Fremont Municipal Code Art. VII Exceptions to Contract Procurement Requirements

This article describes categories of contracts that are exempt from the informal and formal competitive procurement requirements of this chapter. This article also describes procedures to authorize exceptions from the informal and formal competitive procurement requirements of this chapter. It is expected that the exemptions and exceptions will be limited in their application. Nothing herein is intended to preclude use of competitive procurement. (Ord. 8-2011 § 14(A), 7-12-11. 1990 Code § 2-9700.)

The following categories of contracts shall be exempt from the competitive procurement requirements of this chapter:

(a) Utility services, where there is a geographic territory for that utility, or where work involves an existing utility system and only that company can work on the system.

(b) Equipment maintenance services provided by the equipment manufacturer or dealer/distributor for equipment purchased by city.

(c) Software upgrades and maintenance, software license renewals, and operating system maintenance services where the city has previously procured software and operating systems.

(d) Contracts for city insurance and bonds.

(e) Legal service contracts, including outside counsel, investigators and experts.

(f) Contracts wholly funded by private parties such as, but not limited to, contracts for private development related studies and services.

(g) Contracts for services where selection is based on a unique personal accomplishment or characteristic such as guest speakers, performers, artists, recreation instructors, trainers, and facilitators.

(h) Purchases under a price contract awarded pursuant to Section 3.20.105.

(i) Contracts for personal property and services, except services for public works and public projects, in an amount of $5,000 or less. (Ord. 8-2011 § 14(B), 7-12-11. 1990 Code § 2-9701.)

(a) This section shall apply to any action taken by the city to resolve an emergency, as defined by Section 3.20.020; provided, that:

(1) The action would otherwise (absent the emergency) be taken by contract in accordance with this chapter.

(2) The city manager makes a written determination based on substantial evidence that there is an emergency, there is a need to take immediate action to resolve the emergency, and the action proposed to be taken is directly related to resolving the emergency, and the emergency will not permit a delay resulting from compliance with this chapter.

(3) The city complies with all requirements of state and federal law regarding the procurement of the contract, including Cal. Pub. Cont. Code § 22050. The city manager is hereby authorized to order any emergency action on behalf of the city in accordance with the requirements of this article and Cal. Pub. Cont. Code § 22050.

(b) Upon documentation of compliance with subsection (a) of this section, the city manager shall be authorized to direct the action, by oral or written contract, to the extent necessary to resolve the emergency. The city manager shall, to the extent feasible, comply with the requirements of this chapter. The city manager shall comply with the purpose and goals identified in Section 3.20.030.

(c) At the earliest feasible time, the city manager shall make a written documentation of the terms of any oral contract.

(d) At the earliest feasible time, the city manager shall terminate the authorization of action by emergency, and the city shall comply with the requirements of this chapter.

(e) At the earliest feasible time, the city manager shall report to the city council at a regularly scheduled city council meeting, any action taken pursuant to this section, including the written determination pursuant to subsection (a) of this section. The city council shall determine whether there is a need to continue or terminate the emergency action.

(f) If the city manager determines, in accordance with subsection (a) of this section, that additional actions (beyond those reported to city council) are necessary to resolve the emergency, the additional actions shall be reported to city council in accordance with subsection (e) of this section. (Ord. 2494 § 1, 12-3-02; Ord. 8-2011 § 14(C), 7-12-11. 1990 Code § 2-9702.)

The city may enter into a contract for personal property or services without complying with the competitive procurement requirements of this chapter in accordance with the following:

(a) The requesting department shall evaluate available sources to determine whether there is only one source capable of competently and efficiently providing the required personal property or service.

(b) If it is determined that there is only a single source for the purchasing of a particular item or service, the requesting department shall prepare a request for exemption from competitive solicitation and submit it to the purchasing manager.

(c) If it is determined that there is only a single source for the purchasing of a particular item or service, upon review and approval of the request by the purchasing manager and the city manager, the city may award the contract to the sole source vendor or service provider without competitive procurement.

(d) Examples of acceptable sole source purchases are: equipment for which there is no comparable competitive product, proprietary products sold directly from the manufacturer, a component or replacement part for which there is no commercially available substitute and which can be obtained only from the manufacturer, items where there is only one authorized distributor in the area, and items where compatibility with items in use by the city is an overriding consideration. (Ord. 2494 § 1, 12-3-02; Ord. 8-2011 § 14(D), 7-12-11. 1990 Code § 2-9703.)

(a) Cooperative Purchases. The city may participate with one or more other public agencies, as defined in Section 3.20.020, in a cooperative agreement to purchase personal property or services without complying with the competitive procurement requirements of this chapter provided at least one of the agencies has used solicitation process methods similar to those required by this chapter.

(b) Use of Another Agency’s Contract Terms. The city may enter into a proposed contract for the acquisition of personal property or services based upon terms of an existing contract between the contractor and another public agency, without complying with the competitive procurement requirements of this chapter, where:

(1) The city has an opportunity to enter into a proposed contract for the acquisition of personal property or services under terms materially the same as an existing contract between the contractor and another public agency; and

(2) The contract resulted from procurement methods similar to those required by this chapter.

(c) Public Projects. The city may enter into a contract with another public agency to construct a public project without complying with the competitive procurement requirements of this chapter where the other public agency uses bidding procedures similar to those required by this chapter to contract for the work.

(d) The requesting department shall prepare a request for exemption from competitive procurement and submit it to the purchasing manager. The request shall demonstrate compliance with the requirements of subsection (a), (b) or (c) of this section. Upon review and approval by the purchasing manager and city manager, the city may award the contract without competitive procurement. (Ord. 2494 § 1, 12-3-02; Ord. 8-2011 § 14(E), 7-12-11. 1990 Code § 2-9704.)

(a) The city may enter into a contract for personal property, services or public project construction without complying with the competitive procurement requirements of this chapter where solicitation of bids or proposals would not be useful or produce any advantage for the city and is therefore impractical, unavailing or impossible.

(b) The requesting department shall prepare a request for exemption from competitive procurement and submit it to the purchasing manager. The request shall demonstrate that solicitation of bids or proposals would not be useful or produce an advantage to the city. Upon review and approval by the purchasing manager and the city manager, the city may award the contract without competitive procurement. (Ord. 8-2011 § 14(F), 7-12-11. 1990 Code § 2-9705.)