PRIME CONTRACTOR DEVELOPMENT PROGRAM ADMINISTRATIVE RULES
Administrative Rules Adopted by the Bureau of Internal Business Services, Procurement Services Division Pursuant to Rule-Making Authority
TABLE OF CONTENTS
Section 1 PURPOSE
Section 2 BUREAUS AFFECTED
Section 3 JURISDICTION
Section 4 DEFINITIONS
Section 5 POLICY
Section 6 APPLICATION
Section 7 BUREAU RESPONSIBILITY
Section 8 WAIVERS AND NON-APPLICABILITY
Section 9 PCDP WORKGROUP
Section 10 LEGISLATIVE AUTHORITY
These rules are intended to establish processes and procedures for implementing the provisions of the Prime Contractor Development Program adopted July 19, 2012. Resolution #36944 integrates social equity, fiscal responsibility and community involvement into the Prime Contractor Development Program based on the principle that by providing development opportunities and educational programs, the City will empower minority, women and emerging small businesses (M/W/ESB) to grow and develop. These rules will promote social justice; adhere to the City of Portland’s Prime Contractor Development Program Manual for Participants; and provide clear guidance to City bureaus seeking to comply with these requirements.
All City bureaus, departments or offices, procuring construction services.
Portland City Code Chapters 3.100, 5.33 and 5.34, specifically 5.34.040 Affirmative Action and 5.34.930 Social Equity in Contracting and Employment Programs; and Resolution #36944 adopted by City Council July 19, 2012.
4.1 Audit means a formal examination of an individual’s or organization’s accounting records, financial situation, or compliance with some other set of standards.
4.2 Bureau means the bureaus, divisions or offices within the City of Portland.
4.3 Chief Procurement Officer means the individual in charge of the Procurement Services Division of the Bureau of Internal Business Services, or that person to whom those duties have been properly delegated.
4.4 Commercially Useful Function as it relates to business firms means being responsible for the execution of a distinct element of the work of the contract:
- Carries out its obligation by actually performing, managing or supervising the work involved
- Performs work that is normal for its business, services and function
- Is not subcontracting a portion of the work that is greater than that expected to be subcontracted by normal industry practices
4.5 Contract means a sale or other disposal, or a purchase, lease, rental or other acquisition, by the City of personal property, services, including personal services, Public Improvements, public works, minor alterations, or ordinary repair or maintenance necessary to preserve a Public Improvement, but does not include “grants”; the written agreement resulting from the solicitation document that sets forth the rights and obligations of the parties.
4.6 Contractor (Contractor or Prime Contractor) means any person or entity, in whatever legal form, that enters into a Contract with the City of Portland.
4.7 Emerging Small Business (ESB) means for purposes of this Administrative Rule, only those firms certified as an ESB by the State Office of Minority, Women and Emerging Small Business (OMWESB). Current program participation is restricted to Oregon-based firms as follows:
Tier 1 - with 19 or fewer employees, with average annual gross receipts over the last three years not exceeding $1,699,953 for construction firms and $679,981 for non-construction-related firms
Tier 2 - with 19 or fewer employees, with average annual gross receipts over the last three years not exceeding $3,399,907 for construction firms and $1,133,302 for non-construction-related firms
An ESB must be properly licensed, legally registered, and an independently owned Oregon firm.
4.8 Equal Employment Opportunity (EEO) means the policies and procedures of the organization to ensure non-discrimination for all employees, especially women, minorities, and persons with disabilities. All contract provisions require non-discrimination in employment by contractors and sub-contractors.
4.9 Minority Owned Business means for purposes of this document, only those firms certified as a minority owned business by the State Office of Minority, Women and Emerging Small Business (OMWESB). A minority is defined to include African American, Hispanic American, Native American, Asian Pacific American, and Asian Indian American. The minority representative must own at least 51% of the firm and must have control of the management and daily operations of the firm. The firm must not be inextricably associated with a non-minority owned firm.
4.10 Portland City Code (PCC) means the Code of the City of Portland, Oregon as promulgated by the Portland City Council.
4.11 Prime Contractor Development Program Manual means the manual for the Program participants that is established to provide parameters around which the Program is operated. The Manual may be updated on a periodic basis
4.12 Tier means the programmatic level within the overall Prime Contractor Development Program which is based on estimated project value. There are four designated tiers with progressively increasing project value ranges.
4.13 Value Engineering means the identification of alternative methods, materials or systems which provide for comparable function at reduced initial or life-time cost. It includes proposed changes to the plans, specifications, or other Contract requirements which may be made, consistent with industry practice, under the original Contract by mutual agreement in order to take advantage of potential cost savings without impairing the essential functions or characteristics of the public improvement. Cost savings include those resulting from life-cycle costing, which may either increase or decrease absolute costs over varying time periods.
4.14 Women Owned Business means for purposes of this Administrative Rule, only those firms certified as women-owned businesses by the State Office of Minority, Women and Emerging Small Business (OMWESB). The woman representative must own at least 51% of the firm and must have control of the management and daily operations of the firm. The firm must not be inextricably associated with a non-woman owned firm.
5.1 The goal of the Prime Contractor Development Program is to grow the number of Minority and Women prime contractors within the City’s public works and capital improvement projects. In working toward such a goal, the City has two specific objectives: (1) develop an orderly and efficient method for awarding the work; and (2) provide educational, training and mentoring opportunities for the program participants.
The City shall establish a Prime Contractor Development Program in the area of public improvements by:
5.1.1 Establishing a program for those projects from $5,000 to $1,000,000 that creates access to contracting opportunities for certified firms;
5.1.2 Setting in place a business development course for program participants to enhance their business and contracting skills;
5.1.3 Establishing a mechanism to track the success of program participants over time;
5.1.4 Working with interested parties to set performance goals for MBE/WBE participation; and
5.1.5 Establishing metrics for program performance and report results back to Council.
5.2 Only Contractors who are licensed as General Contractors and are interested in prime contracting opportunities may apply for admittance into the City’s Prime Contractor Development Program. Prime Contractors will be selected to work in one of the following construction areas:
5.2.1 Sewer utility,
5.2.2 Water utility,
5.2.3 Street improvements and
5.2.4 Building alteration/construction.
5.3 Procurement Services shall determine, with the help of an Advisory Committee, which Prime Contractor Applicants meet the requirements of the Program. Procurement Services and the Advisory Committee members will also determine in which Tier each Prime Contractor applicant should commence their work in the Program.
5.4 The Chief Procurement Officer shall work with City bureaus to determine whether City construction projects will meet the requirements of the Prime Contractor Development Program. The determination of the Chief Procurement Officer will be final.
5.5 These rules and procedures apply to projects within the construction areas identified within this Section.
6.1 The Chief Procurement Officer will work with bureau personnel to assure their involvement in and compliance with the Prime Contractor Development Program. The Program is designed to enable the Prime Contractor to learn and thereby expand its experience and bonding levels; in doing so, the Prime Contractor will step up to the next Tier.
6.2 All projects estimated within Tiers 1 and 2 will be solicited to contractors within the PCDP, unless exempted by the Chief Procurement Officer.
6.3 Procurement Services will work with bureau personnel to identify projects which may work best for the PCDP for Tiers 3 and 4. On an annual basis a construction project schedule will be developed for each bureau to ensure appropriate outreach and contractor availability for projects within these Tiers.
6.4 For those projects not identified in the construction project schedule that fall within Tiers 3 and 4, Procurement Services will make a determination regarding the applicability of the inclusion of the project in the PCDP.
7.1 It is expected that bureau project personnel will work with and support contractors within the PCDP to assist their success in the City’s public improvement projects.
7.2 Bureau project personnel expecting to work with contractors within the PCDP shall be required to attend classes in the Project Manager Training Program in order to provide mentoring and support within the Program.
7.3 Project estimating will not be used for the purpose of evading the requirements of these provisions by intentionally increasing or reducing the project estimates as a way to avoid inclusion into the Prime Contractor Development Program.
7.4 Should the low bid pricing be within 25% of the project cost estimate, bureaus will be required to work with the low bidder to value engineer the contract in an attempt to bring the project within the City’s acceptable cost, in accordance with the City Code, rather than re-issuing the bid to the PCDP or open market.
7.5 Throughout the course of the project, it shall be the bureau’s responsibility to assure twice- monthly payments are processed and sent to the participant in the PCDP in accordance with the City Code and Contract Specifications. Late payments must be brought to the PCDP Coordinator’s attention.
7.6 Bureau project personnel should monitor and report Contractors not performing a Commercially Useful Function on the project site, in order to assure the City that the prime contractor is providing a commercially useful function in accordance with the PCDP Manual and their acceptance into the Program.
7.7 Should bureau project personnel have difficulty with a Contractor under the PCDP, it shall be their responsibility to contact the PCDP Coordinator. Such issues may include but not be limited to: project completion, project sequencing, change order completion and updating, payment disagreements, subcontractor payments, default, etc. Procurement Services will work to help facilitate any such issues.
7.8 Project personnel should invite the PCDP Program Coordinator to all project meetings. The Program Coordinator will make every attempt to attend as to assist with facilitating discussion between City staff and contractors. Any pertinent issues should be brought to the Program Coordinators attention in advance of the meeting.
7.9 Bureau project personnel will be required to complete a post project evaluation and if there were issues with the project, Procurement Services will facilitate a debrief meeting with the bureau and Contractor. Documentation will be retained in the Procurement Services files.
8.1 City Bureaus responsible for construction projects that fall within the PCDP may submit to the Chief Procurement Officer a request to waive the requirements of these rules. Any waiver must be submitted prior to transmitting the specifications to Procurement Services and be approved by the Chief Procurement Officer. It is the bureau’s responsibility to establish to the satisfaction of the Chief Procurement Officer the reasons for seeking such a waiver. A waiver may be permitted in the following situations:
8.1.1 Emergency: When the award of a Contract is necessary in order to respond to an emergency PCDP Contractors shall be the first source selection. If none of the Contractors are able to supply the manpower or has the experience needed to fulfill the emergency requirement, the initiating Bureau must submit a request for a waiver to the Chief Procurement Officer to source from outside the PCDP;
8.1.2 Absence of Available Contractors: Whenever it can be established to the satisfaction of the Chief Procurement Officer that no qualified Contractors are capable of providing the unique services that would respond to the Bureau’s requirements, a waiver under this provision may be granted; or
8.1.3 Unique Circumstances: Whenever unique circumstances exist and application of these rules would result in extreme hardship to the City.
8.2 Requests for Waivers: Bureaus seeking a waiver shall submit the request in writing with sufficient justification to the Chief Procurement Officer, signed by the Director of the Bureau detailing the reasons for the request.
8.2.1 Criteria: The written justification requesting a waiver must provide the following minimum information:
126.96.36.199 The estimated dollar amount of the Project and the scope of work;
188.8.131.52 An explanation of the constraints requiring a waiver of these requirements;
8.3 Decisions by the Chief Procurement Officer to approve or deny waivers are final, subject to those limits expressed above. Any waiver that is granted is project specific and cannot be used as justification for future projects.
9.1 Bureau’s may be asked to participate in an ad hoc workgroup to provide input and feedback on the PCDP.
10.1 Nothing in these provisions shall limit the right of the City Council to waive the requirements of these rules and procedures.
Adopted by Chief Procurement Officer on February 6, 2013.
Filed for inclusion in PPD February 6, 2013.