Title 5 Revenue and Finance

1. A.  The definitions contained in Sections 5.33.010 and 5.33.140 are applicable to Chapter 5.34.
   1. 1.  “Change Order” means a written agreement between the City and Contractor that alters the specifications of the Contract.
   2. 2.  “Conduct Disqualification” means a Disqualification pursuant to ORS 279C.440.
   3. 3.  “Disqualification” means the preclusion, suspending or sanctioning of a Person from contracting with the City for a period of time in accordance with Section 5.34.530 or Section 5.34.535.   Disqualification may be a Conduct Disqualification, DBE Disqualification or COBID Certified Firm Disqualification.
   4. 4.  “Foreign Contractor” means a Contractor that is not domiciled in or registered to do business in the State of Oregon.
   5. 5.  “Notice” means any of the alternative forms of public announcement of Procurements, as described in Section 5.34.310.
   6. 6.  “Work” means all services, material, labor, tools, equipment, and all appliances, machinery, systems, transportation, and appurtenances necessary to perform and complete the Contract, and such additional items not specifically indicated or described which can be reasonably inferred as belonging to the item described or indicated and as required by good practice to provide a complete, functioning, and satisfactory system or structure.

1. A.  Public improvements.  Chapter 5.34 applies to the Award of Contracts for public improvements and construction services for public improvements.   Contracts for emergency work are governed by Chapter 5.33 and ORS 279B.080.
2. B.  Contracts for minor alteration, ordinary repair or maintenance of public improvements or Price Agreements, as well as other Contracts for construction services that are not defined as a public improvement under Section 5.33.010 shall be Awarded and executed pursuant to Chapter 5.33 and ORS 279B and not this Chapter.  However, some portions of ORS 279C and this chapter may still be applicable to the resulting Contracts.
3. C.  Authority and Ethics
   1. 1.  The Authority of the City Council as the Local Contract Review Board is the same in regard to Chapter 5.34 as it is for Chapter 5.33, including the authorization of Contract amendments.
   2. 2.  The Authority of the Chief Procurement Officer is the same for Chapter 5.34 in regard to public improvement and construction services Contracts as it is for Goods and Services as set forth in Chapter 5.33.
   3. 3.  The authority of Bureau and Office directors to authorize and execute Contracts and Contract amendments is the same in regard to Chapter 5.34 as it is in Chapter 5.33.
   4. 4.  The rules stated in Section 5.33.070 regarding the purchase of Goods and Services from City employees shall also apply to Public Improvements covered by Chapter 5.34.

1. A.  Pursuant to ORS 279A.100, the City may limit competition on Contracts to carry out affirmative action policies, in accordance with policies and procedures established by the City.
2. B.  Pursuant to ORS 279A.105, the City may require a Contractor to subcontract some part of a Contract to, or to obtain materials to be used in performing the Contract from:
   1. 1.    A business enterprise that is certified under ORS 200.055 as a COBID Certified Firm; or
   2. 2.    A business enterprise that is:
      1. a.  Certified under ORS 200.055 as a COBID Certified Firm; and
      2. b.  Is located in or draws its workforce from economically distressed areas, as designated by the Oregon Economic and Community Development Department (OECDD); or
      3. c.  Owned or controlled by a disabled veteran, as defined in ORS 408.225.
3. C.  A Subcontractor certified under ORS 200.055 as a COBID Certified Firm is located in or draws its workforce from economically distressed areas if:
   1. 1.  Its principal place of business is located in an area designated as economically distressed by the OECDD pursuant to administrative rules adopted by the OECDD; or
   2. 2.  The Contractor certifies in Writing to the City that a substantial number of the Subcontractor’s employees or Subcontractors that will manufacture the Goods or complete the Services under the Contract reside in an area designated as economically distressed by the OECDD pursuant to administrative rules adopted by OECDD. For the purposes of making the foregoing determination, the City shall determine in each particular instance what proportion of a Contractor’s Subcontractor’s employees or Subcontractors constitute a substantial number.
   3. 3.  The City shall include in each Solicitation Document a requirement that Offerors certify in their Offers in a form prescribed by the City, that the Offeror has not and will not discriminate against a Subcontractor in the Awarding of a Subcontract because the Subcontractor is a COBID Certified Firm  under ORS 200.055.
4. D.  The City may sanction a Person from consideration of Award of the City’s Contracts under ORS 200.065 or ORS 200.075 in accordance with Section 5.34.535 and these rules.

1. Pursuant to ORS 279C.320, Public Contracts for construction Services that are not Public Improvement Contracts, may be procured and amended as general trade Services under the provisions of ORS Chapter 279B rather than under the provisions of ORS Chapter 279C and Chapter 5.34.

1. The City shall Award a Public Contract for Public Improvements pursuant to Chapter 5.34 using any method authorized by state law or City Code. Such different methods are called methods of “source selection.”  Source selection methods for Public Improvements include:
2. A.  Emergency Procurements;
3. B.  Substitution of Contractors by a Surety;
4. C.  Joint Cooperative Procurements;
5. D.  Competitive Quotations;
6. E.  Competitive Bidding; and 
7. F.  Alternative Contracting Methods found in Section 5.34.800 et seq.   Class exemptions are located in Subsection 5.34.830 H. while individual Contracts must be authorized by the City Council by ordinance.

1. A.  The City may Award a Contract as an Emergency Procurement without the use of competitive sealed Bidding or competitive sealed Proposals as authorized by ORS 279B.080 and Chapter 5.33 of this Code.  Emergency Procurement Contracts pursuant to a Proclamation of a State of Emergency or Disaster, however, are governed by Section 5.33.135.
2. B.  The Council or person authorizing the Emergency Procurement Contract shall document the nature of the Emergency and describe the method used for the selection of the particular Contractor.  The City shall encourage competition for Emergency Procurement Contracts to the extent reasonable under the circumstances.
3. C.  The Chief Procurement Officer may award, execute, amend, and terminate an Emergency Procurement Contract if the original value of the Emergency Procurement Contract is $500,000 or less with authorization from the Commissioner-in-Charge of the City Office, Bureau or Department.
4. D.  If the Chief Procurement Office or person to whom the powers of the Chief Procurement Officer have been delegated is unable to perform the duties of the Chief Procurement Officer position, the director of a City Office, Bureau or Department may award, execute, amend, and terminate an Emergency Procurement Contract if the original value of the Emergency Procurement Contract is $500,000 or less with authorization from the Commissioner-in-Charge of the City Office, Bureau or Department.
5. E.  A Commissioner-in-Charge of a City Office, Bureau or Department may award, execute, amend, and terminate an Emergency Procurement Contract subject to the following procedures over $500,000.
   1. 1.  The Commissioner-in-Charge shall immediately prepare an ordinance for City Council approval of the Emergency Procurement Contract at its next regularly scheduled session or as soon as possible thereafter.
   2. 2.  If City Council adopts the ordinance, the City will pay for the Work required by the Emergency Procurement Contract.  If City Council disapproves the ordinance, the City only will pay for Work performed prior to the date that City Council considered the ordinance for approval.  If presentation of the ordinance to City Council is delayed, the City will pay for Work performed prior to the time when the ordinance first was presented to City Council.
6. F.  All documentation of Emergency Procurement Contracts shall be sent to the Chief Procurement Officer for record keeping purposes.
7. G.  Emergency Procurement Contracts, whether or not signed by the Contractor, shall be deemed to contain a termination for convenience clause permitting the City to immediately terminate the Contract at its discretion and, unless the Contract was void, the City may pay the Contractor only for Work performed prior to the date of termination and the Contractor’s unavoidable costs incurred as a result of the termination.  The City shall not be liable for Contractor’s anticipated lost profits or consequential damages as a result of the termination.
8. H.  Pursuant to ORS 279C.380(4) and this rule, the Emergency Procurement Contract may also state that the City waives the requirement of furnishing a performance bond and payment bond for the Emergency Procurement Contract.  Waiving those bonding requirements does not affect the separate Public Works bond requirement for the benefit of the Bureau of Labor and Industries (BOLI) in enforcing prevailing wage rate and overtime payment requirements.  In addition, nothing herein shall prevent the Chief Procurement Officer or City Council from subsequently requesting such bonds from the Contractor after work begins.

1. If a Contractor provided a performance bond, the City may afford the Contractor's surety the opportunity to provide a substitute Contractor to complete performance of the Contract. A substitute Contractor shall perform all remaining Contract Work and comply with all terms and conditions of the Contract, including the provisions of the performance bond and the payment bond. Such substitute performance does not involve the Award of a new Contract and shall not be subject to the Competitive Procurement provisions of ORS Chapter 279C or these rules.

1. A.  The City may participate in, sponsor, conduct or administer Joint Cooperative Procurements for the acquisition of Public Improvements, provided that the Administering Contracting Agency’s Solicitation and Award process for the original Contract was an open and impartial Competitive process that used source selection methods substantially equivalent to those found in Chapter 5.34. 
2. B.  A Solicitation and Award process uses source selection methods substantially equivalent to those identified in ORS 279C and Chapter 5.34 if the Solicitation and Award process:
   1. 1.   Calls for Award of a Contract on the basis of a lowest Responsible Bidder or a lowest and best Bidder determination in the case of Competitive Bids, or on the basis of a determination of the Proposer whose Proposal is most Advantageous based on evaluation factors set forth in the Request for Proposals in the case of Competitive Proposals when permitted by an exemption established by the City Council;
   2. 2.   Does not permit the application of any geographic preference that is more favorable to Bidders or Proposers who reside in the jurisdiction or locality favored by the preference than the preferences provided in ORS 279A.120(2); and
   3. 3.   Uses reasonably clear and precise Specifications that promote suitability for the purposes intended and that reasonably encourage competition. 
3. C.   The City shall determine, in Writing, whether the Solicitation and Award process for an Original Contract arising out of a Cooperative Procurement for a Public improvement is substantially equivalent to those identified in ORS 279C and Chapter 5.34.  
4. D.   Protests.  Protests regarding the use of all types of cooperative Procurements shall be governed by the applicable provisions of Section 5.34.700 et seq.

1. A.    If the City is the Administering Contracting Agency, then:
   1. 1.   It may charge a fair and reasonable fee to Purchasing Contract Agencies that represent the excess costs of administering the Contract in light of the Purchasing Contracting Agencies use of that Contract; and
   2. 2.    Determine whether the Purchasing Contract Agency must enter into a Written agreement with it.
2. B.    If the City is a Purchasing Contracting Agency it is authorized to pay a fee to the Administering Contracting Agency that the Chief Procurement Officer determines is fair and reasonable in light of all the circumstances surrounding the Procurement, including the savings that may be obtained if a cooperative Procurement is used, the cost of the Procurement in relationship to the fee, and other factors as may be considered.  If a fee is paid, it will be borne by the Bureau or portion of the City on whose behalf the Procurement is being made.

1. The City shall solicit Bids for Public Improvement Contracts by Invitation to Bid ("ITB"), except:
2. A.  Contracts made with Qualified Nonprofit Agencies providing employment opportunities for disabled individuals, in which case the rules stated in Section 5.33.110 shall apply.
3. B.  Contracts, or classes of Contracts, exempted by the City Council pursuant to state law, including those stated in Section 5.34.830;
4. C.  A public improvement contract with a value of less than $5,000;
5. D.  Contracts not exceeding $100,000, if made under procedures for Competitive quotations pursuant to Section 5.34.160;
6. E.  Public improvement contracts Awarded as Emergency Contracts; 
7. F.  Energy Savings performance contracts entered into in accordance with Chapter 5.34; 
8. G.  Contracts where federal law overrides this Chapter;
9. H.  Contracts governed by ORS 279A.100 and Section 5.34.040 regarding affirmative action, and contracts identified in the Prime Contractor Development Program;
10. I.  Any other Contract that is not governed by ORS 279A, 279B and 279C; and
11. J.  Contracts exempted by the City Council acting as the Local Contract Review Board, from using an ITB process pursuant to ordinance, in which case the selection shall follow the rules set forth in Section 5.34.800 et seq. in regard to the alternative Contract method selected, unless the exemption authorizes a different method.

1. A.  Public Improvement Contracts estimated by the City not to exceed $100,000, may be Awarded through the requirements of this rule.
2. B.  All Solicitation Documents for public improvements anticipated to exceed $50,000 shall be in Writing and include the selection criteria to be utilized in selecting a Contractor and, if the criteria are not of equal value, their relative value or ranking.  The criteria may be limited to price or some combination of price, experience, specific expertise, availability, project understanding, Contractor capacity, responsibility and similar factors.
   1. 1.  Written requests shall include the Bureau of Labor and Industries (BOLI) provisions regarding the prevailing wage, if the estimated cost exceeds $50,000.
   2. 2.  If the estimated cost is less than $50,000, but all Offers exceed $50,000, then the Solicitation shall be cancelled and a new Solicitation Document, containing the BOLI provisions regarding prevailing wage, shall be included.
3. C.  Solicitation Document for public improvements estimated to be $50,000 or less can be made orally, provided the City seeks at least three competitive quotations, and keeps a Written record of the sources and amounts of the quotations received. If three quotations are not reasonably available, the City shall make a Written record of the effort made to obtain those quotations.
4. D.  The City shall Award the Contract to the prospective Contractor whose Offer will best serve the interests of the City, taking into account the announced selection criteria. If Award is not made to the Offeror offering the lowest price, the City shall make a Written record of the basis for Award.
5. E.  Intermediate level Public Improvement Contracts may be increased above the original amount of Award by Change Order within the limitations pursuant to Subsection 5.34.020 C.3.

1. A.  The Solicitation Document for a public improvement Contract shall include the following:
   1. 1.  Identification of the Public Improvement project, including the character of the Work, and applicable plans, Specifications and other Contract documents;
   2. 2.  Notice of any pre-Offer conference as follows:
      1. a.  The time, date and location of any pre-Offer conference;
      2. b.  Whether attendance at the conference will be mandatory or voluntary; and
      3. c.  That statements made by the City’s representatives at the conference are not binding upon the City unless confirmed by Written Addendum;
   3. 3.  The deadline for submitting mandatory Prequalification applications and the class or classes of Work for which Offerors must be Prequalified if Prequalification is a requirement;
   4. 4.  The name and title of the authorized City representative designated for receipt of Offers and contact representative (if different);
   5. 5.  Instructions and information concerning the form and submission of Offers, including the address of the location to which Offers must be delivered, any Bid or Proposal Security requirements, and any other required information or special information, e.g., whether Offers may be submitted by Electronic means (see Section 5.34.340 regarding Electronic Procurement);
   6. 6.  The time, date and place of Opening;
   7. 7.  The time and date of Closing after which the City will not accept Offers, which time shall be not less than five (5) Days after the date of the last publication of the advertisement, and may, in the sole discretion of the City, direct or permit the submission and receipt of bids by electronic means.  If the City is issuing an ITB that may result in a Public Improvement Contract with a value in excess of $100,000, the City shall designate a time of Closing consistent with the first-tier Subcontractor disclosure requirements of ORS 279C.370(1)(b) and Section 5.34.493. For timing issues relating to Addenda, see Section 5.34.430;
   8. 8.  The location where the Specifications for the Work may be reviewed;
   9. 9.  A statement that each Bidder to an ITB must identify whether the Bidder is a "Resident Bidder," as defined in Subsection 5.33.010 A.75.;
   10. 10.  If the Contract resulting from a Solicitation will be a Contract for a Public Work subject to ORS 279C.800 to 279C.870 or the Davis-Bacon Act (40 U.S.C.§ 3141 to 3148), or both the state and federal prevailing rates of wage, a statement that no Offer will be received or considered by the City unless the Offer contains a statement by the Offeror as a part of its Offer that "Contractor agrees to be bound by and will comply with the provisions of ORS 279.838 or ORS 279C.840 or 40 U.S.C.§ 3141 to 3148, or both";
   11. 11.  A statement that the City will not receive or consider an Offer for a Public Improvement Contract unless the Offeror is registered with the Construction Contractors Board, or is licensed by the State Landscape Contractors Board.
   12. 12.  Whether a Contractor or a Subcontractor under the Contract must be licensed under ORS 468A.720 regarding asbestos abatement projects;
   13. 13.  Contractor's certification of nondiscrimination in obtaining required Subcontractors in accordance with ORS 279A.110(4) and Section 5.34.040;
   14. 14.  How the City will notify Offerors of Addenda and how the City will make Addenda available (see Section 5.34.430); and
   15. 15.  When applicable, instructions and forms regarding First-Tier Subcontractor Disclosure requirements, as set forth in Section 5.34.493.
   16. 16.  A statement that the Offeror must obtain EEO certification and have a valid City business tax registration account, if required.
2. B.  The Solicitation Document shall also contain the following information about the evaluation process:
   1. 1.  A statement that the City may reject any Offer not in compliance with all prescribed Public Contracting procedures and requirements, and may reject for good cause all Offers upon the City’s finding that it is in the public interest to do so;
   2. 2.  The anticipated Solicitation schedule, deadlines, protest process and evaluation process, if any;
   3. 3.  Evaluation criteria, including the relative value applicable to each criterion, that the City will use to determine the Responsible Bidder with the lowest Responsive Bid (where Award is based solely on price) or the Responsible Proposer or Proposers with the best Responsive Proposal or Proposals (where use of Competitive Proposals is authorized), along with the process the City will use to determine acceptability of the Work;
      1. a.  If the Solicitation Document is an Invitation to Bid, the City shall set forth any special price evaluation factors in the Solicitation Document. Examples of such factors include, but are not limited to, conversion costs, transportation cost, volume weighing, trade-in allowances, cash discounts, depreciation allowances, cartage penalties, and ownership or life-cycle cost formulas. Price evaluation factors need not be precise predictors of actual future costs; but, to the extent possible, such evaluation factors shall be objective, reasonable estimates based upon information the City has available concerning future use;
      2. b.  If the Solicitation Document is a Request for Proposals, the City shall refer to the additional requirements of Section 5.34.850;
3. C.  The City shall include all Contract terms and conditions, including warranties, insurance and bonding requirements, that the City considers appropriate for the Public Improvement project.
4. D.  The City must include all applicable Contract provisions required by Oregon law as follows:
   1. 1.  Prompt payment to all Persons supplying labor or material; contributions to Industrial Accident Fund; liens and withholding taxes (ORS 279C.505(1)); and all provisions regarding accelerated or twice-monthly payment if required by the City’s Standard Construction Specifications;
   2. 2.  Demonstrate that an employee drug testing program is in place (ORS 279C.505(2));
   3. 3.  If the Contract calls for demolition Work described in ORS 279C.510(1), a condition requiring the Contractor to salvage or recycle construction and demolition debris, if feasible and cost-effective;
   4. 4.  If the Contract calls for lawn or landscape maintenance, a condition requiring the Contractor to compost or mulch yard waste material at an approved site, if feasible and cost effective (ORS 279C.510(2);
   5. 5.  Payment of claims by public officers (ORS 279C.515(1));
   6. 6.  Contractor and first-tier Subcontractor liability for late payment on Public Improvement Contracts pursuant to ORS 279C.515(2), including the rate of interest;
   7. 7.  A Person's right to file a complaint with the Construction Contractors Board for all Contracts related to a Public Improvement Contract  as provided in ORS 279C.515(3);
   8. 8.  Hours of labor in compliance with ORS 279C.520;
   9. 9.  Environmental and natural resources regulations (ORS 279C.525);
   10. 10.  Payment for medical care and attention to employees (ORS 279C.530(1));
   11. 11.  A Contract provision substantially as follows: "All employers, including Contractor, that employ subject workers who work under this Contract in the State of Oregon shall comply with ORS 656.017 and provide the required Workers' Compensation coverage, unless such employers are exempt under ORS 656.126. Contractor shall ensure that each of its Subcontractors complies with these requirements." (ORS 279C.530(2));
   12. 12.  Maximum hours, holidays and overtime (ORS 279C.540);
   13. 13.  Time limitation on claims for overtime (ORS 279C.545);
   14. 14.  Prevailing wage rates (ORS 279C.800 to 279C.870);
   15. 15.  Fee paid to BOLI (ORS 279C.830);
   16. 16.  BOLI Public Works Bond (ORS 279C.830(3));
   17. 17.  Retainage (ORS 279C.550 to 279C.570);
   18. 18.  Prompt payment policy, progress payments, rate of interest (ORS 279C.570);
   19. 19.  Contractor's relations with Subcontractors (ORS 279C.580);
   20. 20.  Notice of claim (ORS 279C.605);
   21. 21.  Contractor's certification of compliance with the Oregon tax laws in accordance with ORS 305.385; and
   22. 22.  Contractor's certification that all Subcontractors performing Work described in ORS 701.005(5) will be registered with the Construction Contractors Board. or licensed by the State Landscape Contractors Board in accordance with the Construction Contractor’s Licensing Act before the Subcontractors commence Work under the Contract.
5. E.  Unless otherwise provided in the Contract, the Contractor shall not assign, sell, dispose of, or transfer rights, nor delegate duties under the Contract, either in whole or in part, without the City’s prior Written consent, which must be approved as to form by the City Attorney’s Office. Unless approved in Writing and approved as to form, such consent shall not relieve the Contractor of any obligations under the Contract.  Any assignee or transferee shall be considered the agent of the Contractor and be bound to abide by all provisions of the Contract. If the City consents in Writing to an assignment, sale, disposal or transfer of the Contractor's rights or delegation of Contractor's duties, the Contractor and its surety, if any, shall remain liable to the City for complete performance of the Contract as if no such assignment, sale, disposal, transfer or delegation had occurred unless the City otherwise agrees in Writing.

1. A.  The City shall furnish “Notice” as set forth in Subsections 5.34.310 A.1. through 3. to a number of Persons sufficient for the purpose of fostering and promoting competition. The Notice shall indicate where, when, how and for how long the Solicitation Document may be obtained and generally describe the Public Improvement project or Work. The Notice may contain any other appropriate information. The City may charge a fee or require a deposit for the Solicitation Document. The City may furnish Notice using any method determined to foster and promote competition, including:
   1. 1.  Mailing Notice of the availability of Solicitation Documents to Persons that have expressed an interest in the City’s Procurements;
   2. 2.  Placing Notice on the Oregon Department of Administrative Services’ Electronic Procurement System known as “ORPIN”(Oregon Procurement Information Network) or a successor electronic System; or
   3. 3.  Placing Notice on the City’s Electronic Procurement System.
2. B.  Pursuant to ORS 279C.360 and this rule, the City shall advertise every Solicitation for competitive bids or competitive proposals for a Public Improvement Contract, unless the City Council has exempted the Solicitation from the advertisement requirement as part of a competitive bidding exemption under ORS 279C.335 and Section 5.34.820.
   1. 1.  Unless the City publishes by Electronic Advertisement as permitted by Subsection 5.34.310 B.2., the City shall publish the advertisement for Offers at least once in at least one newspaper of general circulation in the area where the Contract is to be performed and in as many additional issues and publications as the City may determine to be necessary or desirable to foster and promote competition.
   2. 2.  The City Council finds that publishing Notice Electronically is likely to be cost effective.  The City may publish by Electronic Advertisement if:
      1. a.  The City has published a Notice that it may publish future advertisements for Offers by Electronic Advertisement. The City shall publish such Notice weekly, for no less than four (4) consecutive weeks. The City Notice shall include the World Wide Web location (i.e., Uniform Resource Locator or URL) where the City will publish future Electronic Advertisements or alternatively, the Web location where the City will publish information on accessing the Electronic Advertisement via a Telnet application;
      2. b.  The City posts in its business office a Notice that the City will publish advertisements for Offers by Electronic Advertisement for no less than four consecutive weeks.  The Notice shall include the World Wide Web location (i.e., Uniform Resource Locator or URL) where the City publishes Electronic Advertisements or alternatively, the Web location where the City publishes information on accessing the Electronic Advertisement via Telnet; and
      3. c.  In addition to the City’s publication required under Subsection 5.34.310 B.2.a. or b., the City shall also publish an advertisement for Offers in at least one trade newspaper of general statewide circulation if the Contract is for a Public Improvement with an estimated cost in excess of $125,000.
      4. d.  All advertisements for Offers shall set forth:
         1. (1)  The Public Improvement project;
         2. (2)  The location where Contract terms, conditions and Specifications may be reviewed;
         3. (3)  The date that Persons must file applications for Prequalification under ORS 279C.340, if Prequalification is a requirement, and the class or classes of Work for which Persons must be Prequalified;
         4. (4)  The scheduled Closing, which shall not be less than five (5) Days after the date of the last publication of the advertisement;
         5. (5)  The name, title and address of the City Person authorized to receive Offers;
         6. (6)  The scheduled Opening; and
         7. (7)  If applicable, that the Contract is for a Public Work subject to ORS 279C.800 to 279C.870 or the Davis-Bacon Act (40 U.S.C. § 3141 to 3148).
3. C.  The City shall post a copy of each advertisement for Offers at Procurement Services.  An Offeror may obtain a copy of the advertisement for Offers upon request to the Bureau.

1. A.  Specification content is in the sole discretion of the City of Portland, subject to statutory restrictions on the use of brand names.  
2. B.   The City may consult with technical experts, suppliers, prospective contractors and representative of the industries with which the City will Contract.  The City shall take reasonable measure to ensure that no Person who prepares or assists in the preparation of Solicitation Documents, Specifications, plans or Scope of Work (collectively, “documents”), and that no business with which the Person is associated realizes a material competitive advantage that arises from the City’s use of those documents. 
3. C.  A “brand name or equal” Specification may be used when it is Advantageous to the City, because the brand name describes the standard of quality, performance, functionality and other characteristics of the product needed by the City.   The City’s determination of what constitutes a product that is equal or superior to the product specified is final.  Unless otherwise specified,  the use of a brand name shall mean “brand name or equal”.
4. D.  A “brand name” Specification may be used requiring a Contractor to provide a specific brand when the Chief Procurement Officer, or designee, makes the following findings:   
   1. 1.  The use of a brand name Specification is unlikely to encourage favoritism in the Awarding of a Public Contract or substantially diminish competition for Public Contracts: or
   2. 2.  The use of a brand name Specification would result in a substantial cost savings to the City; or
   3. 3.  There is only one manufacturer or seller of the product of the quality, performance or functionality required; or
   4. 4.  Efficient utilization of existing equipment, or supplies requires the acquisition of compatible equipment or supplies
5. E.  The City's use of a brand name specification is subject to protest and review only as provided in Section 5.34.720.

(Repealed by Ordinance 185898, effective March 4, 2020.)

1. A.  General. If the Public Improvement Contract has an estimated cost in excess of $125,000, the advertisement must be published in at least one trade newspaper of general statewide circulation, except in circumstances where the Chief Procurement Officer finds that Electronic Advertisements are likely to be cost effective.
2. B.  The City may post a notice of Intent to Award a Contract Electronically at least seven (7) Days before the Award of a Public Contract. 
3. C.  Required Factors.  In determining whether to authorize Electronic Bids or Proposals, the City shall consider factors such as:
   1. 1.  Anticipated Bid or Proposal size and volume;
   2. 2.  Whether there is an urgent need for the Work being procured;
   3. 3.  Frequency of price changes;
   4. 4.  Availability, reliability, speed, and capacity of the receiving Electronic equipment;
   5. 5.  Adequacy of administrative procedures and controls for receiving, identifying, recording, and safeguarding Electronic Bids or Proposals, and ensuring their timely delivery to the Bid or Proposal Opening location; and,
   6. 6.  The means and method for sealing or securing the transmitted documents to preserve the sealed requirement of competitive Procurement.
4. D.  Security.  If Bid or Proposal Security is required, Electronic submission shall not be authorized unless the City has provided another method for receipt of the security.
5. E.  Authorization; Contents of Solicitation Document.  Bids or Proposals may be submitted Electronically only if specifically authorized by the Solicitation Document.  If Electronic transmission is authorized, the City shall include provisions substantially similar to the following in the City’s Solicitation Document:
   1. 1.  Definition. Electronic Bid or Proposal, as used in this Solicitation Document, means a Bid or Proposal, modification of a Bid or Proposal, or withdrawal of a Bid or Proposal that is Electronically transmitted to and received by the City, in the manner specified in the Solicitation Document. 
   2. 2.  Timely Submission. Bidders or Proposers may submit Electronic Bids or Proposals in response to this Solicitation Document. The entire Electronic Bid or Proposal shall arrive at the place and by the time specified in the Solicitation Document.
   3. 3.   Rejection of Bids or Proposals. Electronic Bids or Proposals that fail to furnish required representations or information, that are contingent or that reject or take exception to any of the terms, conditions, and provisions of the Solicitation Document, may be rejected and excluded from consideration, as otherwise provided by this Chapter.
   4. 4.  Signatures. Electronic Bids or Proposals shall contain the required signatures.
   5. 5.  Request for Original. The City reserves the right to Award the Contract solely on the Electronic Bid or Proposal. However, if requested to do so by the City, the apparently successful Bidder or Proposer agrees to promptly submit the complete original signed Bid or Proposal.
   6. 6.  Transmission Information. Data and compatibility characteristics.
   7. 7.  Non-Responsibility for Transmission Failure. If the Bidder or Proposer chooses to transmit an Electronic Bid or Proposal, the City shall not be responsible for any failure attributable to the transmission or receipt of the Electronic Bid or Proposal regardless of cause.

1. A.  Security Amount. If The City requires Bid or Proposal Security, it shall be not more than 10 percent of the Offeror's Bid or Proposal. The City shall not use Bid or Proposal Security to discourage competition. The City shall clearly state any Bid or Proposal Security requirements in its Solicitation Document. The Offeror shall forfeit Bid or Proposal Security after Award if the Offeror fails to execute the Contract and promptly return it with any required Performance Bond, Payment Bond and any required proof of insurance. See ORS 279C.365(5) and ORS 279C.385.  See also, Section 5.34.915 and BOLI rules regarding the separate requirement for a Public Works Bond.
2. B.  Requirement for Bid Security (Optional for Proposals). Unless The City Council has exempted a Solicitation, or class of Solicitations, from Bid security pursuant to ORS 279C.390, the City shall require Bid security for its Solicitation of Bids for Public Improvements. This requirement applies only to Public Improvement Contracts with a value, estimated by the City, of more than $150,000. The Chief Procurement Officer nonetheless may require Bid security from any Offeror, or for any project, even if the City Council has exempted a class of Solicitations from Bid security if the Chief Procurement Officer believes it necessary to secure payment and performance.  The Chief Procurement Officer may require Proposal Security in RFPs.  (see ORS 279C.400(5)).
3. C.  Form of Bid or Proposal Security. The City may accept only the following forms of Bid or Proposal Security:
   1. 1.  A surety bond, signed by the surety’s authorized Attorney in Fact, from a company authorized to do business in the State of Oregon and that is duly listed in the United States Treasury list as published in the Federal Register, or which is otherwise approved by the City Attorney.  The surety company’s seal shall be affixed to the bond and a Power of Attorney for the Attorney in Fact shall be submitted.  The City Attorney has the authority to waive the requirement of the corporate seal: or
   2. 2.  A signed irrevocable letter of credit issued by an insured institution as defined in ORS 706.008(12); or
   3. 3.  A Cashier's check, or Offeror’s certified check.
4. D.  Return of Security. The City shall return or release the Bid or Proposal Security of all unsuccessful Offerors after a Contract has been fully executed and all required Bonds have been provided, or after all Offers have been rejected. The City may return the Bid or Proposal Security of unsuccessful Offerors prior to Award if the return does not prejudice Contract Award and the Security of at least the Bidders with the three lowest Bids, or the Proposers with the three highest scoring Proposals, is retained pending execution of a Contract.

1. A.  The City may hold pre-Offer conferences with prospective Offerors prior to Closing, to explain the Procurement requirements, obtain information or to conduct site inspections.
2. B.  The City may require attendance at the pre-Offer conference as a condition for making an Offer. Unless otherwise specified in the Solicitation Document, a mandatory attendance requirement is considered to have been met if, at any time during the mandatory meeting, a representative of an offering firm is documented to be or have been present.
3. C.  If the City holds a pre-Offer conference, it shall be held within a reasonable time after the Solicitation Document has been issued, but sufficiently before the Closing to allow Offerors to consider information provided at that conference.
4. D.  Statements made by the City’s representative at the pre-Offer conference, or elsewhere do not change the Solicitation Document unless the City confirms such statements with a Written Addendum to the Solicitation Document.
5. E.  The City must set forth notice of any pre-Offer conference in the Solicitation Document in accordance with Section 5.34.300.

1. A.  Issuance; Receipt. A Solicitation Document may be changed only by a Written Addendum. An Offeror shall provide Written acknowledgment of receipt of all issued Addenda with its Offer, unless the City otherwise specifies in the Addenda or Solicitation Document.   If an Offeror submits an Offer and the Solicitation Document states that the Offeror is bound by all Addenda published in accordance with these rules, then the Offeror shall be bound by all Addenda so issued. 
2. B.  Notice and Distribution. The City shall notify prospective Offerors of Addenda consistent with the standards of Notice set forth in Section 5.34.310. The Solicitation Document shall specify how the City will provide Notice of Addenda and how the City will make the Addenda available (see, Section 5.34.300).  For example, the Solicitation Document could say: “City will not mail Notice of Addenda, but will publish Notice of any Addenda on City's Web site.” Addenda may be downloaded off the City's Web site. Offerors should frequently check the City's Web site until Closing, (i.e., at least once weekly until the week of Closing and at least once daily the week of the Closing).
3. C.  Timelines; Extensions. The City shall issue Addenda within a reasonable time to allow prospective Offerors to consider the Addenda in preparing their Offers. The City should extend the Closing if the Chief Procurement Officer determines prospective Offerors need additional time to review and respond to Addenda. Except to the extent that the Chief Procurement Officer determines that the public interest requires it, the City shall not issue an Addendum less than 72 hours before the Closing unless the Addendum also extends the Closing.  Notice of the Addenda shall be deemed to occur when the Addendum is posted on the City’s web site or upon mailing, whichever is applicable.  If both occur, the notification is complete when the first of these two events occur.  
4. D.  Request for Change or Protest. Unless a different deadline is set forth in the Addendum, an Offeror must submit a Written request for change or protest to the Addendum, as provided in Section 5.34.440 by the close of the City's next business Day after issuance of the Addendum. The City shall consider only an Offeror's request for change or protest to the Addendum; the City shall not consider a request for change or protest to matters not added or modified by the Addendum. Notwithstanding any provision of this Paragraph, the City is not required to provide a protest period for Addenda issued during a multi-tiered Solicitation process pursuant to Section 5.34.850.

1. A.  Time for submission of request for change.  Unless otherwise provided in the Solicitation Document, an Offeror shall deliver any request for change to the Solicitation Document, Specifications or Contract provisions to the City in Writing within seven (7) Days prior to Bid or Proposal Closing.  Requests for change in regard to Addenda shall be submitted in accordance within the time permitted by Subsection 5.34.430 D.
2. B.  Any request for change shall include a detailed statement of the legal and factual reasons for the request for change; any proposed changes to Specifications or Contract provisions; and a description of any prejudice to the Offeror; and a statement of the form of relief requested.  No request for change of the content of the Solicitation Document, Specifications or Contract provisions shall be considered after the deadline established for submitting such request. The City shall notify the Offeror if the City entirely rejects the request.  If the City agrees with the request, in whole or in part, the City shall either issue an Addendum reflecting the change or cancel the Solicitation.
3. C.  Extension of Closing date. If any request for change is timely received in accordance with these rules the Closing may be extended by the Chief Procurement Officer if it is determined that an extension is necessary to allow consideration of the request or issuance of any Addendum to the Solicitation Document.
4. D.  Identification of request for change. Envelopes containing requests for change of the Solicitation Document, Specifications or Contract provisions shall be marked with the following information:
   1. 1.    Solicitation Specification or Contract Provision Request for Change or Clarification; and
   2. 2.    Solicitation Document Number or Other Identification.
5. E.   A Proposer may request a change to add alternate terms and conditions for negotiation if the Solicitation Document permits negotiation.  In this circumstance, request for change procedure shall be governed by the Solicitation Document and Subsections 5.34.840 E. and 5.34.850 F. 
6. F.   Clarification.  Prior to the deadline for submitting a request for change, an Offeror may request in Writing that the City clarify any provision of the Solicitation Document or Contract.  The City’s clarification, whether oral or in Writing, does not change the Solicitation Document or Contract and is not binding on the City unless the City amends the Solicitation Document or Contract by Written Addenda.

1. A.  Offer and Acceptance. A Bid, Proposal or Price Quotation is an Offer to enter into a Contract. The Offer is a “Firm Offer,” i.e., the Offer shall be held open by the Offeror for the City’s acceptance for not less than 60 Days from closing unless otherwise specified in the Solicitation Document.  After the 60 Days the Offer may lapse unless extended. The extension may occur after the expiration of the 60-Day period.
2. B.  The Offer may be extended beyond 60 Days if the Offeror and the City so agree. If agreement is reached the time period for extension shall be reduced to Writing and the Offer will remain valid, irrevocable and binding on the Offeror for the agreed-upon extension period.
3. C.  The City’s Award of the Contract constitutes acceptance of the Offer and binds the Offeror to the Contract.
4. D.  Responsive Offer. The City may Award a Contract only to a Responsible Offeror with a Responsive Offer.
5. E.  A competitive Proposal is a “Firm Offer” a period of not less than 90 days unless the solicitation document states a different time period.  But the City may elect to discuss or negotiate certain contractual provisions, as identified in these rules or in the Solicitation Document with the Proposer. Where negotiation is permitted by the rules or the Solicitation Document, Proposers are bound to an obligation to negotiate in good faith and only on those terms and the rules or the Solicitation Document has reserved for negotiation.
6. F.  The City may Award a Contract only to a Responsible Offeror with a Responsive Offer.
7. G.  Contingent Offers. Except to the extent that a Proposer is authorized to propose certain terms and conditions pursuant to Section 5.34.850, a Proposer shall not make, and the City shall not accept, an Offer contingent upon the City’s acceptance of any terms or conditions (including Specifications) other than those contained in the Solicitation Document.
8. H.  Offeror's Acknowledgement. By signing and returning the Offer, the Offeror acknowledges it has read and understands the terms and conditions contained in the Solicitation Document and that it accepts and agrees to be bound by the terms and conditions of the Solicitation Document. If the Request for Proposals permits Proposal of alternative terms under Section 5.34.850, the Offeror's Offer includes the nonnegotiable terms and conditions and any proposed terms and conditions offered for negotiation upon and to the extent accepted by the City in Writing.
9. I.  Instructions. An Offeror shall submit and Sign its Offer in accordance with the Solicitation Document. Bids requiring a Written and non-electronic signature shall be signed in ink by an Authorized Representative of the Offeror.  An Offeror shall initial and submit any correction or erasure to its Offer prior to the Opening in accordance with the requirements for submitting an Offer under the Solicitation Document.
10. J.  Forms. An Offeror shall submit its Offer on the form(s) provided in the Solicitation Document, unless an Offeror is otherwise instructed in the Solicitation Document.
11. K.  Documents. An Offeror shall provide the City with all documents and Descriptive Literature required under the Solicitation Document.
12. L.  Electronic Submissions If the City permits Electronic Offers in the Solicitation Document, the Offeror may submit Electronic Offers in accordance with the Solicitation Document. The City shall not consider Electronic Offers unless authorized by the Solicitation Document.
13. M.  Product Samples and Descriptive Literature. The City may require Product Samples or Descriptive Literature if it is necessary or desirable to evaluate the quality, features or characteristics of the offered items. The City will dispose of Product Samples, or return or make available for return Product Samples to the Offeror in accordance with the Solicitation Document.
14. N.  Identification of Offers.
    1. 1.  To ensure proper identification and handling, Offers shall be submitted in a sealed envelope appropriately marked or in the envelope provided by the City, whichever is applicable.
    2. 2.  The City is not responsible for Offers submitted in any manner, format or to any delivery point other than as required in the Solicitation Document.
15. O.  Receipt of Offers. The Offeror is responsible for ensuring that the City receives its Offer at the required delivery point prior to the Closing, regardless of the method used to submit or transmit the Offer.