Policies

OSBA PROCUREMENT POLICY

Adopted: 11/20/2015

Reviewed: 9/26/2017

Resolution No. 15-1

 

JOINT RESOLUTION OF THE BOARD OF DIRECTORS AND LOCAL CONTRACT

REVIEW BOARD OPTING OUT OF THE ATTORNEY GENERAL’S MODEL

PUBLIC CONTRACTING RULES AND AMENDING PUBLIC CONTRACTING

RULES FOR THE MOUNTAIN VIEW ACADEMY

 

             WHEREAS, it is the policy of the Mountain View Academy (District) that a sound and responsive public contracting system should allow impartial, meaningful, and open competition, preserving formal competitive selection as the standard for public contracts unless otherwise specifically exempted herein, by state law, or by subsequent ordinance or resolutions; and

 

WHEREAS, the Oregon Legislature adopted HB 2341 (2003 Oregon Laws, Chapter 794), which was signed by the Governor, and had an operative date of March 1, 2005.  This Act repealed Oregon Revised Statutes (“ORS”) Chapter 279 (with minor exceptions) and replaced it with three new subchapters:  ORS 279A, 279B, and 279C.  These three subchapters, together, constitute the Public Contracting Code (or Code).  Any District rules and exemptions previously adopted under ORS Chapter 279 expired on March 1, 2005; and

 

WHEREAS, absent any action by the Local Contract Review Board on or after March 1, 2005, the District has operated under the Public Contracting Model Rules adopted by the Attorney General under ORS subchapters 279A, 279B, and 279C set forth in Oregon Administrative Rules Chapter 137, Divisions 46, 47, 48 and 49 (the “Model Rules”); and

 

WHEREAS, in order to adopt new public contracting rules that differ from the Model Rules, under ORS 279A.065(5), the District Board must specifically state that the Model Rules adopted by the Attorney General do not apply to District and prescribe its own public contracting rules, which may include portions of the Attorney General’s Model Rules.  The Local Contract Review Board may also adopt rules for public contracting not covered by the Model Rules, as long as they do not conflict with the Public Contracting Code; and

 

WHEREAS, the Public Contracting Code divides powers and duties for contracting into two categories: those that must be performed by the “Local Contract Review Board”; and those that must be performed by the “Contracting Agency”; and

 

WHEREAS, pursuant to ORS 279A.060 the District Board is the Local Contract Review Board for District and, as such, is authorized to act on all such matters on behalf of the District, adopt Public Contracting Rules, and establish procedures for amendment of such rules; and

 

WHEREAS, the Local Contract Review Board may designate certain personal service contracts or classes of service contracts as personal service contracts, which are not subject to the procedural requirements of the Public Contracting Code or the Model Rules; and

 

WHEREAS, District recognizes it may exempt certain public improvement contracts or classes of such contracts under ORS 279C.335; and

 

WHEREAS, the District Board additionally requests that the District’s Local Contract Review Board approve the classes of special procurements set forth in the attached rules, based upon the findings set forth in Exhibit A to this Resolution.

 

NOW, THEREFORE, it is resolved as follows:

 

1. The District Board of Directors (District Board) is hereby designated to continue as the Local Contract Review Board of the District and shall have all of the rights, powers and authority necessary to carry out the provisions of Chapters 279A, 279B, and 279C (the “Public Contracting Code”) and attached Rules.  Except as otherwise provided in this Resolution, the definitions established in the attached Rules apply herein.  The term “Contracting Agency” as used in the attached Rules includes Contracting Agency’s chief administrative officer, his or her designee, or any other purchasing agent, as designated by District policy.  Those individuals are hereby designated as District’s Contracting Agency and may exercise all authorities, powers and duties granted to a Contracting Agency under the Public Contracting Code and attached Rules, unless otherwise established by District policy.

 

2. The above recitals and Exhibit A are hereby adopted by the District Board, sitting as the Local Contract Review Board, as findings of fact supporting approval of the Directors’ request for classes of special procurement and public improvement contract exemptions.

 

3. The Model Rules adopted by the Attorney General pursuant to ORS 279A.065 do not apply to District.  Instead, the District hereby prescribes the following Rules, which include portions of the Attorney General’s Model Rules, as the Rules of Procedure that the District will use for its public contracting:  Public Contracting Rules Chapter 137, Divisions 46, 47, 48 and 49.  While the numbering of these Rules reflects the numbering system of the Attorney General’s Model Rules, they incorporate District changes to the Model Rules, and, therefore, are not the Attorney General’s promulgated administrative rules.  District exemptions are also set forth in these Rules, as numbered Exemptions 1 through 18 (E-1 through E-18).  All above-referenced Rules are attached to this Resolution as Exhibit B, and incorporated herein by this reference.

 

4. In accordance with ORS 279A.065(6)(b), the District shall review its Public Contracting Rules, adopted herein, each time the Attorney General modifies its Model Rules in order to determine whether amendments are required to ensure statutory compliance.

 

5. Amendments to these Rules and new rules shall be adopted in accordance with this Resolution and the Public Contracting Code.  Special procurement requests and approvals shall be made in accordance with Division 47 of the attached Rules and ORS 279B.085.  Public improvement contract exemption procedures, including notice and public hearing requirements, shall be made in accordance with Division 49 of the attached Rules and ORS 279C.335.

 

6. The Model Cost Accounting Guidelines developed by the Oregon Department of Administrative Services pursuant to Section 3, Chapter 869, Oregon Laws 1979 are hereby adopted as the District’s Cost Accounting System to apply to public improvement projects exceeding $5,000 and constructed with District’s own equipment or personnel.  ORS 279C.310.  For such public improvement projects estimated to cost more than $125,000, District shall also comply with the requirements of ORS 279C.305(3).

 

7. All previously adopted resolutions establishing public contracting rules for District are hereby repealed.

EXHIBIT A

 

 

FINDINGS IN SUPPORT OF RESOLUTION NO. _____

ADOPTING PUBLIC CONTRACTING CODE RULES

 

 

ORS 279B.085 and 279C.335 authorize Mountain View Academy (District) Board of Directors, sitting as District’s local contract review board, to approve findings submitted and exemptions requested by District’s Board of Directors upon adoption of appropriate findings, to establish special selection, evaluation and award procedures for, or exempt from competition, the award of a specific contract or classes of contracts.

 

Pursuant to that authority, the Board makes the following findings in support of Resolution No. ______, which establishes exempt classes of contracts and the solicitation methods for their award:

 

No Findings Required

 

Pursuant to ORS 279A.025 and 279A.055, the District is not required to adopt findings with respect to the solicitation methods and awards of the following classes of contracts identified in District’s Public Contracting Rules 2014, Class Exemptions:

 

E-4                  Contracts for Price Regulated Items

E-6                  Investment Contracts

E-12                Insurance, Employee Benefit

E-17                Personal Service Contracts

E-18                Liability Insurance Contracts

 

The above Rules govern subjects specifically authorized by state law and, therefore, require no local exemption.

 

Specific Findings for Public Improvement Exemptions

 

The Board approves the specific findings for the exemptions for each class of public improvements established in the provisions described below and also finds that the establishment of each class of contracts and the methods approved for their award:

 

1. Is unlikely to encourage favoritism in the awarding of public improvement contracts or substantially diminish competition for public improvement contracts; and

 

2. The awarding of public improvement contracts under each exemption will result in substantial cost savings to District.

 

 

 

These conclusions are based on the following general findings:

 

1. Operational, budget, and financial data. Where various criteria, which may or may not include cost, must be weighed in order to select an appropriate contractor for the desired project, the formal competitive bidding process costs of up to $7,000 are a significant budgetary waste in that the most qualified contractor for the project may not be the lowest responsible bidder;

 

1. Public benefits. Exempting contracts from competitive bidding requirements and instead utilizing statutory competitive proposal procedures will protect and preserve public funds, enable greater competition between the most qualified contractors, and result in a better product which meets the public’s and District’s needs;

 

1. Value engineering, Specialized expertise required, Technical expertise. Only through a competitive proposal process can District weigh, evaluate and select this type of expertise and determine which contractor may best provide these services. These are qualities not reflected in cost, where a determination on cost alone could forfeit these valuable and essential attributes;

 

1. Public safety. Utilizing a competitive proposal process as opposed to competitive bidding can ensure high quality, more safely constructed facilities through the construction period, and after completion. Capitalizing upon design and construction planning and compatibility can also allow earlier use of public facilities even while construction continues;

 

1. Market conditions. The increased availability of and need for technical expertise, value engineering, or other types of specialized expertise, as well as a need to investigate the compatibility, experience and availability of contractors require that certain public improvement contracts be awarded based upon an evaluation of a number of criteria, rather than simply cost.

 

Specific Findings for Special Classes and Methods of Award for Contracts Other Than Public Improvements.

 

The Board approves the specific findings for the establishment of special solicitation methods for the classes of public contracts described below and also finds that the establishment of each class of contracts and methods approved for their award:

 

1. Is unlikely to encourage favoritism in the awarding of public contracts or substantially diminish competition for public contracts because such exemptions still require alternative contracting procedures, ensuring: (1) reasonable competition; (2) the best contract price for the public; and (3) a cost-effective process for both contractors and District;

 

2. The awarding of public contracts under these exemptions will result in substantial cost savings to District because District will avoid costs associated with unnecessary documentation and procedures, where it is unmerited by the type and/or relatively low cost of the contracts; and

 

3. The awarding of public contracts pursuant to any of the requested exemptions substantially promotes the public interest in a manner that could not practicably be realized by formal competitive solicitation procedures, given the fact that such exemptions facilitate smooth operation of District’s administration and operations, include procedures and mechanisms to ensure the best product, service or outcome is obtained at the least cost to the public and District, and identified classes address areas of public contracting left unresolved by state statute which are essential for District’s operations, such as awarding personal service contracts, purchasing used personal property, and disposing of surplus personal property.

 

Specifically, the Board finds:

 

E-2 – Advertising Contracts.

 

Alternate Award Process.  In District’s discretion.  The process selected may be competitive or non-competitive.

 

Cost Savings and Other Benefits.  Size of and frequency of average advertisement (including all notices required to be published by District) does not justify the cost of solicitation.  Period of time from recognition of need to advertise until advertising date is too short to issue solicitation.

 

Effect on Competition.  The potential market is limited because not all advertisers work in every market.  Choice of advertising medium is somewhat price sensitive, but primarily driven by location and size of circulation in comparison with District’s target audience.

 

No Favoritism.  Not applicable due to the lack of competitors and specialized contracting needs.

 

 

E-3 – Equipment Repair and Overhaul.

 

Alternate Award Process.  In District’s discretion.

 

Cost Savings and Other Benefits.

1. Pre-contract pricing is impossible
2. District has discretion to decide whether costs of solicitation are justified in relationship to size of contract and availability of skilled technicians to repair the specific equipment.
3. Delay required for solicitation would impair District’s ability to respond to equipment breakdown and be injurious to the public interest.
4. Experience with contractor is crucial because reliability over the course of several projects is important.

 

Effect on Competition.  Allows contractor to be selected based on ability to provide accurate, reliable and fast service.

 

Effect on Favoritism.  Favoritism will not be greater than if statutory request for proposals process is used.

 

 

E-5 – Copyrighted Materials.

 

Alternate Award Process.  In District’s discretion.

 

Cost Savings and Other Benefits.  Necessary to allow District to acquire special needs products that are unique.

 

Effect on Competition.  None.  There is no competitive market for a unique product.  Copyrighted materials are generally acquired from a sole-source copyright holder, as used property, or by donation.

 

No Favoritism.  Not applicable due to the lack of competitors and specialized contracting needs.

 

 

E-7 – Requirements Contracts.

 

Alternate Award Process.  Original contract must be based on a competitive process.

 

Cost Savings and Other Benefits.  Size and frequency of procurements does not justify the cost of solicitation.  Period of time from recognition of need until good or service required too short to issue solicitation.

 

Effect on Competition.  Minimal, due to underlying competitive process and requirement to renew contract via formal solicitation at least every five years.

 

Effect on Favoritism.  Minimal, due to underlying competitive process and requirement to renew contract via formal solicitation at least every five years.

 

 

E-8 – Office Copier Purchases.

 

Alternate Award Process.  Original contract must be based on a competitive process.

 

Cost Savings and Other Benefits.  Size and frequency of procurements does not justify the cost of solicitation.  Period of time from recognition of need until good or service required too short to issue solicitation.

 

Effect on Competition.  Minimal, due to underlying competitive process and requirement to renew contract via formal solicitation at least every five years.  In addition, rule requires evaluation and award based upon multiple factors, not just cost.

 

Effect on Favoritism.  Minimal, due to underlying competitive process and requirement to renew contract vial formal solicitation at least every five years.  In addition, rule requires evaluation and award based upon set factors, in addition to cost.

 

Other Factors.  Allows Contracting Agency to address emergency circumstances.  Cannot anticipate when immediate replacement or repairs will be needed to ensure normal operations.

 

 

E-9 – Manufacturer Direct Supplies.

 

Alternate Award Process.  Subject to District’s rules.

 

Cost Savings and Other Benefits.  Allowed only after a formal solicitation is completed and manufacturer’s price is less than offers received.  Cost of formal solicitation, therefore not merited.

 

Effect on Competition.  None.  Allowed only after complete and open competition within the same pool of potential contractors that would be qualified to respond to an invitation to bid.

 

Effect on Favoritism.  None.  Allowed only after complete and open competition within the same pool of potential contractors that would be qualified to respond to an invitation to bid.

 

Other Factors.  Allowed on a contract-by-contract basis and shall not result in an ongoing price agreement, further fostering competition. 

 

 

E-10 – Gasoline, Diesel Fuel, Heating Oil, Lubricants and Asphalt. 

 

Alternate Award Process.  Intermediate procurement process.

 

Cost Savings and Other Benefits.  Frequency and amount of exempt item purchases do not justify the cost of solicitation.  Period of time from recognition of need through contract award too long for needed purchases of exempt fungible goods.

 

Effect on Competition.  Minimal.  Intermediate procurement process surveys market and ensures level of competition appropriate for these frequently purchased goods.

 

Effect on Favoritism.  Purchase based on cost.  Intermediate procurement process sufficiently avoids any favoritism.

 

 

E-11 – Hazardous Material Removal; Oil Cleanup.

 

Alternate Award Process.  Rule encourages competitive procedures to the extent reasonable under the circumstances.

 

Cost Savings and Other Benefits.  Avoids unnecessary cost and delay associated with procurement procedures when most qualified available contractor required for immediate performance.  Primary consideration is public safety and compliance with hazardous material laws.

 

Effect on Competition.  Minimal, given competitive procedures encouraged by Rule and supporting findings describing circumstance requiring clean up.

 

Effect on Favoritism.  Minimal, given competitive procedures encouraged by Rule and supporting findings describing circumstance requiring clean up.

 

Other Factors.  Exemption necessary to ensure District’s ability to comply with State law governing hazardous materials.

 

 

E-13 – Medical and Laboratory Supplies.

 

Alternate Award Process.  Direct award to different vendors allowed, following initial competitive solicitation process.

 

Cost Savings and Other Benefits.  Frequency and amount of exempt item purchases do not justify the cost of solicitation.  Period of time from recognition of need through contract award too long for needed purchases of exempt fungible goods.

 

Effect on Competition.  Minimal.  Intermediate procurement process surveys market and ensures level of competition appropriate for these frequently purchased goods.

 

Effect on Favoritism.  Purchase based on cost.  Intermediate procurement process sufficiently avoids any favoritism.

E-14 – Concession Agreements.

 

Alternate Award Process.  Purchasing agent to adopt rules for award, as in the case of personal service contracts.

 

Cost Savings and Other Benefits.  Allows City to take advantage of unique revenue opportunities.

 

Effect on Competition.  Responds to unique opportunities for which the number of competitors may range from none to many.

 

Effect on Favoritism.  No impact.  Responds to unique opportunities.

 

Other Factors.  Not a contract for the acquisition or disposal of goods, or services or public improvements.  Most similar to personal services contract because the quality of the concession may be more important than price factors.  Variation in types and sizes of concession opportunities is too great to provide a single method of solicitation.  Statutory public contracting requirements may not apply.  May not be a public contract.  Most similar to personal services contract.  Findings may not be required.

 

 

E-15 – Used Personal Property, Purchase of.

 

Alternate Award Process.  Rule requires individualized ORS 279B.085 findings and an intermediate procurement process, where feasible.

 

Cost Savings and Other Benefits.  Allows District to take advantage of unique opportunity to require needed goods and services for discounted prices.

 

Effect on Competition.  No impact.  Responds to unique opportunities.

 

Effect on Favoritism.  No impact.  Responds to unique opportunities.

 

 

E-16 – Surplus Personal Property, Disposition of.

 

Alternate Award Process.  Any means in District’s best interest, after making individualized ORS 279B.085 findings.  Items with a residual value of more than $10,000 require local contract review board prior authorization.

 

Cost Savings and Other Benefits.

1. Avoids unnecessary solicitation expense by allowing District to determine whether cost of solicitation is justified by value of surplus property.
2. Allows District to establish programs for donation to charitable organizations.

 

Effect on Competition.  No impact.  Responds to unique opportunities.

 

Effect on Favoritism.  No impact.  Responds to unique opportunities.

 

Other Factors.  Variations in the type, quantity, quality and opportunities for recycling of surplus property are too large to have this class of contracts governed by a single solicitation method.

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Resolved by Mountain View Academy, That the following conflict of interest policy is adopted and will be followed.

Article I: Purpose

The purpose of the conflict of interest policy is to protect this tax-exempt organization’s (Organization) interest when it is contemplating entering into a transaction or arrangement that might benefit the private interest of an officer or director of the Organization or might result in a possible excess benefit transaction. This policy is intended to supplement but not replace any applicable state and federal laws governing conflict of interest applicable to nonprofit and charitable organizations.

Article II: Definitions

1. Interested Person: Any director, principal officer, or member of a committee with governing board delegated powers, who has a direct or indirect financial interest, as defined below, is an interested person.
2. Financial Interest: A person has a financial interest if the person has, directly or indirectly, through business, investment, or family:
   1. An ownership or investment interest in any entity with which the Organization has a transaction or arrangement,
   2. A compensation arrangement with the Organization or with any entity or individual with which the Organization has a transaction or arrangement, or
   3. A potential ownership or investment interest in, or compensation arrangement with, any entity or individual with which the Organization is negotiating a transaction or arrangement.
3. Compensation includes direct and indirect remuneration as well as gifts or favors that are not insubstantial.
4. A financial interest is not necessarily a conflict of interest. Under Article III, Section 2, a person who has a financial interest may have a conflict of interest only if the appropriate governing board or committee decides that a conflict of interest exists.

Article III: Procedures

1. Duty to Disclose: In connection with any actual or possible conflict of interest, an interested person must disclose the existence of the financial interest and be given the opportunity to disclose all material facts to the directors and members of committees with governing board delegated powers considering the proposed transaction or arrangement.
2. Determining Whether a Conflict of Interest Exists: After disclosure of the financial interest and all material facts, and after any discussion with the interested person, he/she shall leave the governing board or committee meeting while the determination of a conflict of interest is discussed and voted upon. The remaining board or committee members shall decide if a conflict of interest exists.
3. Procedures for Addressing the Conflict of Interest:
   1. An interested person may make a presentation at the governing board or committee meeting, but after the presentation, he/she shall leave the meeting during the discussion of, and the vote on, the transaction or arrangement involving the possible conflict of interest.
   2. The chairperson of the governing board or committee shall, if appropriate, appoint a disinterested person or committee to investigate alternatives to the proposed transaction or arrangement.
   3. After exercising due diligence, the governing board or committee shall determine whether the Organization can obtain with reasonable efforts a more advantageous transaction or arrangement from a person or entity that would not give rise to a conflict of interest.
   4. If a more advantageous transaction or arrangement is not reasonably possible under circumstances not producing a conflict of interest, the governing board or committee shall determine by a majority vote of the disinterested directors whether the transaction or arrangement is in the Organization’s best interest, for its own benefit, and whether it is fair and reasonable. In conformity with the above determination it shall make its decision as to whether to enter into the transaction or arrangement.
   5. Violations of the Conflicts of Interest Policy
      1. If the governing board or committee has reasonable cause to believe a member has failed to disclose actual or possible conflicts of interest, it shall inform the member of the basis for such belief and afford the member an opportunity to explain the alleged failure to disclose.
      2. If, after hearing the member’s response and after making further investigation as warranted by the circumstances, the governing board or committee determines the member has failed to disclose an actual or possible conflict of interest, it shall take appropriate disciplinary and corrective action.

Article IV: Records of Proceedings
The minutes of the governing board and all committees with board delegated powers shall contain:

1. The names of the persons who disclosed or otherwise were found to have a financial interest in connection with an actual or possible conflict of interest, the nature of the financial interest, any action taken to determine whether a conflict of interest was present, and the governing board’s or committee’s decision as to whether a conflict of interest in fact existed.
2. The names of the persons who were present for discussions and votes relating to the transaction or arrangement, the content of the discussion, including any alternatives to the proposed transaction or arrangement, and a record of any votes taken in connection with the proceedings.

Article V: Compensation

1. A voting member of the governing board who receives compensation, directly or indirectly, from the Organization for services is precluded from voting on matters pertaining to that member’s compensation.
2. A voting member of any committee whose jurisdiction includes compensation matters and who receives compensation, directly or indirectly, from the Organization for services is precluded from voting on matters pertaining to that member’s compensation.
3. No voting member of the governing board or any committee whose jurisdiction includes compensation matters and who receives compensation, directly or indirectly, from the Organization, either individually or collectively, is prohibited from providing information to any committee regarding compensation.

Article VI: Annual Statements
Each director, principal officer and member of a committee with governing board delegated powers shall annually sign a statement which affirms such person:

1. Has received a copy of the conflicts of interest policy,
2. Has read and understands the policy,
3. Has agreed to comply with the policy, and
4. Understands the Organization is charitable and in order to maintain its federal tax exemption it must engage primarily in activities which accomplish one or more of its tax-exempt purposes.

Article VII: Periodic Reviews
To ensure the Organization operates in a manner consistent with charitable purposes and does not engage in activities that could jeopardize its tax-exempt status, periodic reviews shall be conducted. The periodic reviews shall, at a minimum, include the following subjects:

1. Whether compensation arrangements and benefits are reasonable, based on competent survey information, and the result of arm’s length bargaining.
2. Whether partnerships, joint ventures, and arrangements with management organizations conform to the Organization’s written policies, are properly recorded, reflect reasonable investment or payments for goods and services, further charitable purposes and do not result in inurement, impermissible private benefit or in an excess benefit transaction.

Article VIII: Use of Outside Experts
When conducting the periodic reviews as provided for in Article VII, the Organization may, but need not, use outside advisors. If outside experts are used, their use shall not relieve the governing board of its responsibility for ensuring periodic reviews are conducted.

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