(A) Purpose. This section implements O.R.S. 279C.100 through 279C.125. The city will rely on this section, not the Model Rules, when it seeks to contract with an architect, engineer, photogrammetrist, land surveyor or (in very narrow instances) a transportation planner.
(B) Applicability. This section applies only to personal services meeting the following criteria:
(1) A contract with an estimated fee that exceeds $100,000; and
(2) The contract is for a personal service that is legally required to be provided or performed by an architect, engineer, photogrammetrist, transportation planner or land surveyor. For example: hiring an architect to design a building or structure, or hiring an engineer to design a wastewater system. Because the law requires licensed professionals to design buildings and infrastructure, the city would rely on this section to hire someone to perform those services. However, if the city were hiring an architect or engineer to perform project management services (for example), it may solicit and award such services under § 36.02 of these rules. See definition of RELATED SERVICES below.
(3) If either divisions (1) or (2) above is not satisfied (i.e. the contract is for a personal service that is legally required to be provided by a licensed architect, and the like but is estimated to not exceed $100,000; or the contract will require an engineer, and the like to perform a related service) then the city may rely on § 36.02 of these rules to solicit and award the contract.
(4) Mixed contracts. Some contracts will contain a mixture of services covered by this section (i.e. services that only the particular consultant may legally perform) and related services. Whether the city uses § 36.02 or this section to solicit and award a mixed contract will depend upon the contract's predominate purpose. The city will determine the predominate purpose based upon either the amount of money it estimates it will spend for covered services versus related services or the amount of time it estimates the consultant will spend working on covered services versus related services. If covered services predominate, the city will solicit the contract under this section. If related services predominate, the city will solicit the contract under § 36.02.
(C) Definitions. For the purpose of this section the following definitions shall apply unless the context clearly indicates or requires a different meaning.
CONSTRUCTION-RELATED CONSULTANT. An architect, engineer, photogrammetrist, land surveyor, a transportation planner in narrow instances defined below or a provider of related services.
ESTIMATED FEE. The city's reasonably projected fee to be paid for a construction-related consultant's services under the anticipated contract, excluding all anticipated reimbursable or other non-professional fee expenses. The estimated fee is used solely to determine the applicable contract solicitation method and is distinct from the total amount payable under the contract.
PRICE AGREEMENT. Limited to mean an agreement related to the procurement of architectural, engineering, photogrammetric mapping, transportation
planning or land surveying services, or related services, under agreed-upon terms and conditions and possibly at a set price with:
(a) No guarantee of a minimum or maximum purchase; or
(b) An initial order or minimum purchase, combined with a continuing obligation to provide architectural, engineering, photogrammetric mapping, transportation planning or land surveying services or related services where the city does not guarantee a minimum or maximum additional purchase.
PROJECT. All components of a city-planned undertaking that gives rise to the need for a construction-related consultant's architectural, engineering, photogrammetric mapping, transportation planning or land surveying services, or related services, under a contract.
RELATED SERVICES. Personal services, other than architectural, engineering, photogrammetric, mapping, transportation planning or land surveying services, that are related to planning, designing, engineering or overseeing public improvement projects or components of public improvements, including, but not limited to, landscape architectural services, facilities planning services, energy planning services, space planning services, hazardous substances or hazardous waste or toxic substances testing services, cost estimating services, appraising services, material testing services, mechanical system balancing services, commissioning services, project management services, construction management services, and owner's representation services or land-use planning services. In other words, personal services that are not required by law to be performed by an architect, engineer, photogrammetrist, transportation planner or land surveyor.
TRANSPORTATION PLANNING SERVICES. Only includes project-specific transportation planning required for compliance with the National Environmental Policy Act, 42 U.S.C. 4321 et seq. and no other types of transportation planning services. By way of example only, TRANSPORTATION PLANNING SERVICES do not include transportation planning for corridor plans, transportation system plans, interchange area management plans, refinement plans and other transportation plans not associated with an individual Project required to comply with the National Environmental Policy Act, 42 U.S.C. 4321 et seq.
(D) Selection procedures.
(1) When selecting a construction-related consultant to perform architectural, engineering, photogrammetric mapping, transportation planning or land surveying services under this section, the city must award a contract to the most qualified consultant.
(2) In accordance with state law, when determining which consultant is most qualified, the city may only solicit or use pricing policies and pricing proposals, or other price information, including the number of hours proposed for the services required, expenses, hourly rates and overhead, to determine a construction-related consultant's compensation after the city has selected the most qualified consultant.
(3) When soliciting a construction-related consultant under this section, the city will use a Request for Proposals ("RFP") or a Request for Qualifications ("RFQ") followed by a RFP, as described below. The city may advertise RFQs and RFPs in any manner it deems appropriate. If the city directly solicits qualifications or proposals from construction-related consultants, it will attempt to contact at least 3 consultants.
(4) RFQ. The city may in its sole discretion issue a RFQ to evaluate potential construction-related consultants and establish a short list of qualified construction-related consultants to whom it may issue a RFP for some or all of the architectural, engineering, photogrammetric mapping, transportation planning or land surveying services or related services described in the RFQ. RFQs may include:
(a) A brief project description;
(b) A description of the architectural, engineering, photogrammetric mapping, transportation planning or land surveying services or related services required for the project;
(c) Any conditions or limitations that may constrain or prohibit the selected construction-related consultant's ability to provide additional services related to the project, including but not limited to construction services;
(d) A response deadline and a description of how or where to submit a response;
(e) A statement that interested consultants respond solely at their own expense;
(f) RFQ evaluation criteria; and
(g) Any other elements the City Manager deems appropriate.
(5) RFP. The city will issue a RFP to select the most qualified construction-related consultant, regardless of whether an RFQ precedes a RFP. RFPs will include:
(a) A description of the project and the specific architectural, engineering, photogrammetric mapping, transportation planning or land surveying services or related services sought for the project, the estimated project cost, the estimated time period during which the project is to be completed, and the estimated time period in which the specific architectural, engineering, photogrammetric mapping, transportation planning or land surveying services or related services sought will be performed;
(b) The RFP evaluation process and the criteria that the city will use to select the most qualified construction-related consultant, including the weight, points or other classifications applicable to each criterion. Without limitation, the criteria may include:
(i) Proposers' availability and capability to perform the services described in the RFP;
(ii) Experience of proposers' key staff persons in providing similar services on similar projects within the last 3 years;
(iii) The amount and type of resources, and number of experienced staff persons proposers will commit to the project;
(iv) Proposers' demonstrated ability to successfully complete similar projects on time and within budget, including the hourly rates for key personnel and related cost data for similar projects in the previous 12 months;
(v) References and recommendations from past clients; and
(vi) Any other criteria the City Manager deems appropriate.
(c) Conditions or limitations, if any, that may constrain or prohibit the selected construction-related consultant's ability to provide additional services related to the project, including but not limited to construction services;
(d) Whether interviews will or may occur and, if so, how the interview will factor into the city's selection;
(e) A proposal deadline and a description of how or where to submit a proposal;
(f) A statement whether the city will accept proposals in electronic format;
(g) A statement that interested consultants respond solely at their own expense;
(h) A statement reserving the city's right to reject any or all proposals and its right to cancel the RFP at any time if doing either would be in the public interest;
(i) A statement directing proposers to the protest procedures set forth in the RFP;
(j) A statement whether or not the city will hold a pre-proposal meeting for all interested construction-related consultants to discuss the project and if a pre-proposal meeting will be held, the location of the meeting and whether or not attendance is mandatory; and
(k) Any other elements the City Manager deems appropriate.
(6) After selecting the most qualified construction-related consultant in accordance with a RFP, the city will notify each proposer accordingly and state that it will begin negotiating a contract with the most qualified consultant. A resulting contract will at least include:
(a) The consultant's performance obligations and performance schedule;
(b) Payment methodology and a maximum amount payable to the consultant for the services required under the contract;
(c) Legally required terms; and
(d) Any other provisions the city believes to be in its best interest to negotiate.
(7) The city will formally terminate negotiations in writing with the most qualified consultant if it is unable for any reason to negotiate a contract within a reasonable amount of time, as the city may determine in its sole discretion. The city may thereafter negotiate with the second ranked consultant, and if necessary, with the third ranked consultant, and so on, until negotiations result in a contract. If negotiations with any consultant do not result in a contract within a reasonable amount of time, the city may end the particular solicitation. Nothing in this section precludes the city from re-entering negotiations, in its own discretion, with a consultant if negotiations were previously terminated for the same contract.
(E) Price agreements. Solicitation materials and the terms and conditions for a price agreement for architectural, engineering, photogrammetric mapping, transportation planning or land surveying services or related services must:
(1) Include a scope of services, menu of services, a specification for services or a similar description of the nature, general scope, complexity and purpose of the procurement that will reasonably enable a construction-related consultant to decide whether to submit a proposal;
(2) Specify whether the city intends to award a price agreement to 1 consultant or to multiple consultants. If the city will award a price agreement to more than 1 consultant, the solicitation document and price agreement will describe the criteria and procedures the city will use to select a consultant for each individual work order or task order. Subject to the requirements of O.R.S. 279C.110, the criteria and procedures to assign work orders or task orders that only involve or predominantly involve architectural, engineering, photogrammetric mapping, transportation planning or land surveying services are at the city's sole discretion; and
(3) Specify the maximum term for assigning services under the price agreement.
(Ord. 2013-08-02, passed 8-13-2013)