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CHAPTER 21: ACQUISITION OF COMMODITIES AND SERVICES

Sec. 21.01. Scope of Chapter.

Sec. 21.02. Definitions.

Sec. 21.03. General Authority of the Purchaser of Supplies.

Sec. 21.04. Direct Purchasing Authority of Departments.

Sec. 21.05. Powers of Departments.

Sec. 21.06. Electronic Transactions.

Sec. 21.1. Competitive Solicitation Required.

Sec. 21.2. Advertising Solicitations.

Sec. 21.3. Competitive Sealed Bidding.

Sec. 21.4. Invitations for Competitive Proposals or Qualifications.

Sec. 21.5. Other Purchases.

Sec. 21.6. When No Valid Offers Are Received; Multiple Low Offers.

Sec. 21.7. Rejection and Readvertising for Proposals.

Sec. 21.8. Multiple Award Contracts.

Sec. 21.9. Multiple Year Contracts; Options to Extend or Renew.

Sec. 21.10. Bond May Be Required.

Sec. 21.11. Bid Security.

Sec. 21.12. Approval of Sureties.

Sec. 21.13. Procedure upon Failure to File Required Bond.

Sec. 21.14. Contractors Required to Obtain Business Tax Registration Certificate.

Sec. 21.15. Emergency Procurement Procedures.

Sec. 21.16. Use of Purchasing Agreements of and Reciprocal Agreements with Other Public and Non-Profit Agencies; Solicitations for Multiple Departments.

Sec. 21.17. Contracts to Be in Writing.

Sec. 21.18. Contracts to Be in Triplicate; Disposition of Contracts.

Sec. 21.19. Contract Terms– Guaranteed Maximum Costs.

Sec. 21.20. Contract Terms– Insurance.

Sec. 21.21. Contract Terms– Infringement Indemnity.

Sec. 21.22. Contract Terms– Assignment.

Sec. 21.23. Contract Terms– Incidental Damage Waivers; Liability Caps.

Sec. 21.24. Contract Terms– Contracts Exceeding $10,000,000.

Sec. 21.25. Prevailing Rate of Wages in Motor Bus Service Contracts.

Sec. 21.25-1. Prevailing Rate of Wages Required in Contracts for Janitorial Services; Nonprofit Organizations Exclusion; Small Business Exclusion.

Sec. 21.25-2. Prevailing Rate of Wages and Displaced Work Protection Required for Workers in Public Off-Street Parking Lots, Garages, or Storage Facilities for Automobiles.

Sec. 21.25-3. Prevailing Rate of Wages Required for Theatrical Workers.

Sec. 21.25-5. Prevailing Rate of Wages and Worker Retention Required for Workers Engaged in Hauling of Solid Waste Generated by the City in the Course of City Operations.

Sec. 21.25-x. Prevailing Rate of Wages Required in Contracts for Moving Services; Nonprofit Organizations Exclusion.

Sec. 21.26. Contract Terms– In-Home Supportive Service Requirements.

Sec. 21.27. Contract Terms– Quantities.

Sec. 21.28. Contract Terms– Upgraded Products.

Sec. 21.29. Contract Terms– Pricing.

Sec. 21.30. Software Licenses, Support, Escrow, Finance, and Equipment Maintenance Agreements.

Sec. 21.31. Articles Not to Be Prison Made; Exception.

Sec. 21.32. Food Purchased by the Sealer of Weights and Measures.

Sec. 21.33. Procedure upon Contractor's Failure to Deliver.

Sec. 21.34. Audit of Contractor's Records.

Sec. 21.35. Submitting False Claims; Monetary Penalties.

Sec. 21.36. Contract Dispute Resolution.

Sec. 21.37. Disqualification of Irresponsible Contractors.

Sec. 21.38. Effect of Disqualification of Irresponsible Contractors.

Sec. 21.39. Collusion in Contracting.

Sec. 21.40. Construction Against Implicit Repealer.

Sec. 21.41. Severability.

Sec. 21.42. Professional Services Contracts for Health and Behavioral Health Services and Support.

SEC. 21.01. SCOPE OF CHAPTER.

Chapter 21 governs the acquisition of Commodities and Services. Chapter 21 shall not apply to contracts for public works or improvements or to contracts for the purchase, sale or lease of any interest in real property.

(Added by Ord. 156-99, File No. 990743, App. 6/2/99)

SEC. 21.02. DEFINITIONS.

As used in this Chapter the following words shall have the following respective meanings:

(a) "Bid" shall mean a bid, quotation, or other offer, other than a Proposal, from a person or entity to sell a Commodity or Service to the City at a specified price.

(b) "Bidder" shall mean any person or entity which submits a Bid.

(c) "City" shall mean the City and County of San Francisco.

(d) "COIT" shall mean the Committee on Information Technology of the City and County of San Francisco.

(e) "Commodity" shall mean products, including materials, equipment and supplies, purchased by the City. "Commodity" shall specifically exclude legal and litigation related contracts or contracts entered into pursuant to settlement of legal proceedings, and employee benefits, including, without limitation, health plans, retirement or deferred compensation benefits, insurance and flexible accounts, provided by or through the City's Human Resources Department or the Retirement Board.

(f) "Computer Store" shall mean the City-wide, multiple award contract for the procurement of certain Commodities and Services, which is administered by COIT for the benefit of City departments, awarded pursuant to the "Request for Proposal for Computer Hardware, Software, Peripherals and Appropriate Network, Consulting, Maintenance, Training and Support Services," and any successor contracts thereto.

(g) "Contractor" shall mean any corporation, partnership, individual, sole proprietorship, joint venture or other legal entity which enters into a contract to sell Commodities or Services to the City.

(h) "Contracting Officer" shall mean the City employee who is authorized to execute a contract, which may be either the department head or a person designated in writing by the department head, board or commission as having the authority to sign contracts for the department. A designation of authority to sign contracts on behalf of a department may specify authority to sign a single contract, specified classes of contracts, or all contracts entered into by a department.

(i) "Disadvantaged Business Enterprise" or "DBE" shall mean a private business located in and doing business in San Francisco with current revenues equal to or less than the limits set for similar businesses eligible for certification by the Human Rights Commission as Minority Owned Business Enterprises (MBEs) or Women Owned Business Enterprises (WBEs). DBE status shall be based only on economic criteria, and shall not include consideration of race or gender. The Purchaser shall verify the DBE status of any Offeror to whom a small business set aside contract is proposed to be awarded prior to award.

(j) "Electronic" shall mean electrical, digital, magnetic, optical, electromagnetic or other similar technology for conveying documents or authorizations, excluding facsimile.

(k) "General services" shall mean those services that are not Professional Services. Examples of General Services include: janitorial, security guard, pest control, parking lot attendants and landscaping services.

(l) "Offer" shall mean a Bid or Proposal submitted to the City in response to an invitation for Bids or a Request for proposals. "Offer" may include a response to a request for qualifications if no further ranking prior to Contractor selection is contemplated by the procurement process.

(m) "Offeror" shall mean a person or entity that submits an Offer to the City to provide Commodities or Services.

(n) "Professional Services" shall mean those services which require extended analysis, the exercise of discretion and independent judgment in their performance, and/or the application of an advanced, specialized type of knowledge, expertise, or training customarily acquired either by a prolonged course of study or equivalent experience in the field. Examples of professional service providers include licensed professionals such as architects, engineers, and accountants, and non-licensed professionals such as software developers and financial and other consultants.

(o) "Proposal" shall mean a response to a request for proposals issued by the City for Commodities or Services, or a response to a request for qualifications if no further ranking prior to contractor selection is contemplated by the procurement process.

(p) "Proposer" shall mean a person or entity that submits a Proposal in response to a request for proposals issued by the City.

(q) "Purchase order" shall mean an authorization document designated as such by the Purchaser for the procurement of Commodities or Services, whether issued in a paper or electronic format, including blanket purchase orders for purchases involving multiple payments.

(r) "Purchaser" shall mean the Purchaser of Supplies of the City and County of San Francisco, or his or her designee(s).

(s) "Quotation" shall mean a Bid for Commodities or Services which is acquired without the use of advertising to solicit Bids.

(t) "Services" shall mean Professional Services and General Services. "Services" shall specifically exclude agreements making a grant of City funds to private entities for the purpose of providing a benefit to the public, which may include incidental purchases of commodities; legal and litigation related services or contracts entered into pursuant to settlement of legal proceedings; and services related to employee benefits, including, without limitation, health plans, retirement or deferred compensation benefits, insurance and flexible accounts, provided by or through the City's Human Resources Department or the Retirement Board.

(u) "Solicitation" shall mean an invitation for Bids, request for Quotations, request for qualifications, or request for Proposals issued by the City for the purpose of soliciting Bids, Quotations, or Proposals to perform a City contract.

(Added by Ord. 156-99, File No. 990743, App. 6/2/99)

SEC. 21.03. GENERAL AUTHORITY OF THE PURCHASER OF SUPPLIES.

(a) Approval of Purchases. The Purchaser shall purchase all Commodities or Services required by City departments and offices of the City, except as otherwise provided in the Charter and Municipal Code of San Francisco. The Purchaser shall, by regulation, designate and authorize appropriate department personnel to exercise the Purchaser's approval authority for contracts approved as provided in this section.

(b) Purchases to be Made on Requisitions; Exception for Large Quantities or Common Use. All purchases made by the Purchaser shall be made on the basis of requisitions of ordering departments; except that Commodities and Services in common use by more than one department, or used in large quantities by a department may be purchased on the basis of the total of such requisitions or estimates previously filed from the various departments. The Purchaser is authorized to enter into City-wide requirements contracts for the purchase of indefinite quantities of Commodities or Services for the period of time and at prices set forth in the contract, under which any department may elect to order such Commodities or Services.

(c) Standardization of Purchases. The Purchaser may establish specifications, terms and conditions, and product tests to cover all Commodities and Services purchases of (i) large quantities, or (ii) recurring purchases, or (iii) Commodities or Services in common use by more than one department. The Purchaser may, as far as is practicable, standardize Commodities according to the use to which they are to be put, when two or more types, brands or kinds are specified or requested by individual departments.

(d) Purchases of Commodities. Purchases of Commodities shall be made in accordance with selection criteria or specifications furnished by the department requiring such Commodities whenever the need for particular selection criteria or specifications is peculiar to such department. For patented or proprietary Commodities sold by brand name, the purchaser may require each department requisitioning same by such brand name to furnish specifications of the Commodity requisitioned, and may advertise for Offers on the basis of such specifications, under conditions permitting manufacturers of, or dealers in other products made and sold for the same purpose, to make Offers on such specifications or on the specifications of their own product. If the Purchaser recommends the acceptance of the lowest or best Offer, stating the Purchaser's reasons in writing therefor, and if the department head concerned recommends the acceptance of any other Offer on such proprietary Commodities, stating the department's reasons in writing therefor, the award shall be determined by the Controller.

(e) Procurement Of Vehicles for Use of City Officials And Employees.

(1) When purchasing, leasing, or otherwise procuring passenger vehicles, including passenger cars, passenger vans, sport utility vehicles, cargo vans and pickup trucks up to and including one ton in payload, departments shall request vehicles of the same functional type and passenger capacity approved by the Board of Supervisors in the budget.

(2) In evaluating vehicle purchase requests, the Purchaser is authorized to consider the price, durability, fuel efficiency, resale value, expected repair and maintenance cost, and all other factors, including options and accessories that may among other considerations enhance the safety and resale value of the vehicle and that bear directly on the total cost to the City of the vehicle in relationship to the service it will render.

(3) The Purchaser may develop sets of general specifications, including optional equipment, for purchases of compact, mid-size and full-size passenger cars or may specify vehicles by proprietary brand name when purchasing additional vehicles for an existing fleet. The specifications shall note the major items of standard equipment of such vehicles and may include, in the Purchaser's discretion, optional equipment which the Purchaser has determined should be ordered on City passenger cars. When procuring passenger cars, the purchaser shall include this group of options, to the extent possible, even if the department which will use the car does not request them.

If a department requests optional equipment that is not part of the Purchaser's group of options and which would cost in excess of a dollar limit to be set by the Purchaser in regulations, the department must either:

(A) Itemize the equipment in the description of the vehicle itself, when the vehicle purchase is reviewed as part of the City's annual budget process, and obtain the Board's approval of the vehicle as equipped; or

(B) Obtain the approval of the Mayor's Budget Office before submitting a requisition to the Purchaser.

(4) If a department desires to procure a passenger vehicle that is upgraded in terms of the functional type or capacity from what was approved in the budget, then the department must first obtain the approval of the Mayor's Budget Office before submitting a requisition to the Purchaser.

(5) This section shall not apply to the procurement of mass transit vehicles over one ton or other specialized vehicles as defined in the Purchaser's regulations.

(f) Payment procedures. The Purchaser and Controller shall establish procedures to approve all bills and vouchers for Commodities and Services. All approvals required pursuant to such procedures must be obtained before the controller shall draw and approve warrants therefor.

(g) Storerooms and Garages. The Purchaser shall have charge of a garage and shop for the repair of City equipment, and of the purchaser's storerooms and warehouses for the City and the personnel assigned thereto.

(h) Leasing Of Equipment From Non-profit Corporations Without Competitive Bidding. Notwithstanding any other provisions of this Code, the Purchaser is authorized to award a contract, without issuing Solicitations, to a non-profit corporation for the leasing of equipment; provided, that the non-profit corporation has been formed for the purpose of aiding and assisting the City, and the formation of the non-profit corporation has been approved by resolution of the Board of Supervisors.

(i) Disposal of Surplus. Commodities which have been determined to be surplus to City needs shall be disposed of in a manner which will best serve the interests of the City. For the purposes of this section, the interests of the City shall include the City's ability to maximize the City's economic return on surplus Commodities, the City's interest in maximizing the re-use of surplus Commodities by public entities, non-profit organizations and schools, and the City's interest in avoiding any unnecessary additions to the waste stream by maximizing the re-use and recycling of surplus Commodities. Disposal of surplus Commodities may include sales to, exchanges with, or donation to public entities, non-profit organizations, and private organizations for a public purpose, or donation to private entities for recycling of parts or materials. The Purchaser may maintain lists of all known local resources for transfer of surplus Commodities to public entities, non-profit organizations, and private organizations for a public purpose, and for the recycling of parts. The Purchaser shall have the authority to require the transfer of surplus property in any department to the Purchaser's stores or to other departments.

(1) The Purchaser of supplies shall have the authority to exchange Used commodities to the advantage of the City, to advertise for Bids, and to sell Commodities belonging to the City on the recommendation of a department head that such Commodities are surplus to the needs of the department.

(2) The Purchaser shall have the authority to donate obsolete, used or surplus Commodities if a department head states in writing that such Commodities are surplus to the needs of the department. The Purchaser shall document in writing each donation.

(A) Donations of Commodities meeting the criteria listed above may be offered to public entities, non-profit organizations, or private organizations serving the public. The order of priority for donations shall be to entities or organizations:

(i) Engaged in distributing the surplus Commodities offered at no cost or for a nominal fee to non-profit organizations, schools, or low-income individuals or families that are physically located in San Francisco;

(ii) Engaged in distributing the surplus Commodities offered at no cost or for a nominal fee to non-profit organizations, schools, or low-income individuals or families that are physically located in the Bay Area;

(iii) Engaged in distributing the surplus Commodities offered at no cost or for a nominal fee to non-profit organizations, schools, or low-income individuals or families that are physically located in the United States;

(iv) Engaged in distributing the surplus Commodities offered at no cost or for a nominal fee to non-profit organizations, schools, or low-income individuals or families that are physically located in foreign countries;

(v) Engaged in recycling the surplus Commodities, including parts or materials.

(B) Surplus medical supplies that are no longer in compliance with Federal Drug Administration regulations may be offered to entities and organizations which are engaged in distributing or administering the surplus medical supplies at no cost or for a nominal fee to low-income individuals or families in foreign countries.

(C) To the extent that more than one organization meets the criteria in a category listed above, surplus Commodities shall be made available on a rotational basis to entities and organizations in the same category. If there is a need to dispose of surplus Commodities and no entity or organization meeting the criteria noted in Section 21.03(i)(2)(A) can be located to receive a donation, the Purchaser is authorized to utilize other means that may be available to dispose of such Commodities in a manner that will best serve the interests of the City.

(j) Information Technology Purchases. All contracts for the acquisition of information technology Commodities or Services shall be made by the Purchaser, under the direction and supervision of COIT. "Information technology" Commodities and Services which are subject to this requirement shall be defined in regulations adopted by the Purchaser, the Department of Telecommunication and Information Services and COIT.

(k) Rules And Regulations. The Purchaser, with the approval of the Director of Administrative Services and the Controller, shall establish rules and regulations for the purpose of implementing the provisions of this Chapter.

(Added by Ord. 156-99, File No. 990743, App. 6/2/99)

SEC. 21.04. DIRECT PURCHASING AUTHORITY OF DEPARTMENTS.

(a) Department heads shall be authorized to purchase Commodities or Services directly and without the approval of purchasing, as provided in the Charter or Municipal Code of San Francisco, or in the following circumstances:

(1) When such purchase is recommended by a department head and is approved by the Purchaser. The Purchaser's approval of direct department purchases may be for individual contracts or for classes of contracts anticipated to be required by the department.

(2) Departments may directly enter into contracts with other public entities for the purpose of fulfilling their governmental functions, which may include the provision or exchange of Commodities or Services incidental to the purpose of the contract.

(3) Departments may directly enter into contracts for the investment of trust moneys and agreements relating to the management of trust assets.

(4) Purchases of works of art or artifacts for museums or to display in public areas, specialized art restoration, insuring, transport, storage, curation and conservation services.

(5) The Risk Manager is authorized to purchase insurance and expert services in forms, amounts and by procedures as approved by the Board of Supervisors in the annual Risk Management Budget.

(6) The General Manager of the Public Utilities Commission may directly purchase water, power or natural gas, the conveyance or transmission of same, or ancillary services such as spinning reserve, voltage control, or load scheduling, as required for assuring reliable services in accordance with good utility practice, to or on behalf of the San Francisco Public Utilities Commission.

(7) Officers and employees of the City may contract directly for the provision of services related to travel required for official City business, subject to compliance with rules and regulations established by the approving department and the Controller for reimbursement of such expenses.

(b) Nothing in this section is intended to affect the authorities granted to departments elsewhere in this Code or in the Charter.

(Added by Ord. 156-99, File No. 990743, App. 6/2/99)

SEC. 21.05. POWERS OF DEPARTMENTS.

(a) Estimates of Requirements. All departments shall file estimates of required Commodities and services at such time and in such manner as shall be determined by the Purchaser.

(b) Procurement of Professional Services. Departments shall be responsible for defining the scope of a project for contracting purposes, establishing fair evaluation criteria and selection processes for Solicitations, and for the negotiation and award of contracts for Professional Services, with the assistance of the Purchaser and the City Attorney, provided, however, that:

(1) If a proposed contract for Professional Services includes the procurement of Commodities, then the department shall seek prior Purchasing approval of the Solicitation document; and

(2) The Director of Purchasing shall be the Contracting Officer for Professional Service contracts unless a Contracting Officer other than the Purchaser is authorized to enter into the contract directly.

(c) Cancellation of Purchase Contracts. The Contracting Officer shall be the only person authorized to terminate a contract for cause or convenience.

(d) Inspection of Purchases. Departments shall make adequate inspection of all purchases.

(Added by Ord. 156-99, File No. 990743, App. 6/2/99)

SEC. 21.06. ELECTRONIC TRANSACTIONS.

(a) Electronic Notification. For purposes of this Chapter, if a requirement exists that a City official notify another City official of an event, or send a report to another City official, the official with that responsibility may use Electronic notification, rather than a physical document, to effect the notice.

(b) Electronic Filing. For purposes of this Charter, if a requirement exists that a City official keep a copy of a form or a document, the official may keep an Electronic record rather than a physical document, provided that the electronic record contains at least as much information as the physical form or document would have contained. Any departmental record retention policies applicable to physical records also apply to the corresponding Electronic records.

(c) Other Electronic Transactions. Where the Purchaser, in consultation with the Department of Telecommunications and Information Services and COIT, determines that the technology exists to provide assurance of authentication, message integrity, and nonrepudiation through secure and reliable Electronic transactions, the Purchaser may establish regulations for the use of Electronic transactions under this Chapter, including authorization, approval or execution of documents, placing orders with Contractors, receiving Offers, making determinations, or providing notice. Such regulations shall include appropriate security to prevent unauthorized access to the Solicitation, Offer, approval and award processes, and accurate retrieval and/or conversion of Electronic forms of such information into a medium that permits inspection and copying.

(Added by Ord. 156-99, File No. 990743, App. 6/2/99)

SEC. 21.1. COMPETITIVE SOLICITATION REQUIRED.

All City contracts for Commodities and/or Services shall be procured through competitive solicitation, except as otherwise authorized in this Code.

(Added by Ord. 156-99, File No. 990743, App. 6/2/99)

SEC. 21.2. ADVERTISING SOLICITATIONS.

Notices inviting Offers under the provisions of Sections 21.3 and 21.4 of this Chapter must be published in accordance with the Charter and Municipal Code of San Francisco. At least five calendar days must intervene between the date of last publication and the time for filing such sealed Offers. The published notice must contain a general description of the Commodity or Service, the due date for Offers, and a City contact phone number.

(Added by Ord. 156-99, File No. 990743, App. 6/2/99)

SEC. 21.3. COMPETITIVE SEALED BIDDING.

(a) Invitation for Bids. Except as otherwise authorized in this Code, for any Commodity or General Services purchase estimated to cost in excess of $50,000, an invitation for Bids may be issued to solicit Bids and shall include a purchase description and all contractual terms and conditions applicable to the procurement, including a reservation of the City's right to reject all Offers. It shall constitute official misconduct to divide any purchase into two or more units with the intent of evading the requirements of this section.

(b) Bid Opening. Bids shall be opened publicly by the Contracting Officer at the time and place designated in the Invitation for Bids in the presence of all Bidders who attend. Relevant information as the Purchaser may specify by regulation shall be recorded. Except for materials protected from disclosure pursuant to Administrative Code Section 67.24, the record and each Bid shall be open to public inspection following bid opening.

(c) Bid Evaluation. Bids shall be evaluated based on the requirements and specifications set forth in the Invitation for Bids, which may include criteria to determine acceptability such as inspection, testing, quality, workmanship, delivery, and suitability for a particular purpose. Those criteria that will affect the Bid price and be considered in evaluation for award shall be objectively measurable, such as discounts, transportation costs, conversion costs and total or life cycle costs.

(d) Correction, Withdrawal, or Rejection of Bids; Cancellation of Awards. Correction or withdrawal of inadvertently erroneous Bids before or after award, or cancellation of awards or contracts based on such Bid mistakes, shall be permitted in accordance with regulations promulgated by the Purchaser. After Bid opening, no changes in Bid prices or other provisions of Bids prejudicial to the interest of the City or fair competition shall be permitted. Except as otherwise provided by regulation, all decisions to permit the correction or withdrawal of Bids, or to cancel awards or contracts based on Bid mistakes, shall be supported by a written determination made by the Purchaser. The Purchaser may reject all bids at any time prior to award.

(e) Award. The contract shall be awarded not less than five working days after Bid opening by written notice to the lowest responsible and responsive Bidder whose Bid meets the requirements and criteria set forth in the Invitation for Bids. Notice of all awards made pursuant to the provisions of this section shall be published as required by the Charter. In the event that all Bids exceed available funds and the lowest responsible and responsive bidder does not exceed such funds by more than 10 percent, the Purchaser is authorized in situations where time and economic considerations preclude resolicitation of work of a reduced scope to negotiate an adjustment of the Bid price, including changes in the Bid requirements, with the low responsive and responsible Bidder, in order to bring the Bid within the amount of available funds.

(f) Awards in the Public Interest. If the Purchaser finds that the public interest would be best served by accepting other than the lowest total or unit price the Purchaser is authorized to accept the Bid(s) that in the Purchaser's opinion will best serve the public interest, to make the awards and to enter into the necessary contracts. Prior to making an award to other than the lowest Bidder(s), the Purchaser shall submit a written statement of the basis for the finding to the Director of Administrative Services.

(g) Additional Purchases. Where the quantity of Commodities or General Services to be provided under a contract is fixed, the Contracting Officer may, within one year after award and subject to the Contractor's consent, purchase additional quantities of the specific Commodities or General Services for which award was made at the award price or a lower price, in accordance with the Purchaser's regulations.

(h) Multi-step Bidding. A Contracting Officer may prequalify Bidders prior to issuing an Invitation for Bids based on prequalification criteria set forth in a Solicitation.

(i) Bid Protests. The procedure for resolving bid protests shall be established by regulations adopted by the Purchaser.

(Added by Ord. 156-99, File No. 990743, App. 6/2/99)

SEC. 21.4. INVITATIONS FOR COMPETITIVE PROPOSALS OR QUALIFICATIONS.

(a) Authorization; Evaluation Criteria. A Contracting Officer may issue a request for Proposals, or request for qualifications, for the selection of Professional Service Contractors following consideration of the evaluation factors set forth in the request for Proposals, which may include cost, except as prohibited by law. If a department determines that it would be in the best interests of the City to acquire combined Commodities and Services or General Services by means of a request for Proposals or qualifications, rather than an invitation for Bids, such request for Proposals or qualifications shall be issued by the Purchaser. A request for Proposals or qualifications for Professional Services maybe issued directly by the department.

(b) Negotiation. The Contracting Officer is authorized to negotiate terms and conditions, including price, with the highest ranked Proposer. If the Contracting Officer cannot conclude a contract that, in the opinion of the Contracting Officer is in the City's best interest, the Contracting Officer may terminate negotiations with the highest ranked Proposer. In the event that the Contracting Officer cannot conclude negotiations with the next highest ranked Proposer on terms acceptable to the City, then the Contracting Officer may negotiate with each successively ranked proposer.

(c) Requests for Qualifications. A department may issue a request for qualification to determine the qualifications of prospective Contractors for particular types of Commodities and/or Services to be provided to that department. Prequalification may be for the purpose of issuing a further Solicitation to select from among the prequalified entities for a particular contract, or it may be for the purpose of maintaining a list from which Contractors will be selected for future contracts as needed by the department, or the department may select Contractor(s) based on ranking of responses to the request for qualifications. For the procurement of Commodities and Services for which lists of prequalified entities are created by a department, selection of a Contractor for a particular contract may be made without the use of a further Solicitation if the list is maintained by issuing a new request for qualifications at least once every two years. The Purchaser may also maintain City-wide lists of prequalified contractors.

(d) Content of Requests for Proposals. A request for Proposals shall specify evaluation criteria for selection, and shall reserve the right to reject or cancel the request for Proposals in whole or in part.

(e) Mass-transit Vehicles . Notwithstanding any other provision of the charter or laws of the City, the Public Transportation Department, through its department head and through the Purchaser is authorized to include among its purchasing specifications the use of negotiated procurement procedures for the purchase of mass-transit vehicles.

(Added by Ord. 156-99, File No. 990743, App. 6/2/99)

SEC. 21.5. OTHER PURCHASES.

Notwithstanding any other provision of this Chapter, procurement of the following shall be made in accordance with the Purchaser's regulations:

(a) Commodities or services where the total amount of the purchase does not exceed $50,000.

(b) Commodities or services available only from a sole source.

(c) Perishable foods.

(d) Proprietary articles.

(e) Contracts involving a pilot project with a term not to exceed two years; provided, however, that any further procurement beyond the pilot project phase shall be subject to all applicable competitive procurement requirements.

(f) The Purchaser may designate a particular Solicitation as a small business set aside, and restrict competition for that contract to DBEs. Such set-aside shall not continue for more than two consecutive years for any particular contract, and the Purchaser shall not allocate an aggregate of more than ten million dollars per fiscal year for DBE set-aside contracts. The findings made by the Board of Supervisors with respect to contracting with local businesses in Administrative Code Section 12-D.A.2 are hereby incorporated by reference into this section.

(g) Commodities or Services purchased with federal grant funds, awarded for the purpose of enhancing security and overall preparedness to prevent, respond to, or recover from acts of terrorism, where the total amount of the purchase does not exceed $100,000. Federal grant funds include federal monies awarded to the City through the state or other governmental entities. This subsection does not cover Commodities or Services identified by the grant as an administrative or management cost or expense.

(Added by Ord. 156-99, File No. 990743, App. 6/2/99; Ord. 296-04, File No. 041450, App. 12/24/2004)

SEC. 21.6. WHEN NO VALID OFFERS ARE RECEIVED; MULTIPLE LOW OFFERS.

When a Contracting Officer issues a Solicitation for Commodities and/or Services and no responsive and responsible Offers are received, the Contracting Officer shall review the Solicitation to determine whether the Solicitation could be altered and reissued in a manner that would be likely to attract responsive offers. If the Contracting Officer determines that the lack of responsive Offers is not due to the content of the Solicitation, the Contracting Officer may purchase the Commodities or Services called for from any source. If two or more Bids received are for the same amount or unit price and Such Bids are the lowest Bids from responsive and responsible Bidders, then the Contracting Officer may award a contract to either of the lowest responsive and responsible Bidders in accordance with the Purchaser's regulations.

(Added by Ord. 156-99, File No. 990743, App. 6/2/99)

SEC. 21.7. REJECTION AND READVERTISING FOR PROPOSALS.

The Contracting Officer, in his or her sole discretion, is authorized to cancel any Solicitation or reject any and all Offers, in whole or in part, prior to award, and may readvertise under such terms as the Contracting Officer deems to be in the City's best interests.

(Added by Ord. 156-99, File No. 990743, App. 6/2/99)

SEC. 21.8. MULTIPLE AWARD CONTRACTS.

(a) Generally. A Contracting Officer may award contracts to more than one Offeror if the Contracting Officer determines that it is in the City's best interest to have more than one Contractor provide one or more similar Commodities and/or Services and the Solicitation states that the contract may be subject to multiple award. The Contracting Officer may either require all multiple award contractors to do business with the City under a single set of terms and conditions, or if the Solicitation is made by means of a request for Proposals, may negotiate separate terms and conditions with each offeror for specified Commodities and/or Services. Following multiple award and in the administration of multiple award contracts, the Contracting Officer shall use best efforts to fulfill the policies of Chapter 12-D.A of this Code.

(b) Computer Store. Any department or other entity ordering Commodities or Services through the Computer Store shall pay an administrative fee of up to 1.9 percent of the total purchase price of Commodities and Services purchased through the Computer Store. Such administrative fee shall be used solely to pay for actual costs of administering the Computer Store contract for the benefit of City departments. Beginning in fiscal year 1999-2000, COIT shall annually review the administrative costs from the previous fiscal year and may reduce the administrative fee to conform to projections of actual administrative costs for the succeeding fiscal year. Any excess funds collected during one fiscal year shall be applied by COIT to reduce the administrative fee in the following fiscal year. Such administrative fee shall be collected from procuring departments by Computer Store vendors for each transaction and shall be paid to and disbursed by the Controller in accordance with procedures to be established by the Controller.

(Added by Ord. 156-99, File No. 990743, App. 6/2/99)

SEC. 21.9. MULTIPLE YEAR CONTRACTS; OPTIONS TO EXTEND OR RENEW.

(a) A contract for multiple years or with options to extend the term or renew the contract may be used when:

(1) The City anticipates that the need for acquisition of the Commodities or Services that are the subject of the contract will extend beyond a single fiscal year in the case of multiple year contracts, or beyond the initial contract period in the case of renewals or extensions of contracts; and

(2) The initial term of the contract and conditions for renewal or extension are included in the Solicitation, which Solicitation shall not provide for renewals or extensions of the contract for a period in excess of 10 years from the date of the initial contract; and

(3) Funds are available for the first fiscal year at the time of contracting; and

(4) Payment and performance obligations for succeeding fiscal years are made subject to the appropriation of funds for the contract.

(b) Departments are prohibited from entering into contracts involving expenditure of City funds with provisions that would automatically renew the contract term without further action by the City.

(Added by Ord. 156-99, File No. 990743, App. 6/2/99)

SEC. 21.10. BOND MAY BE REQUIRED.

Prior to the initiation of performance, the Contracting Officer may require labor, materials or fidelity bonds, or a corporate surety bond conditioned for the faithful performance of any contract for the purchase of Commodities or services.

(Added by Ord. 156-99, File No. 990743, App. 6/2/99)

SEC. 21.11. BID SECURITY.

If required by the Contracting Officer in the Solicitation, an Offer shall be accompanied by a deposit in the form of a certified or cashier's check on a solvent bank, or money order, or bid bond, payable on sight to the City in the amount fixed in the Solicitation, which amount shall not exceed 10 percent of the estimated cost of the Commodities or Services to be furnished. However, any regular or continual offeror may, in lieu of the deposit above mentioned, file a corporate surety bond in an amount to be fixed by the Controller to serve as security for a period of at least one year that the Offeror will enter into the contract, and during the contract period, furnish any required performance bond for any and all contracts awarded to that Offeror, with provision for forfeiture under the surety bond in any case of failure, neglect, or refusal to do so.

(Added by Ord. 156-99, File No. 990743, App. 6/2/99)

SEC. 21.12. APPROVAL OF SURETIES.

The Controller shall approve the sufficiency of assets and qualifications of all sureties submitting any bond or security which is required under the provisions of Section 21.10 and 21.11 of this Chapter.

(Added by Ord. 156-99, File No. 990743, App. 6/2/99)

SEC. 21.13. PROCEDURE UPON FAILURE TO FILE REQUIRED BOND.

If any Offeror to whom a contract is awarded under the provisions of this Charter shall fail to file any required bond within 10 working days after receiving notice to file such bond, the Purchaser may deposit any security required to be filed under the provisions of Section 21.11 of this Chapter in the treasury for collection. The amount thereof shall be retained by the City as liquidated damages for failure of the Offeror to file such bond. Neither the deposit nor the proceeds thereof shall be returned to such defaulting Offeror; provided, however, that upon the recommendation of the department utilizing the Commodities or Services to be provided under the contract, the Purchaser may approve the return of the amount of the Bid security to excuse a forfeiture under such Bid security.

Demand upon an Offeror to file a bond, as hereinbefore set forth, may, at the option of the Purchaser, be made by mail or by facsimile, addressed to the Offeror on whom it is to be served, at his or her mailing address or facsimile number, as set forth by the Offeror in the Offer. The service is complete at the time of deposit in the mail or machine confirmation of the facsimile, and the 10-day period shall commence on the first day following such deposit in the mail.

The Purchaser shall have the authority to extend the period for the deposit of any required bond, except a Bid bond, whenever in the Purchaser's judgment, circumstances warrant an extension.

In all cases of forfeiture hereunder, the amount of the forfeiture after collection by the City shall be entered as a credit to the General Fund.

(Added by Ord. 156-99, File No. 990743, App. 6/2/99)

SEC. 21.14. CONTRACTORS REQUIRED TO OBTAIN BUSINESS TAX REGISTRATION CERTIFICATE.

If on Offeror must possess a Business Tax Registration Certificate issued by the Tax Collector, but has failed to obtain one, the Contracting Officer shall not execute the contract, except in case of emergency as defined in Section 21.15 of this Chapter.

(Added by Ord. 156-99, File No. 990743, App. 6/2/99)

SEC. 21.15. EMERGENCY PROCUREMENT PROCEDURES.

(a) The Board of Supervisors hereby declares that an actual emergency shall exist when it becomes necessary to immediately procure Commodities or Services to make repairs, to safeguard the lives or property of the citizens or the property of the City or to maintain public health or welfare as a result of extraordinary conditions created by war, epidemic, weather, fire, flood, earthquake or other catastrophe, or the breakdown of any plant equipment, structure, street or public work.

(b) For any Commodities or Services that would normally be procured by the Purchaser, a contract may be executed by the Purchaser in the most expeditious manner, and shall be promptly confirmed by issuance of a regular purchase order.

(c) The department head responsible for the operations for which Commodities or Services are needed may also enter into a contract directly in the most expeditious manner necessary in order to respond to the emergency; however, if the emergency permits, the department head shall first secure the written approval of the president of the board or commission concerned, or from the Mayor or the Mayor's designee for any department under the Mayor's jurisdiction, and in all cases the approval of the Board of Supervisors must be obtained for any contract in excess of $100,000. If the emergency does not permit such approvals to be obtained before the contract is executed, such approvals shall be obtained as soon thereafter as it is possible to do so.

(d) The Purchaser or the department, as the case may be, shall attempt to obtain at least three Bids for emergency purchases.

(e) The Board of Supervisors hereby declares that an actual emergency shall exist during a period of material shortages when goods meeting the exact specifications as ordered are not procurable. When such goods are immediately required, the Purchaser, with the approval of the Director of Administrative Services, shall have authority to accept satisfactory substitutes and to make proper price adjustments therefor; provided, that if such price adjustment should increase the contractual obligation by more than 10 percent, the Purchaser shall first obtain approval by the Controller, who shall reserve the additional amount of money required to meet the increased obligation.

(Added by Ord. 156-99, File No. 990743, App. 6/2/99)

SEC. 21.16. USE OF PURCHASING AGREEMENTS OF AND RECIPROCAL AGREEMENTS WITH OTHER PUBLIC AND NON-PROFIT AGENCIES; SOLICITATIONS FOR MULTIPLE DEPARTMENTS.

(a) Notwithstanding any other provisions of this Municipal Code, in cases where the Purchaser deems that it is in the City's best interests to do so, the Purchaser is authorized, subject to the Board of Supervisors' approval by Resolution, to sell to, acquire from, participate in, sponsor, conduct or administer cooperative purchasing agreements with or made available by any public agency or non-profit made up of multiple public agencies in California or elsewhere, and may enter into reciprocal agreements with such agencies for the cooperative use of Commodities or Services or the common use or lease of facilities, under the terms agreed upon between the parties.

(b) Notwithstanding any other provisions in this Municipal Code, the Purchaser may utilize the competitive procurement process of any other public agency or non-profit made up of multiple public agencies to make purchases of Commodities or Services for the use of the City under the terms established in that agency's competitive procurement process and as agreed upon by the City and the procuring agency, upon making a determination that (i) the other agency's procurement process was competitive or the result of a sole source award, and (ii) the use of the other agency's procurement would be in the City's best interests.

(c) Departments may utilize the results of competitive Solicitation by other City departments if such potential use by other City departments is specified in the Solicitation.

(Added by Ord. 156-99, File No. 990743, App. 6/2/99; amended by Ord. 115-05, File No. 050595, App. 6/17/2005)

SEC. 21.17. CONTRACTS TO BE IN WRITING.

All purchases in excess of $2,500 shall be by written contract or other instrument.

(Added by Ord. 156-99, File No. 990743, App. 6/2/99)

SEC. 21.18. CONTRACTS TO BE IN TRIPLICATE; DISPOSITION OF CONTRACTS.

At a minimum, all Purchasing contracts, excluding Purchase Orders and contracts executed electronically, shall be executed in triplicate. One original shall be retained by the ordering department, one original shall be retained by the Purchaser, and one original shall be provided to the contractor.

(Added by Ord. 156-99, File No. 990743, App. 6/2/99)

SEC. 21.19. CONTRACT TERMS– GUARANTEED MAXIMUM COSTS.

All contracts entered into on behalf of the City for Commodities or Services to be purchased at the expense of the City shall contain a paragraph stating all of the following:

(a) The City's obligation hereunder shall not at any time exceed the amount certified by the Controller for the purpose and period stated in such certification.

(b) Except as may be provided by laws governing emergency procedures, officers and employees of the City are not authorized to request, and the City is not required to reimburse the Contractor for, Commodities or Services beyond the agreed upon contract scope unless the changed scope is authorized by amendment and approved as required by law.

(c) Officers and employees of the City are not authorized to offer or promise, nor is the City required to honor, any offered or promised additional funding in excess of the maximum amount of funding for which the contract is certified without certification of the additional amount by the Controller.

(d) The Controller is not authorized to make payments on any contract for which funds have not been certified as available in the budget or by supplemental appropriation.

(Added by Ord. 156-99, File No. 990743, App. 6/2/99)

SEC. 21.20. CONTRACT TERMS– INSURANCE.

All City contracts subject to this Chapter 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 and shall publish such requirements in the Risk Manager's Manual. The Risk Manager shall review and update said insurance requirements annually.

(Added by Ord. 156-99, File No. 990743, App. 6/2/99)

SEC. 21.21. CONTRACT TERMS– INFRINGEMENT INDEMNITY.

Each Contractor entering into a contract with the City that could involve the Contractor's provision of intellectual property to the City must save, keep, hold harmless and fully indemnify the City and any of its officers or agents from all damages, or claims for damages, costs or expenses in law or equity that may at any time arise or be set up for infringement of the patent rights, copyright, trademark or other intellectual property claims of any person in consequence of the use by the City, or any of its officers or agents, of articles to be supplied under such contract and of which the contractor is not the patentee or assignee or has not the lawful right to sell the same.

(Added by Ord. 156-99, File No. 990743, App. 6/2/99)

SEC. 21.22. CONTRACT TERMS– ASSIGNMENT.

No contract shall be assigned, except by written instrument executed and approved in the same manner as the original contract, which instrument shall include the signature of the assignee. The Contracting Officer shall notify the Controller in writing of such assignments.

(Added by Ord. 156-99, File No. 990743, App. 6/2/99)

SEC. 21.23. CONTRACT TERMS– INCIDENTAL DAMAGE WAIVERS; LIABILITY CAPS.

In any contract for Commodities or Services, the Contracting Officer is hereby authorized, with the approval of the City Attorney, to waive future City rights to incidental and consequential damages arising from the performance of the contract, or to agree to limit damages caused by the contractor's negligence to a specified amount. The factors to be evaluated in determining whether damages should be waived or capped in a particular case shall include but are not limited to:

(a) Whether, in light of insurance and bond requirements, the performance of the contract is likely to create undue risk of damages to the City;

(b) Whether the language proposed in the contract waiving future claims to incidental and consequential damages or limiting the contractor's liability for damages caused by the contractors negligence is standard in the industry to which the contract relates;

(c) The best interests of the City.

(Added by Ord. 156-99, File No. 990743, App. 6/2/99)

SEC. 21.24. CONTRACT TERMS– CONTRACTS EXCEEDING $10,000,000.

Chapter 12-D.A shall not be applicable to any contract for the purchase of Commodities or Services estimated to cost in excess of $10,000,000.

(Added by Ord. 156-99, File No. 990743, App. 6/2/99)

SEC. 21.25. PREVAILING RATE OF WAGES IN MOTOR BUS SERVICE CONTRACTS.

In the case of any contract for Services wherein motor bus service is to be rendered to the general public on any facility owned by the City, or in the case of any contract for the transportation within the boundaries of the City of any Commodities owned or in the possession of the City, the Purchaser, on recommendation of the department head concerned and approval of the Mayor or the Mayor's designee or the board or commission in charge of such department upon the ground that the public interest would be best served by requiring the inclusion of such a provision in the contract, may require that any person performing labor thereunder shall be paid not less than the highest general prevailing rate of wages, including fringe benefits or the matching equivalents thereof, paid in private employment for similar work in the area in which the contract is being performed, as determined by the Civil Service Commission; provided, however, if such a provision is to be included in the contract the notice inviting offers under Section 21.2 of this Code must call attention of Offerors to the requirements of said provision.

(Added by Ord. 156-99, File No. 990743, App. 6/2/99)

SEC. 21.25-1. PREVAILING RATE OF WAGES REQUIRED IN CONTRACTS FOR JANITORIAL SERVICES; NONPROFIT ORGANIZATIONS EXCLUSION; SMALL BUSINESS EXCLUSION.

Every Contract issued by the City and County of San Francisco for Janitorial Services to be performed at any facility owned or leased by the City and County of San Francisco, where such work is to be done directly under the contract awarded (a "prime contract") must require that any individual performing Janitorial Services thereunder be paid not less than the Prevailing Rate of Wages, including fringe benefits or the matching equivalents thereof, paid in private employment for similar work in the area in which the Contract is being performed, as determined by the Civil Service Commission.

(a) Exclusions. This Section shall not apply to the following:

(1) Non-Profit Exclusion. This Section shall not apply to a Contract where the Janitorial Services are to be performed by a non-profit organization that provides job training and work experience for disadvantaged individuals in need of such training.

(2) Small Business Exclusion. This Section shall not apply to any contracting party employing fewer than 10 employees. For purposes of this exclusion, the term "employees" excludes owner-operators and members of an owner-operator's Immediate Family.

(b) Definitions. For purposes of this Section, the following definitions shall apply to the terms used herein:

(1) "Contract" shall mean an agreement for Janitorial Services to be performed at the expense of the City and County of San Francisco or to be paid out of moneys deposited in the treasury or out of trust moneys under the control or collected by the City and County of San Francisco, and does not include property contracts, contracts for the sale of goods, subcontracts, contracts issued by the San Francisco Airport Commission or to be performed at any facility owned, leased or otherwise under the jurisdiction of the San Francisco Airport Commission, agreements entered into before the effective date of this Section, or contracts for a cumulative amount of $10,000 or less per janitorial service provider in each fiscal year.

(2) "Contracting Officer" shall mean any officer or employee of the City and County of San Francisco authorized to enter into a Contract on behalf of the City and County of San Francisco.

(3) "Contractor" shall mean any Person who submits a bid and/or enters into a Contract with the City and County of San Francisco.

(4) "Immediate Family" shall mean grand-parents, grandchildren, parents, children, brothers and sisters, spouses and domestic partners, nieces and nephews, and aunts and uncles.

(5) "Janitorial Services" shall mean maintenance and cleaning services on property owned or leased by the City and County of San Francisco.

(6) "Person" shall include any individual, firm, proprietorship, partnership, corporation or combination thereof.

(7) "Prevailing Rate of Wages" shall mean that rate of compensation being paid to a majority of workers engaged in a specified category of personal services, if a majority of such workers be paid at a single rate; if there be no single rate being paid to a majority, then the prevailing rate shall be that single rate being paid the greatest number of workers.

(8) "Subcontract" shall mean and include any agreement under or subordinate to a prime contract or lease.

(c) Determination of Prevailing Rate of Wage. It shall be the duty of the Board of Supervisors, from time to time and at least once during each calendar year, to fix and determine the Prevailing Rate of Wages paid in private employment in the City and County of San Francisco for Janitorial Services, including such rate of wages paid for overtime and holiday work, which said Prevailing Rate of Wages shall be fixed and determined as follows:

The Civil Service Commission shall furnish to the Board of Supervisors, on or before the first Monday in November of each year, data as to the Prevailing Rate of Wages for Janitorial Services as paid in private employment in the City and County of San Francisco, including wages for overtime and holiday work, and the Board of Supervisors shall, upon receipt of such data, fix and determine the Prevailing Rate of Wages for Janitorial Services as paid for similar work in the City and County of San Francisco in private employment. Such Prevailing Rate of Wages as so fixed and determined by the Board of Supervisors shall remain in force and shall be deemed to be the Prevailing Rate of Wages paid in private employment for similar work, until the same is changed by the Board of Supervisors.

In determining the Prevailing Rate of Wages, as provided for in this Section, the Board of Supervisors shall not be limited to the consideration of data furnished by the Civil Service Commission, but may consider such other evidence upon the subject as the Board of Supervisors shall deem proper and thereupon base its determination upon any or all of the data or evidence considered.

(d) Noncompliance with Wage Provisions; Termination; Penalty. Where the Contracting Officer determines that a Contractor for Janitorial Services may have violated the prevailing wage requirements of this Section, the Contracting Officer shall send written notice to the Contractor of the possible violation (a "violation notice"). In addition to and without prejudice to any other remedy available, the Contracting Officer may terminate the contract, in which case the Contractor shall not be entitled to any additional payment thereon unless within 30 days of receipt of the violation notice the Contractor has either (i) cured the violation or (ii) has established by documentary evidence, including but not limited to payroll records, the truth and accuracy of which is attested to by affidavit, proof of compliance with the provisions of this Section. For purposes of this Section, where a Contractor fails to pay at least the Prevailing Rate of Wages to individuals performing Janitorial Services under a Contract for Janitorial Services, the Contractor shall have "cured the violation" once the Contractor reimburses such individuals by paying each individual the balance of what he or she should have earned in accordance with the requirements of this Section. In addition to, or instead of terminating the contract, where the Contracting Officer finds that the Contractor has willfully violated the requirements of this Section, the Contracting Officer may assess a penalty (a "willful violation penalty") in an amount not more than 10 percent of the dollar amount of the contract, such sums to be deposited in the fund out of which the Contract is awarded. The Contracting Officer may impose such willful violation penalty regardless of whether the Contractor has cured the violation.

(e) Collective Bargaining Agreements. Notwithstanding anything to the contrary in this Section, if a Contract for Janitorial Services conflicts with an existing collective bargaining agreement to which a Contractor is a party, the collective bargaining agreement shall prevail. However, the Contractor will be obligated to make good faith efforts to comply with the requirements of its Contract for Janitorial Services that do not conflict with the collective bargaining agreement.

(f) Preemption. Nothing in this Section shall be interpreted or applied so as to create any power or duty in conflict with any federal or state law.

(g) Effective Date and Application. This Section shall become effective 30 days after it is enacted, is intended to have prospective effect only, and shall not be interpreted to impair the obligations of any pre-existing agreement to which the City is a party, unless such pre-existing agreement has been amended after the effective date of this Section.

(h) Severability. If any part or provision of this Section, or the application thereof to any Person or circumstance, is held invalid, the remainder of this Section, including the application of such part or provisions to other Persons or circumstances, shall not be affected thereby and shall continue in full force and effect. To this end, the provisions of this Section are severable.

(Added by Ord. 222-99, File No. 990877, App. 8/6/99)

SEC. 21.25-2. PREVAILING RATE OF WAGES AND DISPLACED WORK PROTECTION REQUIRED FOR WORKERS IN PUBLIC OFF-STREET PARKING LOTS, GARAGES, OR STORAGE FACILITIES FOR AUTOMOBILES.

Every Lease, Management Agreement, or Other Contractual Arrangement for the operation of a public off-street parking lot, garage, or storage facility for automobiles on property owned or leased by the City and County of San Francisco must require that any Employee working in such public off street parking lot, garage, or storage facility for automobiles be paid not less than the Prevailing Rate of Wages, including fringe benefits or the matching equivalents thereof, paid in private employment for similar work in the area in which the Lease, Management Agreement, or Other Contractual Arrangement is being performed, as determined by the Civil Service Commission.

(a) Definitions. For purposes of this Section, the following definitions shall apply to the terms used herein:

(1) "Contracting Officer" shall mean any officer or employee of the City and County of San Francisco authorized to enter into a Lease, Management Agreement, or Other Contractual Arrangement for the operation of a public off-street parking lot, garage, or storage facility for automobiles on property owned or leased by the City and County of San Francisco.

(2) "Contractor" shall mean any Person who submits a bid and/or enters into a Lease, Management Agreement, or Other Contractual Arrangement with the City and County of San Francisco for the operation of a public off-street parking lot, garage, or storage facility for automobiles on property owned or leased by the City and County of San Francisco as set forth in this Section.

(3) "Employee" shall mean any individual per-forming work in one of the following classifications: Washing; Polishing; Lubrication; Rent-Car Service; Parking Vehicles; Cashiers; Attendants; Checking Coin Boxes; Non-Attendant Parking Lot Checking; Daily Ticket Audit; Traffic Directors; Shuttle Drivers; and all other incidental duties, whose primary place of employment is in public off-street parking lot, garage, or storage facility for automobiles on property owned or leased by the City and County of San Francisco for the Contractor. "Employee" does not include a person who is (a) a managerial, supervisory, or confidential employee, including those employees who would be so defined under the Fair Labor Standards Act; or (b) does not possess or has not maintained a required occupational license.

(4) "Lease, Management Agreement, or Other Contractual Arrangement" shall mean an agreement with the City and County of San Francisco for the operation of a public off-street parking lot, garage, or storage facility for automobiles on property owned or leased by the City and County of San Francisco.

(5) "Person" shall mean an individual, proprietorship, partnership, joint venture, corporation, limited liability company, trust, association, or other entity that may employ individuals or enter into contracts, or any combination thereof.

(6) "Prevailing Rate of Wages" shall mean that rate of compensation, including fringe benefits or the matching equivalents thereof, being paid to a majority of workers engaged in the area in which the Lease, Management Agreement, or Other Contractual Arrangement is being performed, if a majority of such workers are paid at a single rate; if there is no single rate being paid to a majority, then the prevailing rate shall be that single rate being paid to the greatest number of workers.

(7) "Public Off-Street Parking Lot, Garage, or Automobile Storage Facility" shall mean any off-street parking lot, garage, or automobile storage facility that is operated on property owned or leased by the City and County of San Francisco.

(8) "Subcontract" shall mean and include any agreement under or subordinate to a prime Lease, Management Agreement, or Other Contractual Arrangement.

(b) Determination of Prevailing Rate of Wage. It shall be the duty of the Board of Supervisors, from time to time and at least once during each calendar year, to fix and determine the Prevailing Rate of Wages paid in private employment in the City and County of San Francisco for individuals working in off-street parking lots, garages, or automobile storage facility, including such rate of wages paid for overtime and holiday work, which said Prevailing Rate of Wages shall be fixed and determined as follows:

The Civil Service Commission shall furnish to the Board of Supervisors, within 60 days after the effective date of this Section, and on or before the first Monday in November of each subsequent year, data as to the Prevailing Rate of Wages for individuals working in off-street parking lots, garages, or automobile storage facilities as paid in private employment in the City and County of San Francisco, including wages or overtime and holiday work, and the Board Supervisors shall, upon receipt of such data, fix and determine the Prevailing Rate of Wages for individuals working in off-street parking lots, garages, or automobile storage facilities as paid for similar work in the City and County of San Francisco in private employment. Such Prevailing Rate of Wages as so fixed and determined by the Board of Supervisors shall remain in force and shall be deemed to be the Prevailing Rate of Wages Maid in private employment for similar work, until the same is changed by the Board of Supervisors.

In determining the Prevailing Rate of Wages, as provided for in this Section, the Board of Supervisors shall not be limited to the consideration of data furnished by the Civil Service Commission, but may consider such other evidence upon the subject as the Board of Supervisors shall deem proper and thereupon base its determination upon any or all of the data or evidence considered.

(c) Transition Employment Period. All Leases, Management Agreements, or Other Contractual Arrangements covered by this Section shall impose the following obligations on the Contractor for Employees who work at least 15 hours per week

(1) Where the Contracting Officer has given notice that a Lease, Management Agreement, or Other Contractual Arrangement has been terminated or ended, or where a Contractor has given notice of such termination, upon giving or receiving such notice, as the case may be, the terminated or ending Contractor shall, within ten days thereafter, provide to the successor Contractor, the name, date of hire, and employment occupation classification of each Employee who work at least 15 hours per week employed at the site or sites covered by the prospective Contractor at the time of the Lease, Management Agreement, or Other Contractual Arrangement termination. This provision shall also apply to the subcontractors of the terminated Contractor.

If the terminated Contractor has not learned the identity of the successor Contractor, if any, by the time that notice was given of the Lease, Management Agreement, or Other Contractual Arrangement termination, the terminated Contractor shall obtain such information from the Contracting Officer. If a successor Contractor has not been awarded by the end of the 10 day period, the employment information referred to earlier in this subsection shall be provided to the Contracting officer at such time. Where a subcontractor has been terminated prior to the termination of the Contract, the terminated Subcontractor shall for the purposes of this Section be deemed a terminated Contractor.

(2) A successor Contractor shall retain, for a 90 day transition employment period, Employees who have worked at least 15 hours per week and have been employed by the terminated Contractor or its subcontractors, if any, for the preceding twelve months or longer at the site or sites covered by the Lease, Management Agreement, or Other Contractual Arrangement, providing that just cause does not exist to terminate such Employee. The predecessor contractor's Employees who worked at least 15 hours per week shall be employed in order of their seniority with the predecessor. This requirement shall be stated by the City in all initial bid packages involving Leases, Management Agreements, or Other Contractual Arrangements governed by this section.

(3) If at any time a successor Contractor determines that fewer Employees are required to perform the new Contact than were required by the terminated Contractor (and subcontractors, if any), the successor Contractor shall retain Employees by seniority within job classification.

(4) During such 90 day period the successor Contractor (or subcontractor, where applicable) shall maintain a preferential hiring list of eligible covered Employees not retained by the successor Contractor (or subcontractor) from which the successor Contractor (or subcontractor) shall hire additional Employees.

(5) Except as provided in Subsection (3) of above, during such 90 day period, the successor Contractor (or subcontractor, where applicable) shall not discharge without cause an Employee retained pursuant to this Section. "Cause," for this purpose, shall include, but not be limited to, the Employee's conduct while in the employ of the terminated Contractor or subcontractor that contributed to any decision to terminate the Contract or subcontract for fraud or poor performance, excluding permissible union-related activity.

(6) At the end of such 90 day period, a successor Contractor (or subcontractor, where applicable) shall perform a written performance evaluation for each Employee retained pursuant to this Section. If the Employee's performance during such 90 day period is satisfactory, the successor Contractor (or subcontractor) shall offer the Employee continued employment under the terms and conditions established by the successor Contractor (or sub-contractor) or as required by law.

(7) All contracts subject to this Section include a provision in which the contractor agrees to require subcontractor to comply with the obligation imposed by this Section.

(d) Enforcement.

(1) An Employee who has not been hired or has been discharged in violation of this Section by a successor Contractor or its subcontractor may bring an action in the Superior Court of the State of California, as appropriate, against the successor Contractor and, where applicable, its subcontractor, and shall be awarded back pay, including the value of benefits for each day during which the violation continues, which shall be calculated at a rate of compensation not less than the higher of:

(i) The average regular rate of pay received by the Employee during the last three years of the Employee's employment in the same occupation classification; or

(ii) The final regular rate received by the Employee.

(2) If the Employee is the prevailing party in any such legal action, the Court shall award reasonable attorney's fees and costs as part of the costs recoverable.

(3) This Section is not intended to create a private right of action against the City and County of San Francisco.

(4) Successor's Prior Employees. Notwithstanding the provisions of Subsection (c) above, a successor Contractor or subcontractor may replace an Employee otherwise entitled to be retained pursuant to this Section with a person employed by the Contractor or subcontractor continuously for twelve months prior to the commencement of the successor Contract or subcontract in a capacity similar to that proposed under the successor Contract or subcontract. This Section shall apply only where the existing Employee of the successor Contractor or subcontractor would otherwise be laid off work as a result of the award of the successor contract.

(e) Noncompliance with Wage Provisions; Termination; Penalty. Where the Contracting Officer determines that a Contractor for the operation of a public off-street parking lot, garage, or automobile storage facility may have violated the prevailing wage requirements of this Section, the Contracting Officer shall send written notice to the Contractor of the possible violation (a "violation notice"). In addition to and without prejudice to any other remedy available, the Contracting Officer may terminate the Lease, Management Agreement, or Other Contractual Arrangement, in which case the Contractor shall not be entitled to any additional payment thereon unless within 30 days of receipt of the violation notice the Contractor has either (i) cured the violation or (ii) has established by documentary evidence, including but not limited to payroll records, the truth and accuracy of which is attested to by affidavit, proof of compliance with the provisions of this Section. For purposes of this Section, where a Contractor fails to pay at least the Prevailing Rate of Wages to Employees working in public off-street parking lots or garages, the Contractor shall have "cured the violation" once the Contractor reimburses such Employees by paying each individual the balance of what he or she should have earned in accordance with the requirements of this Section. In addition to, or instead of terminating the Lease, Management Agreement, or Other Contractual Arrangement, where the Contracting Officer finds that the Contractor has willfully violated the requirements of this Section, the Contracting Officer shall assess a penalty (a "willful violation penalty") in the sum of $50 per day for each Employee for each day the Contractor or Subcontractor fails to pay the Prevailing Rate of Wages, such sums to be deposited in the fund out of which the Lease, Management Agreement, or Other Contractual Arrangement is awarded. The Contracting Officer shall impose such willful violation penalty regardless of whether the Contractor has cured the violation.

(f) Collective Bargaining Agreements. Not-withstanding anything to the contrary in this Section, if a Lease, Management Agreement, or Other Contractual Arrangement conflicts with an existing collective bargaining agreement to which a Contractor is a party, the collective bargaining agreement shall prevail. However, the Contractor will be obligated to make good faith efforts to comply with the requirements of its Lease, Management Agreement, or Other Contractual Arrangement that do not conflict with the collective bargaining agreement.

(g) Preemption. Nothing in this Section shall be interpreted or applied so as to create any power or duty in conflict with any federal or state law.

(h) Effective Date and Application. This Section shall become effective 30 days after it is enacted, is intended to have, prospective effect only, and shall not be interpreted to impair the obligations of any pre-existing Lease, Management Agreement, or Other Contractual Arrangement to which the City and County of San Francisco is a party, unless such pre-existing Lease, Management Agreement, or Other Contractual Arrangement has been amended after the effective date of this Section.

(i) Public Entities with Coterminous Boundaries with the City and County of San Francisco. It is the policy of the City and County of San Francisco that all public entities with coterminous boundaries with the City and County of San Francisco, including but not limited to the Parking Authority of the City and County of San Francisco, adopt this prevailing wage and employee transition period policy. The Board of Supervisors of the City and County of San Francisco urges all public entities with coterminous boundaries with the City and County of San Francisco, including but not limited to the Parking Authority of the City and County of San Francisco, to adopt this prevailing wage and employee transition period policy.

(j) Severability. If any part or provision of this Section, or the application thereof to any Person or circumstance, is held invalid, the remainder of this Section, including the application of such part or provisions to other Persons or circumstances, shall not be affected thereby and shall continue in full force and effect. To this end, the provisions of this Section are severable.

(Added by Ord. 3-03, File No. 021504, App. 1/24/2003)

SEC. 21.25-3. PREVAILING RATE OF WAGES REQUIRED FOR THEATRICAL WORKERS.

Every Contract, Lease, Franchise, Permit, or Agreement awarded, let, issued, or granted by the City and County of San Francisco for the use of property owned by the City and County of San Francisco must require that any Employee engaged in theatrical or technical services related to the presentation of a show, including, but not limited to, workers engaged in rigging, sound, projection, theatrical lighting, videos, computers, draping, carpentry, special effects, and motion picture services be paid not less than the Prevailing Rate of Wages, including fringe benefits or the matching equivalents thereof, paid in private employment for similar work in the area in which the Contract, Lease, Franchise, Permit or Agreement is being performed. All Contracts, Leases, Franchises, Permits or Agreements subject to this Section shall include a provision in which the Contractor agrees to comply with, and to require Subcontractors to comply with, the obligations imposed by this Section.

(a) Definitions. For purposes of this Section, the following definitions shall apply to the terms used herein:

(1) "Contracting Officer" shall mean any officer or employee of the City and County of San Francisco authorized to enter into a Contract, Lease, Franchise, Permit, or Agreement for the operation of property owned by the City and County of San Francisco.

(2) "Contract, Lease, Franchise, Permit, or Agreement" shall mean an agreement with the City and County of San Francisco for the use of property owned by the City and County of San Francisco, but shall not include any contract, lease, franchise, permit, or agreement for:

A. Celebration of a marriage, domestic partnership, or similar civil union,

B. The presentation of a show to which the public has free access when the show is in a public park, on a public street, or on property under the jurisdiction of the Port Commission.

C. Any permit or agreement to engage in film production pursuant to Chapter 57 of this Code or under the circumstances set forth in Section 57.7 of this Code,

D. Any show on property under the jurisdiction of the Arts Commission, or

E. In any circumstance where application of this Section would be preempted by federal or state law,

F. Any show for which the time required for the set-up is three hours or less and the number of individuals working on the set-up is no more than two.

(3) "Contractor" shall mean any Person who submits a bid and/or enters into a Contract, Lease, Franchise, Permit, or Agreement with the City and County of San Francisco for the use of property owned by the City and County of San Francisco as set forth in this Section.

(4) "Employee" shall mean any individual engaged in theatrical or technical services related to the presentation of shows, including, but not limited to, workers engaged in rigging, sound, projection, theatrical lighting, videos, computers, draping, carpentry, special effects, and motion picture services on property owned by the City and County of San Francisco for a Contractor or a subcontractor. "Employee" does not include a person who is (a) a managerial, supervisory, or confidential employee, including those employees who would be so defined under the Fair Labor Standards Act; or (b) does not possess or has not maintained a required occupational license; or (c) employed less than 15 hours per week.

(5) "Person" shall mean any individual, proprietorship, partnership, joint venture, corporation, limited liability company, trust, association, or other entity that may employ individuals or enter into contracts, or any combination thereof.

(6) "Prevailing Rate of Wages" shall mean that rate of compensation, including fringe benefits or the matching equivalents thereof, being paid to a majority of workers engaged in theatrical or technical services related to the presentation of shows, including, but not limited to, workers engaged in rigging, sound, projection, theatrical lighting, videos, computers, draping, carpentry, special effects, and motion picture services, if a majority of such workers are paid at a single rate; if there is no single rate being paid to a majority, then the prevailing rate shall be that single rate being paid to the greatest number of workers.

(7) "Show" shall mean any live act, play, review, pantomime, scene, music, song, dance act, song and dance act, or poetry recitation provided in front of a live audience or recorded for the purpose of later presentation, but shall not include an event where a person solely plays pre-recorded music or pre-recorded performances so long as no other live performance is provided.

(8) "Subcontract" shall mean and include any agreement under or subordinate to a prime Contract, Lease, Franchise, Permit, or Agreement. "Subcontractor" shall mean any Person who enters into a Subcontract.

(b) Determination of Prevailing Rate of Wage. It shall be the duty of the Board of Supervisors, from time to time and at least once during each calendar year, to fix and determine the Prevailing Rate of Wages paid in private employment in the City and County of San Francisco for individuals engaged in theatrical or technical services related to the presentation of shows, including, but not limited to, workers engaged in rigging, sound, projection, theatrical lighting, videos, computers, draping, carpentry, special effects, and motion picture services, including such rate of wages paid for overtime and holiday work, which said Prevailing Rate of Wages shall be fixed and determined as follows:

The Civil Service Commission shall furnish to the Board of Supervisors, within 60 days after the effective date of this Section, and on or before the first Monday in November of each subsequent year, data as to the Prevailing Rate of Wages for individuals engaged in theatrical or technical services related to the presentation of shows, including, but not limited to, workers engaged in rigging, sound, projection, theatrical lighting, videos, computers, draping, carpentry, special effects, and motion picture services, including such rate of wages paid for overtime and holiday work, and the Board of Supervisors shall, upon receipt of such data, fix and determine the Prevailing Rate of Wages for individuals engaged in theatrical or technical services related to the presentation of shows, including, but not limited to, workers engaged in rigging, sound, projection, theatrical lighting, videos, computers, draping, carpentry, special effects, and motion picture services, including such rate of wages paid for overtime and holiday work, as paid for similar work in the City and County of San Francisco in private employment. Such Prevailing Rate of Wages as so fixed and determined by the Board of Supervisors shall remain in force and shall be deemed to be the Prevailing Rate of Wages paid in private employment for similar work, until the same is changed by the Board of Supervisors.

In determining the Prevailing Rate of Wages, as provided for in this Section, the Board of Supervisors shall not be limited to the consideration of data furnished by the Civil Service Commission, but may consider such other evidence upon the subject as the Board of Supervisors shall deem proper and thereupon base its determination upon any or all of the data or evidence considered.

(c) Noncompliance with Wage Provisions; Termination; Penalty. Where the Contracting Officer determines that a Contractor for use of property owned by the City and County of San Francisco, or a subcontractor, may have violated the prevailing wage requirements of this Section, the Contracting Officer shall send written notice to the Contractor of the possible violation (a "violation notice"). In addition to and without prejudice to any other remedy available, the Contracting Officer may terminate the Contract, Lease, Franchise, Permit, or Agreement, in which case the Contractor shall not be entitled to any additional payment thereon unless within 30 days of receipt of the violation notice the Contractor has either (i) cured the violation or (ii) established by documentary evidence, including but not limited to payroll records, the truth and accuracy of which is attested to by affidavit, proof of compliance with the provisions of this Section. For purposes of this Section, where a Contractor or Subcontractor fails to pay at least the Prevailing Rate of Wages to Employees as required by this Section, the Contractor shall have "cured the violation" once the Contractor or Subcontractor reimburses such individuals by paying each individual the balance of what he or she should have earned in accordance with the requirements of this Section. In addition to, or instead of terminating the Contract, Lease, Franchise, Permit, or Agreement, where the Contracting Officer finds that the Contractor has willfully violated the requirements of this Section, the Contracting Officer or the Labor Standards Enforcement Officer may assess a penalty (a "willful violation penalty") of not more than 10 percent of the dollar amount of the Contract, Lease, Franchise, Permit, or Agreement, such sums to be deposited in the fund out of which the Contract, Lease, Franchise, Permit, or Agreement is awarded or, if none exists, the General Fund. The Contracting Officer or Labor Standards Enforcement Officer may impose such willful violation penalty regardless of whether the Contractor has cured the violation.

(d) Collective Bargaining Agreements. Notwithstanding anything to the contrary in this Section, if a Contract, Lease, Franchise, Permit, or Agreement conflicts with an existing collective bargaining agreement to which a Contractor or Subcontractor is a party, the collective bargaining agreement shall prevail. However, the Contractor or Subcontractor will be obligated to make good faith efforts to comply with the requirements of its Contract, Lease, Franchise, Permit, or Agreement that do not conflict with the collective bargaining agreement.

(e) Preemption. Nothing in this Section shall be interpreted or applied so as to create any power or duty in conflict with any federal or State law.

(f) Effective Date and Application. This Section shall become effective 30 days after it is enacted, is intended to have prospective effect only, and shall not be interpreted to impair the obligations of any pre-existing Contract, Lease, Franchise, Permit, or Agreement issued or entered into by the City and County of San Francisco.

(g) Applicability to Existing Contracts, Leases, Franchises, Permits, or Agreements. This Section shall only apply to Contracts, Leases, Franchises, Permits, or Agreements entered into on or after the effective date of this Section.

(h) Severability. If any severable provision or provisions of this Section or any application thereof is held invalid, such invalidity shall not affect any other provisions or applications of the Section.

(Added by Ord. 76-04, File No. 021505, App. 5/6/2004)

SEC. 21.25-5. PREVAILING RATE OF WAGES AND WORKER RETENTION REQUIRED FOR WORKERS ENGAGED IN HAULING OF SOLID WASTE GENERATED BY THE CITY IN THE COURSE OF CITY OPERATIONS.

(a) Definitions. For purposes of this Section, the following definitions shall apply to the terms used herein.

(1) "City" shall mean the City and County of San Francisco.

(2) "Contracting Officer" shall mean any officer or employee of the City authorized to enter into a Contract on behalf of the City.

(3) "Contract" shall mean an agreement with the City for the hauling of solid waste, generated by the City in the course of City operations, to be performed at the expense of the City or to be paid out of moneys deposited in the treasury or out of trust moneys under the control or collected by the City. For purposes of this Section, "Contract" shall not include (a) a permit issued under the Refuse Collection and Disposal Ordinance, Appendix 1 of the San Francisco Administrative Code, or (b) a contract governed by the provisions of Chapter 6 of the San Francisco Administrative Code.

(4) "Contractor" shall mean any Person who submits a bid and/or enters into a Contract with the City for the hauling of solid waste generated by the City in the course of City operations.

(5) "Employee" shall mean any individual engaged in the hauling of solid waste, generated by the City in the course of City operations, for a Contractor or Subcontractor. For purposes of this Section, "Employee" shall not include a Person who (a) is a managerial, supervisory, or confidential employee, including those employees who would be so defined under the Fair Labor Standards Act; or (b) does not possess or has not maintained a required occupational license.

(6) "Hauling" of solid waste shall mean collection and transport of solid waste generated by the City in the course of City operations. For purposes of this Section, "hauling" shall not include "solid waste disposal" or "disposal" as defined in Section 40192 of the California Public Resources Code.

(7) "Person" shall mean any individual, proprietorship, partnership, joint venture, corporation, limited liability company, trust, association, or other entity that may employ individuals or enter into contracts, or any combination thereof.

(8) "Prevailing Rate of Wages" shall mean that rate of compensation, including fringe benefits or the matching equivalents thereof, being paid to a majority of workers engaged in the hauling of solid waste, if a majority of such workers are paid at a single rate; if there is no single rate being paid to a majority, then the prevailing rate shall be that single rate being paid to the greatest number of workers.

(9) "Solid Waste" shall mean "solid waste" as defined in Section 40191 of the California Public Resources Code and includes material collected for "recycling" as defined in Section 40180 of the California Public Resources Code.

(10) "Subcontract" shall mean any agreement under or subordinate to a prime Contract.

(11) "Subcontractor" shall mean any Person who enters into a Subcontract with a Contractor.

(b) Prevailing Wage Rate Requirements.

(1) Basic Prevailing Wage Rate Requirement. Every Contract awarded by the City for the hauling of solid waste generated by the City in the course of City operations must require that any Employee engaged in the hauling of solid waste be paid not less than the Prevailing Rate of Wages, including fringe benefits or the matching equivalents thereof, paid in private employment for similar work in the area in which the Contract is being performed.

(2) Contractual Provision Concerning Prevailing Wage Rate Requirement. All Contracts subject to this Section shall include a provision in which the Contractor agrees to comply with, and to require Subcontractors to comply with, the prevailing wage rate requirement imposed by this Section.

(3) Determination of Prevailing Rate of Wages. It shall be the duty of the Board of Supervisors, from time to time and at least once during each calendar year, to fix and determine the Prevailing Rate of Wages paid in private employment in the City for individuals engaged in the hauling of solid waste, including such rate of wages paid for overtime and holiday work, which said Prevailing Rate of Wages shall be fixed and determined as follows:

The Civil Service Commission shall furnish to the Board of Supervisors, within 15 days after the effective date of this Section, and on or before the first Monday in November of each year, data as to the Prevailing Rate of Wages for individuals engaged in the hauling of solid waste, including such rate of wages paid for overtime and holiday work, and the Board of Supervisors shall, upon receipt of such data, fix and determine the Prevailing Rate of Wages for individuals engaged in the hauling of solid waste, including such rate of wages paid for overtime and holiday work, as paid for similar work in the City in private employment. Such Prevailing Rate of Wages as so fixed and determined by the Board of Supervisors shall remain in force and shall be deemed to be the Prevailing Rate of Wages paid in private employment for similar work, until the same is changed by the Board of Supervisors.

In determining the Prevailing Rate of Wages, as provided for in this Section, the Board of Supervisors shall not be limited to the consideration of data furnished by the Civil Service Commission, but may consider such other evidence upon the subject as the Board of Supervisors shall deem proper and thereupon base its determination upon any or all of the data or evidence considered.

(4) Enforcement of Prevailing Wage Rate Requirements. Where the Contracting Officer determines that a Contractor for the hauling of solid waste, or a Subcontractor, may have violated the prevailing wage requirements of this Section, the Contracting Officer shall send written notice to the Contractor of the possible violation (a "violation notice"). In addition to and without prejudice to any other remedy available, the Contracting Officer may terminate the Contract, in which case the Contractor shall not be entitled to any additional payment thereon unless within 30 days of receipt of the violation notice the Contractor has either (i) cured the violation or (ii) established by documentary evidence, including but not limited to payroll records, the truth and accuracy of which is attested to by affidavit, proof of compliance with the provisions of this Section. For purposes of this Section, where a Contractor or Subcontractor fails to pay at least the Prevailing Rate of Wages to Employees as required by this Section, the Contractor shall have "cured the violation" once the Contractor or Subcontractor reimburses such individuals by paying each individual the balance of what he or she should have earned in accordance with the requirements of this Section. In addition to, or instead of terminating the Contract, where the Contracting Officer finds that the Contractor has willfully violated the requirements of this Section, the Contracting Officer or the Labor Standards Enforcement Officer may assess a penalty (a "willful violation penalty") of not more than 10 percent of the dollar amount of the Contract, such sums to be deposited in the fund out of which the Contract is awarded or, if none exists, the General Fund. The Contracting Officer or Labor Standards Enforcement Officer may impose such willful violation penalty regardless of whether the Contractor has cured the violation.

(c) Worker Retention Requirements.

(1) Purpose. The City has an important proprietary interest in maintaining the stability of the workforce engaged by a Contractor in the hauling of solid waste generated by the City in the course of City operations. Turnover of experienced workers resulting from a change in the City's Contractor jeopardizes the quality, efficiency, and cost-effectiveness of service provided to the City under the successor Contract.

(2) Worker Retention Requirements. All Contracts covered by this Section shall impose the following obligations on the Contractor for Employees who work at least 15 hours per week under the Contract.

(i) Where the Contracting Officer has given notice that a Contract has been terminated or ended, or where a Contractor has given notice of such termination, upon giving or receiving such notice, as the case may be, the terminated or ending Contractor shall, within ten days thereafter, provide to the successor Contractor, the name, date of hire, and employment occupation classification of each Employee who works at least 15 hours per week under the Contract. This provision shall also apply to the Subcontractors of the terminated Contractor.

If the terminated Contractor has not learned the identity of the successor Contractor, if any, by the time that notice was given of the Contract termination, the terminated Contractor shall obtain such information from the Contracting Officer. If a successor Contractor has not been awarded by the end of the 10-day period, the employment information referred to in subsection (c)(2)(i) shall be provided to the Contracting Officer at such time. Where a Subcontractor has been terminated prior to the termination of the Contract, the terminated Subcontractor shall for the purposes of this provision be deemed a terminated Contractor.

(ii) A successor Contractor shall retain, for a 90-day transition employment period. Employees who have worked at least 15 hours per week and been employed by the terminated Contractor or its Subcontractors, if any, for the preceding twelve months or longer under the Contract, providing that just cause does not exist to terminate such Employee. The predecessor Contractor's Employees who worked at least 15 hours per week shall be employed in order of their seniority with the predecessor. This requirement shall be stated by the City in all initial bid packages, Requests for Proposals, and Requests for Qualifications involving Contracts governed by this Section.

(iii) If at any time a successor Contractor determines that fewer Employees are required to perform the new Contact than were required by the terminated Contractor (and Subcontractors, if any), the successor Contractor shall retain Employees by seniority within the job classification.

(iv) During such 90-day period the successor Contractor (or Subcontractor, where applicable) shall maintain a preferential hiring list of eligible covered Employees not retained by the successor Contractor (or Subcontractor) from which the successor Contractor (or Subcontractor) shall hire additional Employees.

(v) Except as provided in subsection (c)(2)(iii), during such 90-day period, the successor Contractor (or Subcontractor, where applicable) shall not discharge without cause an Employee retained pursuant to this Section. "Cause," for this purpose, shall include, but not be limited to, the Employee's conduct while in the employ of the terminated Contractor or Subcontractor that contributed to any decision to terminate the Contract or Subcontract for fraud or poor performance, excluding permissible union-related activity.

(vi) At the end of such 90-day period, a successor Contractor (or Subcontractor, where applicable) shall perform a written performance evaluation for each Employee retained pursuant to this Section. If the Employee's performance during such 90-day period is satisfactory, the successor Contractor (or Subcontractor) shall offer the Employee continued employment under the terms and conditions established by the successor Contractor (or Subcontractor) or as required by law.

(3) Contractual Provision Concerning Worker Retention Requirements. All Contracts subject to this Section shall include a provision in which the Contractor agrees to comply with, and to require Subcontractors to comply with, the obligations imposed by this Section.

(4) Enforcement of Worker Retention Requirements. An Employee who has not been hired or has been discharged in violation of this Section by a successor Contractor or its Subcontractor may bring an action in the Superior Court of the State of California, as appropriate, against the successor Contractor and, where applicable, its Subcontractor, and shall be awarded back pay, including the value of benefits for each day during which the violation continues, which shall be calculated at a rate of compensation not less than the higher of (i) the average regular rate of pay received by the Employee during the last three years of the Employee's employment in the same occupation classification or (ii) the final regular rate received by the Employee. If the Employee is the prevailing party in any such legal action, the Court shall award reasonable attorney's fees and costs as part of the costs recoverable.

(5) Successor's Prior Employees. Notwithstanding the provisions of subsection (c), a successor Contractor or Subcontractor may replace an Employee otherwise entitled to be retained pursuant to this Section with a person employed by the Contractor or Subcontractor continuously for twelve months prior to the commencement of the successor Contract or Subcontract in a capacity similar to that proposed under the successor Contract or Subcontract. This Section shall apply only where the existing Employee of the successor Contractor or Subcontractor would otherwise be laid off work as a result of the award of the successor Contract.

(d) Collective Bargaining Agreements. Notwithstanding anything to the contrary in this Section, if a Contract conflicts with an existing collective bargaining agreement to which a Contractor or Subcontractor is a party, the collective bargaining agreement shall prevail. However, the Contractor or Subcontractor will be obligated to make good faith efforts to comply with the requirements of its Contract that do not conflict with the collective bargaining agreement.

(e) Preemption. Nothing in this Section shall be interpreted or applied so as to create any power or duty in conflict with any federal or state law.

(f) No Cause of Action Against City. This Section is not intended to create a private right of action against the City.

(g) Prospective Application. This Section is intended to have prospective effect only, and shall not be interpreted to impair the obligations of any pre-existing Contract entered into by the City. This Section shall only apply to Contracts entered into on or after the effective date of this Section.

(h) Severability. If any part or provision of this Section, or the application thereof to any Person or circumstance, is held invalid, the remainder of this Section, including the application of such part or provisions to other Persons or circumstances, shall not be affected thereby and shall continue in full force and effect. To this end, the provisions of this Section are severable.

(Added by Ord. 299-06, File No. 061468, App. 12/12/2006; Ord. 5-07, File No. 061584, App. 1/19/2007)

SEC. 21.25-x. PREVAILING RATE OF WAGES REQUIRED IN CONTRACTS FOR MOVING SERVICES; NONPROFIT ORGANIZATIONS EXCLUSION.

Every Contract issued by the City and County of San Francisco for Moving Services to be performed at any facility owned or leased by the City and County of San Francisco, where such work is to be done directly under the contract awarded (a "prime contract") must require that any individual performing Moving Services thereunder be paid not less than the Prevailing Rate of Wages, including fringe benefits or the matching equivalents thereof, paid in private employment for similar work in the area in which the Contract is being performed.

(a) Exclusions. This Section shall not apply to the following:

(1) Non-profits. This Section shall not apply to a Contract where the Moving Services are to be performed by a non-profit organization that provides job training and work experience for disadvantaged individuals in need of such training.

(2) Prior Agreements. This Section shall not apply to agreements entered into before the effective date of this Section.

(3) Contracts for $1000 or less. This Section shall not apply to contracts for $1000 or less per moving service provider. Contracts may not be split for purposes of evading the requirements of this Section.

(b) Definitions. For purposes of this Section, the following definitions shall apply to the terms used herein:

(1) "Contract" shall mean an agreement for Moving Services to be performed at the expense of the City and County of San Francisco or to be paid out of moneys deposited in the treasury or out of trust moneys under the control or collected by the City and County of San Francisco.

(2) "Contracting Officer" shall mean any officer or employee of the City and County of San Francisco authorized to enter into a Contract on behalf of the City and County of San Francisco.

(3) "Contractor" shall mean any Person who submits a bid and/or enters into a Contract with the City and County of San Francisco.

(4) "Employee" shall mean any individual performing moving services as defined herein. "Employee" does not include a person who is (a) a managerial, supervisory, or confidential employee, including those employees who would be so defined under the Fair Labor Standards Act.

(5) "Moving Services" shall mean moving or handling of goods being relocated under a contract for commercial moving services to relocate City offices, facilities and institutions.

(6) "Non-profit" shall mean a non-profit corporation, duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and (if a foreign corporation) in good standing under the laws of the State of California, which corporation has established and maintains a valid non-profit status under Section 501(c)(3) of the United States Internal Revenue Code of 1986, as amended, and all rules and regulations promulgated under such Section.

(6) "Person" shall include any individual, firm, proprietorship, partnership, corporation or combination thereof.

(7) "Prevailing Rate of Wages" shall mean that rate of compensation, including fringe benefits or the matching equivalents thereof, being paid to a majority of workers performing moving services, if a majority of such workers be paid at a single rate; if there be no single rate being paid to a majority then the prevailing rate shall be that single rate being paid the greatest number of workers.

(c) Determination of Prevailing Rate of Wage. It shall be the duty of the Board of Supervisors, from time to time and at least once during each calendar year, to fix and determine the Prevailing Rate of Wages paid in private employment in the City and County of San Francisco for Moving Services, including such rate of wages paid for overtime and holiday work, which said Prevailing Rate of Wages shall be fixed and determined as follows:

The Civil Service Commission shall furnish to the Board of Supervisors, on or before the first Monday in November of each year, data as to the Prevailing Rate of Wages for Moving Services as paid in private employment in the City and County of San Francisco, including wages for overtime and holiday work. The Board of Supervisors shall, upon receipt of such data, fix and determine the Prevailing Rate of Wages for Moving Services, including such rate of wages for overtime and holiday work, as paid for similar work in the City and County of San Francisco in private employment. Such Prevailing Rate of Wages as so fixed and determined by the Board of Supervisors shall remain in force and shall be deemed to be the Prevailing Rate of Wages paid in private employment for similar work, until the same is changed by the Board of Supervisors.

In determining the Prevailing Rate of Wages, as provided for in this Section, the Board of Supervisors shall not be limited to the consideration of data furnished by the Civil Service Commission, but may consider such other evidence upon the subject as the Board of Supervisors shall deem proper and thereupon base its determination upon any or all of the data or evidence considered.

(d) Noncompliance with Wage Provisions; Termination; Penalty. Where the Contracting Officer of the City's Labor Standards Enforcement Officer determines that a Contractor for Moving Services may have violated the prevailing wage requirements of this Section, the Contracting Officer or the City's Labor Standards Enforcement Officer shall send written notice to the Contractor of the possible violation (a "violation notice"). In addition to and without prejudice to any other remedy available, the Contracting Officer may terminate the contract, in which case the Contractor shall not be entitled to any additional payment thereon unless within 30 days of receipt of the violation notice the Contractor has either (i) cured the violation or (ii) has established by documentary evidence, including but not limited to payroll records, the truth and accuracy of which is attested to by affidavit, proof of compliance with the provisions of this Section. For purposes of this Section, where a Contractor fails to pay at least the Prevailing Rate of Wages to individuals performing Moving Services under a Contract for Moving Services, the Contractor shall have "cured the violation" once the Contractor reimburses such individuals by paying each individual the balance of what he or she should have earned in accordance with the requirements of this Section. In addition to, or instead of terminating the Contract for Moving Services, where the Contracting Officer or the Office of Labor Standards Enforcement finds that the Contractor has willfully violated the requirements of this Section, the Contracting Officer or the City's Labor Standards Enforcement Officer shall assess a penalty (a "willful violation penalty") in the sum of $50 per day for each Employee for each day the Contractor or Subcontractor fails to pay the Prevailing Rate of Wages, such sums to be deposited in the fund out of which Contract is awarded. The Contracting Officer or the City's Labor Standards Enforcement Officer shall impose such willful violation penalty regardless of whether the Contractor has cured the violation.

(e) Verification. The Contractor must provide verification of compliance with the provisions of this Ordinance upon request by the Contracting officer or the City's Labor Standards Enforcement Officer.

(f) Collective Bargaining Agreements. Notwithstanding anything to the contrary in this Section, if a Contract conflicts with an existing collective bargaining agreement to which a Contractor is a party, the collective bargaining agreement shall prevail. However, the Contractor will be obligated to make good faith efforts to comply with the requirements of its Contract that do not conflict with the collective bargaining agreement.

(g) Preemption. Nothing in this Section shall be interpreted or applied so as to create any power or duty in conflict with any federal or state law.

(h) Effective Date and Application. This Section shall become effective 30 days after it is enacted. This Section is intended to have prospective effect only, and shall not be interpreted to impair the obligations of any pre-existing agreement to which the City is a party, unless such pre-existing agreement has been amended after the effective date of this Section.

(i) Severability. If any part or provision of this Section, or the application thereof to any Person or circumstance, is held invalid, the remainder of this Section, including the application of such part or provisions to other Persons or circumstances, shall not be affected thereby and shall continue in full force and effect. To this end, the provisions of this Section are severable.

(Added by Ord. 169-04, File No. 040540, App. 7/22/2004)

SEC. 21.26. CONTRACT TERMS– IN-HOME SUPPORTIVE SERVICE REQUIREMENTS.

In the case of any contract for homemaker and chore Services to be awarded pursuant to California Welfare and Institutions Code Sections 12300 et seq., the Purchaser, on the recommendation of the department head concerned and the approval of the board or commission in charge of such department, upon the ground that the public interest would be best served by requiring the inclusion of such provisions in the contract, shall require that each Offeror, as part of its Offer, submit a certified semi-annual audit, and further shall require each offeror to give preference to those homemakers employed under the previous contract to ensure continuity of wages, fringe benefits and seniority rights.

(Added by Ord. 156-99, File No. 990743, App. 6/2/99)

SEC. 21.27. CONTRACT TERMS– QUANTITIES.

(a) Quantities. Contracts may be made for definite or indefinite quantities of Commodities or Services.

(b) Record Keeping. Any requirements contract shall include a mechanism for maintaining records of all City orders made pursuant to the contract, including inventories of any Commodity subject to a maintenance service agreement.

(Added by Ord. 156-99, File No. 990743, App. 6/2/99)

SEC. 21.28. CONTRACT TERMS– UPGRADED PRODUCTS.

Whenever a contract for the acquisition of Commodities specifies a particular product, the contract shall allow acquisition of any upgraded comparable equivalent product at an equal or lesser price in lieu of the specified product.

(Added by Ord. 156-99, File No. 990743, App. 6/2/99)

SEC. 21.29. CONTRACT TERMS– PRICING.

(a) Pricing specifications during the term of a contract for Commodities may require fixed pricing, unspecified pricing, or may combine fixed prices for some Commodities and unspecified pricing for others, as is determined to be in the best interests of the City by the Contracting Officer.

(b) If fixed prices are required by the Solicitation, such fixed prices shall represent the maximum price that the contractor may charge for the Commodities specified in the contract, and the Solicitation shall specify that the contractor must provide for price reductions as a Commodity becomes less expensive and the contractor's costs for that Commodity are reduced.

(c) Contracting Officers are encouraged to include price warranties or "most-favored customer" clauses in contracts, as appropriate, to give the City consistent access to the contractor's lowest prices.

(Added by Ord. 156-99, File No. 990743, App. 6/2/99)

SEC. 21.30. SOFTWARE LICENSES, SUPPORT, ESCROW, FINANCE, AND EQUIPMENT MAINTENANCE AGREEMENTS.

(a) The Board of Supervisors hereby approves the execution of perpetual, nonexclusive software licensing agreements which warrant performance of the software according to specifications and which are for an amount of less than ten million dollars, including any associated escrow agreement for source code or finance agreement, without further Board approval.

(b) Software licensing procurements are not subject to the contracting requirements of the Administrative or Environment Code, but shall be subject to the requirements established by Section 21.03(j) and Chapter 67. For the purpose of this section, software licensing procurements shall be deemed to include both the licensed software product, any escrow agreement for source code, finance agreements, and support services for such product where support for that product is available only from the licensor.

(c) Agreements for the development of software shall include acceptance testing of the software and/or performance criteria, and shall condition payments on successful completion of the acceptance test or satisfaction of the performance criteria specified in the contract.

(d) Where a vendor has proprietary rights to software or where maintenance of equipment by a particular vendor is required to preserve a warranty, software support and equipment maintenance agreements entered into with that vendor shall be treated as a sole source for the purposes of any contract requirements included in the Municipal Code.

(e) A Contracting Officer is authorized to make payment for software license fees and software support, equipment maintenance and associated escrow and finance fees in advance of receiving services under a contract.

(Added by Ord. 156-99, File No. 990743, App. 6/2/99; amended by Ord. 115-05, File No. 050595, App. 6/17/2005)

SEC. 21.31. ARTICLES NOT TO BE PRISON MADE; EXCEPTION.

No Commodity furnished under any contract made under the provisions of this chapter shall have been made in a prison or by convict labor, except for Commodities made in a prison or by convicts under the supervision and control of the California Department of Corrections and limited to Commodities for use by the City's detention facilities.

(Added by Ord. 156-99, File No. 990743, App. 6/2/99)

SEC. 21.32. FOOD PURCHASED BY THE SEALER OF WEIGHTS AND MEASURES.

Food purchased by the Sealer of Weights and Measures in the course of official duties shall be delivered for use at public institutions of the City and County of San Francisco, or at non-profit organizations, in accordance with procedures established by the Director of Administrative Services.

(Added by Ord. 156-99, File No. 990743, App. 6/2/99)

Cross references: Duties of the Sealer of Weights and Measures assumed by the Director of the Department of Consumer Assurance, Regulatory Compliance and Agricultural Standards, see Administrative Code Section 16.3-7.5.

SEC. 21.33. PROCEDURE UPON CONTRACTOR'S FAILURE TO DELIVER.

When a contractor fails to deliver a Commodity or Service of the quality, in the quantity, or in the manner specified in the contract within the time specified in the contract, the Contracting Officer may terminate the contract and/or purchase such Commodity or Service from any source; and if a greater price than that named in the contract be paid for such Commodity or Service, the excess price will be charged to and collected from the Contractor or the sureties on the Contractor's bond(s). All items supplied shall be subject to inspection or rejection by the Purchaser, by the County Agricultural Commissioner-Sealer of Weights and Measures upon the Purchaser's request, or by the department receiving the Commodity or Service. The Purchaser's authority to procure Commodities or services from other sources as herein specified shall not preclude the City's exercise of any other remedies, including termination of the contract.

(Added by Ord. 156-99, File No. 990743, App. 6/2/99; amended by Ord. 187-04, File No. 040759, App. 7/22/2004)

SEC. 21.34. AUDIT OF CONTRACTOR'S RECORDS.

The City may, at reasonable places and times, audit the books and records of a City contractor under any contract to the extent that such books and records relate to the performance of such contract. Such books and records shall be maintained by the contractor for three years from the date of final payment under the contract, unless a shorter period is otherwise authorized in writing.

(Added by Ord. 156-99, File No. 990743, App. 6/2/99)

SEC. 21.35. SUBMITTING FALSE CLAIMS; MONETARY PENALTIES.

(a) The covenant of good faith and fair dealing is contained in every City Commodities or Services contract, and Contractors and subcontractors shall at all times deal in good faith with the City and shall submit claims, requests for equitable adjustments, requests for change orders, requests for contract modifications or requests of any kind seeking increased compensation on a City contract only upon a good-faith, honest evaluation of the underlying circumstances and a good-faith, honest calculation of the amount sought. Any contractor, subcontractor, or consultant who commits any of the following acts shall be liable to the City for three times the amount of damages which the City sustains because of the act of that contractor, subcontractor or consultant. A contractor, subcontractor or consultant who commits any of the following acts shall also be liable to the City for the costs, including attorney's fees, of a civil action brought to recover any of those penalties or damages, and may be liable to the City for a civil penalty of up to $10,000 for each false claim:

(1) Knowingly presents or causes to be presented to an officer or employee of the City a false claim or request for payment or approval;

(2) Knowingly makes, uses, or causes to be made or used a false record or statement to get a false claim paid or approved by the City;

(3) Conspires to defraud the City by getting a false claim allowed or paid by the City;

(4) Knowingly makes, uses, or causes to be made or used a false record or statement to conceal, avoid, or decrease an obligation to pay or transmit money or property to the City;

(5) Is a beneficiary of an inadvertent submission of a false claim to the City, subsequently discovers the falsity of the claim, and fails to disclose the false claim to the City within a reasonable time after discovery of the false claim.

(b) This Section does not apply to any controversy involving an amount of less than $500 in value. For purposes of this Section, "controversy" means any one or more false claims submitted by the same contractor, subcontractor, or consultant in violation of this Section.

(c) Every contract for Commodities or services performed at the expense of the City or the cost of which is paid for out of monies deposited in the treasury of City, whether directly awarded or indirectly by or under subcontract, subpartnership, day labor, station work, piece work, or any other arrangement whatsoever, shall contain a clause informing the contractor of the requirements of Subdivision (a).

(d) Liability under this section shall be joint and several for any act committed by two or more persons.

(e) For purposes of this Section, the terms "contractor" and "subcontractor" shall have the same definitions as found in Section 12-D.A.5 of the San Francisco Administrative Code. The term "consultant" shall be broadly defined to include any person or entity that provides services to the City.

(f) For purposes of this Section, "claim" includes any request or demand for money, property, or services made to any employee, officer, or agent of the City, or to any contractor, subcontractor, grantee, or other recipient, whether under contract or not, if any portion of the money, property, or services requested or demanded issued from, or was provided by the City.

(g) For purposes of this Section, "knowingly" means that a contractor, subcontractor, or consultant, with respect to information, does any of the following:

(1) Has actual knowledge of the information;

(2) Acts in deliberate ignorance of the truth or falsity of the information;

(3) Acts in reckless disregard of the truth or falsity of the information.

Proof of specific intent is not required and reliance on the claim by the City is also not required.

(Added by Ord. 156-99, File No. 990743, App. 6/2/99)

SEC. 21.36. CONTRACT DISPUTE RESOLUTION.

With respect to any dispute which arises under or by virtue of a contract between the City and a contractor, including disputes based on breach of contract, mistake, misrepresentation, or other cause for contract modification or revision, the Contractor may submit to the Contracting Officer a written request for administrative review and documentation of the contractor's claims. Upon such request, the Contracting Officer shall promptly issue an administrative decision in writing, stating the reasons for the action taken and informing the Contractor of its right to judicial review. A copy of the Contracting Officer's decision shall be mailed or otherwise promptly delivered to the Contractor. The Contracting Officer's decision shall be final unless appealed to a court of competent jurisdiction by the Contractor. if the Contracting Officer does not issue a written decision within 120 days after written request for a final decision, or within such longer period as may be agreed upon by the parties, then the contractor may proceed as if an adverse decision had been received.

(Added by Ord. 156-99, File No. 990743, App. 6/2/99)

SEC. 21.37. DISQUALIFICATION OF IRRESPONSIBLE CONTRACTORS.

When charges are brought for violation of Sections 21.35 or 21.38 of this Chapter, the Contractor or subcontractor shall be given notice of the charges and of all evidence supporting such charges. The Contractor or subcontractor or its attorney shall be entitled to offer rebuttal evidence and any other evidence in support of its position. The Purchaser and the Controller shall conduct a hearing, where the charges and all evidence shall be presented. In the alternative, the Purchaser and the Controller may appoint a hearing officer to conduct such a hearing and make written findings of fact to be submitted to them to render the final decision. Violation of Sections 21.35 or 21.38 by a Contractor may serve as the basis for finding that Contractor or subcontractor irresponsible and subject to the penalties fisted in those sections. Following any decision finding a Contractor or subcontractor irresponsible, the Purchaser and the Controller shall retain authority to modify the decision.

(Added by Ord. 156-99, File No. 990743, App. 6/2/99)

SEC. 21.38. EFFECT OF DISQUALIFICATION OF IRRESPONSIBLE CONTRACTORS.

Any Contractor who fails to comply with the terms of its contract with the City may be declared an irresponsible Contractor through the procedures listed in Section 21.37. Upon such determination, the Contractor shall not be permitted to act as a Contractor or subcontractor on any City contract for a period of up to five years as determined by the Purchaser and the Controller. The contract of any such person may, at the option of the Purchaser and the Controller, be canceled and in the event of such cancellation, no recovery shall be had thereon by the contractor.

(Added by Ord. 156-99, File No. 990743, App. 6/2/99)

SEC. 21.39. COLLUSION IN CONTRACTING.

If any party or parties to whom a contract has been awarded participates in collusion with any representative of the City or any other party or parties in the submission of any Offer or for the purpose of preventing an offer from being made, or in knowingly receiving preferential treatment by any officer or employee of the City, then any contract so awarded, if not completed, may be declared null and void by the Board of Supervisors on the recommendation of the Contracting Officer, and the Contracting Officer shall thereupon reissue a Solicitation for the uncompleted portion of such contract. If the work under such contract shall have been completed, the matter shall be referred to the City Attorney for such action as may be necessary. Any party or parties determined to have participated in such collusion shall be deemed an irresponsible Contractor.

(Added by Ord. 156-99, File No. 990743, App. 6/2/99)

SEC. 21.40. CONSTRUCTION AGAINST IMPLICIT REPEALER.

No part of this Chapter shall be deemed to be impliedly repealed by subsequent legislation if such construction of the subsequent legislation can be reasonably avoided.

(Added by Ord. 156-99, File No. 990743, App. 6/2/99)

SEC. 21.41. SEVERABILITY.

If any provisions of this Chapter or any application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or application of this Chapter which can be given effect without the invalid provision or application, and to this end the provisions of this Chapter are declared to be severable.

(Added by Ord. 156-99, File No. 990743, App. 6/2/99)

SEC. 21.42. PROFESSIONAL SERVICES CONTRACTS FOR HEALTH AND BEHAVIORAL HEALTH SERVICES AND SUPPORT.

(a) The Board of Supervisors hereby authorizes the San Francisco Health Commission to designate as sole source, professional services contracts for health and behavioral health services and support, where such services are provided by non-profit organizations and a sole source designation is recommended by the San Francisco Department of Public Health.

(b) Prior to the expiration of an existing contract, the Director of the Department of Public Health will survey the availability of providers for the health and behavioral health services and support services required by the Department of Public Health where such services are 1) unique to the Department of Public Health, (2) consistent with the its mission and goals, and (3) require specialized knowledge, training, personnel, facilities or other resources that are known to be provided by a limited number of non-profit contractors. Based upon the results of such surveys, the Director of the Department of Public Health may recommend a sole source designation to the San Francisco Health Commission for those services.

(c) Nothing herein limits the ability of the Department of Public Health to engage in a competitive process for services provided by non-profit providers.

(Added by Ord. 309-06, File No. 061569, App. 12/18/2006)