in public safety;

7.  Whether granting the exemption may reduce risks to the City or the public that are related to the Public Improvement

8.  Whether granting the exemption will affect the sources of funding for the Public Improvement;

9.  Whether granting the exemption will better enable the City to control the impact that market conditions may have on the cost of and time necessary to complete the Public Improvement;

10.  Whether granting the exemption will better enable the City to address the size and technical complexity of the Public Improvement;

11.  Whether the Public Improvement involves new construction or renovates or remodels an existing structure;

12.  Whether the Public Improvement will be occupied or unoccupied during construction;

13.  Whether the Public Improvement will require a single phase of construction work or multiple phases of construction work to address specific project conditions; and

14.  Whether the City has, or has retained under contract, and will use City personnel, consultants and legal counsel that have necessary expertise and substantial experience in Alternative Contracting Methods to assist in developing the Alternative Contracting Methods that the City will use to award the Public Improvement contract and to help negotiate, administer and enforce the terms of the Public Improvement Contract.   To the extent applicable, if a particular factor has no application whatsoever to the particular Public Improvement Contract or class of Public Improvement Contracts, the City does not need to consider that factor, and the City is not required to address the factor, other than to state why the factor has no application whatsoever to the particular Public Improvement Contract or class of Public Improvement Contracts.

E.  The City shall hold a public hearing before final adoption of the findings and a declaration of the exemption.  Notification of the public hearing shall be published in at least one trade newspaper of general statewide circulation a minimum of 14 Days before the hearing; 

1.  The Notice shall state that the public hearing is for the purpose of taking comments on the City’s draft findings for an exemption from Competitive Bidding.  At the time of the notice, copies of the draft findings shall be made available to the public.

2.  At the hearing, the City shall offer an opportunity for any interested persons to appear and present comment;

3.  Notice of the hearing may be published simultaneously with the City’s Solicitation of contractors for the alternative public contracting method when the City is required to act promptly due to circumstances beyond the City’s control that do not constitute an Emergency as long as responses to the Solicitation are due at least five (5) Days after the meeting and approval of the findings;

F.  Addressing Cost Savings. Accordingly, when the Contract or class of Contracts under consideration for an exemption contemplates the use of Alternative Contracting Methods, the "substantial cost savings and other substantial benefits" requirement may be addressed by a combination of:

1.  Specified Findings that address the factors and other information specifically identified by statute, including, but not limited to, an analysis or reasonable forecast of present and future cost savings and other substantial benefits; and

2.  Additional Findings that address industry practices, surveys, trends, past experiences, evaluations of completed projects required by ORS 279C.355 and related information regarding the expected benefits and drawbacks of particular Alternative Contracting Methods. To the extent practicable, such Findings should relate back to the specific characteristics of the project or projects at issue in the exemption request.

G.  Favoritism and Competition. The criteria at ORS 279C.335(2)(a) that it is "unlikely" that the exemption will "encourage favoritism" or "substantially diminish competition" may be addressed in contemplating the use of Alternative Contracting Methods by specifying the manner in which an RFP process will be utilized, that the Procurement will be formally advertised, competition will be encouraged, and Award made based upon identified selection criteria.

H.  Class Exemptions.

1.  In making the findings supporting a class exemption the City shall clearly identify “class” with respect to its defining characteristics pursuant to the requirements of ORS 279C.335(3) as indicated below: 

a.  The class cannot be based on a single characteristic or factor, so that the City directly or indirectly creates a class (e.g., using the CM/GC Method for all City construction projects, unidentified future construction projects of a particular work category, or all construction projects from a particular funding source such as the sale of bonds); and

b.  The class must include a combination of factors to be defined by the City through characteristics that reasonably relate to the exemption criteria, and must reflect a detailed evaluation of those characteristics so that the class is defined in a limited way that effectively meets the City’s objectives while allowing for impartial and open competition and protecting the integrity of the exemption process (i.e., a series of renovation projects that involve renovations for a common purpose, require completion on a related schedule to avoid unnecessary disruption of operations, share common characteristics such as historic building considerations, presence of asbestos or other hazardous substances, or the presence of staff during construction, or otherwise possess characteristics that meet the requirements).

2.  The following classes of Contracts are hereby exempt from the Competitive low Bidding requirements of this Chapter:

a.  Contract Amendments.  Contract amendments, pursuant to the authority granted by Subsection 5.34.020 C., and provided that the original Contract was executed in accordance with this chapter;

b.  Tenant improvements.  Tenant Improvements on City owned property are exempt from the requirements of Competitive low Bidding, but may be subject to other provisions of this Chapter or ORS 279C. Tenant improvements are exempt when:

(1)  The improvements are paid for in part, or in whole, by the tenant;

(2)  The improvements are primarily for the tenant’s benefit; and

(3)  The tenant hires the Contractor to perform the Work, whether or not a competitive process is used by the tenant.

c.   Deficiency Corrections/Contractor on site.   The City may hire a private Contractor to perform Work if:

(1)  The City finds that a Contractor hired by a private developer or Person is at or near the site where City Work needs to be performed and the cost proposed by the private Contractor is reasonable and the cost of the Work will be less than $25,000; or

(2)  The City finds that a Contractor hired by the City is at or near the site where City Work needs to be performed; and

(a)  The new Work is not within the Scope the original Contract and was not anticipated at the time that the original Contract was Awarded; and

(b)  If the original Contract was less than $25,000 the new work does not cause the total payment to the Contractor to exceed $25,000; or

(c)  If the original Contract was more than $25,000, the new Work does increase the total amount paid to the Contractor by more than $50,000.