San Francisco County Municipal Code Art. III Professional Services Contracting

Sec. 6.40. Competitive Procurement of Professional Services for Public Work Projects. Sec. 6.41. Requests for Competitive Proposals or Qualifications. Sec. 6.42. Professional Services Contract Terms. Sec. 6.43. As-needed Professional Services Contracts.

PROJECTS. Notwithstanding any other provision of this Administrative Code, when a department is seeking outside temporary professional design, consultant, or Construction Management services for a Public Work or Improvement project, where the fee for such services shall exceed the Minimum Competitive Amount, as defined below, the department shall procure such services through a competitive process based primarily on qualifications. (a) Minimum Competitive Amount. The Minimum Competitive Amount for temporary outside professional service Contracts shall be $230,000. Beginning on July 1, 2030, the Controller shall adjust the Minimum Competitive Amount to reflect any increase in the relevant consumer price index, as determined by the Controller, since July 1, 2025. The Controller shall perform a consumer price index adjustment of the Minimum Competitive Amount every five years thereafter for the preceding five-year period. The Minimum Competitive Amount as recalculated by the Controller shall be rounded to the nearest $10,000 and shall take effect by operation of law on July 1, 2030, and on July 1 every five years thereafter. (b) Selection Process. For professional services Contracts in excess of the Minimum Competitive Amount, the Department Head shall designate one or more panels to review proposals and rate respondents with respect to a request for proposals or qualifications for a professional services Contract. A panel shall consist of not fewer than two persons. The Department Head may establish a multi-tier selection process whereby, for example, a technical panel recommends a shortlist of qualified respondents and a second panel ranks the shortlist. The Department Head shall ensure that all panel members are impartial and that all respondents are treated fairly. The panel members rating the respondents shall do so according to their independent assessment of the respondent's qualifications for the Public Work project; questions relating to a respondent's expertise, qualifications and experience shall remain within the sole purview of the panel members. (c) Negotiation. Following the selection process outlined above, and should the department concerned desire to enter into a Contract, the Department Head shall invite the highest-ranked qualified respondent to negotiate a Contract to the extent provided for in the request for proposals. In the event that the Department Head determines, in the Department Head's sole discretion, that negotiations are unfruitful, the Department Head shall terminate negotiations in writing and may then invite the next highest-ranked respondent to negotiate a Contract. In such event, the Department Head shall as soon as practicable make a report to the Mayor, board or commission as appropriate to the department. (d) Procedure Upon Rejection or Failure of Proposals. If no Responsive proposals are received from qualified proposers, the Department Head shall determine (1) whether further outreach efforts would result in respondents submitting proposals and/or (2) whether removal or modification of certain requirements in the Contract or request for proposals or qualifications would result in

respondents submitting responsive proposals, provided that such requirements are not required by law and their removal or modification would not compromise the interests of the City. If the Department Head determines that steps (1) and/or (2), above, would likely result in respondents submitting Responsive proposals, then the Department Head shall reissue the request for proposals or qualifications. If the Department Head determines that neither step (1) nor (2) above, would likely result in respondents submitting Responsive proposals, then the Department Head, with the approval of the Mayor or the board or commission concerned, as appropriate, may negotiate with any qualified Contractor for the professional services sought by the request for proposals or qualifications. (e) Procedure Upon Contractor's Failure to Deliver. When a Contractor fails to deliver a service of the quality, in the quantity, or in the manner specified in the Contract within the time specified in the Contract, the department may terminate the Contract and/or procure such service from any source. The department's authority to procure services from other sources as specified in this subsection 6.40(e) shall not preclude the City's exercise of any other remedies, including termination of the Contract. (Amended by Ord. 324-00, File No. 001919, App. 12/28/2000; Ord. 7-02, File No. 011675, App. 1/25/2002; Ord. 19-10, File No. 091163, App. 2/10/2010; Ord. 108-15, File No. 150175, App. 7/2/2015, Eff. 8/1/2015; Ord. 220-20, File No. 200949, App. 11/6/2020, Eff. 12/7/2020; Ord. 203-21, File No. 210835, App. 11/12/2021, Eff. 12/13/2021, Oper. 7/1/2022; Ord. 123-25, File No. 250508, App. 8/1/2025, Eff. 9/1/2025)

All requests for competitive proposals or qualifications for temporary design, consultant, or Construction Management services shall conform to and at a minimum require the following: (a) Evaluation Criteria. The Department Head shall determine the criteria by which the design, consultant, or Construction Management service professionals shall be evaluated, on a project-by-project basis. Such criteria shall be included as a part of any request for proposals or qualifications. The criteria shall be based primarily on qualifications and experience relevant to the services needed for the project. Except as prohibited by law, the Department Head, in his or her sole discretion, may determine that, in the best interests of the City, a consultant who participated in the master plan, conceptual phase or other preliminary work for a project, may compete to provide professional services in future phases of such project. In such event, the consultant may not use, nor may the selection panel consider, the consultant's prior work on the project to establish its experience or qualifications in the competitive process. (b) Reservation of Rights to Reject or Cancel the Request for Proposals in Whole or Part. The Department Head, upon approval of the Mayor or the board or commission, as appropriate, may reject any or all proposals, in whole or in part, received in response to a request for proposals or qualifications. The right to reject shall be reserved in any request for proposals or qualifications, but the failure to include such reservation shall not abrogate the rights of the Department Head under this Section 6.41 or give rise to any right by any respondent. (c) Award and Certification Required. All requests for proposals or qualifications shall contain the following language [wording in brackets should be chosen as appropriate to the department]: In accordance with San Francisco Administrative Code Chapter 6, no proposal is accepted and no contract in excess of [the Threshold Amount] is awarded by the City until such time as [(1) for departments with boards or commissions, (a) the Department Head recommends the contract for award and (b) the board or commission then adopts a resolution awarding the contract; or [(2) for departments under the Mayor, (a) the Mayor approves the contract for award and (b) the Department Head then issues and order of award]. Pursuant to Charter Section 3.105, all contract awards are subject to certification by the Controller as to the availability of funds. Failure of a department to include such language in a request for proposals or qualifications does not give rise to a contract right by a respondent or Contractor outside of the requirements of the Charter or Administrative Code. (Added by Ord. 286-99, File No. 991645, App. 11/5/99; amended by Ord. 58-05, File No. 041571, App. 4/1/2005; Ord. 108-15, File No. 150175, App. 7/2/2015, Eff. 8/1/2015; Ord. 220-20, File No. 200949, App. 11/6/2020, Eff. 12/7/2020)

All Contracts for temporary design, consultant, and Construction Management services are professional services Contracts, which shall contain the following minimum terms and conditions: (a) Guaranteed Maximum Costs. Professional service Contracts shall provide for a Guaranteed Maximum Cost, including fees, travel and related expenses as necessitated by the project. Any modification to the Guaranteed Maximum Cost must be approved by the Department Head in writing and approved by the Mayor or the board or commission concerned, as appropriate, and the Controller. (b) Insurance. Notwithstanding any other provisions of this Chapter 6, all professional service Contracts must conform to the insurance requirements established by the Risk Manager. The Risk Manager shall develop uniform insurance requirements for City Contracts subject to this Chapter 6. The Risk Manager shall review and update such insurance requirements as necessary to protect the City’s interests.

(c) Indemnification. All professional services Contracts awarded under this Chapter 6 shall require that the Contractor fully indemnify the City to the maximum extent provided by law, such that each Contractor must save, keep, bear harmless and fully indemnify the City and any of its officers or agents from any and all liability, damages, claims, judgments or demands for damages, costs or expenses in law or equity that may at any time arise. This indemnification requirement may not be waived or abrogated in any way for any Contract without the recommendation of the Risk Manager and the express permission and approval of the Board of Supervisors. (d) Assignment. No Contract shall be assigned except upon the recommendation of the Department Head concerned and with the approval of the Mayor, relative to the department under the Mayor's jurisdiction or the approval of the board or commission concerned for departments not under the Mayor. (e) Modifications. Professional service Contracts may be modified only by written instrument, granted and approved by the City and in the same manner the underlying Contract was awarded. (f) Contractor Prompt Payment. All professional services Contracts under this Chapter 6 shall require the Contractor to pay its subcontractors within seven calendar days after receipt of each progress payment from the City, unless otherwise agreed to in writing in advance by both Contractor and subcontractor. In the event that there is a good faith dispute over all or any portion of the amount due on a progress payment from a Contractor to a subcontractor, the Contractor may withhold the disputed amount but shall pay the undisputed amount. Any Contractor who violates this subsection 6.42(f) shall pay to the subcontractor a penalty of 2% of the amount due per month for every month or portion thereof that payment is not made. This subsection 6.42(f) is enforceable in a court of competent jurisdiction, and is not intended to create a private right of action against the City. (Added by Ord. 286-99, File No. 991645, App. 11/5/99; amended by Ord. 7-02, File No. 011675, App. 1/25/2002; Ord. 23-10, File No. 091233, App. 2/11/2010; Ord. 27-13 , File No. 121200, App. 2/19/2013, Eff. 3/21/2013; Ord. 108-15, File No. 150175, App. 7/2/2015, Eff. 8/1/2015; Ord. 220-20, File No. 200949, App. 11/6/2020, Eff. 12/7/2020; Ord. 164-23, File No. 230647, App. 7/28/2023, Eff. 8/28/2023)

Department Heads are authorized to procure as-needed professional services for temporary professional services to supplement the expertise or experience of the department for one or more Public Work or Improvement projects in conformance with Sections 6.40 through 6.42, with the following limitations: (a) The Department Head shall designate an as-needed professional service Contract as a single-project or multiple-project Contract in the request for proposals or qualifications. (b) Work shall be assigned by contract service orders. Contract service orders shall include a scope of services, time, and a not-to- exceed fee. (1) A multiple-project as-needed Contract shall provide for a not-to-exceed amount and a Contract term of not more than five years from the date of certification by the Controller of the Contract, including all modifications. The cumulative modifications to a multiple- project as-needed Contract shall not exceed 150% of the original not-to-exceed amount. No contract service order or multiple contract service orders for services provided for any single project, whether in one phase or multiple phases, shall cumulatively exceed the Threshold Amount, including all modifications. A department may issue or modify any contract service order(s) to exceed the foregoing limit only upon the Department Head's written determination establishing the justification for proceeding under the as-needed Contract rather than soliciting services through a formal competitive process. (2) A single-project as-needed Contract shall provide for a not-to-exceed amount and identify the public work. The scope of the contract service orders must be limited to that single Public Work or Improvement. The limitations in subsection 6.43(b)(1) shall not apply to single-project as-needed Contracts. (c) If a department has more than one as-needed multiple-project professional services Contract for the same scope of services, prior to issuance of any contract service order under that Contract, the department shall document the selection process of the Contractor from the other Contractors holding contracts for the same scope of services. At a minimum, the written documentation shall address the following: (1) The work or services required to meet the department’s needs; (2) The proposed Contractor’s unique qualifications or experience to perform the work or services, or why the nature of the work or services requires use of the Contractor; and (3) The anticipated cost to the City and the department’s determination that such cost will be in the best financial interest of the City. The department shall maintain the selection documentation for at least three years after termination or expiration of the Contract. The Controller shall periodically audit the procurement of these as-needed Contracts as provided in Charter Section F1.106. (Added by Ord. 108-15, File No. 150175, App. 7/2/2015, Eff. 8/1/2015; amended by Ord. 255-20, File No. 200787, App. 12/18/2020, Eff. 1/18/2021, Oper. 1/18/2021)