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(a) The Director of OCA shall waive the requirements of this Chapter under the following circumstances:
(1) Whenever the Director of OCA finds, upon the advice of the awarding authority, that there is only one prospective Contractor willing to enter into a Contract with the City, or a Property Contract with the City for use of City property on the terms and conditions established by the City, or that the needed goods, services, construction services for a public work or improvement, or interest in or right to use real property are available only from a sole source, and the prospective Contractor is not currently disqualified from doing business with the City, or from doing business with any governmental agency based on any contract compliance requirements;
(2) If the contracting department, board or commission certifies in writing to the OCA that pursuant to Administrative Code provisions the Contract or Property Contract is necessary to respond to an emergency which endangers the public health or safety and no entity which complies with the requirements of this Chapter capable of responding to the emergency is immediately available; provided that such certification must be made prior to the Controller's contract certification;
(3) Where the City Attorney certifies in writing to the OCA that the contract involves specialized litigation requirements such that it would be in the best interests of the City to waive the requirements of this Chapter.
(b) This Chapter shall not apply where the prospective Contractor is a public entity and the Director of OCA finds that goods, services, construction services for a public work or improvement or interest in or right to use real property of comparable quality or accessibility as are available under the proposed Contract or Property Contract are not available from another source, or that the proposed Contract or Property Contract is necessary to serve a substantial public interest.
(c) This Chapter shall not apply where the Director of OCA finds that the requirements of this Chapter 12T will violate or are inconsistent with the terms or conditions of a grant, subvention or agreement with a public agency or the instructions of an authorized representative of any such agency with respect to any such grant, subvention or agreement, provided that the contracting officer has made a good faith attempt to change the terms or conditions of any such grant, subvention or agreement to authorize application of this Chapter.
(d) Subject to the requirements of subsection (e), upon the request of a potential Contractor or upon the Contracting Officer's own initiative, after taking all reasonable measures to find an entity that complies with this Chapter 12T, the Contracting Officer may propose a waiver of any or all of the requirements of this Chapter for any Contract, Property Contract or bid package advertised and made available to the public, or any competitive or sealed bids received by the City as of the operative date of this Chapter under the following circumstances:
(1) Where the Contracting Officer determines that there are no qualified responsive bidders or prospective Contractors who could be certified as being in compliance with the requirements of this Chapter and that the Contract or Property Contract is for goods, a service, or a project that is essential to the City or City residents; or
(2) Where the Contracting Officer determines that transactions entered into pursuant to bulk purchasing arrangements through federal, state or regional entities which actually reduce the City's purchasing costs would be in the best interests of the City; or
(3) Where the Contracting Officer determines that the requirements of this Chapter would result in the City's entering into a Contract with an entity that was set up, or is being used, for the purpose of evading the intent of this Chapter;
(e) The waiver authority granted to Contracting Officers in this Section 12T.8 shall be subject to the requirement that:
(1) All proposed waivers must be submitted for approval to the Director of OCA. All proposed waivers must set forth the reasons the Contracting Officer is requesting the waiver, what steps were taken to find any entity that complies with this Chapter, and why the waiver does not defeat the intent of this Chapter, which is to prohibit the City from entering into Contracts and Property Contracts with persons that do not comply with the requirements of this Chapter to follow certain procedures when inquiring about and using criminal history information in employment decisions.
(2) The Director of OCA shall take action approving or denying a proposed waiver within 30 days of receiving a notification of the proposed waiver from a contracting officer. If after 30 days the Director of OCA has taken no action on the proposed waiver, the waiver shall be deemed approved.
(3) The Director of OCA or Contracting Officer shall report to the OLSE whenever such a waiver is granted within five days of granting the waiver.
(f) For any Contract or Property Contract subject to approval by the Board of Supervisors, the approving resolution shall state whether any waiver or exception under this Section 12T.8 has been or is proposed to be granted for that contract.
(g) This Chapter 12T shall not apply to (i) the investment of trust moneys or agreements relating to the management of trust assets, (ii) City moneys invested in U.S. government securities or under pre-existing investment agreements, or (iii) the investment of City moneys where the Treasurer finds that:
(1) No person, entity or financial institution doing business in the City which is in compliance with this Chapter is capable of performing the desired transactions(s); or
(2) The City will incur a financial loss which in the opinion of the Treasurer would violate his or her fiduciary duties.
This subsection (g) shall be subject to the requirement that City moneys shall be withdrawn or divested at the earliest possible maturity date if deposited or invested with a person, entity or financial institution other than the U.S. government which does not comply with this Chapter.
(h) The General Manager of the Public Utilities Commission may waive the requirements of this Chapter 12T where the Contractor is providing wholesale or bulk water, power or natural gas, the conveyance or transmission of same, or ancillary services such as spinning reserve, voltage control, or loading scheduling, as required for assuring reliable services in accordance with good utility practice, to or on behalf of the San Francisco Public Utilities Commission; provided that the purchase of same may not practically be accomplished through the City's standard competitive bidding procedures; and further provided that this exemption shall not apply to Contractors or franchisees providing direct, retail services to end users within the City.
(i) OCA shall maintain a record of all instances in which the requirements of this Chapter have not been applicable to a Contract or Property Contract because of an exception or a waiver as recognized under this Section 12T.8. This information shall be compiled on an annual calendar year basis and reported to the Board of Supervisors by January 31 of each year.
(j) The Contracting Officer may waive the restriction in subsection (a)(5) of Section 12T.4 and any limitations imposed in this Chapter based on subsection (a)(5) as to any Contract or Property Contract, including any grant, where the Contracting Officer certifies in writing that, in the performance of the agreement, the Contractor or grantee (1) is providing services to or has supervisory or disciplinary authority over a minor, (2) is providing services to or has supervisory authority over a "dependent adult," as that phrase is defined in California Welfare and Institutions Code Section 15610.23 or any successor state law, or (3) is providing support services or care to or has supervisory authority over a person 65 years or older. The Contracting Officer shall report annually in writing to the Director of OCA all waivers that he or she grants pursuant to this subsection (j).