PURPOSE
The purpose of this procedure is to provide guidelines for execution of the Consultant contract after negotiations are completed.
REFERENCES
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RESPONSIBILITIES
City Attorney: The City Attorney’s general counsel to the Board of Public Works must approve and sign the proposed Contract “As to Form” before submittal to the Board of Public Works.
Project Manager (PM): The PM is responsible for securing the City Attorney’s approval of the proposed contract, preparing the Record of Selection, preparing the Board Report for contract execution, and delivering contracts for signature when needed.
City Engineer: The City Engineer is responsible for approving the final Board Report recommending award of the contract.
Office of Accounting: The Office of Accounting is responsible for verifying that funds are available for the contract.
Bureau of Contract Administration (BCA): The BCA is responsible as joint author of the Board Report to report on the Minority Business Enterprise / Women Business Enterprise / Other Business Enterprise (MBE/WBE/OBE) proposed participation in the contract, certification status of the proposed subconsultants, and the Consultant’s compliance with the City’s contracting policies.
Board of Public Works (BPW): The BPW is responsible for the review and approval of the City Engineer's Board Report, forwarding the contract and Board Report to the Mayor’s Office for approval, and the subsequent execution of the contract.
Mayor: The Mayor is responsible for executing the contract or, more commonly, authorizing the BPW to execute the contract. The Mayor’s Office is responsible for forwarding the proposed contract to the City Administrative Office for analysis and recommendations.
City Administrative Office (CAO): At the Mayor’s request, the CAO is responsible for reviewing the proposed contract and writing the “Analysis of Proposed Contract” report to the Mayor (and Council, if needed) which makes recommendations regarding the contract.
City Council: The City Council is responsible for authorizing any of the Bureau’s personal services contracts with terms longer than 3 years that do not support capital projects or any contracts with terms longer than 5 years that are related to the City’s capital improvement projects. They also must approve any amendments extending contracts with a cumulative duration longer than these time limits. The City Council must approve the funding for personal services contracts if the normal budgeting process hasn’t already done so.
Personal Services Contracts Section of the Project Award and Control Division (PAC): The Contracts Section maintains a centralized file of all executed personal services contracts and amendments. PAC will verify the terms in the CAO’s “Analysis of Proposed Contract” report against the adopted Board Report to ensure consistency.
PROCEDURE
Awarding by the BPW
Once the Program Manager (and the City Engineer, if the Program Manager feels it is necessary) has given his approval to a contract's terms (see Procedure 6.5), the PM obtains the approval of the City Attorney and notifies the Consultant that negotiations are complete. For assistance, contact the Contracts Section of PAC.
The PM should then get the Consultant to sign the contract. The PM then prepares the Record of Selection and Negotiation and keeps a copy for the official Program files. The PM prepares a standard "Consultant Contract Execution" Board Report (Attachment 6.7-1) that recommends the Board approve the contract and forward it to the Mayor for his consideration. The Contracts Section of PAC will review the draft Board Report. Then, the PM can send the draft Board Report to the Board Unit (Office Automation Section) and the draft Board Report will be routed to the BCA, Office of Contract Compliance (OCC) for inclusion of their section of the report dealing with MBE/WBE/SBE/EBE/DVBE/OBE participation and certification of subconsultants. OCC will add the MBE/WBE/SBE/EBE/DVBE/OBE subconsultants to the Board Report. These subconsultants should be the same as those listed on the Consultant’s Schedule A and also listed in the negotiated contract. Once the routing, formatting edits and initials are complete, the Board Unit prepares the final Board Report for approval/signature by the City Engineer and the Inspector of Public Works from the BCA.
The PM should then notify the Bureau’s liaison Board Commissioner that the item is coming to the Board soon and schedule a briefing. This is usually done at the Monday afternoon Board Briefings. The PM should also give an “advance copy” of the report and proposed contract to the appropriate staff member in the CAO’s Office so that they can begin their consideration of the item. Then the PM should appear at the Board the day it is being considered to answer any questions.
Upon the Report's adoption, the Secretary of the Board will then forward the report (Attachment 6.7-2) and contract to the Mayor’s Office for his consideration. The Mayor’s Office will send the item to the CAO’s Office for review and preparation of a report back to the Mayor. It will most likely be given to the same CAO staff member you gave the “advance copy” to. The contract is analyzed by the CAO’s Office and the “Analysis of Proposed Contract” report, which usually recommends approval, is sent back to the Mayor. The Mayor’s Office then considers the item and returns it to the Board, authorizing them to execute the contract on behalf of the City. Upon receiving the item, the Board Secretary schedules the item on the next Board Agenda and following their decision to execute the contract, the Secretary has the President or two members of the Board sign the contract, thereby executing it on behalf of the City.
The foregoing Procedure, from the Program Manager’s approval to Contract execution can take anywhere from 6 to 15 weeks (or longer).
Early Start by the Consultant Due to Urgency or Deadlines
The general policy of BOE is that Consultants do not start work on a project before there is an executed contract with the Consultant. However, there are circumstances due to urgency or the outside deadlines imposed on a project where it is advantageous for the City to request that a Consultant commence work on a project prior to the execution of a formal agreement. The City Attorney’s opinion is that current State Contract Law is very clear that the City is not liable for payment of work performed prior to an executed contract. Therefore, after the formal contract is executed, the City, if it so desires, can reimburse the Consultant for work performed prior to formal contract execution. However, if for some reason the contract is not formally executed, payment cannot and will not be made to the Consultant for work done prior to an executed contract.
This request of a Consultant for an early start may only be submitted with the authorization of the appropriate Deputy City Engineer, the City Engineer, the BPW and any Oversight Committee overseeing the project. Such a request should only be made if the PM has reasonable assurances that no obvious problems exist and the formal execution of the contract will be made after undergoing the standard process procedures.
The Consultant must be informed in writing and agree to accept (Attachment 6.7-3) the following risks if an early start is to be undertaken:
The City does not yet have a formal contract with them to work on the project.
There is no guarantee that the City will pay for work performed before a contract is formally executed.
All work will be done at the Consultant’s risk with the possibility that they may not be reimbursed for work done prior to an executed contract.
The circumstances that would prompt one to seek an early start before contract execution should be rare and extraordinary. The widespread use of Pre-qualified OnCall (PQOC) Consultants Lists has reduced further the need for requesting an early start. The City Engineer has the authority to issue a Task Order to a Consultant up to $100,000. Because the PQOC contracts are already in place, the issuance of such a Task Order is a much preferred procedure compared to requesting an early start before contract execution.
Council Approval – Special Circumstance
There are three instances when the contract must also receive Council approval. This must be done because the City’s Administrative Code requires the approval of the Council on all contracts classified as “long term contracts” and funds must always be budgeted by the Mayor and Council prior to contract execution. The instances are:
if the contract is for services other than support of a capital project and its term is over three years in length; or,
if the contract is for services related to the City’s capital improvement projects and its term is longer than five years; or,
if the Mayor and Council have not yet budgeted funds for the contract.
In these instances, the Board Report must recommend that the Board approve the contract (but not yet execute it) and that it be forwarded to the Mayor’s Office and the Council for approval and funding, if funding is required. The Contracts Section of PAC can provide the exact language required in the recommendation. Upon receiving the adopted Board Report, the Mayor’s Office will send the item to the CAO’s Office for review and preparation of a report back to the Mayor, just as is typically done. However, upon the Mayor receiving the CAO’s “Analysis of Proposed Contract” report and their approval of the contracting proposal, the Mayor’s Office sends the Board Report, proposed contract, CAO Analysis, and his statement approving the contract to the Referral Clerk in the City Clerk’s Office. This initiates the Council approval process. The Referral Clerk will enter a record into the Council File Index database (that the City Clerk maintains) of all items submitted to the City Council. The Referral Clerk will then assign the item to the appropriate Council Committee(s), sometimes with guidance from the Council President. The Council Committee(s) and full Council then consider whether to approve this “long term contract”. If funding is needed, they will need to approve funding for the contract for that fiscal year. Rarely do they reject one of the Bureau’s contracts. If they have not taken final action on the contract within 60 days of it being entered into the Council File Index by the Referral Clerk, they are deemed to have approved the contract. If it is being considered because of the need for funding, a positive budgetary action must be taken.
Upon approving the contract, the Council returns the contract to the Board. Upon receiving the item, the Board Secretary schedules the item on the next Board Agenda and following their decision to execute the contract, the Secretary has the President or two members of the Board sign the contract, thereby executing it on behalf of the City. There should be 5 original signature pages of the contract with wet signatures from the Consultant, City Attorney, and the President or two members of the Board.
City Clerk Attestation
After the Board has executed the contract, the Board Secretary will have 5 original contracts delivered to the City Clerk where the contracts are given a contract number and the City Clerk certifies that it has been duly executed. The contract is fully executed when the City Clerk has signed the contract.
The City Clerk will retain one original contract. The other original documents will be returned to the Board and the Board will retain one original contract. The PM can pick up the other original documents from the Board. One original contract is given to the Consultant and one original is for the Program’s Master File. An original or a copy of the executed contract should be sent to the Contracts Section of PAC so that they can add it to the centralized files they keep of the Bureau’s executed personal services contracts. The Office of Accounting and the Controller’s Office will eventually request executed copies of the contract for payment purposes.
Next Actions by Project Manager
Certain costs, contract and schedule tracking activities should be performed immediately, if not completed during contract development and execution. These procedures are detailed in Procedure 6.8. Briefly, they are:
If not done already, open the work order(s) under which the Consultant's activities will fall.
Ensure the new contract and its required information, including multipliers, are entered into the Personal Service/chapter-6-using-consultants/69-paying-work-wbs-and-mbewbe-and-bip-utilizations Contract System (PSCS).
If the personal services contract is related to a physical project, update the Uniform Project Reporting System (UPRS) to indicate that the contract has been executed.
Provide the Consultant with a sample invoice that fulfills the Bureau’s needs. Include the Subconsultant Utilization Invoice Attachment form in electronic format (refer to Procedure 6.9). Allow the Consultant to use its existing invoicing system, to the maximum extent possible, as long as it provides the information the Bureau requires.
RELATED PROCEDURES
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