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Personal Service Contracting for Washington State Ports

Personal Service Contracting for Washington State Ports. Legislative Overview Personal Service Contracting Requirements and Procedures Personal Service Contracting Nuts, Bolts and Curveballs. Agenda. Second Substitute House Bill 3274 (Chapter 130, Laws of 2008)

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Personal Service Contracting for Washington State Ports

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  1. Personal Service Contracting for Washington State Ports

  2. Legislative Overview • Personal Service Contracting Requirements and Procedures • Personal Service Contracting Nuts, Bolts and Curveballs Agenda

  3. Second Substitute House Bill 3274 (Chapter 130, Laws of 2008) • Sets out definitions, exemptions and competitive procedures for personal services contracting (PSC) • MRSC and WPPA to jointly develop PSC Contracting Manual and provide training to Ports • Ports must develop policies for personal services contracting based on PSC Manual Chapter 53.19 RCW & RCW 53.08.440 PERSONAL SERVICE CONTRACTS

  4. Policies must apply to contracts entered into after January 1, 2010 • PSC Manual available from • Link from WPPA website to http://www.mrsc.org/Subjects/PubWorks/portspsc.asp • Or purchase a published copy from MRSC: • http://mrsc.org/publications/mrscpubs.aspx#orderpubs Chapter 53.19 RCW & RCW 53.08.440 PERSONAL SERVICE CONTRACTS

  5. Policy of open competition • Different competitive requirements for personal and professional service contracts What Do the Statutes Say about Personal Service Contracting?

  6. Personal Services • Professional or technical expertise provided by a consultant to accomplish a specific study, project, task, or other work statement • Which may not reasonably be required in connection with a public works project meeting the definition in RCW 39.04.010(4) • Personal services do not include purchased services as defined in RCW 53.19.010(8) • Personal services do not include professional services procured using the competitive selection requirements in Chapter 39.80 RCW (A&E). RCW 53.19.010(6) Contract Types Page 13-15

  7. Not reasonably required in connection with a public works project • Services that would otherwise be considered as personal services, but are • reasonably required in connection with a public works project • do not meet the general definitions of professional practice in Chapters 18.08, 18.43, or 18.96 RCW, as referenced in RCW 39.80.020(5). • See the discussion and practice tips under PSC Manual Section 2.3 (pages 4 and 5) for more information on these non-A/E services. Contract Types Page 13-15

  8. Purchased Services [RCW 53.19.010(8)] • Services provided by a vendor to accomplish routine, continuing, and necessary functions. • Purchased services include, but are not limited to: • services for equipment maintenance and repair • laundry and/or uniform supply services • operation of a physical plant • security • computer hardware and software maintenance; • data entry; key punch services • computer time-sharing, contract programming, and analysis Contract Types Page 13-15

  9. Professional Services (A&E) • RCW 39.80.020(5) • Professional services by a person firm, other than an agency employee • Contracting to perform activities within the scope of professional practices listed in • Chapter 18.08 (Architects) • Chapter 18.43 (Engineers and Land Surveyors) • Chapter, or 18.96 (Landscape Architects). • Services are procured using the qualifications based selection requirements in Chapter 39.80 RCW Contract Types Page 13-15

  10. Chapter 53.19 RCW does not apply to: • Tariff Contracts • Contracts awarded to companies that furnish a service where the tariff is established by the Washington Utilities and Transportation Commission (WUTC) or other public entity • Intergovernmental Agreements • Intergovernmental agreements awarded to any governmental entity, whether federal, state, or local and any department, division, or subdivision thereof • Standard Fee Contracts • Contracts awarded for services to be performed for a standard fee, when the standard fee is established by the contracting agency or any other governmental entity and a like contract is available to all qualified applicants Does Not Apply Page 20-21

  11. Chapter 53.19 RCW does not apply to: • Collaborative Research Contracts • Contracts for services that are necessary to the conduct of collaborative research if prior approval is granted by the funding source • Contracts for professional services which are entered into under Chapter 39.80 RCW • Expert Witnesses or legal services • Contracts for the employment of expert witnesses for the purposes of litigation or legal services to supplement the expertise of port staff Does Not Apply Page 20-21

  12. Examples Page 15

  13. Tools in Chapter 2 of PSC Manual • Quick Tips for Getting Started • Statutory Procedure Matrix • Flow Chart • Personal Services Contract Size Chart • Typical Formal Competitive Selection Process Schedule • Personal Service Contract File Checklist • Definitions • Requirements and Procedures Overview

  14. Amendments • Scope of Service Changes • Sole Source Contracts • Statutory Procedure Matrix • Exemptions • Emergency Contracts • Conflict of Interest Overview

  15. Definitions Page 13-15 • Consultant • A consultant is an independent individual or firm contracting with a port to perform a service or render an opinion or recommendation according to the consultant’s methods and without being subject to the control of the port except as to the result of the work. RCW 53.19.010(3). • RFQ – Request for Qualifications • RFP – Request for Proposals

  16. Emergency – • Set of unforeseen circumstances beyond the control of the port that either: • present a real, immediate threat to the proper performance of essential functions; or may result in material loss • or damage to property, bodily injury, or loss of life if immediate action is not taken. • RCW 53.19.010(4). • Evidence of Competition – • Documentation demonstrating that the port has solicited responses from multiple firms in selecting a consultant. • RCW 53.19.010(5). • (The port district’s own policies and procedures may be more restrictive than statutory requirements, but not less restrictive.) Definitions Page 13-15

  17. Competitive Solicitation for Personal Services – • RCW 53.19.010(2). • Documented formal process • equal and open opportunity to qualified parties • selection based on criteria • criteria other than price may be the primary basis for consideration. • The criteria may include such factors as • fees or costs, • ability, • capacity, • experience, • reputation, • responsiveness to • time limitations, • responsiveness to solicitation requirements, • quality of previous performance, and • compliance with statutes and rules relating to contracts or services. Definitions Page 13-15

  18. Application (Proposal/Submittal) – • Completed statement of qualifications or proposal • request to be considered for the award of one or more contracts for personal services, • submitted in response to either a request for qualifications/proposals • or in response to a notice or advertisement for a consultant services roster • Also called a proposal or submittal Definitions Page 13-15

  19. Sole Source Consultant – • RCW 53.19.010(9). • A consultant providing professional or technical expertise of such a unique nature that the consultant is clearly and justifiably the only practicable source to provide the personal service. • Justification is based on • uniqueness of the service • sole availability at the location required • warranty or defect correction service obligations of the consultant Definitions Page 13-15

  20. The statute creates three levels of competition for personal service contracts: • formal (must be used for contracts over $200K) • informal (allowed for contracts under $200K) • “minimal” (allowed for contracts under $50K) Page 19 Requirements and Procedures

  21. Formal competition implies • publication of RFQ/RFP • evaluation criteria • probable evaluation committee • probable interviews • formal award by commission or port executive • written contract Page 19 Requirements and Procedures

  22. Informal Competition • publication not required • must request proposals from and/or conduct interviews with multiple firms • evaluation criteria • possible evaluation committee • possible interviews • award by commission or Port Executive • written contract • see page 27 of PSC Manual Page 19 Requirements and Procedures

  23. Minimal Competition • port commission and executive set policies • seeking competition is not required by the statutes, but is recommended, and use of a roster is encouraged • telephone calls can be made to firms or individuals describing the services desired and requesting price, schedule and qualifications to perform. • a contract is required upon selection, regardless of dollar amount • written contract Page 19 Requirements and Procedures

  24. Contract amendments exceeding 50 percent of the value of the original contract • singly or cumulatively • must be filed with the port commission • must be made available for public inspection • prior to the proposed starting date of services under the amendment(s) Page 20 Amendments

  25. Substantial changes in the scope of work specified in the contract • or additions to the scope of work specified in the formal solicitation document • Must be submitted to the commission for a determination as to whether the change warrants the work to be awarded as a new contract. • even if the original contract did not require commission approval. Page 20 Scope of Service Changes

  26. Sole source personal services contracts • must be filed with the commission • must be made available for public inspection prior to the proposed starting date of the contract. • Documented justification for sole source contracts must be provided to the commission when the contract is filed. Page 20 Sole Source Contracts

  27. Sole source contracts of $50,000 or more • Documented evidence that the port attempted to identify potential consultants. • Commission must determine that the costs, fees, or rates negotiated in filed sole source contracts of $50,000 or more are reasonable. RCW 53.19.040 Page 20 Sole Source Contracts

  28. Statutory Procedure Matrix Page 4

  29. Regardless of estimated contract amount, the commission may exempt specific contracts or classes or groups of contracts from the competitive solicitation process, when it has been determined such process would not be appropriate or cost effective. Page 20 Exemptions

  30. Emergency personal services contracts • must be filed with the commission • must be made available for public inspection • within seven working days following • commencement of work, or • execution of the contract • whichever occurs first. RCW 53.19.030 • Documented justification for emergency contracts must be provided to the commission when the contract is filed. • (Note that this seven-day requirement is more stringent than that of RCW 39.04.280 addressing public works, which requires adoption of written findings of the existence of the emergency no later than 14 days after contract award.) Page 20 Emergency Contracts

  31. Chapter 42.23 RCW contains a Code of Ethics for municipal officers (including port officials) • Municipal officer includes: • all elected and appointed officers of a municipality • all deputies and assistants of such an officer • all persons exercising or undertaking to exercise any of the powers or functions of a municipal officer.” • This code prohibits a municipal officer from having a beneficial (financial) interest in a contract made under the municipal officer’s supervision or for the benefit of his or her office. Conflict of Interest Page 10-12

  32. Contracts made in violation of this statutory conflict of interest law are void. • Remote interests are not prohibited (RCW 42.23.040) • an official with a remote interest must not participate in selecting the contractor  • An exemption applicable to port districts is: • “The letting of any other contract in which the total amount received under the contract or contracts by the municipal officer or the municipal officer's business does not exceed one thousand five hundred dollars in any calendar month.” • However, a port officer should not participate in any decision to award a contract to him/herself that is subject to this exemption. • See RCW 42.23.030 for other procedural requirements • For more information on statutory conflicts of interest, see the MRSC Web page entitled Conflicts of Interest Conflict of Interest Page 10-12

  33. The Code also identifies for municipal officers certain “prohibited acts”: • Using his or her position to obtain special privileges; • Accepting any compensation, gratuity, or reward from a source other then the employing municipality in connection with the officer’s duties; • Engaging in a business or professional activity that the officer might reasonably expect would induce him or her to disclose confidential information gained by virtue of his or her official position; and • Disclosing confidential information or using such information for personal gain. RCW 42.23.070. Page 10-12 Conflict of Interest

  34. Pick all that apply Port commissions are required to: • Approve all personal service contracts exceeding $50,000 • Establish policies for personal service contracts • Approve all contract amendments • Approve all sole source contracts Page 4-7 Midway checkup

  35. Answer: only no. 2 is true Port commissions are required to: • Approve all personal service contracts exceeding $50,000 – there is no dollar threshold • Establish policies for personal service contracts • Approve all contract amendments – amendments exceeding 50% must be filed with the commission • Approve all sole source contracts – if over $50,000 commission determines if fees are reasonable Midway checkup

  36. Pick all that apply Proposed fees cannot be a selection criteria for • Appraisers • Attorneys • Engineers • Environmental scientists • Landscape architects • Graphic designers Midway checkup

  37. Answer Proposed fees cannot be a selection criteria for 3. Engineers and 5. Landscape architects. These architect/engineering services are selected based on qualifications, with fees then negotiated with the most qualified firm. See Chapter 39.80 RCW. Midway checkup

  38. Sample Document Sources • Pre-Contract Procedures • Scope of Services • Cost Estimates • Competitive Solicitation and Contracting Procedures • RFQ/RFP Solicitation Process • Evaluation Criteria/Scoring • Interviews • Finalize Contract • Contract Approval • Contract Administration • Contract Amendments • Scope Changes • Monitoring and Financial Reporting • Federal Funding Requirements Personal Service Contracting Nuts, Bolts and Curveballs

  39. PSC Manual Appendices • http://www.mrsc.org/Subjects/PubWorks/portspsc. aspx • OR http://washingtonports.org/downloads/psmhome.asp Sample Document Sources

  40. MRSC Purchasing, Bidding, and Contract Management Sourcebook • http://mrsc.org/subjects/pubworks/sourcebook/sourcebooktoc.aspx • Professional and Personal Services Contracting • J1 Tempe AZ Construction Services Templates • J2 UW - RFQ Advertisement Template • J3 Spokane On-Call Surveying Services • J4 Port of Olympia Professional & Personal Services Selection Suite • J5 Port of Everett Personal Services Contract Procedures • J6 Port of Everett Consultant Contract Tracking Templates Sample Document Sources

  41. Scope of Service Samples • Washington State Department of General Administration or Department of Information Services Solicitations • Washington State Office of Financial Management listing of personal service contracts • http://www.ofm.wa.gov/contracts/reports/default.asp • listing reports consultant name, contract type and amount • contact the awarding agency to review the actual contract • MRSC research tools http://www.mrsc.org/research.aspx; • May use RFI or RFP without pricing to better define requirements before formal RFP Pre-Contract Procedures Page 23

  42. Cost Estimates • An accurate, conservative cost estimate is critical: • selection procedures vary according to the contract amount • solicitation thresholds are based on the actual contract amount • Cost Estimate Tips • Comparable contracts of the port or other entities, adjusted for inflation and regional cost factors; • Rates paid by other public entities, adjusted for regional cost factors. • Service contracts for the same specialty; • State master contracts; • Separate estimates prepared based on historical costs. • Conduct a formal solicitation process if you are unsure of estimated costs or if they are “borderline.” Pre-Contract Procedures Page 24

  43. RFQ – request for qualifications only • RFI - request for information only • RFP Solicitation Process - may include request for qualifications and will definitely include: • request for detailed scope of services • request for estimated cost of services (optional) • proposed schedule, including tasks and milestones • evaluation criteria to be followed in selection • proposal elements (information needed to be submitted) • deadline for acceptance of proposal • port’s standard terms and conditions • time and place for submission of proposals Competitive Solicitation and Contracting Procedures Page 26-27

  44. Other common RFP elements include : • Background on the port with Website links • Reference documents • – large files may be posted to a website • Interviews or no interviews • Pre-proposal conference(s) • Page limits, if any • Public disclosure statement/guidance • Non-collusion certification, etc • Honorarium or no honorarium Page 26-28 Competitive Solicitation and Contracting Procedures

  45. Criteria can include, but are not limited to: • fees or costs, • ability, • capacity, • experience, (firm AND key personnel) • reputation, • responsiveness to solicitation requirements • time limitations, • responsiveness to solicitation requirements, • quality of previous performance, and • compliance with statutes and rules relating to contracts or services Evaluation Criteria/Scoring Page 29

  46. Scoring: • Evaluation form is needed, with sections for • Experience/qualifications • Proposal • Interviews • Ask for references to help verify evaluation • Ranking vs. weighted evaluation • Ranking gives equal credence to all criteria • Weighting allows more emphasis on one or more criteria • Several examples of weighted criteria are found on pages 31-33 of the PSC Manual (test before using) Evaluation Criteria/Scoring

  47. Evaluation/Interview Committee: • May be as small (2-3 people) • May be large (6-9 people), if the contract is large, complex, and/or politicized • More than 10 becomes very unwieldy • Interviews should be scheduled such that all committee members can attend all interviews. • Set aside a room with adequate space and presentation amenities. • Consultants should be free to visit the room beforehand and ascertain availability of electrical outlets, etc., for audiovisual equipment. Interviews

  48. Unless the project is unusually large or complex, about 60 minutes for each interview should be adequate • A typical interview schedule is: • General introduction by consultant (five minutes). • Project approach by consultant's project manager (25 minutes) • Often, the city might provide specific questions that all the finalists are to respond to (15 minutes) • Questions by selection committee (15 minutes) • The schedule should allow for a 15-20 minute break between interviews to allow the committee to record their thoughts and evaluations while fresh Interviews

  49. At the end of all proposal review or interview sessions, committee members should convene to review their notes and criteria points, arriving at a final recommendation • The firm (or firms) with the highest ranking or highest total (weighted) score should be recommended for award and negotiation of a contract • Retain evaluation sheets, notes, or a summary document thereof in the project files, to support the ranking procedure and selection Evaluation/Interviews

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