ARA-2.01 - Procurement Rules for the Auditor's Office

A. Purpose and General Provisions

1. Introduction.
   1. Pursuant to Portland City Charter Article 5, Section 2-506(d), the Auditor has all of the authority state law grants to a contracting agency for the Procurement of Goods and Services and Personal Services.
   2. The Auditor’s Procurement practices and procedures will generally follow the City’s Contracting Policies.
   3. However, the Auditor has determined that some of the provisions contained in the City’s Contracting Policies impair the Auditor’s independence or the Auditor’s ability to carry out the Auditor’s duties with respect to Procurement. Therefore, the Auditor adopts this administrative rule to govern the Auditor’s Procurement of Goods and Services and Personal Services.
2. Delegation. Unless limited or prohibited by state law, the Auditor may delegate any authority granted to the Auditor in these rules.
3. Definitions. Capitalized terms in these rules have specific definitions. In addition to the definitions contained in various sections of the City’s Contracting Policies, the following words are defined for the purposes of these rules.
   1. Auditor: The City Auditor or designee.
   2. Bureau: For purposes of this rule, when the Auditor adopts a City Contracting Policy that refers to the term “Bureau,” the term “Bureau” is understood to be as defined in PCR 5.33.105 and to be inclusive of the Auditor’s Office, unless context indicates otherwise. Notwithstanding anything to the contrary in the City’s Contracting Policies, the Auditor is in charge of and responsible for all procurement initiated by the Auditor’s Office. Any authority these sources vest in Bureaus, Offices, or Bureau Directors is vested in the Auditor for purposes of procurements conducted pursuant to the Auditor’s procurement authority.
   3. Chief Procurement Officer: Notwithstanding anything to the contrary in the City’s Contracting Policies, the Auditor is in charge of and responsible for all procurement initiated by the Auditor’s Office and is the Chief Procurement Officer for the Auditor’s Office.
   4. City: For purposes of this rule, when the Auditor adopts a City Contracting Policy that refers to the term “City,” the term “City” is understood to be the “City, acting by and through the Office of the Auditor,” unless context indicates another use.
   5. City Administrator: Unless otherwise specified, any authority that the City’s Contracting Policies vest in the City Administrator is vested in the Auditor for purposes of procurements conducted pursuant to the Auditor’s procurement authority.
   6. City’s Contracting Policies: For the purposes of this rule, “City’s Contracting Policies” mean “Portland City Code (PCC) Chapter 5.10 Public Contracting, Portland Public Contracting Rules (PCR) 5.33 (Goods and Services), PCR 5.68 (Personal Services Contracts), and any documents incorporated therein.”
   7. City Attorney: For purposes of this rule, when the Auditor adopts a City Contracting Policy that refers to the term “City Attorney,” the term “City” is understood to be “counsel for the Auditor’s Office.”
   8. Contracting agency: For purposes of this rule, when the Auditor adopts a City Contracting Policy that refers to the term “contracting agency” or “procuring contracting agency,” these terms are understood to refer to the Auditor’s Office unless context indicates another use.
   9. Informal Solicitation: A Solicitation that is not based on an Invitation to Bid or a Request for Proposals, but rather is based upon an oral or succinct
   10. Procurement Services: All the authority recognized in the City’s Contracting Rules as belonging to Procurement Services, including the authority to manage the administrative tasks pertaining to procurements, belongs to the Auditor’s Office for the purposes of Auditor’s Office 

B. Variances to City Contracting Policies

1. Relationship to City’s Contracting Policies. Procurement in the Auditor’s Office will generally follow the City’s Contracting Policies, except as modified by these rules. If there is any conflict between these rules and the City’s Contracting Policies, these rules will prevail.
2. Authority. The Auditor will serve as the Chief Procurement Officer for the Procurement of Goods and Services Contracts and Personal Services Contracts initiated by the Auditor’s Office. The Chief Procurement Officer for the Auditor’s Office may:
   1. Advertise or otherwise solicit Bids or Proposals for Goods and Services and Personal Services when the anticipated amount is included in the budget for the Auditor’s Office.
   2. Award and execute Contracts and Price Agreements for the purchase or lease of Goods and Services and Personal Services. When the City’s Contracting Policies require the “Chief Procurement Officer” or “City Administrator” to review or approve a solicitation, those functions will be performed by the Auditor as the Chief Procurement Officer for the Auditor’s Office.
   3. Authorize and execute amendments for Contracts and Price Agreements in accordance with state law.
   4. Authorize final payment for Contracts and Price Agreements after confirming that all Work is complete and after the Auditor’s Office accepts the Work.
   5. Establish forms and related documents for Procurement, including agreements and Solicitation Documents. All Contracts, Price Agreements and purchase orders must be in writing, unless this rule or an adopted City Contracting Policy expressly provides otherwise. The Auditor may use forms the City has drafted, may edit those forms, or may draft new forms for the Auditor’s use. The Auditor may approve the use of a third-party’s form on a case-by-case basis. The Auditor has the discretion to seek further review by legal counsel of the Auditor’s choice, including by the City Attorney or the Auditor’s General Counsel.
   6. Resolve Protests related to the Procurement activities of the Auditor’s Office.
   7. Take any other actions that the City’s Contracting Policies assign to the Chief Procurement Officer or designee of the Chief Procurement Officer, or the City Administrator or designee.
3. Approval as to form. Legal counsel of the Auditor’s choosing will review and approve the form of all contract and procurement documents and will ensure that all required documentation is present before a contract is executed. This includes the approval prior to issuance of the form of all Requests for Proposals, Requests for Qualifications and other similar Solicitation Documents for all Personal Services Contracts or Price Agreements exceeding the small Procurement threshold. The Auditor has the discretion to determine whether the approval will be done by the City Attorney, the Auditor’s General Counsel, or other counsel retained by the Auditor.
4. Outside Legal Services. The Auditor’s Office does not follow the process set forth in PCR 5.68.060 (“Outside Legal Services”) as the Auditor has Charter authority to retain or employ independent legal counsel, and if the Auditor does so, the Auditor is the client and is the entity entitled to the benefits and privileges of being the client.
5. Bureau Authority and Responsibilities. The Auditor’s Office does not adopt PCR 5.68.100 (“Bureau Authority and Responsibilities”). The Auditor’s Office has its own internal procedures for managing forms and templates, conducting evaluations, negotiating Contracts and contract administration, and other internal processes outlined in that section. Current procedures or forms may be provided by Operations Management upon request.
6. Price Agreements. The Auditor may, in the Auditor’s discretion, make purchases pursuant to a Price Agreement that the City has awarded to a Contractor, but the Auditor is not required to do so if the Auditor believes it not to be in the best interest of the Auditor’s Office and/or believes it could compromise the independence of the Auditor’s Office.
7. Emergency Procurement Contracts. The Auditor may award a contract as an Emergency Procurement without the use of competitive sealed Bidding or competitive sealed Proposals as authorized by ORS 279B.050(2) when the requirements of ORS 279B.080 are met. The Auditor will follow the procedures set forth in PCR 5.33.130 for Emergency Procurements but, for the purposes of Auditor’s Office procurements, the Auditor will have the same emergency procurement authority vested in the Chief Procurement Officer, City Administrator, or the combination of these two positions. The Auditor will publish any Emergency Procurement Contracts awarded on the Auditor’s Office’s website.
8. Declaration of State of Emergency or Disaster. For the purposes of PCR 5.33.135 (“Declaration of State of Emergency or Disaster”), purposes the Auditor will have the same procurement authority as the Mayor for the purposes of Auditor’s Office procurements, except that the Auditor may not proclaim a State of Emergency or Disaster.
9. Purchasing Goods, Services and Public Improvements from City Employees. The Auditor’s Office does not follow the process set forth in PCR 5.33.070 (“Purchasing Goods, Services and Public Improvements from City Employees”) in its entirety. The Auditor’s Office may not make any Procurements from any Auditor’s Office employee, or any business with which an Auditor’s Office employee is associated, without exception.
10. Sustainable Procurement. The Auditor’s Office will comply with PCR 5.33.080 (“Sustainable Procurement”) and 5.68.110 (“Sustainable Procurement”) unless the Auditor determines, in writing, that compliance compromises the Office’s independence or impairs its ability to administer Office functions and those dictated by City Charter and Portland City Code.
11. Feasibility and Cost Analysis. The Auditor’s Office will comply with PCR 5.33.105 (“Feasibility and Cost Analysis”) except when conducting procurements related to duties or services City Charter mandates be contracted out (e.g. financial auditing, organizational efficiency and compliance assessments, etc.). The Auditor’s Office will also maintain its own records of cost analysis and findings and will not provide copies of these records each calendar quarter to the City Administrator.
12. Debarment of Prospective Offerors. The Auditor delegates debarments, as outlined in PCR 5.33.530 (“Debarment of Prospective Offerors”), to the City’s Chief Procurement Officer. The Auditor’s Office may refer Offerors for Debarment of Prospective Offerors. The Auditor delegates debarments, as outlined in PCR 5.33.530 (“Debarment of Prospective Offerors”), to the City’s Chief Procurement Officer. The Auditor’s Office may refer Offerors for consideration and will abide by all debarment decisions made by the Chief Procurement Officer or their designee and their associated timelines.
13. State of Oregon COBID Certified firms Prohibited Conduct; Sanctions; Appeals. The Auditor delegates the process for determining and enacting sanctions for violations outlined in PCR 5.33.540 (“State of Oregon COBID Certified firms Prohibited Conduct; Sanctions; Appeals”) to the City’s Chief Procurement Officer.
14. Review of Prequalification and Debarment Decisions. The Auditor delegates the appeal process for debarment decisions, as outlined in PCR 5.33.760 (“Review of Prequalification and Debarment Decisions”), to the City’s Chief Procurement Officer. The Auditor retains the responsibility for managing appeals to Prequalification decisions, which it will conduct in accordance with PCR 5.33.760 (“Review of Prequalification and Debarment Decisions”), except “City Administrator” should be read as “Auditor” and “Chief Procurement Officer” should be read as “Operations Management.”
15. Special Procurements. In accordance with the City’s Contracting Policies and state law, the City may Award certain Contracts directly to a vendor or consultant without a competitive process preceding the Award. These are known as “Special Procurements.” In addition to the Special Procurements and exemptions listed in Portland City Code Section 5.10.060 (“Special Procurements”) and PCR 5.68.020(A), the Auditor exempts from any competitive requirement the Services of an on-call hearings officer to conduct hearings.
16. Equal Benefits Certification. The Auditor’s Office will follow the requirements as outlined in PCR 5.33.077 (“Equal Benefits”) and 5.68.280 (D) (“Contractor Requirements”) except that the Auditor may exempt a Contractor from the Equal Benefits and other contractor requirements if the Auditor determines, in writing, that it is in the best interest of the City or the Auditor’s Office and is only applied only in unique circumstances.
17. Insurance Requirements. The Auditor’s Office will follow the insurance requirements as outlined in PCR 5.68.280 (“Contractor Requirements”) for Personal Services Contracts, except the following departures in relation to the process to review, waive or reduce insurance requirements (Section E) apply to Auditor’s Office procurements: “Procurement Service’s Contractual Risk Program Manager” should be read as “Operations Management” and changes to insurance requirements can only by approved by legal counsel to the Auditor’s Office.

C. Process

Methods. City’s Contracting Policies permit a variety of methods to procure Goods and Services and Personal Services. The Auditor’s Office maintains its own procurement and contracting templates which can be obtained from Operations Management. References to forms and templates in the City’s Contracting Policies should be understood to be forms and templates maintained by the Auditor’s Office. The Auditor’s Office follows the methods of procurement prescribed by the City’s Contracting Policies unless indicated otherwise in this rule. The Auditor may elevate any procurement to a more formal method, even if the Auditor is authorized to utilize a less formal method.

21. Solicitation. The Auditor’s Office will follow the procedures for solicitation for Personal Services set forth in PCR 5.68.150 (“Solicitations”). In these processes “Procurement Services” should be read as “Operations Management,” except in the case of approval for solicitation documents for solicitations more than $250,000 (Section B.3.b), which will require approval by the Auditor.
22. Offer Submission, Receipt, Opening, and Recording. The Auditor’s Office will follow the process outlined in the City’s Contracting Policies, such as those in PCR 5.33.450-5.33.490, related to the submission, receipt, opening, and recording of Offers. In these processes, “Procurement Services” should be read as “Operations Management.”
23. Offer Evaluation and Award. The standards described in PCR 5.33.610 (“Offer Evaluation and Award”) and PCR 5.68.230 (“Evaluations”) are not applicable to the Auditor’s evaluation and Award of a Contract. Instead, the Auditor will utilize the following standards:
    1. Evaluations.
       1. For Bids, the Auditor will evaluate Offers in accordance with the Invitation to Bid and ORS 279B.055(6).
       2. For Proposals, the Auditor will evaluate Offers in accordance the Request for Proposals and ORS 279B.060(14).
       3. For Informal Solicitations, the Auditor will evaluate Offers in an equitable manner in order to determine which offer is most Advantageous to the Auditor and the City.
    2. Awards.
       1. If a Contract is solicited through an Invitation to Bid, the Auditor shall Award the Contract to the Responsible Offeror submitting the lowest, Responsive Bid.
       2. If a Contract is solicited through a Request for Proposals, the Auditor shall Award the Contract to the Responsible Offeror submitting the Proposal that is most Advantageous to the Auditor and the City as determined by evaluation criteria included in the Request for Proposal or otherwise developed by the Auditor for purposes of awarding the Contract.
       3. If a Contract is solicited through an Informal Solicitation, the Auditor shall Award the Contract to the Offeror whose quote or Offer is most Advantageous to the Auditor and the City.
24. Contract Approval Procedures. The Auditor’s Office does not adopt PCR 5.68.300 (B) (“Contract Approval Procedures”) by reference and has its own internal procedures for contract approval in lieu of Electronic Copy routing as outlined in Section B. Current procedures may be provided by Operations Management upon request.
25. Protests and Appeals. The City’s Contracting Policies permit Affected Persons to Protest and Appeal various aspects of the Procurement process. For example, an Affected Person may Protest the terms and conditions of a Procurement and Protest the Award of a Contract. Specifically, the PCR provisions governing Protests of Procurements are Sections 5.33.700 through 5.33.790 for Goods and Services and 5.68.260) for Personal Services. The provisions governing Protests and Appeals in the City’s Contracting Policies are not applicable to Protests or Appeals of Auditor’s Office-initiated Procurements. Instead, the Auditor will utilize the following standards:
    1. Appointment. With respect to any Protest, the Auditor may appoint a third-party to consider and resolve the Protest. The third-party may be another City official or employee or a person who is not a City official or employee. Otherwise, the Auditor will consider and resolve the Protest if no conflict exists preventing the Auditor from doing so.
    2. Solicitation Protests. A prospective Offeror may file a Protest if the prospective Offeror believes the Solicitation, including any proposed Contract terms, is contrary to law, unnecessarily restrictive or improperly specifies a brand name. If a prospective Offeror fails to file a Solicitation Protest in accordance with this subsection, the prospective Offeror may not challenge the Award on the grounds identified under this subsection. Unless a different time period is stated in the Solicitation Document, a Solicitation Protest must be filed no later than seven days prior to Closing. The Auditor will accept, consider and resolve a Solicitation Protest under the following circumstances:
       1. The Solicitation Protest is in writing and is timely filed;
       2. The prospective Offeror identifies the Solicitation that is the subject of the Protest;
       3. The Protest identifies the grounds that allegedly demonstrate the Solicitation is unlawful, unnecessarily restrictive or improperly specifies a brand name;
       4. The Protest contains evidence or documentation that supports the grounds on which it is based; and
       5. The Protest includes a statement regarding the relief the prospective Offeror seeks.
    3. Award Protests. An Offeror may Protest the Award or the Notice of Intent to Award, whichever occurs first, within seven days of the Award or the notice of intent to Award, unless a different time period is stated in the Solicitation Document. The Auditor will accept, consider and resolve an Award Protest under the following circumstances:
       1. The Award Protest is in writing and is timely filed;
       2. The Offeror demonstrates it is adversely affected because the Offeror would be eligible for the Award if the Auditor affirmed the Protest; and
       3. The Offeror can show:
          1. All lower Bids or higher ranked Proposals are nonresponsive;
          2. The Auditor’s Office evaluation of Offers or the Auditor’s Award violates ORS Chapters 279A or 279B;
          3. The Auditor’s Office failed to conduct the evaluation of Offers in accordance with the Solicitation Document; or
          4. The Auditor’s Office abused its discretion in rejecting the Offer as nonresponsive.
    4. Response to Protest. The Auditor will reject in writing any Protest that does not comply with the provisions in this rule governing Protests. For Protests that do comply with the provisions in this rule, the Auditor will issue a written decision responding to the Protest in a timely manner.
       1. For a Solicitation Protest, the Auditor will issue a decision responding to the Protest at least three days before Closing, unless the Auditor believes more time is needed to consider and resolve the Protest. In that case, the Auditor will issue an addendum advising prospective Offerors of the new Closing date.
    5. Alternative Protest Procedures. In the Auditor’s discretion, the Auditor may impose procedures for Protests that differ from the procedures described in these rules. The Auditor may decide to impose a different procedure on a case-by-case basis. If the Auditor imposes a different Protest procedure for a given Solicitation, the Auditor will expressly describe that procedure in the Solicitation Document.
    6. Judicial Review. An Affected Person may not seek judicial review of the Auditor’s approval of a procurement or contract award unless it has complied fully with the Protest requirements of this section and exercised all administrative appeal rights. Judicial review is not available if the Request is denied or withdrawn by the Auditor. 

Auditor’s Office Administrative Rule Information 

Questions about this administrative rule may be directed to the Auditor’s Office Operations Management Division.