Notwithstanding any other provision of this Code, a department may contract for works or services governed by this Chapter 6 other than through open and full competition ("Sole Source"), subject to the requirements of this provision. None of the requirements of applicable provisions of the Municipal Code, including but not limited to requirements of Chapters 12B, 12C or 14B of the Administrative Code, are waived for Sole Source Contracts.
(a) Approval. For departments under the jurisdiction of a commission or a board, the Department Head shall recommend to the commission or board concerned the approval and award of a Sole Source Contract and such commission or board may then adopt a resolution approving the justification of the Sole Source and awarding the Contract. For departments with no commission or board, the Department Head, with the approval of the Mayor or Mayor's Designee, may award a Sole Source Contract. The Department Head's recommendation must provide specific and comprehensive information, as provided under Section 6.73(d) below, justifying the necessity of a Sole Source Contract.
(b) When Prohibited. Sole Source contracting shall not be justified on the basis of: (1) a lack of advance planning by the department, or (2) expediency or convenience of the department.
(c) When Allowable. Before a department begins negotiations for a Sole Source Contract, the Department Head shall make a written justification that a Sole Source procurement is necessary or appropriate based on one or more of the following circumstances:
(1) Work or services are available from only one source as justified by the results of a solicitation or advertisement designed to attract as many potential sources qualified to compete on the procurement as appropriate, whether through a Request for Interest, Request for Qualifications or other form of advertisement or solicitation;
(2) Documented rights in or singular ownership of data, intellectual property, processes, systems, or similar circumstances make the work or services, or maintenance of such work or services, available from only one source;
(3) Work or services deemed to be available only from the original source in the case of a follow-on Contract for the continued work or services, when it is likely that award to any other source would result in: (A) substantial duplication of cost to the City that is not expected to be recovered through competition; (B) unacceptable delays in fulfilling the City's requirements; or (C) loss of warranty protection;
(4) Work or services required by statute or government regulation to be from a specific public entity or accrediting agency. For purposes of this Section 6.73, an accrediting agency is defined as a government-controlled or privately supported agency authorized to certify compliance with statutes or government regulations required for Public Works or Improvements; or
(5) Work or services needed on an expedited basis in order to use State or Federal funding made available to the department that otherwise will expire, where the need for expediency is not caused by action or inaction of the City.
(d) Justification Requirements. The Department Head's written justification for a Sole Source procurement shall be valid for no more than two years, prior to award of a Contract. Departments must assess the validity of the determination as often as is appropriate. The determination shall remain valid during the term of an executed Sole Source Contract. At a minimum, the written justification of the Department Head described in Section 6.73(c) shall address the following:
(1) The work or services required to meet the department's needs, including the estimated value;
(2) The proposed Contractor's unique qualifications to perform the work or services or why the nature of the work or services requires use of the procurement through a Sole Source;
(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;
(4) The solicitation issued to determine that the procurement is justified as a Sole Source pursuant to Section 6.73(c)(1) or a statement as to why issuing a solicitation or advertisement is impracticable, along with the results of any market research conducted;
(5) When Section 6.73(c)(3) is cited for follow-on work or services, the department shall prepare an explanation justifying why use of a competitive process would not be in the public's best interests, including: (A) a detailed estimate of the costs to the City that would be duplicated; (B) an estimate of the delay that would occur; and/or (C) loss of warranty protection that would result.
(e) Exceptions.
(1) The designation of particular materials, products, things or services in specifications for Contracts for Public Works or Improvements shall be subject to the provisions of California Public Contract Code Section 3400, as amended from time to time.
(2) In Contracts that involve the use of any funds furnished, given or loaned by the Government of the United States or the State of California, all laws, rules and regulations of the Government of the United States or the State of California or of any of its departments relative to the performance of such work and the conditions under which the work is to be performed, shall prevail over the requirements of this Section 6.73 when such laws, rules or regulations are in conflict.
