Oregon Bulletin
Rule
Caption: Amends Attorney General’s Legal
Sufficiency Rules, Division 45.
Adm.
Order No.: DOJ 9-2011
Filed with Sec. of
State: 11-29-2011
Certified to be
Effective: 1-1-12
Notice Publication
Date: 10-1-2011
Rules Amended: 137-045-0030, 137-045-0090
Subject: Rules concerning the Attorney General’s review of
state contracts for legal sufficiency are being amended to clarify review
requirements. The amendments confirm that legal sufficiency approval is
required for a contract calling for the state to receive or pay value over
$150,000 even if the value is other than money, services or goods.
Rules Coordinator: Carol Riches—(503) 947-4700
137-045-0030
Review of Public Contracts
(1) Except as described in section (2), before a Public
Contract is binding on the State of Oregon, and before any service may be
performed or payment may be made under the Public Contract, the Attorney
General must approve for legal sufficiency in accordance with these rules:
(a) Any Public Contract calling for or providing for
payment in excess of $150,000.
(b) An amendment to a Public Contract described in
subsection (1)(a).
(c) An amendment that makes the amended Public Contract
subject to legal sufficiency approval under subsection (1)(a).
(2) The legal sufficiency approval requirement
described in section (1) does not apply to Public Contracts that are exempt
from legal sufficiency approval under these division 045 rules.
(3) For purposes of determining whether a Public
Contract exceeds the amounts set forth in section (1), a Public Contract calls
for or provides for payments in excess of the applicable amount if one of the
following applies:
(a) The Public Contract expressly provides that the
Agency will make or receive payments in money, services or goods over the term
of the Public Contract with a value that will, in aggregate, exceed the
applicable threshold, whether or not the total amount or value of the payments
is expressly stated. For purposes of this subsection, when an agency is lending
money, and the only payment to the Agency is in money, “payments” receivable by
the Agency mean principal, only.
(b) The Public Contract expressly provides for a
guaranteed maximum price or a maximum not to exceed amount payable or
receivable by the Agency with a value that exceeds the applicable threshold.
(c) Based on historical or other data available to the
contracting Agency at the time of entering into the Public Contract, the
contracting Agency determines that the value of the benefit, loss or detriment
to the Agency that is called for by the Public Contract will likely exceed the
applicable threshold.
(4) An Agency shall not fragment or segregate
transactions for purposes of circumventing the legal sufficiency approval
requirement.
(5) A program or activity of a recipient of a Grant
that is financed by the Grant does not constitute a service performed under a
Public Contract for purposes of this rule.
Stat. Auth.: ORS 291.047(3)
Stats. Implemented: ORS 291.047
Hist.: JD 4-1997(Temp), f. &
cert. ef. 10-3-97; JD 5-1997(Temp), f. & cert. ef. 10-17-97;
137-045-0030(Temp) repealed by DOJ 3-1998, f. & cert. ef. 4-1-98; DOJ
3-1998, f. & cert. ef. 4-1-98; DOJ 2-2001, f. & cert. ef. 1-18-01; DOJ
17-2003, f. & cert. ef. 12-9-03; DOJ 18-2007, f. 12-28-07, cert. ef.
1-1-08; DOJ 14-2009, f. 12-1-09, cert. ef. 1-1-10; DOJ 9-2011, f. 11-29-11,
cert. ef. 1-1-12
137-045-0090
Ratification of Public Contracts
Before ratifying a Public Contract under ORS 291.049,
an Agency shall do all of the following:
(1) Submit to the Attorney in Charge, Business
Transactions Section, a copy of the Public Contract and the proposed ratification
document. The ratification document is to be executed, after approval for legal
sufficiency, by an executive officer of an Agency who is responsible for
oversight of the Public Contract. The ratification document must contain:
(a) An explanation of why performance began or payment
was made before the Public Contract was approved by the Attorney General for
legal sufficiency;
(b) A description of the steps being taken to prevent
similar occurrences in the future; and
(c) A proposed ratification of the Public Contract.
(2) Obtain approval of the Public Contract for legal
sufficiency from the Attorney General, through the Attorney in Charge, Business
Transactions Section;
(3) Obtain all other approvals required for the Public
Contract.
Stat. Auth.: ORS 291.049(3)
Stats. Implemented: ORS 291.049
Hist.: DOJ 2-2001, f. & cert.
ef. 1-18-01; DOJ 17-2003, f. & cert. ef. 12-9-03; DOJ 18-2007, f. 12-28-07,
cert. ef. 1-1-08; DOJ 9-2011, f. 11-29-11, cert. ef. 1-1-12
Rule
Caption: Amends Attorney General’s Model
Public Contract Rules, Divisions 46–49.
Adm.
Order No.: DOJ 10-2011
Filed with Sec. of
State: 11-29-2011
Certified to be
Effective: 1-1-12
Notice Publication
Date: 10-1-2011
Rules Adopted: 137-048-0270
Rules Amended: 137-046-0110, 137-046-0300, 137-047-0257,
137-047-0260, 137-047-0261, 137-047-0310, 137-047-0430, 137-047-0460,
137-047-0600, 137-047-0620, 137-047-0800, 137-048-0100, 137-048-0110,
137-048-0120, 137-048-0130, 137-048-0200, 137-048-0210, 137-048-0220,
137-048-0230, 137-048-0240, 137-048-0250, 137-048-0260, 137-048-0300,
137-048-0310, 137-048-0320, 137-049-0380, 137-049-0650, 137-049-0860
Rules Repealed: 137-047-0262, 137-047-0263
Subject: The rule changes amend the Attorney General’s model
public contract rules applicable to state and local contracting agencies to
respond to 2011 legislative changes and clarify and improve procurement
processes. Revisions to divisions 46 and 47: add a discretionary preference for
goods fabricated or processed in Oregon or services or personal services performed
in Oregon, under amendments to ORS 279A.128 made by HB 3000 (2011); provide
more flexibility in selection processes for multistep and multi-tiered bidding
and proposals; clarify when contracts may be amended; and clarify requirements
related to inclusion of contractual terms and conditions in solicitation
documents. Revisions to division 48: add “Photogrammetric Mapping,
Transportation Planning or” to any references to “Architectural, Engineering
and Land Surveying Services” to address the expansion of qualifications-based
selection processes under HB 3316 (2011); clarify defined terms; clarify
selection procedures applicable to local contracting agencies as well as state
contracting agencies under HB 3316; clarify the procurement procedures for “mixed”
contract situations; add provisions for procurement of services in the context
of expert testimony for a claim, lawsuit or alternative dispute resolution
proceeding; clarify provisions pertaining to contracting agencies’ public
disclosure of proposals; modify direct appointment, informal and formal
selection procedures; and clarify that the process for breaking ties cannot be
based on pricing information. A new rule describes use of price agreements and
work orders. The revisions to Division 49: clarify when discussions with
proposers are permitted; clarify when negotiations or discussions with
proposers may be terminated; and incorporate changes to ORS 279C.830 made by SB
178 (2011) relating to prevailing rate of wage.
Rules Coordinator: Carol Riches—(503) 947-4700
137-046-0110
Definitions for the Model Rules
Unless the context of a specifically applicable
definition in the Code requires otherwise, capitalized terms used in the Model
Rules have the meaning set forth in the division of the Model Rules in which
they appear, and if not defined there, the meaning set forth in these division
46 rules, and if not defined here, the meaning set forth in the Code. The
following terms, when capitalized in these Model Rules, have the meaning given
below:
(1) “Addendum” or “Addenda” means an addition to,
deletion from, a material change in, or general interest explanation of a
Solicitation Document.
(2) “Administering Contracting Agency” has the meaning
set forth in ORS 279A.200(1)(a) and for Interstate Cooperative Procurements
includes the entities specified in ORS 279A.220(4).
(3) “Award” means, as the context requires, either
identifying or the Contracting Agency’s identification of the Person with whom
the Contracting Agency intends to enter into a Contract following the
resolution of any protest of the Contracting Agency’s selection of that Person
and the completion of all Contract negotiations.
(4) “Bid” means a Written response to an Invitation to
Bid.
(5) “Closing” means the date and time specified in a
Solicitation Document as the deadline for submitting Offers.
(6) “Code” means the Public Contracting Code.
(7) “Competitive Range” means the Proposers with whom
the Contracting Agency will conduct discussions or negotiations if the
Contracting Agency intends to conduct discussions or negotiations in accordance
with OAR 137-047-0261 or 137-049-0650.
(8) “Contract” means a contract for sale or other
disposal, or a purchase, lease, rental or other acquisition, by a contracting
agency of personal property, services, including personal services, public
improvements, public works, minor alterations, or ordinary repair or
maintenance necessary to preserve a public improvement. “Contract” does not
include grants.
(9) “Contract Price” means, as the context requires,
the maximum monetary obligation that a Contracting Agency either will or may
incur under a Contract, including bonuses, incentives and contingency amounts,
if the Contractor fully performs under the Contract.
(10) “Contract Review Authority” means:
(a) For State Contracting Agencies, generally the
Director of the Oregon Department of Administrative Services;
(b) For Local Contracting Agencies, the Local
Contracting Agency’s Local Contract Review Board determined as specified in ORS
279A.060; and
(c) Where specified by statute, the Director of the
Oregon Department of Transportation.
(11) “Contractor” means the Person, including a
Consultant as defined in OAR 137-048-0110(1), with whom a Contracting Agency
enters into a Contract.
(12) “DBE Disqualification” means a disqualification,
suspension or debarment pursuant to ORS 200.065, 200.075 or 279A.110.
(13) “Descriptive Literature” means Written information
submitted with the Offer that addresses the Goods and Services included in the
Offer.
(14) “Electronic Advertisement” means a Contracting
Agency’s Solicitation Document, Request for Quotes, request for information or
other document inviting participation in the Contracting Agency’s Procurements
made available over the Internet via:
(a) The World Wide Web or some other Internet protocol;
or
(b) A Contracting Agency’s Electronic Procurement
System.
(15) “Electronic Offer” means a response to a
Contracting Agency’s Solicitation Document or Request for Quotes submitted to a
Contracting Agency via:
(a) The World Wide Web or some other Internet protocol;
or
(b) A Contracting Agency’s Electronic Procurement
System.
(16) “Electronic Procurement System” means an
information system that Persons may access through the Internet using the World
Wide Web or some other Internet protocol or that Persons may otherwise remotely
access using a computer, that enables Persons to send Electronic Offers and a
Contracting Agency to post Electronic Advertisements, receive Electronic
Offers, and conduct other activities related to a Procurement.
(17) “Invitation to Bid” or “ITB” means the
Solicitation Document issued to invite Offers from prospective Contractors
pursuant to either ORS 279B.055 or 279C.335.
(18) “Model Rules” means the Attorney General’s model
rules of procedure for Public Contracting as required under ORS 279A.065.
(19) “Offer” means a Written offer to provide Goods or
Services in response to a Solicitation Document.
(20) “Offeror” means a Person who submits an Offer.
(21) “Opening” means the date, time and place specified
in the Solicitation Document for the public opening of Offers.
(22) “Person” means any of the following with legal
capacity to enter into a Contract: individual, corporation, business trust,
estate, trust, partnership, limited liability company, association, joint
venture, governmental agency, public corporation or any other legal or
commercial entity.
(23) “Personal Services” as used in division 47 and as
used in division 46 when applicable to division 47 means the services performed
under a Personal Services Contract. “Personal Services” as used in division 48
and division 49, and as used in this division 46 when applicable to division 48
or division 49, or both, has the meaning set forth in ORS 279C.100.
(24) “Personal Services Contract” means:
(a) For a Local Contracting Agency, a Contract or
member of a class of Contracts, other than a Contract for the services of an
Architect, Engineer, Land Surveyor or Provider of Related Services (as defined
in ORS 279C.100), that the Local Contracting Agency’s Local Contract Review
Board has designated as a personal services contract pursuant to ORS 279A.055;
or
(b) For a State Contracting Agency, a Contract, or
member of a class of Contracts, other than a Contract for the services of an
Architect, Engineer, Land Surveyor or Provider of Related Services (as defined
in ORS 279C.100), whose primary purpose is to acquire specialized skills,
knowledge and resources in the application of technical or scientific
expertise, or the exercise of professional, artistic or management discretion
or judgment, including, without limitation, a Contract for the services of an
accountant, physician or dentist, educator, consultant, broadcaster or artist
(including a photographer, filmmaker, painter, weaver or sculptor).
(25) “Product Sample” means the exact Goods or a
representative portion of the Goods offered in an Offer, or the Goods requested
in the Solicitation Document as a sample.
(26) “Proposal” means a Written response to a Request
for Proposals.
(27) “Recycled Materials” means recycled paper (as
defined in ORS 279A.010(1)(gg)), recycled PETE products (as defined in ORS
279A.010(1)(hh), and other recycled plastic resin products and recycled
products (as defined in ORS 279A.010(1)(ii).
(28) “Request for Qualifications” or “RFQ” means a
Written document issued by a Contracting Agency to which Contractors respond in
Writing by describing their experience with and qualifications for the
Services, Personal Services or Architectural, Engineering or Land Surveying
Services, or Related Services, described in the document.
(29) “Request for Quotes” means a Written or oral
request for prices, rates or other conditions under which a potential
Contractor would provide Goods or perform Services, Personal Services or Public
Improvements described in the request.
(30) “Responsible” means meeting the standards set
forth in OAR 137-047-0640 or 137-049-0390(2), and not debarred or disqualified
by the Contracting Agency under OAR 137-047-0575 or 137-049-0370.
(31) “Responsible Offeror” means, as the context
requires, a Responsible Bidder, Responsible Proposer or a Person who has
submitted an Offer and meets the standards set forth in OAR 137-047-0640 or
137-049-0390(2), and who has not been debarred or disqualified by the
Contracting Agency under OAR 137-047-0575 or 137-049-0370.
(32) “Responsive” means having the characteristic of
substantial compliance in all material respects with applicable solicitation
requirements.
(33) “Responsive Offer” means, as the context requires,
a Responsive Bid, Responsive Proposal or other Offer that substantially
complies in all material respects with applicable solicitation requirements.
(34) “Signature” means any Written mark, word or symbol
that is made or adopted by a Person with the intent to be bound and that is
attached to or logically associated with a Written document to which the Person
intends to be bound.
(35) “Signed” means, as the context requires, that a
Written document contains a Signature or that the act of making a Signature has
occurred.
(36) “Solicitation Document” means an Invitation to
Bid, Request for Proposals, Request for Quotes, or other similar document
issued to invite Offers from prospective Contractors pursuant to ORS Chapter
279B or 279C. The following are not Solicitation Documents unless they invite
Offers from prospective Contractors: a Request for Qualifications, a
prequalification of bidders, a request for information, a sole source notice,
an approval of a Special Procurement, or a request for product
prequalification. A project-specific selection document under a Price Agreement
that has resulted from a previous Solicitation Document is not itself a
Solicitation Document.
(37) “Writing” means letters, characters and symbols
inscribed on paper by hand, print, type or other method of impression, intended
to represent or convey particular ideas or meanings. “Writing,” when required
or permitted by law, or required or permitted in a Solicitation Document, also
means letters, characters and symbols made in electronic form and intended to
represent or convey particular ideas or meanings.
(38) “Written” means existing in Writing.
Stat. Auth.: ORS 279A.065
Stats. Implemented: ORS 279A.065
Hist.: DOJ 11-2004, f. 9-1-04,
cert. ef. 3-1-05; DOJ 20-2005, f. 12-27-05, cert. ef. 1-1-06; DOJ 19-2007, f.
12-28-07, cert. ef. 1-1-08; DOJ 15-2009, f. 12-1-09, cert. ef. 1-1-10; DOJ
10-2011, f. 11-29-11, cert. ef. 1-1-12
137-046-0300
Preference for Oregon Goods and
Services
(1) Tiebreaker Preference and Award When Offers Are
Identical. Under ORS 279A.120, when a Contracting Agency receives Offers
identical in price, fitness, availability and quality, and chooses to Award a
Contract, the Contracting Agency shall Award the Contract based on the
following order of precedence:
(a) The Contracting Agency shall Award the Contract to
the Offeror among those submitting identical Offers who is offering Goods or
Services, or both, or Personal Services, that are manufactured, produced or to
be performed in Oregon.
(b) If two or more Offerors submit identical Offers,
and they all offer Goods or Services, or both, or Personal Services, that are
manufactured, produced or to be performed in Oregon, the Contracting Agency
shall Award the Contract by drawing lots among the identical Offers. The
Contracting Agency shall provide the Offerors who submitted the identical
Offers notice of the date, time and location of the drawing of lots and an
opportunity for these Offerors to be present when the lots are drawn.
(c) If the Contracting Agency receives identical
Offers, and none of the identical Offers offer Goods or Services, or both, or
Personal Services, that are manufactured, produced or to be performed in Oregon,
then the Contracting Agency shall award the Contract by drawing lots among the
identical Offers. The Contracting Agency shall provide to the Offerors who
submitted the identical Offers notice of the date, time and location of the
drawing of lots and an opportunity for these Offerors to be present when the
lots are drawn.
(2) Determining if Offers are Identical. A Contracting
Agency shall consider Offers identical in price, fitness, availability and
quality as follows:
(a) Bids received in response to an Invitation to Bid
are identical in price, fitness, availability and quality if the Bids are
Responsive, and offer the Goods or Services, or both, or Personal Services,
described in the Invitation to Bid at the same price.
(b) Proposals received in response to a Request for
Proposals are identical in price, fitness, availability and quality if they are
Responsive and achieve equal scores when scored in accordance with the
evaluation criteria set forth in the Request for Proposals.
(c) Offers received in response to a Special
Procurement conducted under ORS 279B.085 are identical in price, fitness,
availability and quality if, after completing the contracting procedure
approved by the Contract Review Authority, the Contracting Agency determines,
in Writing, that two or more Proposals are equally advantageous to the
Contracting Agency.
(d) Offers received in response to an intermediate
Procurement conducted pursuant to ORS 279B.070 are identical if the Offers
equally best serve the interests of the Contracting Agency in accordance with
279B.070(4).
(3) Determining if Goods or Services or Personal
Services are Manufactured or Produced in Oregon. In applying Section 1 of this
rule, Contracting Agencies shall determine whether a Contract is predominantly
for Goods, Services or Personal Services and then use the predominant purpose
to determine if the Goods, Services or Personal Services are manufactured,
produced, or performed in Oregon. Contracting Agencies may request, either in a
Solicitation Document, following Closing, or at any other time the Contracting
Agency determines is appropriate, any information the Contracting Agency may
need to determine if the Goods, Services or Personal Services are manufactured
or produced in Oregon. A Contracting Agency may use any reasonable criteria to
determine if Goods, Services or Personal Services are manufactured, produced,
or performed in Oregon, provided that the criteria reasonably relate to that
determination, and provided that the Contracting Agency applies those criteria
equally to each Offer.
(4) Procedure for Drawing Lots. When this rule calls
for the drawing of lots, the Contracting Agency shall draw lots by a procedure
that affords each Offeror subject to the drawing a substantially equal
probability of selection and that does not allow the person making the
selection the opportunity to manipulate the drawing of lots to increase the
probability of selecting one Offeror over another.
(5) Discretionary Preference and Award. Under ORS
279A.128, a Contracting Agency may provide, in a Solicitation Document for
Goods, Services or Personal Services, a specified percentage preference of not
more than ten percent for Goods fabricated or processed entirely in Oregon or
Services or Personal Services performed entirely in Oregon. When the
Contracting Agency provides for a preference under this Section, and more than
one Offeror qualifies for the preference, the Contracting Agency may give a
further preference to a qualifying Offeror that resides in or is headquartered
in Oregon. A Contracting Agency may establish a preference percentage higher
than ten percent by written order that finds good cause to establish the higher
percentage and which explains the Contracting Agency’s reasons and evidence for
finding good cause to establish a higher percentage. A Contracting Agency may
not apply the preferences described in this Section in a Procurement for
emergency work, minor alterations, ordinary repairs or maintenance of public
improvements, or construction work that is described in ORS 297C.320.
Stat. Auth.: ORS 279A.065; OL
2011, ch 237
Stats. Implemented: ORS 279A.065;
279A.120 & 279A.128; OL 2011, ch 237
Hist.: DOJ 11-2004, f. 9-1-04,
cert. ef. 3-1-05; DOJ 20-2005, f. 12-27-05, cert. ef. 1-1-06; DOJ 10-2011, f.
11-29-11, cert. ef. 1-1-12
137-047-0257
Multistep Sealed Bidding
(1) Generally. A Contracting Agency may procure Goods
or Services by using multistep sealed bidding under ORS 279B.055(12).
(2) Phased Process. Multistep sealed bidding is a
phased Procurement process that seeks information or unpriced submittals in the
first phase combined with regular competitive sealed bidding, inviting Bidders
who submitted technically eligible submittals in the first phase to submit
competitive sealed price Bids in the second phase. The Contract must be Awarded
to the lowest Responsible Bidder.
(3) Public Notice. When a Contracting Agency uses
multistep sealed bidding, the Contract Agency shall give public notice for the
first phase in accordance with OAR 137-047-0300. Public notice is not required
for the second phase. However, a Contracting Agency shall give notice of the
second phase to all Bidders, inform Bidders of the right to protest Addenda
issued after the initial Closing under OAR 137-047-0430, and inform Bidders
excluded from the second phase of the right, if any, to protest their exclusion
under OAR 137-047-0720.
(4) Procedures Generally. In addition to the procedures
set forth in OAR 137-047-0300 through 137-047-0490, a Contracting Agency shall
employ the procedures set forth in this rule for multistep sealed bidding and
in the Invitation to Bid.
(5) Procedure for Phase One of Multistep Sealed
Bidding.
(a) Form. A Contracting Agency shall initiate multistep
sealed bidding by issuing an Invitation to Bid in the form and manner required
for competitive sealed Bids except as provided in this Rule. In addition to the
requirements set forth OAR 137-047-0255(2), the multistep Invitation to Bid
must state:
(A) That the solicitation is a multistep sealed Bid
Procurement and describe the process the Contracting Agency will use to conduct
the Procurement;
(B) That the Contracting Agency requests unpriced
submittals and that the Contracting Agency will consider price Bids only in the
second phase and only from those Bidders whose unpriced submittals are found
eligible in the first phase;
(C) Whether Bidders must submit price Bids at the same
time as unpriced submittals and, if so, that Bidders must submit the price Bids
in a separate sealed envelope;
(D) The criteria to be used in the evaluation of
unpriced submittals;
(b) Evaluation. The Contracting Agency shall evaluate
unpriced submittals in accordance with the criteria set forth in the Invitation
to Bid.
(6) Procedure for Phase Two of Multistep Sealed
Bidding.
(a) After the completion of phase one, if the
Contracting Agency does not cancel the Solicitation, the Contracting Agency
shall invite each eligible Bidder to submit a price Bid.
(b) A Contracting Agency shall conduct phase two as any
other competitive sealed Bid Procurement except:
(A) As specifically set forth in this rule or the
Invitation to Bid;
(B) No public notice need be given of the invitation to
submit price Bids because such notice was previously given.
Stat. Auth.: ORS 279A.065
Stats. Implemented: ORS 279B.055
Hist.: DOJ 11-2004, f. 9-1-04,
cert. ef. 3-1-05; DOJ 20-2005, f. 12-27-05, cert. ef. 1-1-06; DOJ 19-2007, f.
12-28-07, cert. ef. 1-1-08; DOJ 10-2011, f. 11-29-11, cert. ef. 1-1-12
137-047-0260
Competitive Sealed Proposals
(1) Generally. A Contracting Agency may procure Goods
or Services by competitive sealed Proposals as set forth in ORS 279B.060. A
Contracting Agency shall use a Request for Proposal to initiate a competitive
sealed Proposal solicitation. The Request for Proposal must contain the
information required by 279B.060(2) and by section (2) of this rule. The
Contracting Agency shall provide public notice of the Request for Proposal as
set forth in OAR 137-047-0300.
(2) Request for Proposal. In addition to the provisions
required by ORS 279B.060(2), the Request for Proposal must include the
following:
(a) General Information.
(A) Notice of any pre-Offer conference as follows:
(i) The time, date and location of any pre-Offer
conference;
(ii) Whether attendance at the conference will be
mandatory or voluntary; and
(iii) A provision that provides that statements made by
the Contracting Agency’s representatives at the conference are not binding upon
the Contracting Agency unless confirmed by Written Addendum.
(B) The form and instructions for submission of
Proposals and any other special information, e.g., whether Proposals may be
submitted by electronic means. (See OAR 137-047-0330 for required provisions of
electronic Proposals);
(C) The time, date and place of Opening;
(D) The office where the Solicitation Document may be
reviewed;
(E) Proposer’s certification of nondiscrimination in
obtaining required subcontractors in accordance with ORS 279A.110(4). (See OAR
137-046-0210(2)); and
(F) How the Contracting Agency will notify Proposers of
Addenda and how the Contracting Agency will make Addenda available. (See OAR
137-047-0430).
(b) Contracting Agency Need to Purchase. The character
of the Goods or Services the Contracting Agency is purchasing including, if
applicable, a description of the acquisition, Specifications, delivery or
performance schedule, inspection and acceptance requirements. As required by
ORS 279B.060(2)(c), the Contracting Agency’s description of its need to
purchase must:
(A) Identify the scope of the work to be performed
under the resulting Contract, if the Contracting Agency awards one;
(B) Outline the anticipated duties of the Contractor
under any resulting Contract;
(C) Establish the expectations for the Contractor’s
performance of any resulting Contract; and
(D) Unless the Contractor under any resulting Contract
will provide architectural, engineering, photogrammetric mapping,
transportation planning, or land surveying services, or related services that
are subject to ORS 279C.100 to 279C.125, or the Contracting Agency for Good
Cause specifies otherwise, the scope of work must require the Contractor to
meet the highest standards prevalent in the industry or business most closely
involved in providing the Goods or Services that the Contracting Agency is
purchasing.
(c) Proposal and Evaluation Process.
(A) The anticipated solicitation schedule, deadlines,
protest process, and evaluation process;
(B) The Contracting Agency shall set forth selection
criteria in the Solicitation Document in accordance with the requirements of
ORS 279B.060(3)(e). Evaluation criteria need not be precise predictors of
actual future costs and performance, but to the extent possible, the factors
shall be reasonable estimates of actual future costs based on information
available to the Contracting Agency;
(C) If the Contracting Agency’s solicitation process
calls for the Contracting Agency to establish a Competitive Range, the
Contracting Agency shall generally describe, in the Solicitation Document, the
criteria or parameters the Contracting Agency will apply to determine the
Competitive Range. The Contracting Agency, however, subsequently may determine
or adjust the number of Proposers in the Competitive Range in accordance with
OAR 137-047-0262(1)(a)(B).
(d) Applicable Preferences, including those described
in ORS 279A.120, 279A.125(2) and 282.210.
(e) For Contracting Agencies subject to ORS 305.385,
the Proposers’ certification of compliance with the Oregon tax laws in
accordance with ORS 305.385.
(f) All contractual terms and conditions the
Contracting Agency determines are applicable to the Procurement. The
Contracting Agency’s determination of contractual terms and conditions that are
applicable to the Procurement may take into consideration, as authorized by ORS
279B.060(3), those contractual terms and conditions the Contracting Agency will
not include in the Request for Proposal because the Contracting Agency either
will reserve them for negotiation, or will request Proposers to offer or
suggest those terms or conditions. (See OAR 137-047-0260(3)).
(g) As required by ORS 279B.060(2)(h), the Contract
terms and conditions must specify the consequences of the Contractor’s failure
to perform the scope of work or to meet the performance standards established
by the resulting Contract. Those consequences may include, but are not limited
to:
(A) The Contracting Agency’s reduction or withholding
of payment under the Contract;
(B) The Contracting Agency’s right to require the
Contractor to perform, at the Contractor’s expense, any additional work
necessary to perform the scope of work or to meet the performance standards
established by the resulting Contract; and
(C) The Contracting Agency’s rights, which the
Contracting Agency may assert individually or in combination, to declare a
default of the resulting Contract, to terminate the resulting Contract, and to
seek damages and other relief available under the resulting Contract or
applicable law.
(3) The Contracting Agency may include the applicable
contractual terms and conditions in the form of Contract provisions, or legal
concepts to be included in the resulting Contract. Further, the Contracting
Agency may specify that it will include or use Proposer’s terms and conditions
that have been pre-negotiated under OAR 137-047-0550(3), but the Contracting
Agency may only include or use a Proposer’s pre-negotiated terms and conditions
in the resulting Contract to the extent those terms and conditions do not
materially conflict with the applicable contractual terms and conditions. The
Contracting Agency shall not agree to any Proposer’s terms and conditions that
were expressly rejected in a solicitation protest under OAR 137-047-0420.
(4) For multiple Award Contracts, the Contracting
Agency may enter into Contracts with different terms and conditions with each
Contractor to the extent those terms and conditions do not materially conflict
with the applicable contractual terms and conditions. The Contracting Agency
shall not agree to any Proposer’s terms and conditions that were expressly
rejected in a solicitation protest under OAR 137-047-0420.
(5) Good Cause. For the purposes of this rule, “Good
Cause” means a reasonable explanation for not requiring Contractor to meet the
highest standards prevalent in the industry or business most closely involved
in providing the Goods or Services under the Contract, and may include an
explanation of circumstances that support a finding that the requirement would
unreasonably limit competition or is not in the best interest of the
Contracting Agency. The Contracting Agency shall document in the Procurement
file the basis for the determination of Good Cause for specifying otherwise. A
Contracting Agency will have Good Cause to specify otherwise when the
Contracting Agency determines:
(a) The use or purpose to which the Goods or Services
will be put does not justify a requirement that the Contractor meet the highest
prevalent standards in performing the Contract;
(b) Imposing express technical, standard, dimensional
or mathematical specifications will better ensure that the Goods or Services
will be compatible with, or will operate efficiently or effectively with,
associated information technology, hardware, software, components, equipment,
parts, or on-going Services with which the Goods or Services will be used,
integrated, or coordinated;
(c) The circumstances of the industry or business that
provides the Goods or Services are sufficiently volatile in terms of innovation
or evolution of products, performance techniques, or scientific developments,
that a reliable highest prevalent standard does not exist or has not been
developed;
(d) That other circumstances exist in which the
Contracting Agency’s interest in achieving economy, efficiency, compatibility
or availability in the Procurement of the Goods or Services reasonably
outweighs the Contracting Agency’s practical need for the highest standard
prevalent in the applicable or closest industry or business that supplies the
Goods or Services to be delivered under the resulting Contract.
Stat. Auth.: ORS 279A.065, OL
2011, ch 458
Stats. Implemented: ORS 279B.060,
OL 2011, ch 458
Hist.: DOJ 11-2004, f. 9-1-04,
cert. ef. 3-1-05; DOJ 20-2005, f. 12-27-05, cert. ef. 1-1-06; DOJ 15-2009, f.
12-1-09, cert. ef. 1-1-10; DOJ 10-2011, f. 11-29-11, cert. ef. 1-1-12
137-047-0261
Multi-tiered and Multistep
Proposals
(1) Generally. A Contracting Agency may use one or
more, or any combination, of the methods of Contractor selection set forth in
ORS 279B.060(7), 279B.060(8) and this rule to procure Goods or Services. In
addition to the procedures set forth in OAR 137-047-0300 through 137-047-0490
for methods of Contractor selection, a Contracting Agency may provide for a
multi-tiered or multistep selection process that permits award to the highest
ranked Proposer at any tier or step, calls for the establishment of a
Competitive Range, or permits either serial or competitive simultaneous
discussions or negotiations with one or more Proposers.
(2) When conducting a multi-tiered or multistep
selection process, a Contracting Agency may use any combination or series of
Proposals, discussions, negotiations, demonstrations, offers, or other means of
soliciting information from Proposers that bears on the selection of a
Contractor or Contractors. In multi-tiered and multistep competitions, a
Contracting Agency may use these means of soliciting information from
prospective Proposers and Proposers in any sequence or order, and at any stage
of the selection process, as determined in the discretion of the Contracting
Agency.
(3) When a Contracting Agency’s Request for Proposals
prescribes a multi-tiered or multistep Contractor selection process, a
Contracting Agency nevertheless may, at the completion of any stage in the
competition and on determining the Most Advantageous Proposer (or, in
multiple-award situations, on determining the awardees of the Public
Contracts), award a Contract (or Contracts) and conclude the Procurement without
proceeding to subsequent stages. The Contracting Agency also may, at any time,
cancel the Procurement under ORS 279B.100.
(4) Exclusion Protest. A Contracting Agency may
provide, before the notice of an intent to Award, an opportunity for a Proposer
to protest exclusion from the Competitive Range or from subsequent phases of
multi-tiered or multistep sealed Proposals as set forth in OAR 137-047-0720.
(5) Award Protest. A Contracting Agency shall provide
an opportunity to protest its intent to Award a Contract pursuant to ORS
279B.410 and OAR 137-047-0740. An Affected Offeror may protest, for any of the
bases set forth in 137-047-0720(2), its exclusion from the Competitive Range or
from any phase of a multi-tiered or multistep sealed Proposal process, or may
protest an Addendum issued following initial Closing, if the Contracting Agency
did not previously provide Proposers the opportunity to protest the exclusion
or Addendum. The failure to protest shall be considered the Proposer’s failure
to pursue an administrative remedy made available to the Proposer by the
Contracting Agency.
(6) Competitive Range. When a Contracting Agency’s
solicitation process conducted under ORS 279B.060(8) calls for the Contracting
Agency to establish a Competitive Range at any stage in the Procurement
process, the Contracting Agency may do so as follows:
(a) Determining Competitive Range.
(A) The Contracting Agency may establish a Competitive
Range after evaluating all Responsive Proposals in accordance with the
evaluation criteria in the Request for Proposals. After evaluation of all
Proposals in accordance with the criteria in the Request for Proposals, the
Contracting Agency may determine and rank the Proposers in the Competitive
Range. Notwithstanding the foregoing, however, in instances in which the
Contracting Agency determines that a single Proposer has a reasonable chance of
being determined the most Advantageous Proposer, the Contracting Agency need
not determine or rank Proposers in the Competitive Range. In addition,
notwithstanding the foregoing, a Contracting Agency may establish a Competitive
Range of all Proposers to enter into discussions to correct deficiencies in
Proposals.
(B) The Contracting Agency may establish the number of
Proposers in the Competitive Range in light of whether the Contracting Agency’s
evaluation of Proposals identifies a number of Proposers who have a reasonable
chance of being determined the most Advantageous Proposer, or whether the
evaluation establishes a natural break in the scores of Proposers that
indicates that a particular number of Proposers are closely competitive or have
a reasonable chance of being determined the most Advantageous Proposer.
(b) Protesting Competitive Range. The Contracting
Agency must provide Written notice to all Proposers identifying Proposers in
the Competitive Range. A Contracting Agency may provide an opportunity for
Proposers excluded from the Competitive Range to protest the Contracting
Agency’s evaluation and determination of the Competitive Range in accordance
with OAR 137-047-0720.
(7) Discussions. The Contracting Agency may initiate
oral or written discussions with all “eligible Proposers” on subject matter
within the general scope of the Request for Proposals. In conducting
discussions, the Contracting Agency:
(a) Shall treat all eligible Proposers fairly and shall
not favor any eligible Proposer over another;
(b) May disclose other eligible Proposers’ Proposals or
discussions only in accordance with ORS 279B.060(8)(b) or (c);
(c) May adjust the evaluation of a Proposal as a result
of discussions. The conditions, terms, or price of the Proposal may be changed
during the course of the discussions provided the changes are within the scope
of the Request for Proposals.
(d) At any time during the time allowed for
discussions, the Contracting Agency may:
(A) Continue discussions with a particular eligible
Proposer;
(B) Terminate discussions with a particular eligible
Proposer and continue discussions with other eligible Proposers; or
(C) Conclude discussions with all remaining eligible
Proposers and provide, to the then-eligible Proposers, notice requesting best
and final Offers.
(8) Negotiations. A Contracting Agency may commence
serial negotiations with the highest-ranked eligible Proposer or commence
simultaneous negotiations with all eligible Proposers. A Contracting Agency may
negotiate:
(a) The statement of work;
(b) The Contract Price as it is affected by negotiating
the statement of work and other terms and conditions authorized for negotiation
in the Request for Proposals or Addenda thereto; and
(c) Any other terms and conditions reasonably related
to those authorized for negotiation in the Request for Proposals or Addenda
thereto. Proposers shall not submit for negotiation, and a Contracting Agency
shall not accept, alternative terms and conditions that are not reasonably
related to those authorized for negotiation in the Request for Proposals or any
Addendum.
(9) Terminating Negotiations. At any time during
discussions or negotiations a Contracting Agency conducts under this rule, the
Contracting Agency may terminate discussions or negotiations with the
highest-ranked Proposer, or the eligible Proposer with whom it is currently
discussing or negotiating, if the Contracting Agency reasonably believes that:
(a) The eligible Proposer is not discussing or
negotiating in good faith; or
(b) Further discussions or negotiations with the
eligible Proposer will not result in the parties agreeing to the terms and
conditions of a Contract in a timely manner.
(c) Continuing Serial Negotiations. If the Contracting
Agency is conducting serial negotiations and the Contracting Agency terminates
negotiations with an eligible Proposer, the Contracting Agency may then
commence negotiations with the next highest scoring eligible Proposer, and
continue the sequential process until the Contracting Agency has either:
(A) Determined to Award the Contract to the eligible
Proposer with whom it is currently discussing or negotiating; or
(B) Decided to cancel the Procurement under ORS
279B.100.
(d) Competitive Simultaneous Negotiations. If the
Contracting Agency chooses to conduct competitive negotiations, the Contracting
Agency may negotiate simultaneously with competing eligible Proposers. The Contracting
Agency:
(A) Shall treat all eligible Proposers fairly and shall
not favor any eligible Proposer over another;
(B) May disclose other eligible Proposers’ Proposals or
the substance of negotiations with other eligible Proposers only if the Contracting
Agency notifies all of the eligible Proposers with whom the Contracting Agency
will engage in negotiations of the Contracting Agency’s intent to disclose
before engaging in negotiations with any eligible Proposer.
(e) Any oral modification of a Proposal resulting from
negotiations must be reduced to Writing.
(10) Best and Final Offers. If a Contracting Agency
requires best and final Offers, a Contracting Agency must establish a common
date and time by which eligible Proposers must submit best and final Offers. If
a Contracting Agency is dissatisfied with the best and final Offers, the
Contracting Agency may make a written determination that it is in the
Contracting Agency’s best interest to conduct additional discussions,
negotiations or change the Contracting Agency’s requirements and require
another submission of best and final Offers. A Contracting Agency must inform
all eligible Proposers that if they do not submit notice of withdrawal or
another best and final Offer, their immediately previous Offers will be
considered their best and final Offers. The Contracting Agency shall evaluate
Offers as modified by the best and final Offers. The Contracting Agency shall
conduct the evaluations as described in OAR 137-047-0600. The Contracting
Agency may not modify evaluation factors or their relative importance after the
date and time that best and final Offers are due.
(11) Multistep Sealed Proposals. A Contracting Agency
may procure Goods or Services by using multistep competitive sealed Proposals
under ORS 279B.060(8)(b)(g). Multistep sealed Proposals is a phased Procurement
process that seeks necessary information or unpriced technical Proposals in the
first phase and, in the second phase, invites Proposers who submitted
technically qualified Proposals to submit competitive sealed price Proposals on
the technical Proposals. The Contracting Agency must award the Contract to the
Responsible Proposer submitting the most Advantageous Proposal in accordance
with the terms of the Solicitation Document applicable to the second phase.
(a) Public Notice. When a Contracting Agency uses
multistep sealed Proposals, the Contracting Agency shall give public notice for
the first phase in accordance with OAR 137-047-0300. Public notice is not
required for the second phase. However, a Contracting Agency shall give notice
of the subsequent phases to all Proposers and inform any Proposers excluded
from the second phase of the right, if any, to protest exclusion under OAR
137-047-0720.
(b) Procedure for Phase One of Multistep Sealed
Proposals. A Contracting Agency may initiate a multistep sealed Proposals
Procurement by issuing a Request for Proposals in the form and manner required
for competitive sealed Proposals except as provided in this rule. In addition
to the requirements required for competitive sealed Proposals, the multistep
Request for Proposals must state:
(A) That unpriced technical Proposals are requested;
(B) That the solicitation is a multistep sealed
Proposal Procurement and that, in the second phase, priced Proposals will be
accepted only from those Proposers whose unpriced technical Proposals are found
qualified in the first phase;
(C) The criteria for the evaluation of unpriced
technical Proposals; and
(D) That the Goods or Services being procured shall be
furnished generally in accordance with the Proposer’s technical Proposal as
found to be finally qualified and shall meet the requirements of the Request
for Proposals.
(c) Addenda to the Request for Proposals. After receipt
of unpriced technical Proposals, Addenda to the Request for Proposals shall be
distributed only to Proposers who submitted unpriced technical Proposals.
(d) Receipt and Handling of Unpriced Technical
Proposals. Unpriced technical Proposals need not be opened publicly.
(e) Evaluation of Unpriced Technical Proposals.
Unpriced technical Proposals shall be evaluated solely in accordance with the
criteria set forth in the Request for Proposals.
(f) Discussion of Unpriced Technical Proposals. The
Contracting Agency may seek clarification of a technical Proposal of any
Proposer who submits a qualified, or potentially qualified technical Proposal.
During the course of such discussions, the Contracting Agency shall not
disclose any information derived from one unpriced technical Proposal to any
other Proposer.
(g) Methods of Contractor Selection for Phase One. In
conducting phase one, a Contracting Agency may employ any combination of the
methods of Contractor selection that call for the establishment of a
Competitive Range or include discussions, negotiations, or best and final
Offers as set forth in this rule.
(h) Procedure for Phase Two. On the completion of phase
one, the Contracting Agency shall invite each qualified Proposer to submit
price Proposals. A Contracting Agency shall conduct phase two as any other
competitive sealed Proposal Procurement except as set forth in this rule.
(j) No public notice need be given of the request to
submit price Proposals because such notice was previously given.
Stat. Auth.: ORS 279A.065
Stats. Implemented: ORS 279B.060
Hist.: DOJ 11-2004, f. 9-1-04,
cert. ef. 3-1-05; DOJ 15-2009, f. 12-1-09, cert. ef. 1-1-10; DOJ 10-2011, f.
11-29-11, cert. ef. 1-1-12
137-047-0310
Bids or Proposals are Offers
(1) Offer and Acceptance. The Bid or Proposal is the
Bidder’s or Proposer’s Offer to enter into a Contract.
(a) In competitive bidding and competitive Proposals,
the Offer is always a “Firm Offer,” i.e. the Offer shall be held open by the
Offeror for the Contracting Agency’s acceptance for the period specified in OAR
137-047-0480. The Contracting Agency may elect to accept the Offer at any time
during the specified period, and the Contracting Agency’s Award of the Contract
constitutes acceptance of the Offer and binds the Offeror to the Contract.
(b) Notwithstanding the fact that a competitive
Proposal is a “Firm Offer” for the period specified in OAR 137-047-0480, the
Contracting Agency may elect to discuss or negotiate certain contractual
provisions, as identified in these rules or in the Solicitation Document, with
the Proposer. Where negotiation is permitted by the rules or the Solicitation
Document, Proposers are obligated to negotiate in good faith and only on those
terms or conditions that the rules or the Solicitation Document have reserved
for negotiation.
(2) Contingent Offers. Except to the extent the
Proposer is authorized to propose certain terms and conditions pursuant to OAR
137-047-0262, a Proposer shall not make its Offer contingent upon the
Contracting Agency’s acceptance of any terms or conditions (including
Specifications) other than those contained in the Solicitation Document.
(3) Offeror’s Acknowledgment. By Signing and returning
the Offer, the Offeror acknowledges it has read and understands the terms and
conditions contained in the Solicitation Document and that it accepts and
agrees to be bound by the terms and conditions of the Solicitation Document. If
the Request for Proposals permits Proposers to propose alternative terms or
conditions under OAR 137-047-0261, the Offeror’s Offer includes any
nonnegotiable terms and conditions, any proposed terms and conditions offered
for negotiation upon and to the extent accepted by the Contracting Agency in
Writing, and Offeror’s agreement to perform the scope of work and meet the
performance standards set forth in the final negotiated scope of work.
Stat. Auth.: ORS 279A.065
Stats. Implemented: ORS 279A.065,
279B.055 & 279B.60
Hist.: DOJ 11-2004, f. 9-1-04,
cert. ef. 3-1-05; DOJ 19-2007, f. 12-28-07, cert. ef. 1-1-08; DOJ 15-2009, f.
12-1-09, cert. ef. 1-1-10; DOJ 10-2011, f. 11-29-11, cert. ef. 1-1-12
137-047-0430
Addenda to Solicitation Document
(1) Issuance; Receipt. The Contracting Agency may
change a Solicitation Document only by Written Addenda. An Offeror shall
provide Written acknowledgment of receipt of all issued Addenda with its Offer,
unless the Contracting Agency otherwise specifies in the Addenda.
(2) Notice and Distribution. The Contracting Agency
shall notify prospective Offerors of Addenda in a manner intended to foster competition
and to make prospective Offerors aware of the Addenda. The Solicitation
Document shall specify how the Contracting Agency will provide notice of
Addenda and how the Contracting Agency will make the Addenda available before
Closing, and at each subsequent step or tier of evaluation if the Contracting
Agency will engage in a multistep competitive sealed Bid process in accordance
with OAR 137-047-0257, or a multi-tiered or multistep competitive sealed
Proposal process in accordance with 137-047-0261. The following is an example
of how a Contracting Agency may specify how it will provide notice of Addenda:
“Contracting Agency will not mail notice of Addenda, but will publish notice of
any Addenda on Contracting Agency’s web site. Addenda may be downloaded off the
Contracting Agency’s web site. Offerors should frequently check the Contracting
Agency’s web site until Closing, i.e., at least once weekly until the week of
Closing and at least once daily the week of the Closing.”
(3) Timelines; Extensions.
(a) The Contracting Agency shall issue Addenda within a
reasonable time to allow prospective Offerors to consider the Addenda in
preparing their Offers. The Contracting Agency may extend the Closing if the
Contracting Agency determines prospective Offerors need additional time to
review and respond to Addenda. Except to the extent justified by a
countervailing public interest, the Contracting Agency shall not issue Addenda
less than 72 hours before the Closing unless the Addendum also extends the
Closing.
(b) Notwithstanding subsection 3(a) of this rule, an
Addendum that modifies the evaluation criteria, selection process or procedure
for any tier of competition under a multistep sealed Bid or a multi-tiered or
multistep sealed Proposal issued in accordance with ORS 279B.060(6)(d) and OAR
137-047-0261 must be issued no fewer than five (5) Days before the beginning of
that tier or step of competition, unless the Contracting Agency determines that
a shorter period is sufficient to allow Offerors to prepare for that tier or
step of competition. The Contracting Agency shall document the factors it
considered in making that determination, which may include, without limitation,
the scope of the changes to the Solicitation Document, the location of the
remaining eligible Proposers, or whether shortening the period between issuing
an Addendum and the beginning of the next tier or step of competition favors or
disfavors any particular Proposer or Proposers.
(4) Request for Change or Protest. Unless a different
deadline is set forth in the Addendum, an Offeror may submit a Written request
for change or protest to the Addendum, as provided in OAR 137-047-0730, by the
close of the Contracting Agency’s next business day after issuance of the
Addendum, or up to the last day allowed to submit a request for change or
protest under 137-047-0730, whichever date is later. If the date established in
the previous sentence falls after the deadline for receiving protests to the
Solicitation Document in accordance with 137-047-0730, then the Contracting
Agency may consider an Offeror’s request for change or protest to the Addendum
only, and the Contracting Agency shall not consider a request for change or
protest to matters not added or modified by the Addendum. Notwithstanding any provision
of this section (4) of this rule, a Contracting Agency is not required to
provide a protest period for Addenda issued after initial Closing during a
multi-tier or multistep Procurement process conducted pursuant to ORS 279B.055
or 279B.060.
Stat. Auth.: ORS 279A.065 &
279B.060
Stats. Implemented: ORS 279B.060
Hist.: DOJ 11-2004, f. 9-1-04,
cert. ef. 3-1-05; DOJ 19-2007, f. 12-28-07, cert. ef. 1-1-08; DOJ 10-2011, f.
11-29-11, cert. ef. 1-1-12
137-047-0460
Late Offers, Late Withdrawals and
Late Modifications
Any Offer received after Closing is late. An Offeror’s
request for withdrawal or modification of an Offer received after Closing is
late. An Agency shall not consider late Offers, withdrawals or modifications
except as permitted in OAR 137-047-0470 or 137-047-0261.
Stat. Auth.: ORS 279A.065 &
279B.055
Stats. Implemented: ORS 279B.055
Hist.: DOJ 11-2004, f. 9-1-04,
cert. ef. 3-1-05; DOJ 10-2011, f. 11-29-11, cert. ef. 1-1-12
137-047-0600
Offer Evaluation and Award
(1) Contracting Agency Evaluation. The Contracting
Agency shall evaluate Offers only as set forth in the Solicitation Document,
pursuant to ORS 279B.055(6)(a) and 279B.060(6)(b), and in accordance with
applicable law. The Contracting Agency shall not evaluate Offers using any
other requirement or criterion.
(a) Evaluation of Bids.
(A) Nonresident Bidders. In determining the lowest
Responsive Bid, the Contracting Agency shall apply the reciprocal preference
set forth in ORS 279A.120(2)(b) and OAR 137-046-0310 for Nonresident Bidders.
(B) Public Printing. The Contracting Agency shall for
the purpose of evaluating Bids apply the public printing preference set forth
in ORS 282.210.
(C) Award
When Bids are Identical. If the Contracting Agency determines that one or more
Bids are identical under OAR 137-046-0300, the Contracting Agency shall Award a
Contract in accordance with the procedures set forth in OAR 137-046-0300.
(b) Evaluation of Proposals.
(A) Award When Proposals are Identical. If the Contracting
Agency determines that one or more Proposals are identical under OAR
137-046-0300, the Contracting Agency shall Award a Contract in accordance with
the procedures set forth in OAR 137-046-0300.
(B) Public Printing. The Contracting Agency shall for
the purpose of evaluating Proposals apply the public printing preference set
forth in ORS 282.210.
(c) Recycled Materials. When procuring Goods, the
Contracting Agency shall give preference for recycled materials as set forth in
ORS 279A.125 and OAR 137-046-0320.
(2) Clarification of Bids or Proposals. After Opening,
a Contracting Agency may conduct discussions with apparent Responsive Offerors
for the purpose of clarification to assure full understanding of the Bids or
Proposals. All Bids or Proposals, in the Contracting Agency’s sole discretion,
needing clarification must be accorded such an opportunity. The Contracting
Agency shall document clarification of any Bidder’s Bid in the Procurement
file.
(3) Negotiations.
(a) Bids. A Contracting Agency shall not negotiate with
any Bidder. After Award of the Contract the Contracting Agency and Contractor
may only modify the Contract in accordance with OAR 137-047-0800.
(b) Requests for Proposals. A Contracting Agency may
conduct discussions or negotiate with Proposers only in accordance with ORS
279B.060(6)(b) and OAR 137-047-0261. After Award of the Contract, the
Contracting Agency and Contractor may only modify the Contract in accordance
with OAR 137-047-0800.
(4) Award.
(a) General. If Awarded, the Contracting Agency shall
Award the Contract to the Responsible Bidder submitting the lowest, Responsive
Bid or the Responsible Proposer submitting the most Advantageous, Responsive
Proposal. The Contracting Agency may Award by item, groups of items or the entire
Offer provided such Award is consistent with the Solicitation Document and in
the public interest.
(b) Multiple Items. An Invitation to Bid or Request for
Proposals may call for pricing of multiple items of similar or related type
with Award based on individual line item, group total of certain items, a
“market basket” of items representative of the Contracting Agency’s expected
purchases, or grand total of all items.
(c) Multiple Awards – Bids.
(A) Notwithstanding subsection (4)(a) of this rule, a Contracting
Agency may Award multiple Contracts under an Invitation to Bid in accordance
with the criteria set forth in the Invitation to Bid. Multiple Awards shall not
be made if a single Award will meet the Contracting Agency’s needs, including
but not limited to adequate availability, delivery, service, or product
compatibility. A multiple Award may be made if Award to two or more Bidders of
similar Goods or Services is necessary for adequate availability, delivery,
service or product compatibility and skills. Multiple Awards may not be made
for the purpose of dividing the Procurement into multiple solicitations, or to
allow for user preference unrelated to utility or economy. A notice to
prospective Bidders that multiple Contracts may be Awarded for any Invitation
to Bid shall not preclude the Contracting Agency from Awarding a single
Contract for such Invitation to Bid.
(B) If an Invitation to Bid permits the Award of
multiple Contracts, the Contracting Agency shall specify in the Invitation to
Bid the criteria it will use to choose from the multiple Contracts when
purchasing Goods or Services.
(d) Multiple Awards – Proposals.
(A) Notwithstanding subsection 4(a) of this rule, a
Contracting Agency may Award multiple Contracts under a Request for Proposals
in accordance with the criteria set forth in the Request for Proposals.
Multiple Awards shall not be made if a single Award will meet the Contracting
Agency’s needs, including but not limited to adequate availability, delivery,
service or product compatibility. A multiple Award may be made if Award to two
or more Proposers of similar Goods or Services is necessary for adequate
availability, delivery, service or product compatibility. Multiple Awards may
not be made for the purpose of dividing the Procurement into multiple
solicitations, or to allow for user preference unrelated to obtaining the most
Advantageous Contract. A notice to prospective Proposers that multiple
Contracts may be Awarded for any Request for Proposals shall not preclude the
Contracting Agency from Awarding a single Contract for such Request for
Proposals.
(B) If a Request for Proposals permits the Award of
multiple Contracts, the Contracting Agency shall specify in the Request for Proposals
the criteria it will use to choose from the multiple Contracts when purchasing
Goods or Services, which may include consideration and evaluation of the
Contract terms and conditions agreed to by the Contractors.
(e) Partial Awards. If after evaluation of Offers, the
Contracting Agency determines that an acceptable Offer has been received for
only parts of the requirements of the Solicitation Document:
(A) The Contracting Agency may Award a Contract for the
parts of the Solicitation Document for which acceptable Offers have been
received; or
(B) The Contracting Agency may reject all Offers and
may issue a new Solicitation Document on the same or revised terms, conditions
and Specifications.
(f) All or none Offers. A Contracting Agency may Award
all or none Offers if the evaluation shows an all or none Award to be the
lowest cost for Bids or the most Advantageous for Proposals of those submitted.
Stat. Auth.: ORS 279A.065 &
279B.060
Stats. Implemented: ORS 279B.055
& 279B.060
Hist.: DOJ 11-2004, f. 9-1-04,
cert. ef. 3-1-05; DOJ 15-2009, f. 12-1-09, cert. ef. 1-1-10; DOJ 10-2011, f.
11-29-11, cert. ef. 1-1-12
137-047-0620
Documentation of Award
(1) Basis of Award. After Award, the Contracting Agency
shall make a record showing the basis for determining the successful Offeror
part of the Contracting Agency’s Procurement file.
(2) Contents of Award Record. The Contracting Agency’s
record shall include:
(a) For Bids:
(A) Bids;
(B) Completed Bid tabulation sheet; and
(C) Written justification for any rejection of lower
Bids.
(b) For Proposals:
(A) Proposals;
(B) The completed evaluation of the Proposals;
(C) Written justification for any rejection of higher
scoring Proposals; and
(D) If the Contracting Agency engaged in any of the
methods of Contractor selection described in ORS 279B.060(6)(b) and OAR
137-047-0261, Written documentation of the content of any discussions,
negotiations, best and final Offers, or any other procedures the Contracting
Agency used to select a Proposer to which the Contracting Agency Awarded a
Contract.
Stat. Auth.: ORS 279A.065
Stats. Implemented: ORS 279A.065
Hist.: DOJ 11-2004, f. 9-1-04,
cert. ef. 3-1-05; DOJ 10-2011, f. 11-29-11, cert. ef. 1-1-12
137-047-0800
Amendments to Contracts and Price
Agreements
(1) Generally. A Contracting Agency may amend a
Contract without additional competition in any of the following circumstances:
(a) The amendment is within the scope of the
Procurement as described in the Solicitation Documents, if any, or if no
Solicitation Documents, as described in the sole source notice or the approved
Special Procurement or the Contract, if any. An amendment is not within the
scope of the Procurement if the Agency determines that if it had described in
the Procurement the changes to be made by the amendment, it would likely have
increased competition or affected award of the Contract.
(b) These Model Rules otherwise permit the Contracting
Agency to Award a Contract without competition for the goods or services to be
procured under the Amendment.
(c) The amendment is necessary to comply with a change
in law that affects performance of the Contract.
(d) The amendment results from renegotiation of the
terms and conditions, including the Contract Price, of a Contract and the
amendment is Advantageous to the Contracting Agency, subject to all of the
following conditions:
(A) The Goods or Services to be provided under the
amended Contract are the same as the Goods or Services to be provided under the
unamended Contract.
(B) The Contracting Agency determines that, with all
things considered, the amended Contract is at least as favorable to the
Contracting Agency as the unamended Contract.
(C) The amended Contract does not have a total term
greater than allowed in the Solicitation Documents, if any, or if no
Solicitation Documents, as described in the sole source notice or the approved
Special Procurement, if any, after combining the initial and extended terms.
For example, a one-year Contract described as renewable each year for up to
four additional years, may be renegotiated as a two to five-year Contract, but
not beyond a total of five years.
(2) Small or Intermediate Contract. A Contracting
Agency may amend a Contract Awarded as a small or intermediate Procurement
pursuant to section (1) of this rule, provided that the total increase in
Contract price does not exceed the amount set forth in OAR 137-047-0265 for small
Procurements or 137-047-0270 for intermediate Procurements.
(3) Price Agreements. A Contracting Agency may amend a
Price Agreement as follows:
(a) As permitted by the Price Agreement;
(b) If the circumstances set forth in ORS 279B.140(2)
exist; or
(c) As permitted by applicable law.
Stat. Auth.: ORS 279A.065
Stats. Implemented: ORS 279A.065
Hist.: DOJ 11-2004, f. 9-1-04,
cert. ef. 3-1-05; DOJ 20-2005, f. 12-27-05, cert. ef. 1-1-06; DOJ 15-2009, f.
12-1-09, cert. ef. 1-1-10; DOJ 10-2011, f. 11-29-11, cert. ef. 1-1-12
137-048-0100
Application
(1) The Attorney General is required to prepare and
maintain model rules of procedure that govern Public Contracting under the
Public Contracting Code and that are appropriate for use by all Contracting
Agencies. These division 48 rules apply to the screening and selection of
Architects, Engineers, Photogrammetrists, Transportation Planners, Land
Surveyors and providers of Related Services, under Contracts and set forth the
following procedures:
(a) Procedures through which Contracting Agencies
select Consultants to perform Architectural, Engineering, Photogrammetric
Mapping, Transportation Planning or Land Surveying Services, or Related
Services; and
(b) Two-tiered procedures for selection of Architects,
Engineers, Photogrammetrists, Transportation Planners, Land Surveyors and
providers of Related Services for certain public improvements owned and
maintained by a Local Government.
(2) These division 48 rules apply to any Contracting
Agency with independent contracting authority that is seeking the services of a
Consultant to perform Architectural, Engineering, Photogrammetric Mapping,
Transportation Planning or Land Surveying Services, or Related Services, if the
Contracting Agency has not adopted its own rules of procedure for the screening
and selection of Consultants to perform Architectural, Engineering,
Photogrammetric Mapping, Transportation Planning or Land Surveying Services or
Related Services, as provided in ORS 279A.065(a).
(3) The dollar threshold amounts that are applicable to
the Direct Appointment Procedure, 137-048-0200, the Informal Selection
Procedure, 137-048-0210, and the Formal Selection Procedure, 137-048-0220, are
independent from and have no effect on the dollar threshold amounts that trigger
the legal sufficiency review requirement for State Contracting Agencies under
ORS 291.047.
Stat. Auth.: ORS 279A.065, OL
2011, ch 458
Stats. Implemented: ORS 279A.065,
OL 2011, ch 458
Hist.: DOJ 11-2004, f. 9-1-04,
cert. ef. 3-1-05; DOJ 20-2005, f. 12-27-05, cert. ef. 1-1-06; DOJ 19-2007, f.
12-28-07, cert. ef. 1-1-08; DOJ 10-2011, f. 11-29-11, cert. ef. 1-1-12
137-048-0110
Definitions
In addition to the definitions set forth in ORS
279A.010, 279C.100, and OAR 137-046-0110, the following definitions apply to
these division 48 rules:
(1) “Consultant” means an Architect, Engineer,
Photogrammetrist, Transportation Planner, Land Surveyor or provider of Related
Services. A Consultant includes a business entity that employs Architects,
Engineers, Photogrammetrists, Transportation Planners, Land Surveyors or
providers of Related Services, or any combination of the foregoing. Provided,
however, when a Contracting Agency is entering into a direct Contract under OAR
137-048-0200(1)(c) or (d), the “Consultant” must be an Architect, Engineer,
Photogrammetrist, Transportation Planner or Land Surveyor, as required by ORS
279C.115(1).
(2) “Estimated Fee” means Contracting Agency’s
reasonably projected fee to be paid for a Consultant’s services under the
anticipated Contract, excluding all anticipated reimbursable or other
non-professional fee expenses. The Estimated Fee is used solely to determine
the applicable Contract solicitation method and is distinct from the total
amount payable under the Contract. The Estimated Fee shall not be used as a
basis to resolve other Public Contracting issues, including without limitation,
direct purchasing authority or Public Contract review and approval under ORS
291.047.
(3) “Price Agreement,” for purposes of this
Division 48, is limited to mean an agreement related to the procurement of
Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or
Land Surveying Services, or Related Services, under agreed-upon terms and
conditions, including, but not limited to terms and conditions of later work
orders or task orders for Project-specific Services, and which may include
Consultant compensation information, with:
(a) No guarantee of a minimum or maximum purchase; or
(b) An initial work order, task order or minimum
purchase, combined with a continuing Consultant obligation to provide
Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or
Land Surveying Services or Related Services in which the Contracting Agency
does not guarantee a minimum or maximum additional purchase.
(4) “Project” means all components of a
Contracting Agency’s planned undertaking that gives rise to the need for a
Consultant’s Architectural, Engineering, Photogrammetric Mapping,
Transportation Planning or Land Surveying Services, or Related Services, under
a Contract.
(5) “Transportation Planning Services” are
defined in ORS 279C.100. Transportation Planning Services include only
Project-specific transportation planning involved in the preparation of
categorical exclusions, environmental assessments, environmental impact
statements and other documents required for compliance with the National
Environmental Policy Act, 42 USC 4321 et. seq. Transportation Planning Services
do not include transportation planning for corridor plans, transportation
system plans, interchange area management plans, refinement plans and other
transportation plans not directly associated with an individual Project that will
require compliance with the National Environmental Policy Act, 42 USC 4321 et.
seq. Transportation Planning Services also do not include transportation
planning for Projects not subject to the National Environmental Policy Act, 42
USC 4321 et. seq.
Stat. Auth.: ORS 279A.065, OL
2011, ch 458
Stats. Implemented: ORS 279A.065,
OL 2011, ch 458
Hist.: DOJ 11-2004, f. 9-1-04,
cert. ef. 3-1-05; DOJ 20-2005, f. 12-27-05, cert. ef. 1-1-06; DOJ 10-2011, f.
11-29-11, cert. ef. 1-1-12
137-048-0120
List of Interested Consultants;
Performance Record
(1) Consultants who are engaged in the lawful practice
of their profession and who are interested in providing Architectural,
Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying
Services or Related Services, may annually submit a statement describing their
qualifications and related performance information to Contracting Agencies’
office addresses. Contracting Agencies shall use this information to create a
list of prospective Consultants and shall update this list at least once every
two years.
(2) Contracting Agencies may compile and maintain a
record of each Consultant’s performance under Contracts with the particular
Contracting Agency, including information obtained from Consultants during an
exit interview. Upon request and in accordance with the Oregon Public Records
Law (ORS 192.410 through 192.505), Contracting Agencies may make available
copies of the records.
(3) State Contracting Agencies shall keep a record of
all Contracts with Consultants and shall make these records available to the
public, consistent with the requirements of the Oregon Public Records Law (ORS
192.410 through 192.505). State Contracting Agencies shall include the
following information in the record:
(a) Locations throughout the state where the Contracts
are performed;
(b) Consultants’ principal office address and all
office addresses in the State of Oregon;
(c) Consultants’ direct expenses on each Contract,
whether or not those direct expenses are reimbursed. “Direct expenses” include
all amounts that are directly attributable to Consultants’ services performed
under each Contract, including personnel travel expenses, and that would not
have been incurred but for the services being performed. The record must
include all personnel travel expenses as a separate and identifiable expense on
the Contract; and
(d) The total number of Contracts awarded to each
Consultant over the immediately preceding 10-year period from the date of the
record.
Stat. Auth.: ORS 279A.065, OL 2011,
ch 458
Stats. Implemented: ORS 279A.065
& 279C.110, OL 2011, ch 458
Hist.: DOJ 11-2004, f. 9-1-04,
cert. ef. 3-1-05; DOJ 20-2005, f. 12-27-05, cert. ef. 1-1-06; DOJ 10-2011, f.
11-29-11, cert. ef. 1-1-12
137-048-0130
Applicable Selection Procedures;
Pricing Information; Disclosure of Proposals; Conflicts of Interest
(1) When selecting the most qualified Consultant to
perform Architectural, Engineering, Photogrammetric Mapping, Transportation
Planning or Land Surveying Services, Contracting Agencies shall follow the
applicable selection procedure under either OAR 137-048-0200 (Direct
Appointment Procedure), 137-048-0210 (Informal Selection Procedure) or
137-048-0220 (Formal Selection Procedure). Contracting Agencies subject to this
section (1) may solicit or use pricing policies and pricing proposals, or other
pricing information, including the number of hours proposed for the services
required, expenses, hourly rates and overhead, to determine a Consultant’s
compensation only after the Contracting Agency has selected the most qualified
Consultant in accordance with the applicable selection procedure. In following
the Direct Appointment Procedure under OAR 137-048-0200, a Contracting Agency
may base its initial selection of a Consultant on any information available to
the Agency prior to beginning the Direct Appointment Procedure for the Project
involved.
(2) Contracting Agencies selecting Consultants to
perform Related Services shall follow one of the following selection
procedures:
(a) When selecting a Consultant on the basis of
qualifications alone, Contracting Agencies shall follow the applicable
selection procedure under either OAR 137-048-0200 (Direct Appointment
Procedure), 137-048-0210 (Informal Selection Procedure) or 137-048-0220 (Formal
Selection Procedure);
(b) When selecting a Consultant on the basis of price
competition alone, Contracting Agencies shall follow either the provisions
under OAR chapter 137, division 47 for obtaining and evaluating Bids, or
137-048-0200 (Direct Appointment Procedure) if the requirements of
137-048-0200(1) apply; and
(c) When selecting a Consultant on the basis of price
and qualifications, Contracting Agencies shall follow either the provisions
under OAR chapter 137, division 47 for obtaining and evaluating Proposals, or
137-048-0200 (Direct Appointment Procedure) if the requirements of
137-048-0200(1) apply. Contracting Agencies subject to this section (2) may
request and consider a Proposer’s pricing policies and pricing proposals or
other pricing information, including the number of hours proposed for the
services required, expenses, hourly rates and overhead, submitted with a
Proposal.
(3) A Contracting Agency is not required to follow the
procedures in Section (1) or Section (2) of this rule, when the Contracting
Agency has established Price Agreements with more than one Consultant and is
selecting a single Consultant to perform Architectural, Engineering,
Photogrammetric Mapping, Transportation Planning or Land Surveying Services or
Related Services under an individual work order or task order. Provided,
however, the criteria and procedures the Contracting Agency uses to select a
single Consultant, when the Contracting Agency has established Price Agreements
with more than one Consultant, must meet the requirements of OAR 137-048-0270
(Price Agreements).
(4) Contracting Agencies may use electronic methods to
screen and select a Consultant in accordance with the procedures described in
sections (1) and (2) of this rule. If a Contracting Agency uses electronic
methods to screen and select a Consultant, the Contracting Agency shall first
promulgate rules for conducting the screening and selection procedure by
electronic means, substantially in conformance with OAR 137-047-0330
(Electronic Procurement).
(5) For purposes of these division 48 rules, a “mixed”
Contract is one requiring the Consultant to perform Architectural, Engineering,
Photogrammetric Mapping, Transportation Planning or Land Surveying Services,
and also provide Related Services, other Services or other related Goods under
the Contract. A Contracting Agency’s classification of a procurement that will
involve a “mixed” Contract will be determined by the predominant purpose of the
Contract. A Contracting Agency will determine the predominant purpose of the
Contract by determining which of the Services involves the majority of the
total Estimated Fee to be paid under the Contract. If the majority of the total
Estimated Fee to be paid under the Contract is for Architectural, Engineering,
Photogrammetric Mapping, Transportation Planning or Land Surveying Services,
the Contracting Agency shall comply with the requirements of ORS 279C.110 and
section (1) of this rule. If majority of the total Estimated Fee to be paid
under the Contract is for Related Services, the Contracting Agency shall comply
with the requirements of ORS 279C.120 and section (2) of this rule. If the
majority of the total Estimated Fee to be paid under the Contract is for some
other Services or Goods under the Public Contracting Code, the Contracting
Agency shall comply with the applicable provisions of the Public Contracting
Code and divisions 46, 47 and 49 of the Model Rules that match the predominant
purpose of the Contract.
(6) Where a Consultant will be performing Architectural,
Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying
Services or Related Services for the Contracting Agency by providing analysis,
testing services, testimony or similar services for a Project that is, or is
reasonably anticipated to be, the subject of a claim, lawsuit, mediation,
arbitration or other form of action or alternative dispute resolution process,
whether legal, equitable, administrative or otherwise, the Contracting Agency
shall comply with these division 48 rules in procuring those Services.
(7) In applying these rules, State Contracting Agencies
shall support the state’s goal of promoting a sustainable economy in the rural
areas of the state.
(8) Consistent with the requirements of ORS 279C.107
and the remaining requirements of ORS 279C.100, 279C.105 and 279C.110 through
279C.125, the following provisions apply to proposals received by a Contracting
Agency for Architectural, Engineering, Photogrammetric Mapping, Transportation
Planning or Land Surveying Services or Related Services:
(a) The term “competitive proposal,” for purposes of
ORS 279C.107, includes proposals under OAR 137-048-0200 (Direct Appointment
Procedure), 137-048-0210 (Informal Selection Procedure), 137-048-0220 (Formal
Selection Procedure) or 137-048-0130(2)(c) (selection based on price and
qualifications) and any proposals submitted in response to a selection process
for a work order or task order under 137-048-0270 (Price Agreements).
(b) For purposes of proposals received by a Contracting
Agency under OAR 137-048-0200 (Direct Appointment Procedure), a formal notice
of intent to award is not required. As a result, while a Contracting Agency may
make proposals under 137-048-0200 (Direct Appointment Procedure) open for
public inspection following the Contracting Agency’s decision to begin Contract
negotiations with the selected Consultant, 137-048-0200 proposals are not
required to be open for public inspection until after the Contracting Agency
has executed a Contract with the selected Consultant.
(c) In the limited circumstances permitted by ORS
279C.110, 279C.115 and 279C.120, where the Contracting Agency is conducting
discussions or negotiations with proposers who submit proposals that the
Contracting Agency has determined to be closely competitive or to have a
reasonable chance of being selected for award, the Contracting Agency may open
proposals so as to avoid disclosure of proposal contents to competing
Proposers, consistent with the requirements of ORS 279C.107. Otherwise, Contracting
Agencies may open proposals in such a way as to avoid disclosure of the
contents until after the Contracting Agency executes a Contract with the
selected Consultant. If the Contracting Agency determines that it is in the
best interest of the Contracting Agency to do so, the Contracting Agencies may
make proposals available for public inspection following the Contracting
Agency’s issuance of a notice of intent to award a Contract to a Consultant;
and
(d) Disclosure of proposals and proposal information is
otherwise governed by ORS 279C.107.
(9) As required by ORS 279C.307, pertaining to
requirements to ensure the objectivity and independence of providers of certain
Personal Services which are procured under ORS chapter 279C, Contracting
Agencies may not:
(a) Procure the Personal Services identified in ORS
279C.307 from a Contractor or an affiliate of a Contractor who is a party to
the Public Contract that is subject to administration, management, monitoring,
inspection, evaluation or oversight by means of the Personal Services; or
(b) Procure the Personal Services identified in ORS
279C.307 through the Public Contract that is subject to administration,
management, monitoring, inspection, evaluation or oversight by means of the
Personal Services.
(10) The requirements of ORS 279C.307 and section (9)
of this rule apply in the following circumstances, except as provided in
section (11) of this rule:
(a) A Contracting Agency requires the Procurement of
Personal Services for the purpose of administering, managing, monitoring,
inspecting, evaluating compliance with or otherwise overseeing a Public
Contract or performance under a Public Contract that is subject to ORS chapter
279C. A Public Contract that is “subject to ORS chapter 279C” includes a Public
Contract for Architectural, Engineering, Photogrammetric Mapping,
Transportation Planning or Land Surveying Services, a Public Contract for
Related Services or a Public Contract for construction services under ORS
chapter 279C.
(b) The Procurements of Personal Services subject to
the restrictions of ORS 279C.307 include, but are not limited to, the
following:
(A) Procurements for Architectural, Engineering,
Photogrammetric Mapping, Transportation Planning or Land Surveying Services,
which involve overseeing or monitoring the performance of a construction
Contractor under a Public Contract for construction services subject to ORS
chapter 279C;
(B) Procurements for commissioning services, which
involve monitoring, inspecting, evaluating or otherwise overseeing the
performance of a Contractor providing Architectural, Engineering,
Photogrammetric Mapping, Transportation Planning or Land Surveying Services or
the performance of a construction Contractor under a Public Contract for
construction services subject to ORS chapter 279C;
(C) Procurements for project management services, which
involve administration, management, monitoring, inspecting, evaluating
compliance with or otherwise overseeing the performance of a Contractor
providing Architectural, Engineering, Photogrammetric Mapping, Transportation
Planning or Land Surveying Services, construction services subject to ORS
chapter 279C, commissioning services or other Related Services for a Project;
(D) Procurements for special inspections and testing
services, which involve inspecting, testing or otherwise overseeing the
performance of a construction Contractor under a Public Contract for
construction services subject to ORS chapter 279C; and
(E) Procurements for other Related Services or Personal
Services, which involve administering, managing, monitoring, inspecting,
evaluating compliance with or otherwise overseeing the Public Contracts
described in Section (10)(a) of this rule.
(11) The restrictions of ORS 279C.307 do not apply in
the following circumstances, except as further specified below:
(a) To a Contracting Agency’s Procurement of both
design services and construction services through a single “Design-Build”
Procurement, as that term is defined in OAR 137-049-0610. Such a Design-Build
Procurement includes a Procurement under an Energy Savings Performance
Contract, as defined in ORS 279A.010. Provided, however, the restrictions of
ORS 279C.307 do apply to a Contracting Agency’s Procurement of Personal
Services for the purpose of administering, managing, monitoring, inspecting,
evaluating compliance with or otherwise overseeing a Design-Build Contract or
performance under such a Contract resulting from a Design-Build Procurement;
and
(b) To a Contracting Agency’s Procurement of both
pre-construction services and construction services through a single
“Construction Manager/General Contractor” Procurement, as defined in OAR
137-049-0610. Provided, however, the restrictions of ORS 279C.307 do apply to a
Contracting Agency’s Procurement of Personal Services for the purpose of
administering, managing, monitoring, inspecting, evaluating compliance with or
otherwise overseeing a Construction Manager/General Contractor Contract or
performance under such a Contract resulting from a Construction Manager/General
Contractor Procurement.
Stat. Auth.: ORS 279A.065, OL
2011, ch 458
Stats. Implemented: ORS 279A.065,
279C.100-279C.125, OL 2009, ch. 880, sec. 11, OL 2011, ch 458
Hist.: DOJ 11-2004, f. 9-1-04,
cert. ef. 3-1-05; DOJ 20-2005, f. 12-27-05, cert. ef. 1-1-06; DOJ 19-2007, f.
12-28-07, cert. ef. 1-1-08; DOJ 15-2009, f. 12-1-09, cert. ef. 1-1-10; DOJ
10-2011, f. 11-29-11, cert. ef. 1-1-12
137-048-0200
Direct Appointment Procedure
(1) Contracting Agencies may enter into a Contract
directly with a Consultant without following the selection procedures set forth
elsewhere in these rules if:
(a) Emergency. Contracting Agency finds that an
Emergency exists; or
(b) Small Estimated Fee. The Estimated Fee to be paid
under the Contract does not exceed $100,000; or
(c) Continuation of Project With Intermediate Estimated
Fee. For Contracting Agencies where a Project is being continued, as more
particularly described below, and where the Estimated Fee will not exceed
$250,000, the Architectural, Engineering, Photogrammetric Mapping,
Transportation Planning or Land Surveying Services or Related Services to be
performed under the Contract must meet the following requirements:
(A) The services consist of or are related to
Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or
Land Surveying Services or Related Services that have been substantially
described, planned or otherwise previously studied in an earlier Contract with
the same Consultant and are rendered for the same Project as the Architectural,
Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying
Services or Related Services rendered under the earlier Contract;
(B) The Estimated Fee to be made under the Contract
does not exceed $250,000; and
(C) The Contracting Agency used either the formal
selection procedure under OAR 137-048-0220 (Formal Selection Procedure) or the
formal selection procedure applicable to selection of the Consultant at the
time of original selection to select the Consultant for the earlier Contract;
or
(d) Continuation of Project With Extensive Estimated
Fee. For Contracting Agencies where a Project is being continued, as more
particularly described below, and where the Estimated Fee is expected to exceed
$250,000, the Architectural, Engineering, Photogrammetric Mapping,
Transportation Planning or Land Surveying Services or Related Services to be
performed under the Contract must meet the following requirements:
(A) The services consist of or are related to
Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or
Land Surveying Services or Related Services that have been substantially
described, planned or otherwise previously studied under an earlier Contract
with the same Consultant and are rendered for the same Project as the
Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or
Land Surveying Services or Related Services rendered under the earlier Contract;
(B) The Contracting Agency used either the formal
selection procedure under OAR 137-048-0220 (Formal Selection Procedure) or the
formal selection procedure applicable to selection of the Consultant at the
time of original selection to select the Consultant for the earlier Contract;
and
(C) The Contracting Agency makes written findings that
entering into a Contract with the Consultant, whether in the form of an
amendment to an existing Contract or a separate Contract for the additional
scope of services, will:
(i) Promote efficient use of public funds and resources
and result in substantial cost savings to the Contracting Agency; and,
(ii) Protect the integrity of the Public Contracting
process and the competitive nature of the Procurement by not encouraging
favoritism or substantially diminishing competition in the award of the
Contract.
(2) Contracting Agencies may select a Consultant for a
Contract under this rule from the following sources:
(a) The Contracting Agency’s list of Consultants that
is created under OAR 137-048-0120 (List of Interested Consultants; Performance
Record);
(b) Another Contracting Agency’s list of Consultants
that the Contracting Agency has created under OAR 137-048-0120 (List of
Interested Consultants; Performance Record), with written consent of that
Contracting Agency; or
(c) All Consultants offering the required
Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or
Land Surveying Services or Related Services that the Contracting Agency
reasonably can identify under the circumstances.
(3) The Contracting Agency shall direct negotiations
with a Consultant selected under this rule toward obtaining written agreement
on:
(a) The Consultant’s performance obligations and
performance schedule;
(b) Payment methodology and a maximum amount payable to
the Consultant for the Architectural, Engineering, Photogrammetric Mapping,
Transportation Planning or Land Surveying Services or Related Services required
under the Contract that is fair and reasonable to the Contracting Agency as
determined solely by the Contracting Agency, taking into account the value,
scope, complexity and nature of the Architectural, Engineering, Photogrammetric
Mapping, Transportation Planning or Land Surveying Services or Related Services;
and
(c) Any other provisions the Contracting Agency
believes to be in the Contracting Agency’s best interest to negotiate.
Stat. Auth.: ORS 279A.065, OL
2011, ch 458
Stats. Implemented: ORS 279C110
& 279C.115, OL 2011, ch 458
Hist.: DOJ 11-2004, f. 9-1-04,
cert. ef. 3-1-05; DOJ 20-2005, f. 12-27-05, cert. ef. 1-1-06; DOJ 19-2007, f.
12-28-07, cert. ef. 1-1-08; DOJ 15-2009, f. 12-1-09, cert. ef. 1-1-10; DOJ
10-2011, f. 11-29-11, cert. ef. 1-1-12
137-048-0210
Informal Selection Procedure
(1) Contracting Agencies may use the informal selection
procedure described in this rule to obtain a Contract if the Estimated Fee is
expected not to exceed $250,000.
(2) Contracting Agencies using the informal selection
procedure shall:
(a) Create a Request for Proposals that includes at a
minimum the following:
(A) A description of the Project for which a
Consultant’s Architectural, Engineering, Photogrammetric Mapping,
Transportation Planning or Land Surveying Services or Related Services are
needed and a description of the Architectural, Engineering, Photogrammetric
Mapping, Transportation Planning or Land Surveying Services or Related Services
that will be required under the resulting Contract;
(B) The anticipated Contract performance schedule;
(C) Conditions or limitations, if any, that may
constrain or prohibit the selected Consultant’s ability to provide additional
services related to the Project, including construction services;
(D) The date and time Proposals are due and other
directions for submitting Proposals;
(E) Criteria upon which the most qualified Consultant
will be selected. Selection criteria may include, but are not limited to, the
following:
(i) The amount and type of resources and number of
experienced staff the Consultant has committed to perform the Architectural,
Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying
Services or Related Services described in the Request for Proposals within the
applicable time limits, including the current and projected workloads of such
staff and the proportion of time such staff would have available for the
Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or
Land Surveying Services or Related Services;
(ii) Proposed management techniques for the
Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or
Land Surveying Services or Related Services described in the Request for
Proposals;
(iii) A Consultant’s capability, experience and past
performance history and record in providing similar Architectural, Engineering,
Photogrammetric Mapping, Transportation Planning or Land Surveying Services or
Related Services, including but not limited to quality of work, ability to meet
schedules, cost control methods and Contract administration practices;
(iv) A Consultant’s approach to Architectural,
Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying
Services or Related Services described in the Request for Proposals and design
philosophy, if applicable;
(v) A Consultant’s geographic proximity to and
familiarity with the physical location of the Project;
(vi) Volume of work, if any, previously awarded to a
Consultant, with the objective of effecting equitable distribution of Contracts
among qualified Consultants, provided such distribution does not violate the
principle of selecting the most qualified Consultant for the type of
professional services required;
(vii) A Consultant’s ownership status and employment
practices regarding women, minorities and emerging small businesses or
historically underutilized businesses;
(viii) If the Contracting Agency is selecting a
Consultant to provide Related Services, pricing policies and pricing proposals
or other pricing information, including the number of hours proposed for the
services required, expenses, hourly rates and overhead.
(F) A Statement that Proposers responding to the RFP do
so solely at their expense, and Contracting Agency is not responsible for any
Proposer expenses associated with the RFP; and
(G) A statement directing Proposers to the protest
procedures set forth in these Division 48 rules.
(b) Provide a Request for Proposals to a minimum of
five (5) prospective Consultants drawn from:
(A) The Contracting Agency’s list of Consultants that
is created and maintained under OAR 137-048-0120 (List of Interested
Consultants; Performance Record);
(B) Another Contracting Agency’s list of Consultants
that is created and maintained under OAR 137-048-0120 (List of Interested
Consultants; Performance Record); or
(C) All Consultants that the Contracting Agency
reasonably can locate that offer the desired Architectural, Engineering,
Photogrammetric Mapping, Transportation Planning or Land Surveying Services or
Related Services, or any combination of the foregoing.
(c) Review and rank all Proposals received according to
the criteria set forth in the Request for Proposals, and select the three
highest ranked Proposers.
(3) If Contracting Agency does not cancel the RFP after
it reviews and ranks each Proposer, Contracting Agency will begin negotiating a
Contract with the highest ranked Proposer. Contracting Agency shall direct
negotiations toward obtaining written agreement on:
(a) The Consultant’s performance obligations and
performance schedule;
(b) Payment methodology and a maximum amount payable to
the Consultant for the Architectural, Engineering, Photogrammetric Mapping,
Transportation Planning or Land Surveying Services or Related Services required
under the Contract that is fair and reasonable to the Contracting Agency as
determined solely by the Contracting Agency, taking into account the value,
scope, complexity and nature of the Architectural, Engineering, Photogrammetric
Mapping, Transportation Planning or Land Surveying Services or Related Services;
and
(c) Any other provisions the Contracting Agency
believes to be in the Contracting Agency’s best interest to negotiate.
(4) The Contracting Agency shall, either orally or in
writing, formally terminate negotiations with the highest ranked Proposer, if
the Contracting Agency and Proposer are unable for any reason to reach
agreement on a Contract within a reasonable amount of time. The Contracting
Agency may thereafter negotiate with the second ranked Proposer, and if
necessary, with the third ranked Proposer, in accordance with section (3) of
this rule, until negotiations result in a Contract. If negotiations with any of
the top three Proposers do not result in a Contract within a reasonable amount
of time, the Contracting Agency may end the particular informal solicitation
and thereafter may proceed with a new informal solicitation under this rule or
proceed with a formal solicitation under OAR 137-048-0220 (Formal Selection
Procedure).
(5) The Contracting Agency shall terminate the informal
selection procedure and proceed with the formal selection procedure under OAR
137-048-0220 if the scope of the anticipated Contract is revised during
negotiations so that the Estimated Fee will exceed $250,000.
Stat. Auth.: ORS 279A.065, OL
2011, ch 458
Stats. Implemented: ORS 279C.110,
OL 2011, ch 458
Hist.: DOJ 11-2004, f. 9-1-04,
cert. ef. 3-1-05; DOJ 20-2005, f. 12-27-05, cert. ef. 1-1-06; DOJ 19-2007, f.
12-28-07, cert. ef. 1-1-08; DOJ 15-2009, f. 12-1-09, cert. ef. 1-1-10; DOJ
10-2011, f. 11-29-11, cert. ef. 1-1-12
137-048-0220
Formal Selection Procedure
(1) Subject to OAR 137-048-0130 (Applicable Selection
Procedures; Pricing Information; Disclosure of Proposals), Contracting Agencies
shall use the formal selection procedure described in this rule to select
Consultants if the Consultants cannot be selected under either 137-048-0200
(Direct Appointment Procedure) or under 137-048-0210 (Informal Selection
Procedure). The formal selection procedure described in this rule may otherwise
be used at Contracting Agencies’ discretion.
(2) Contracting Agencies using the formal selection
procedure shall obtain Contracts through public advertisement of Requests for
Proposals, or Requests for Qualifications followed by Requests for Proposals.
(a) Except as provided in subsection (b) of this
section, a Contracting Agency shall advertise each RFP and RFQ at least once in
at least one newspaper of general circulation in the area where the Project is
located and in as many other issues and publications as may be necessary or
desirable to achieve adequate competition. Other issues and publications may
include, but are not limited to, local newspapers, trade journals, and
publications targeted to reach the minority, women and emerging small business
enterprise audiences.
(A) A Contracting Agency shall publish the
advertisement within a reasonable time before the deadline for the Proposal
submission or response to the RFQ or RFP, but in any event no fewer than
fourteen (14) calendar days before the closing date set forth in the RFQ or
RFP.
(B) A Contracting Agency shall include a brief
description of the following items in the advertisement:
(i) The Project;
(ii) A description of the Architectural, Engineering,
Photogrammetric Mapping, Transportation Planning or Land Surveying Services or
Related Services the Contracting Agency seeks;
(iii) How and where Consultants may obtain a copy of
the RFQ or RFP; and
(iv) The deadline for submitting a Proposal or response
to the RFQ or RFP.
(b) In the alternative to advertising in a newspaper as
described in subsection (2)(a) of this rule, the Contracting Agency shall
publish each RFP and RFQ by one or more of the electronic methods identified in
OAR 137-046-0110(14). The Contracting Agency shall comply with subsections
(2)(a)(A) and (2)(a)(B) of this rule when publishing advertisements by
electronic methods.
(c) A Contracting Agency may send notice of the RFP or
RFQ directly to all Consultants on the Contracting Agency’s list of Consultants
that is created and maintained under OAR 137-048-0120 (List of Interested
Consultants; Performance Record).
(3) Request for Qualifications Procedure. Contracting
Agencies may use the RFQ procedure to evaluate potential Consultants and establish
a short list of qualified Consultants to whom the Contracting Agency may issue
an RFP for some or all of the Architectural, Engineering, Photogrammetric
Mapping, Transportation Planning or Land Surveying Services or Related Services
described in the RFQ.
(a) A Contracting Agency shall include the following,
at a minimum, in each RFQ:
(A) A brief description of the Project for which the
Contracting Agency is seeking Consultants;
(B) A description of the Architectural, Engineering,
Photogrammetric Mapping, Transportation Planning or Land Surveying Services or
Related Services the Contracting Agency seeks for the Project;
(C) Conditions or limitations, if any, that may
constrain or prohibit the selected Consultant’s ability to provide additional
services related to the Project, including but not limited to construction
services;
(D) The deadline for submitting a response to the RFQ;
(E) A description of required Consultant qualifications
for the Architectural, Engineering, Photogrammetric Mapping, Transportation
Planning or Land Surveying Services or Related Services the Contracting Agency
seeks;
(F) The RFQ evaluation criteria, including weights,
points or other classifications applicable to each criterion;
(G) A statement whether or not the Contracting Agency
will hold a pre-qualification meeting for all interested Consultants to discuss
the Project and the Architectural, Engineering, Photogrammetric Mapping,
Transportation Planning or Land Surveying Services or Related Services
described in the RFQ and if a pre-qualification meeting will be held, the
location of the meeting and whether or not attendance is mandatory; and
(H) A Statement that Consultants responding to the RFQ
do so solely at their expense, and that the Contracting Agency is not responsible
for any Consultant expenses associated with the RFQ.
(b) A Contracting Agency may include a request for any
or all of the following in each RFQ:
(A) A statement describing Consultants’ general
qualifications and related performance information;
(B) A description of Consultants’ specific
qualifications to perform the Architectural, Engineering, Photogrammetric
Mapping, Transportation Planning or Land Surveying Services or Related Services
described in the RFQ including Consultants’ committed resources and recent,
current and projected workloads;
(C) A list of similar Architectural, Engineering,
Photogrammetric Mapping, Transportation Planning or Land Surveying Services or
Related Services and references concerning past performance, including but not
limited to price and cost data from previous projects, quality of work, ability
to meet schedules, cost control and contract administration;
(D) A copy of all records, if any, of Consultants’
performance under Contracts with any other Contracting Agency;
(E) The
number of Consultants’ experienced staff committed to perform the
Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or
Land Surveying Services or Related Services described in the RFQ, including
such personnel’s specific qualifications and experience and an estimate of the
proportion of time that such personnel would spend on those services;
(F) Consultants’ approaches to Architectural,
Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying
Services or Related Services described in the RFQ and design philosophy, if
applicable;
(G) Consultants’ geographic proximity to and
familiarity with the physical location of the Project;
(H) Consultants’ Ownership status and employment
practices regarding women, minorities and emerging small businesses or
historically underutilized businesses;
(I) If the Contracting Agency is selecting a Consultant
to provide Related Services, Consultants’ pricing policies and pricing
proposals or other pricing information, including the number of hours proposed
for the services required, expenses, hourly rates and overhead;
(J) Consultants’ ability to assist a State Contracting
Agency in complying with art acquisition requirements, pursuant to ORS 276.073
through 276.090;
(K) Consultants’ ability to assist a State Contracting
Agency in complying with State of Oregon energy efficient design requirements,
pursuant to ORS 276.900 through 276.915;
(L) Consultants’ ability to assist a Contracting Agency
in complying with the solar energy technology requirements of ORS 279C.527; and
(M) Any other information the Contracting Agency deems
reasonably necessary to evaluate Consultants’ qualifications.
(c) RFQ Evaluation Committee. The Contracting Agency
shall establish an RFQ evaluation committee of at least two (2) individuals to
review, score and rank the responding Consultants according to the evaluation
criteria. The Contracting Agency may appoint to the evaluation committee
Contracting Agency employees or employees of other public agencies with
experience in Architectural, Engineering, Photogrammetric Mapping,
Transportation Planning or Land Surveying Services, Related Services,
construction services or Public Contracting. If the Contracting Agency
procedure permits, the Contracting Agency may include on the evaluation
committee private practitioners of architecture, engineering, photogrammetry,
transportation planning, land surveying or related professions. The Contracting
Agency shall designate one member of the evaluation committee as the evaluation
committee chairperson.
(d) A Contracting Agency may use any reasonable
screening or evaluation method to establish a short list of qualified
Consultants, including but not limited to, the following:
(A) Requiring Consultants responding to an RFQ to
achieve a threshold score before qualifying for placement on the short list;
(B) Placing a pre-determined number of the highest
scoring Consultants on a short list;
(C) Placing on a short list only those Consultants with
certain essential qualifications or experience, whose practice is limited to a
particular subject area, or who practice in a particular geographic locale or
region, provided that such factors are material, would not unduly restrict
competition, and were announced as dispositive in the RFQ.
(e) After the evaluation committee reviews, scores and
ranks the responding Consultants, the Contracting Agency shall establish a
short list of at least three qualified Consultants, if feasible; provided
however, if four or fewer Consultants responded to the RFQ or if fewer than
three Consultants fail to meet the Contracting Agency’s minimum requirements,
then:
(A) The Contracting Agency may establish a short list
of fewer than three qualified Consultants; or
(B) The Contracting Agency may cancel the RFQ and issue
an RFP.
(f) No Consultant will be eligible for placement on a
Contracting Agency’s short list established under subsection (3)(d) of this
rule if Consultant or any of Consultant’s principals, partners or associates
are members of the Contracting Agency’s RFQ evaluation committee.
(g) Except when the RFQ is cancelled, a Contracting
Agency shall provide a copy of the subsequent RFP to each Consultant on the
short list.
(4) Formal Selection of Consultants Through Request for
Proposals. Contracting Agencies shall use the procedure described in section
(4) of this rule when issuing an RFP for a Contract described in section (1) of
this rule.
(a) RFP Required Contents. Contracting Agencies using
the formal selection procedure shall include at least the following in each
Request for Proposals, whether or not the RFP is preceded by an RFQ:
(A) General background information, including a
description of the Project and the specific Architectural, Engineering,
Photogrammetric Mapping, Transportation Planning or Land Surveying Services or
Related Services sought for the Project, the estimated Project cost, the
estimated time period during which the Project is to be completed, and the
estimated time period in which the specific Architectural, Engineering,
Photogrammetric Mapping, Transportation Planning or Land Surveying Services or
Related Services sought will be performed.
(B) The RFP evaluation process and the criteria which
will be used to select the most qualified Proposer, including the weights,
points or other classifications applicable to each criterion. If the
Contracting Agency does not indicate the applicable number of points, weights
or other classifications, then each criterion is of equal value. Evaluation
criteria may include, but are not limited to, the following:
(i) Proposers’ availability and capability to perform
the Architectural, Engineering, Photogrammetric Mapping, Transportation
Planning or Land Surveying Services or Related Services described in the RFP;
(ii) Experience of Proposers’ key staff persons in
providing similar Architectural, Engineering, Photogrammetric Mapping,
Transportation Planning or Land Surveying Services, or Related Services on
comparable projects;
(iii) The amount and type of resources, and number of
experienced staff persons Proposers have committed to perform the
Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or
Land Surveying Services or Related Services described in the RFP;
(iv) The recent, current and projected workloads of the
staff and resources referenced in section (4)(a)(B)(iii), above;
(v) The proportion of time Proposers estimate that the
staff referenced in section (4)(a)(B)(iii), above, would spend on the
Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or
Land Surveying Services or Related Services described in the RFP;
(vi) Proposers’ demonstrated ability to complete
successfully similar Architectural, Engineering, Photogrammetric Mapping,
Transportation Planning or Land Surveying Services or Related Services on time
and within budget, including whether or not there is a record of satisfactory
performance under OAR 137-048-0120 (List of Interested Consultants; Performance
Record);
(vii) References and recommendations from past clients;
(viii) Proposers’ performance history in meeting
deadlines, submitting accurate estimates, producing high quality work, meeting
financial obligations, price and cost data from previous projects, cost
controls and contract administration;
(ix) Status and quality of any required license or
certification;
(x) Proposers’ knowledge and understanding of the
Project and Architectural, Engineering and Land Surveying Services or Related
Services described in the RFP as shown in Proposers’ approaches to staffing and
scheduling needs for the Architectural, Engineering, Photogrammetric Mapping,
Transportation Planning or Land Surveying Services or Related Services and
proposed solutions to any perceived design and constructability issues;
(xi) Results from interviews, if conducted;
(xii) Design philosophy, if applicable, and approach to
the Architectural, Engineering, Photogrammetric Mapping, Transportation
Planning or Land Surveying Services or Related Services described in the RFP;
(xiii) If the Contracting Agency is selecting a
Consultant to provide Related Services, pricing policies and pricing proposals
or other pricing information, including the number of hours proposed for the
services required, expenses, hourly rates and overhead; and
(xiv) Any other criteria that the Contracting Agency
deems relevant to the Project and the Architectural, Engineering,
Photogrammetric Mapping, Transportation Planning or Land Surveying Services or
Related Services described in the RFP, including, where the nature and budget
of the Project so warrant, a design competition between competing Proposers.
Provided, however, these additional criteria cannot include pricing policies,
pricing proposals or other pricing information, including the number of hours
proposed for the services required, expenses, hourly rates and overhead, when
the sole purpose or predominant purpose of the RFP is to obtain Architectural,
Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying
Services.
(C) Conditions or limitations, if any, that may
constrain or prohibit the selected Consultant’s ability to provide additional
services related to the Project, including but not limited to construction
services;
(D) Whether interviews are possible and if so, the
weight, points or other classifications applicable to the potential interview;
(E) The date and time Proposals are due, and the
delivery location for Proposals;
(F) Reservation of the right to seek clarifications of
each Proposal;
(G) Reservation of the right to negotiate a final
Contract that is in the best interest of the Contracting Agency;
(H) Reservation of the right to reject any or all
Proposals and reservation of the right to cancel the RFP at anytime if doing
either would be in the public interest as determined by the Contracting Agency;
(I) A Statement that Proposers responding to the RFP do
so solely at their expense, and Contracting Agency is not responsible for any
Proposer expenses associated with the RFP;
(J) A statement directing Proposers to the protest
procedures set forth in these division 48 rules;
(K) Special Contract requirements, including but not
limited to disadvantaged business enterprise (“DBE”), minority business
enterprise (“MBE”), women business enterprise (“WBE”) and emerging small
business enterprise (“ESB”) participation goals or good faith efforts with
respect to DBE, MBE, WBE and ESB participation, and federal requirements when
federal funds are involved;
(L) A statement whether or not the Contracting Agency
will hold a pre-Proposal meeting for all interested Consultants to discuss the
Project and the Architectural, Engineering, Photogrammetric Mapping,
Transportation Planning or Land Surveying Services or Related Services described
in the RFP and if a pre-Proposal meeting will be held, the location of the
meeting and whether or not attendance is mandatory;
(M) A request for any information the Contracting
Agency deems reasonably necessary to permit the Contracting Agency to evaluate,
rank and select the most qualified Proposer to perform the Architectural,
Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying
Services or Related Services described in the RFP; and
(N) A sample form of the Contract.
(b) RFP Evaluation Committee. The Contracting Agency
shall establish a committee of at least three individuals to review, score and
rank Proposals according to the evaluation criteria set forth in the RFP. If
the RFP has followed an RFQ, the Contracting Agency may include the same
members who served on the RFQ evaluation committee. The Contracting Agency may
appoint to the evaluation committee Contracting Agency employees or employees
of other public agencies with experience in Architectural, Engineering, Photogrammetric
Mapping, Transportation Planning or Land Surveying, Related Services,
construction services or Public Contracting. At least one member of the
evaluation committee must be a Contracting Agency employee. If the Contracting
Agency procedure permits, the Contracting Agency may include on the evaluation
committee private practitioners of architecture, engineering, land surveying or
related professions. The Contracting Agency shall designate one of its
employees who also is a member of the evaluation committee as the evaluation
committee chairperson.
(A) No Proposer will be eligible for award of the
Contract under the RFP if Proposer or any of Proposer’s principals, partners or
associates are members of the Contracting Agency’s RFP evaluation committee for
the Contract;
(B) If the RFP provides for the possibility of Proposer
interviews, the evaluation committee may elect to interview Proposers if the
evaluation committee considers it necessary or desirable. If the evaluation
committee conducts interviews, it shall award weights, points or other
classifications indicated in the RFP for the anticipated interview; and
(C) The evaluation committee shall provide to the
Contracting Agency the results of the scoring and ranking for each Proposer.
(c) If the Contracting Agency does not cancel the RFP
after it receives the results of the scoring and ranking for each Proposer, the
Contracting Agency will begin negotiating a Contract with the highest ranked
Proposer. The Contracting Agency shall direct negotiations toward obtaining
written agreement on:
(A) The Consultant’s performance obligations and
performance schedule;
(B) Payment methodology and a maximum amount payable to
the Consultant for the Architectural, Engineering, Photogrammetric Mapping,
Transportation Planning or Land Surveying Services or Related Services required
under the Contract that is fair and reasonable to the Contracting Agency as
determined solely by the Contracting Agency, taking into account the value,
scope, complexity and nature of the Architectural, Engineering, Photogrammetric
Mapping, Transportation Planning or Land Surveying Services or Related
Services; and
(C) Any other provisions the Contracting Agency
believes to be in the Contracting Agency’s best interest to negotiate.
(d) The Contracting Agency shall, either orally or in
writing, formally terminate negotiations with the highest ranked Proposer if
the Contracting Agency and Proposer are unable for any reason to reach
agreement on a Contract within a reasonable amount of time. The Contracting
Agency may thereafter negotiate with the second ranked Proposer, and if
necessary, with the third ranked Proposer, and so on, in accordance with
section (4)(c) of this rule, until negotiations result in a Contract. If
negotiations with any Proposer do not result in a Contract within a reasonable
amount of time, the Contracting Agency may end the particular formal
solicitation. Nothing in this rule precludes a Contracting Agency from
proceeding with a new formal solicitation for the same Architectural,
Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying
Services or Related Services described in the RFP that failed to result in a
Contract.
Stat. Auth.: ORS 279A.065, OL
2011, ch 458
Stats. Implemented: ORS 279C.110,
279C.527, OL 2011, ch 458
Hist.: DOJ 11-2004, f. 9-1-04,
cert. ef. 3-1-05; DOJ 20-2005, f. 12-27-05, cert. ef. 1-1-06; DOJ 19-2007, f.
12-28-07, cert. ef. 1-1-08; DOJ 15-2009, f. 12-1-09, cert. ef. 1-1-10; DOJ
10-2011, f. 11-29-11, cert. ef. 1-1-12
137-048-0230
Ties Among Proposers
(1) If a Contracting Agency is selecting a Consultant
on the basis of qualifications alone and determines after the ranking of
Proposers that two or more Proposers are equally qualified, the Contracting
Agency may select a candidate through any process that the Contracting Agency
believes will result in the best value for the Contracting Agency taking into
account the scope, complexity and nature of the Architectural, Engineering,
Photogrammetric Mapping, Transportation Planning or Land Surveying Services.
Provided, however, the tie breaking process established by the Contracting
Agency under this section (1) cannot be based on the Consultant’s pricing
policies, pricing proposals or other pricing information, including the number
of hours proposed for the services required, expenses, hourly rates and
overhead. The process must be designed to instill public confidence through
ethical and fair dealing, honesty and good faith on the part of the Contracting
Agency and Proposers and shall protect the integrity of the Public Contracting
process. Once a tie is broken, the Contracting Agency and the selected Proposer
shall proceed with negotiations under OAR 137-048-0210(3) or
137-048-0220(4)(c), as applicable.
(2) If a Contracting Agency is selecting a Consultant
on the basis of price alone, or on the basis of price and qualifications, and
determines after the ranking of Proposers that two or more Proposers are
identical in terms of price or are identical in terms of price and
qualifications, then the Contracting Agency shall follow the procedure set
forth in OAR 137-046-0300, (Preferences for Oregon Goods and Services), to
select the Consultant.
Stat. Auth.: ORS 279A.065, OL
2011, ch 458
Stats. Implemented: ORS 279C.110,
OL 2011, ch 458
Hist.: DOJ 11-2004, f. 9-1-04,
cert. ef. 3-1-05; DOJ 20-2005, f. 12-27-05, cert. ef. 1-1-06; DOJ 10-2011, f.
11-29-11, cert. ef. 1-1-12
137-048-0240
Protest Procedures
(1) RFP Protest and Request for Change.
Consultants may submit a written protest of anything contained in an RFP and
may request a change to any provision, specification or Contract term contained
in an RFP, no later than seven (7) calendar days prior to the date Proposals
are due, unless a different deadline is indicated in the RFP. Each protest and
request for change must include the reasons for the protest or request, and any
proposed changes to the RFP provisions, specifications or Contract terms. The
Contracting Agency may not consider any protest or request for change that is
submitted after the submission deadline.
(2) Protest of Consultant Selection.
(a) Single Award. In the event of an award to a single
Proposer, the Contracting Agency shall provide to all Proposers a copy of the
selection notice that the Contracting Agency sent to the highest ranked
Proposer. A Proposer who claims to have been adversely affected or aggrieved by
the selection of the highest ranked Proposer may submit a written protest of
the selection to the Contracting Agency no later than seven (7) calendar days
after the date of the selection notice unless a different deadline is indicated
in the RFP. A Proposer submitting a protest must claim that the protesting
Proposer is the highest ranked Proposer because the Proposals of all higher
ranked Proposers failed to meet the requirements of the RFP or because the
higher ranked Proposers otherwise are not qualified to perform the Architectural,
Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying
Services or Related Services described in the RFP.
(b) Multiple Award. In the event of an award to more
than one Proposer, the Contracting Agency shall provide to all Proposers copies
of the selection notices that the Contracting Agency sent to the highest ranked
Proposers. A Proposer who claims to have been adversely affected or aggrieved
by the selection of the highest ranked Proposers may submit a written protest of
the selection to the Contracting Agency no later than seven (7) calendar days
after the date of the selection notices, unless a different deadline is
indicated in the RFP. A Proposer submitting a protest must claim that the
protesting Proposer is one of the highest ranked proposers because the
Proposals of all higher ranked Proposers failed to meet the requirements of the
RFP, or because a sufficient number of Proposals of higher ranked Proposers
failed to meet the requirements of the RFP. In the alternative, a Proposer
submitting a protest must claim that the Proposals of all higher ranked
Proposers, or a sufficient number of higher ranked Proposers, are not qualified
to perform the Architectural, Engineering, Photogrammetric Mapping,
Transportation Planning or Land Surveying Services or Related Services
described in the RFP.
(c) Effect of Protest Submission Deadline. A
Contracting Agency may not consider any protest that is submitted after the
submission deadline.
(3) Resolution of Protests. A duly authorized
representative of the Contracting Agency shall resolve all timely submitted
protests within a reasonable time following the Contracting Agency’s receipt of
the protest and once resolved, shall promptly issue a written decision on the
protest to the Proposer who submitted the protest. If the protest results in a
change to the RFP, the Contracting Agency shall revise the RFP accordingly and
shall re-advertise the RFP in accordance with these rules.
Stat. Auth.: ORS 279A.065, OL
2011, ch 458
Stats. Implemented: ORS 279A.065
& 279C.110, OL 2011, ch 458
Hist.: DOJ 11-2004, f. 9-1-04,
cert. ef. 3-1-05; DOJ 20-2005, f. 12-27-05, cert. ef. 1-1-06; DOJ 19-2007, f.
12-28-07, cert. ef. 1-1-08; DOJ 10-2011, f. 11-29-11, cert. ef. 1-1-12
137-048-0250
Solicitation Cancellation, Delay
or Suspension; Rejection of All Proposals or Responses; Consultant
Responsibility For Costs
A Contracting Agency may cancel, delay or suspend a
solicitation, RFQ or other preliminary Procurement document, whether related to
a Direct Appointment Procedure (OAR 137-048-0200), the Informal Selection
Procedure (OAR 137-048-0210), and the Formal Selection Procedure (OAR
137-048-0220), or reject all Proposals, responses to RFQs, responses to other
preliminary Procurement documents, or any combination of the foregoing, if the
Contracting Agency believes it is in the public interest to do so. In the event
of any such cancellation, delay, suspension or rejection, the Contracting
Agency is not liable to any Proposer for any loss or expense caused by or
resulting from any such cancellation, delay, suspension or rejection.
Consultants responding to either solicitations, RFQs or other preliminary
Procurement documents are responsible for all costs they may incur in
connection with submitting Proposals, responses to RFQs or responses to other
preliminary Procurement documents.
Stat. Auth.: ORS 279A.065
Stats. Implemented: ORS 279A.065,
279C.110
Hist.: DOJ 11-2004, f. 9-1-04,
cert. ef. 3-1-05; DOJ 20-2005, f. 12-27-05, cert. ef. 1-1-06; DOJ 19-2007, f.
12-28-07, cert. ef. 1-1-08; DOJ 15-2009, f. 12-1-09, cert. ef. 1-1-10; DOJ
10-2011, f. 11-29-11, cert. ef. 1-1-12
137-048-0260
Two-Tiered Selection Procedure for
Local Contracting Agency Public Improvement Projects
(1) If a Local Contracting Agency requires an
Architect, Engineer, Photogrammetrist, Transportation Planner or Land Surveyor
to perform Architectural, Engineering, Photogrammetric Mapping, Transportation
Planning or Land Surveying Services or Related Services for a public
improvement owned and maintained by that Local Contracting Agency, and a State
Agency will serve as the lead Contracting Agency and will enter into Contracts
with Architects, Photogrammetrists, Transportation Planners, Engineers or Land
Surveyors for Architectural, Engineering, Photogrammetric Mapping,
Transportation Planning or Land Surveying Services or Related Services for that
public improvement, the State Contracting Agency shall utilize the two-tiered
selection process described below to obtain these Contracts with Architects,
Engineers, Photogrammetrists, Transportation Planners, or Land Surveyors.
(2) Tier One. A State Contracting Agency shall, when
feasible, identify no fewer than the three (3) most qualified Proposers
responding to an RFP that was issued under the applicable selection procedures
described in OAR 137-048-0210 (Informal Selection Procedure) and 137-048-0220
(Formal Selection Procedure), or from among Architects, Engineers,
Photogrammetrists, Transportation Planners, or Land Surveyors identified under
137-048-0200 (Direct Appointment Procedure), and shall notify the Local
Contracting Agency of the Architects, Engineers, Photogrammetrists,
Transportation Planners, or Land Surveyors selected.
(3) Tier Two. In accordance with the qualifications
based selection requirements of ORS 279C.110, the Local Contracting Agency
shall either:
(a) Select an Architect, Engineer, Photogrammetrist,
Transportation Planner or Land Surveyor from the State Contracting Agency’s
list of Proposers to perform the Architectural, Engineering, Photogrammetric
Mapping, Transportation Planning or Land Surveying Services or Related Services
for Local Contracting Agency’s public improvement; or
(b) Select an Architect, Engineer, Photogrammetrist,
Transportation Planner or Land Surveyor to perform the Architectural,
Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying
Services or Related Services for Local Contracting Agency’s public improvement
through an alternative process adopted by the Local Contracting Agency,
consistent with the provisions of the applicable RFP, if any, and these
division 48 rules. The Local Contracting Agency’s alternative process must be
described in the applicable RFP, may be structured to take into account the
unique circumstances of the particular Local Contracting Agency and may include
provisions to allow the Local Contracting Agency to perform its tier two
responsibilities efficiently and economically, alone or in cooperation with
other Local Contracting Agencies. The Local Contracting Agency’s alternative
process may include, but is not limited to, one or more of the following
methods:
(A) A general written direction from the Local
Contracting Agency to the State Contracting Agency, prior to the advertisement
of a Procurement or series of Procurements or during the course of the
Procurement or series of Procurements, that the Local Contracting Agency’s tier
two selection shall be the highest-ranked firm identified by the State
Contracting Agency during the tier one process, and that no further
coordination or consultation with the Local Contracting Agency is required.
However, the Local Contracting Agency may provide written notice to the State
Contracting Agency that the Local Contracting Agency’s general written
direction is not to be applied for a particular Procurement and describe the
process that the Local Contracting Agency will utilize for the particular
Procurement. In order for a written direction from the Local Contracting Agency
consistent with this subsection to be effective for a particular Procurement,
it must be received by the State Contracting Agency with adequate time for the
State Contracting Agency to revise the RFP in order for Proposers to be
notified of the tier two process to be utilized in the Procurement. In the
event of a multiple award under the terms of the applicable Procurement, the
written direction from the Local Contracting Agency may apply to the highest
ranked firms that are selected under the terms of the Procurement document.
(B) An intergovernmental agreement between the Local
Contracting Agency and the State Contracting Agency outlining the alternative
process that the Local Contracting Agency has adopted for a Procurement or
series of Procurements.
(C) Where multiple Local Government Agencies are
involved in a two-tiered selection procedure, the Local Government Agencies may
name one or more authorized representative(s) to act on behalf of all the Local
Government Agencies, whether the Local Government Agencies are acting
collectively or individually, to select the Architect, Engineer,
Photogrammetrist, Transportation Planner or Land Surveyor to perform the
Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or
Land Surveying Services or Related Services under the tier two selection
process. In the event of a multiple award under the terms of the applicable
Procurement, the authorized representative(s) of the Local Contracting Agencies
may act on behalf of the Local Contracting Agencies to select the highest
ranked firms that are required under the terms of the Procurement document, as
part of the tier two selection process.
(4) The State Contracting Agency shall thereafter begin
Contract negotiations with the selected Architect, Engineer, Photogrammetrist,
Transportation Planner or Land Surveyor in accordance with the negotiation
provisions in OAR 137-048-0200 (Direct Appointment Procedure), 137-048-0210
(Informal Selection Procedure) or 137-048-0220 (Formal Selection Procedure) as
applicable.
(5) Nothing in these division 48 rules should be
construed to deny or limit a Local Contracting Agency’s ability to enter into a
Contract directly with Architects, Engineers, Photogrammetrists, Transportation
Planners, or Land Surveyors pursuant to ORS 279C.125(4), through a selection
process established by that Local Contracting Agency.
Stat. Auth.: ORS 279A.065, OL
2011, ch 458
Stats. Implemented: ORS 279C.110,
279C.125, OL 2011, ch 458
Hist.: DOJ 11-2004, f. 9-1-04,
cert. ef. 3-1-05; DOJ 20-2005, f. 12-27-05, cert. ef. 1-1-06; DOJ 15-2009, f.
12-1-09, cert. ef. 1-1-10; DOJ 10-2011, f. 11-29-11, cert. ef. 1-1-12
137-048-0270
Price Agreements
(1) A Contracting Agency may establish Price Agreements
for Architectural, Engineering, Photogrammetric Mapping, Transportation
Planning or Land Surveying Services or Related Services, when the Contracting
Agency cannot determine the precise quantities of those Services which the
Contracting Agency will require over a specified time period.
(2) When establishing Price Agreements under this rule,
a Contracting Agency shall select no fewer than three Consultants, when
feasible. The selection procedures for establishing Price Agreements shall be
in accordance with OAR 137-048-0130(1) or 137-048-0130(2), as applicable.
Contracting Agencies may select a single Consultant, when a Price Agreement is
awarded to obtain services for a specific Project or a closely-related group of
Projects.
(3) In addition to any other applicable solicitation
requirements set forth in these division 48 rules, solicitation materials and
the terms and conditions for a Price Agreement for Architectural, Engineering,
Photogrammetric Mapping, Transportation Planning or Land Surveying Services or
Related Services must:
(a) Include a scope of services, menu of services, a
specification for services or a similar description of the nature, general
scope, complexity and purpose of the procurement that will reasonably enable a
prospective bidder or Proposer to decide whether to submit a bid or proposal;
(b) Specify whether the Contracting Agency intends to
award a Price Agreement to one Consultant or to multiple Consultants. If the
Contracting Agency will award a Price Agreement to more than one Consultant,
the solicitation document and Price Agreement shall describe the criteria and
procedures the Contracting Agency will use to select a Consultant for each
individual work order or task order. Subject to the requirements of ORS
279C.110, the criteria and procedures to assign work orders or task orders that
only involve or predominantly involve Architectural, Engineering,
Photogrammetric Mapping, Transportation Planning or Land Surveying services are
at the Contracting Agency’s sole discretion; provided, however, in
circumstances where a direct contract is not permitted under OAR 137-048-0200,
the selection criteria cannot be based on pricing policies, pricing proposals
or other pricing information, including the number of hours proposed for the
Services required, expenses, hourly rates and overhead. In accordance with OAR
137-048-0130(2) applicable to Related Services procurements, the selection
criteria and procedures may be based solely on the qualifications of the
Consultants, solely on pricing information, or a combination of both
qualifications and pricing information. Pricing information may include the
number of hours proposed for the Related Services required, expenses, hourly
rates, overhead and other price factors. Work order or task order assignment
procedures under Price Agreements may include direct appointments, subject to
the requirements of OAR 137-048-0200; and
(c) Specify the maximum term for assigning
Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or
Land Surveying Services or Related Services under the Price Agreement.
(4) All Architectural, Engineering, Photogrammetric
Mapping, Transportation Planning or Land Surveying Services or Related Services
assigned under a Price Agreement require a written work order or task order
issued by the Contracting Agency. Any work orders or task orders assigned under
a Price Agreement must include, at a minimum, the following:
(a) The Consultant’s performance obligations and
performance schedule;
(b) The payment methodology and a maximum amount
payable to the Consultant for the Architectural, Engineering, Photogrammetric
Mapping, Transportation Planning or Land Surveying Services or Related Services
required under the work order or task order that is fair and reasonable to the
Contracting Agency, as determined solely by the Contracting Agency, taking into
account the value, scope, complexity and nature of the Architectural,
Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying
Services or Related Services;
(c) Language that incorporates all applicable terms and
conditions of the Price Agreement into the work order or task order; and
(d) Any other provisions the Contracting Agency
believes to be in the Contracting Agency’s best interest.
Stat. Auth.: ORS 279A.065 & OL
2011, ch 458
Stats. Implemented: ORS 279A.065,
279C.110, 279C.120 & OL 2011, ch 458
Hist.: DOJ 10-2011, f. 11-29-11,
cert. ef. 1-1-12
137-048-0300
Prohibited Payment Methodology;
Purchase Restrictions
(1) Except as otherwise allowed by law, a Contracting
Agency shall not enter into any Contract which includes compensation provisions
that expressly provide for payment of:
(a) Consultant’s costs under the Contract plus a
percentage of those costs; or
(b) A percentage of the Project construction costs or
total Project costs.
(2) Except as otherwise allowed by law, a Contracting
Agency shall not enter into any Contract in which:
(a) The compensation paid under the Contract is solely
based on or limited to the Consultant’s hourly rates for the Consultant’s
personnel working on the Project and reimbursable expenses incurred during the
performance of work on the Project (sometimes referred to as a “time and
materials” Contract); and
(b) The Contract does not include a maximum amount
payable to the Consultant for the Architectural, Engineering, Photogrammetric
Mapping, Transportation Planning or Land Surveying Services or Related Services
required under the Contract.
(3) Except in cases of Emergency or in the particular
instances noted in the subsections below, a Contracting Agency shall not
purchase any building materials, supplies or equipment for any building,
structure or facility constructed by or for the Contracting Agency from any
Consultant under a Contract with Contracting Agency to perform Architectural,
Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying
Services or Related Services, for the building, structure or facility. This
prohibition does not apply if either of the following circumstances exists:
(a) The Consultant is providing Architectural,
Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying
Services or Related Services under a Contract with a Contracting Agency to
perform Design-Build services or Energy Savings Performance Contract services
(see OAR 137-049-0670 and 137-049-0680); or
(b) That portion of the Contract relating to the
acquisition of building materials, supplies or equipment was awarded to the
Consultant pursuant to applicable law governing the award of such a Contract.
Stat. Auth.: ORS 279A.065, OL
2011, ch 458
Stats. Implemented: ORS 279A.065,
OL 2011, ch 458
Hist.: DOJ 11-2004, f. 9-1-04,
cert. ef. 3-1-05; DOJ 20-2005, f. 12-27-05, cert. ef. 1-1-06; DOJ 19-2007, f.
12-28-07, cert. ef. 1-1-08; DOJ 15-2009, f. 12-1-09, cert. ef. 1-1-10; DOJ
10-2011, f. 11-29-11, cert. ef. 1-1-12
137-048-0310
Expired or Terminated Contracts;
Reinstatement
(1) If a Contracting Agency enters into a Contract for
Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or
Land Surveying Services or Related Services and that Contract subsequently
expires or is terminated, the Contracting Agency may proceed as follows,
subject to the requirements of subsection (2) of this rule:
(a) Expired Contracts. If the Contract has expired as
the result of Project delay caused by the Contracting Agency or caused by any
other occurrence outside the reasonable control of the Contracting Agency or
the Consultant, and if no more than one year has passed since the Contract
expiration date, the Contracting Agency may amend the Contract to extend the
Contract expiration date, revise the description of the Architectural,
Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying
Services or Related Services required under the Contract to reflect any
material alteration of the Project made as a result of the delay, and revise
the applicable performance schedule. Beginning on the effective date of the
amendment, the Contracting Agency and the Consultant shall continue performance
under the Contract as amended; or
(b) Terminated Contracts. If the Contracting Agency or
both parties to the Contract have terminated the Contract for any reason and if
no more than one year has passed since the Contract termination date, then the
Contracting Agency may enter into a new Contract with the same Consultant to
perform the remaining Architectural, Engineering and Land Surveying Services,
or Related Services not completed under the original Contract, or to perform
any remaining Architectural, Engineering, Photogrammetric Mapping,
Transportation Planning or Land Surveying Services or Related Services not
completed under the Contract as adjusted to reflect a material alteration of
the Project.
(2) The Contracting Agency may proceed under either
subsection (1)(a) or subsection (1)(b) of this rule only after making written
findings that amending the existing Contract or entering into a new Contract
with the Consultant will:
(a) Promote efficient use of public funds and resources
and result in substantial cost savings to the Contracting Agency;
(b) Protect the integrity of the Public Contracting
process and the competitive nature of the Procurement process by not
encouraging favoritism or substantially diminishing competition in the award of
Contracts; and
(c) Result in a Contract that is still within the scope
of the final form of the original Procurement document.
Stat. Auth.: ORS 279A.065, OL
2011, ch 458
Stats. Implemented: ORS 279A.065
& 279C.110, OL 2011, ch 458
Hist.: DOJ 11-2004, f. 9-1-04,
cert. ef. 3-1-05; DOJ 20-2005, f. 12-27-05, cert. ef. 1-1-06; DOJ 15-2009, f.
12-1-09, cert. ef. 1-1-10; DOJ 10-2011, f. 11-29-11, cert. ef. 1-1-12
137-048-0320
Contract Amendments
(1) A Contracting Agency may amend any Contract if the
Contracting Agency, in its sole discretion, determines that the amendment is
within the scope of the Solicitation Document and that the amendment would not
materially impact the field of competition for the Architectural, Engineering,
Photogrammetric Mapping, Transportation Planning or Land Surveying Services or
Related Services described in the final form of the original Procurement
document. In making this determination, the Contracting Agency shall consider
potential alternative methods of procuring the services contemplated under the
proposed amendment. An amendment would not materially impact the field of
competition for the services described in the Solicitation Document, if the Contracting
Agency reasonably believes that the number of Proposers would not significantly
increase if the Procurement document were re-issued to include the additional
services.
(2) The Contracting Agency may amend any Contract if
the additional services are required by reason of existing or new laws, rules,
regulations or ordinances of federal, state or local agencies, which affect
performance of the original Contract.
(3) All amendments to Contracts must be in writing,
must be signed by an authorized representative of the Consultant and the
Contracting Agency and must receive all required approvals before the
amendments will be binding on the Contracting Agency.
Stat. Auth.: ORS 279A.065, OL
2011, ch 458
Stats. Implemented: ORS 279A.065,
279C.110, OL 2011, ch 458
Hist.: DOJ 11-2004, f. 9-1-04,
cert. ef. 3-1-05; DOJ 20-2005, f. 12-27-05, cert. ef. 1-1-06; DOJ 19-2007, f.
12-28-07, cert. ef. 1-1-08; DOJ 15-2009, f. 12-1-09, cert. ef. 1-1-10; DOJ
10-2011, f. 11-29-11, cert. ef. 1-1-12
137-049-0380
Bid or Proposal Evaluation
Criteria
(1) General. A Public Improvement Contract, if Awarded,
must be Awarded to the Responsible Bidder submitting the lowest Responsive Bid,
or to the Responsible Proposer submitting the best Responsive Proposal. (See
OAR 137-049-0390, and Rules for Alternative Contracting Methods at 137-049-0600
to 137-049-0690.)
(2) Bid Evaluation Criteria. Invitations to Bid may
solicit lump-sum Offers, unit-price Offers or a combination of the two.
(a) Lump Sum. If the ITB requires a lump-sum Bid,
without additive or deductive alternates, or if the Contracting Agency elects
not to award additive or deductive alternates, Bids must be compared on the
basis of lump-sum prices, or lump-sum base Bid prices, as applicable. If the
ITB calls for a lump-sum base Bid, plus additive or deductive alternates, the
total Bid price must be calculated by adding to or deducting from the base Bid
those alternates selected by the Contracting Agency, for the purpose of
comparing Bids.
(b) Unit Price. If the Bid includes unit pricing for
estimated quantities, the total Bid price must be calculated by multiplying the
estimated quantities by the unit prices submitted by the Bidder, and adjusting
for any additive or deductive alternates selected by the Contracting Agency, for
the purpose of comparing Bids. Contracting Agencies shall specify within the
Solicitation Document the estimated quantity of the procurement to be used for
determination of the low Bidder. In the event of mathematical discrepancies
between unit price and any extended price calculations submitted by the Bidder,
the unit price governs. (See OAR 137-049-0350(2)(b).)
(3) Proposal Evaluation Criteria. If the Contracting
Agency’s Contract Review Authority has exempted the Procurement of a Public
Improvement from the competitive bidding requirements of ORS 279C.335(1), and
has directed the Contracting Agency to use an Alternative Contracting Method
under ORS 279C.335(4), the Contracting Agency shall set forth the evaluation
criteria in the Solicitation Documents. (See OAR 137-049-0640, 137-049-0650,
ORS 279C.335 and 279C.405.)
Stat. Auth.: ORS 279A.065, OL
2011, ch 458
Stats. Implemented: ORS 279C.335,
OL 2011, ch 458
Hist.: DOJ 11-2004, f. 9-1-04,
cert. ef. 3-1-05; DOJ 20-2005, f. 12-27-05, cert. ef. 1-1-06; DOJ 10-2011, f.
11-29-11, cert. ef. 1-1-12
137-049-0650
Requests for Proposals (RFP)
(1) Generally. The use of competitive Proposals must be
specially authorized for a Public Improvement Contract under the competitive
bidding requirement of ORS 279C.335 (1), OAR 137-049-0130 and 137-049-0600 to
137-049-0690. Also see ORS 279C.400 to 279C.410 for statutory requirements
regarding competitive Proposals, and OAR 137-049-0640 regarding competitive
Proposal procedures.
(2) Solicitation Documents. In addition to the
Solicitation Document requirements of OAR 137-049-0200, this rule applies to
the requirements for Requests for Proposals. RFP Solicitation Documents shall
conform to the following standards:
(a) The Contracting Agency shall set forth selection
criteria in the Solicitation Document. Examples of evaluation criteria include
price or cost, quality of a product or service, past performance, management,
capability, personnel qualification, prior experience, compatibility,
reliability, operating efficiency, expansion potential, experience of key
personnel, adequacy of equipment or physical plant, financial wherewithal,
sources of supply, references and warranty provisions. See OAR 137-049-0640.
Evaluation factors need not be precise predictors of actual future costs and
performance, but to the extent possible, such factors must be reasonable
estimates based on information available to the Contracting Agency. Subject to
ORS 279C.410(4), the Solicitation Document may provide for discussions with
Proposers to be conducted for the purpose of Proposal evaluation prior to award
or prior to establishing any Competitive Range;
(b) When the Contracting Agency is willing to negotiate
terms and conditions of the Contract or allow submission of revised Proposals
following discussions, the Contracting Agency shall identify the specific terms
and conditions in or provisions of the Solicitation Document that are subject
to negotiation or discussion and authorize Offerors to propose certain
alternative terms and conditions in lieu of the terms and conditions the
Contracting Agency has identified as authorized for negotiation. The
Contracting Agency shall describe the evaluation, discussion and negotiation
processes, including how the Contracting Agency will establish the Competitive
Range, if any;
(c) The anticipated size of any Competitive Range must
be stated in the Solicitation Document, but may be decreased if the number of
Proposers that submit responsive Proposals is less that the specified number,
or may be increased as provided in OAR 137-049-0650(4)(a)(B);
(d) When the Contracting Agency intends to Award
Contracts to more than one Proposer, the Contracting Agency shall identify in
the Solicitation Document the manner in which it will determine the number of
Contracts it will Award. The Contracting Agency shall also include the criteria
it will use to determine how the Contracting Agency will endeavor to achieve
optimal value, utility and substantial fairness when selecting a particular
Contractor to provide Personal Services or Work from those Contractors Awarded
Contracts.
(3) Evaluation of Proposals.
(a) Evaluation. The Contracting Agency shall evaluate
Proposals only in accordance with criteria set forth in the RFP and applicable
law. The Contracting Agency shall evaluate Proposals to determine the
Responsible Proposer or Proposers submitting the best Responsive Proposal or
Proposals.
(A) Clarifications. In evaluating Proposals, a
Contracting Agency may seek information from a Proposer to clarify the
Proposer’s Proposal. A Proposer shall submit Written and Signed clarifications
and such clarifications shall become part of the Proposer’s Proposal.
(B) Limited Negotiation. If the Contracting Agency did
not permit negotiation in its Request for Proposals, the Contracting Agency
may, nonetheless, negotiate with the highest-ranked Proposer, but may then only
negotiate the:
(i) Statement of Work; and
(ii) Contract Price as it is affected by negotiating
the statement of Work. The process for discussions or negotiations that is
outlined and explained in subsections (5)(b) and (6) of this rule does not
apply to this limited negotiation.
(b) Discussions; Negotiations. If the Contracting
Agency permitted discussions or negotiations in the Request for Proposals, the
Contracting Agency shall evaluate Proposals and establish the Competitive
Range, and may then conduct discussions and negotiations in accordance with
this rule.
(A) If the Solicitation Document provided that
discussions or negotiations may occur at Contracting Agency’s discretion, the
Contracting Agency may forego discussions and negotiations and evaluate all
Proposals in accordance with this rule.
(B) If the Contracting Agency proceeds with discussions
or negotiations, the Contracting Agency shall establish a negotiation team
tailored for the acquisition. The Contracting Agency’s team may include legal,
technical and negotiating personnel.
(c) Cancellation. Nothing in this rule shall restrict
or prohibit the Contracting Agency from canceling the solicitation at any time.
(4) Competitive Range; Protest; Award.
(a) Determining Competitive Range.
(A) If the Contracting Agency does not cancel the
solicitation, after the Opening the Contracting Agency will evaluate all
Proposals in accordance with the evaluation criteria set forth in the Request
for Proposals. After evaluation of all Proposals in accordance with the
criteria set forth in the Request for Proposals, the Contracting Agency will
determine and rank the Proposers in the Competitive Range.
(B) The Contracting Agency may increase the number of
Proposers in the Competitive Range if the Contracting Agency’s evaluation of
Proposals establishes a natural break in the scores of Proposers indicating a
number of Proposers greater than the initial Competitive Range are closely
competitive, or have a reasonable chance of being determined the best Proposer
after the Contracting Agency’s evaluation of revised Proposals submitted in
accordance with the process described in this rule.
(b) Protesting Competitive Range. The Contracting
Agency shall provide Written notice to all Proposers identifying Proposers in
the Competitive Range. A Proposer that is not within the Competitive Range may
protest the Contracting Agency’s evaluation and determination of the
Competitive Range in accordance with OAR 137-049-0450.
(c) Intent to Award; Discuss or Negotiate. After the
protest period provided in accordance with these rules expires, or after the
Contracting Agency has provided a final response to any protest, whichever date
is later, the Contracting Agency may either:
(A) Provide Written notice to all Proposers in the
Competitive Range of its intent to Award the Contract to the highest-ranked
Proposer in the Competitive Range.
(i) An unsuccessful Proposer may protest the
Contracting Agency’s intent to Award in accordance with OAR 137-049-0450.
(ii) After the protest period provided in accordance
with OAR 137-049-0450 expires, or after the Contracting Agency has provided a
final response to any protest, whichever date is later, the Contracting Agency
shall commence final Contract negotiations with the highest-ranked Proposer in
the Competitive Range; or
(B) Engage in discussions with Proposers in the
Competitive Range and accept revised Proposals from them, and, following such
discussions and receipt and evaluation of revised Proposals, conduct
negotiations with the Proposers in the Competitive Range.
(5) Discussions; Revised Proposals. If the Contracting
Agency chooses to enter into discussions with and receive revised Proposals
from the Proposers in the Competitive Range, the Contracting Agency shall
proceed as follows:
(a) Initiating Discussions. The Contracting Agency
shall initiate oral or Written discussions with all of the Proposers in the
Competitive Range regarding their Proposals with respect to the provisions of
the RFP that the Contracting Agency identified in the RFP as the subject of
discussions. The Contracting Agency may conduct discussions for the following
purposes:
(A) Informing Proposers of deficiencies in their
initial Proposals;
(B) Notifying Proposers of parts of their Proposals for
which the Contracting Agency would like additional information; and
(C) Otherwise allowing Proposers to develop revised
Proposals that will allow the Contracting Agency to obtain the best Proposal
based on the requirements and evaluation criteria set forth in the Request for
Proposals.
(b) Conducting Discussions. The Contracting Agency may
conduct discussions with each Proposer in the Competitive Range necessary to
fulfill the purposes of this section, but need not conduct the same amount of
discussions with each Proposer. The Contracting Agency may terminate
discussions with any Proposer in the Competitive Range at any time. However,
the Contracting Agency shall offer all Proposers in the Competitive Range the
opportunity to discuss their Proposals with Contracting Agency before the
Contracting Agency notifies Proposers of the date and time pursuant to this
section that revised Proposals will be due.
(A) In conducting discussions, the Contracting Agency:
(i) Shall treat all Proposers fairly and shall not
favor any Proposer over another;
(ii) Shall not discuss other Proposers’ Proposals;
(iii) Shall not suggest specific revisions that a
Proposer should make to its Proposal, and shall not otherwise direct the
Proposer to make any specific revisions to its Proposal.
(B) At any time during the time allowed for
discussions, the Contracting Agency may:
(i) Continue discussions with a particular Proposer;
(ii) Terminate discussions with a particular Proposer
and continue discussions with other Proposers in the Competitive Range; or
(iii) Conclude discussions with all remaining Proposers
in the Competitive Range and provide notice to the Proposers in the Competitive
Range to submit revised Proposals.
(c)
Revised Proposals. If the Contracting Agency does not cancel the solicitation
at the conclusion of the Contracting Agency’s discussions with all remaining
Proposers in the Competitive Range, the Contracting Agency shall give all
remaining Proposers in the Competitive Range notice of the date and time by
which they must submit revised Proposals. This notice constitutes the
Contracting Agency’s termination of discussions, and Proposers must submit
revised Proposals by the date and time set forth in the Contracting Agency’s
notice.
(A) Upon receipt of the revised Proposals, the
Contracting Agency shall score the revised Proposals based upon the evaluation
criteria set forth in the Request for Proposals, and rank the revised Proposals
based on the Contracting Agency’s scoring.
(B) The Contracting Agency may conduct discussions with
and accept only one revised Proposal from each Proposer in the Competitive
Range unless otherwise set forth in the Request for Proposals.
(d) Intent to Award; Protest. The Contracting Agency
shall provide Written notice to all Proposers in the Competitive Range of the
Contracting Agency’s intent to Award the Contract. An unsuccessful Proposer may
protest the Contracting Agency’s intent to Award in accordance with OAR
137-049-0450. After the protest period provided in accordance with that rule
expires, or after the Contracting Agency has provided a final response to any protest,
whichever date is later, the Contracting Agency shall commence final Contract
negotiations.
(6) Negotiations.
(a) Initiating Negotiations. The Contracting Agency may
determine to commence negotiations with the highest-ranked Proposer in the
Competitive Range following the:
(A) Initial determination of the Competitive Range; or
(B) Conclusion of discussions with all Proposers in the
Competitive Range and evaluation of revised Proposals.
(b) Conducting Negotiations.
(A) Scope. The Contracting Agency may negotiate:
(i) The statement of Work;
(ii) The Contract Price as it is affected by
negotiating the statement of Work; and
(iii) Any other terms and conditions reasonably related
to those expressly authorized for negotiation in the Request for Proposals.
Accordingly, Proposers shall not submit, and Contracting Agency shall not
accept, for negotiation any alternative terms and conditions that are not
reasonably related to those expressly authorized for negotiation in the Request
for Proposals.
(c) Continuing Negotiations. If the Contracting Agency
terminates negotiations with a Proposer, the Contracting Agency may then
commence negotiations with the next highest scoring Proposer in the Competitive
Range, and continue the process described in this rule until the Contracting
Agency has:
(A) Determined to Award the Contract to the Proposer
with whom it is currently negotiating; or
(B) Completed one round of negotiations with all
Proposers in the Competitive Range, unless the Contracting Agency provided for
more than one round of discussions or negotiations in the Request for
Proposals, in which case the Contracting Agency may proceed with any authorized
further rounds of discussions or negotiations.
(7) Terminating Discussions or Negotiations. At any time
during discussions or negotiations conducted in accordance with this rule, the
Contracting Agency may terminate discussions or negotiations with the Proposer
with whom it is currently conducting discussions or negotiations if the
Contracting Agency reasonably believes that:
(a) The Proposer is not discussing or negotiating in
good faith; or
(b) Further discussions or negotiations with the
Proposer will not result in the parties agreeing to the terms and conditions of
a final Contract in a timely manner.
Stat. Auth.: ORS 279A.065
Stats. Implemented: ORS 279C.400 -
279C.410
Hist.: DOJ 11-2004, f. 9-1-04,
cert. ef. 3-1-05; DOJ 20-2005, f. 12-27-05, cert. ef. 1-1-06; DOJ 15-2009, f.
12-1-09, cert. ef. 1-1-10; DOJ 10-2011, f. 11-29-11, cert. ef. 1-1-12
137-049-0860
Public Works Contracts
(1) Generally. ORS 279C.800 to 279C.870 regulates
Public Works Contracts, as defined in 279C.800(6), and requirements for payment
of prevailing wage rates. Also see administrative rules of the Bureau of Labor
and Industries (BOLI) at OAR chapter 839.
(2) Required Contract Conditions. As detailed in the
above statutes and rules, every Public Works Contract must contain the
following provisions:
(a) Contracting Agency authority to pay certain unpaid
claims and charge such amounts to Contractors, as set forth in ORS 279C.515(1).
(b) Maximum hours of labor and overtime, as set forth
in ORS 279C.520(1).
(c) Employer notice to employees of hours and days that
employees may be required to work, as set forth in ORS 279C.520(2).
(d) Contractor required payments for certain services
related to sickness or injury, as set forth in ORS 279C.530.
(e) A requirement for payment of prevailing rate of
wage, as set forth in ORS 279C.830(1). If both state and federal prevailing
rates of wage apply, the contract and every subcontract must provide that all
workers must be paid the higher of the applicable state or federal prevailing
rate of wage.
(f) A requirement for filing a public works bond by
contractor and every subcontractor, as set forth in ORS 279C.830(2).
(3) Requirements for Specifications. The Specifications
for every Public Works Contract, consisting of the procurement package (such as
the project manual, Bid or Proposal booklets, request for quotes or similar
procurement Specifications), must contain the following provisions:
(a) The state prevailing rate of wage, and, if
applicable, the federal prevailing rate of wage, as required by ORS
279C.830(1)(a):
(A) Physically contained within or attached to hard
copies of procurement Specifications;
(B)
Included by a statement incorporating the applicable wage rate publication into
the Specifications by reference, in compliance with OAR 839-025-0020; or, (iii)
when the rates are available electronically or by Internet access, the rates
may be incorporated into the Specifications by referring to the rates and
providing adequate information on how to access them in compliance with OAR
839-025-0020.
(b) If both state and federal prevailing rates of wage
apply, a requirement that the contractor shall pay the higher of the applicable
state or federal prevailing rate of wage to all workers. See BOLI rules at OAR
839-025-0020 and 0035.
(c) A requirement for filing a public works bond by
contractor and every subcontractor, as set forth in ORS 279C.830(2).
Stat. Auth.: ORS 279A.065
Stats. Implemented: ORS 279C.800 -
279C.870, OL 2011, ch 458
Hist.: DOJ 11-2004, f. 9-1-04,
cert. ef. 3-1-05; DOJ 20-2005, f. 12-27-05, cert. ef. 1-1-06; DOJ 19-2007, f.
12-28-07, cert. ef. 1-1-08; DOJ 15-2009, f. 12-1-09, cert. ef. 1-1-10; DOJ
10-2011, f. 11-29-11, cert. ef. 1-1-12
Rule
Caption: Clarifies other state agency
access to child support records.
Adm.
Order No.: DOJ 11-2011(Temp)
Filed with Sec. of
State: 12-1-2011
Certified to be
Effective: 12-5-11 thru 5-29-12
Notice Publication
Date:
Rules Amended: 137-055-1140
Rules Suspended: 137-055-1145
Subject: OAR 137-055-1140 is amended to remove a reference to
the partner access rule (OAR 137-055-1145), which is suspended because it is no
longer needed.
Rules Coordinator: Vicki Tungate—(503) 986-6086
137-055-1140
Confidentiality of Records in the
Child Support Program
(1)(a) As used in this rule, “employee” means a person
employed by the Department of Justice (DOJ) or a district attorney office that
provides Child Support Program (CSP) services;
(b) “Party” has the meaning given in OAR 137-055-1020,
or a party’s attorney.
(2) For purposes of this rule, and subject to the
limitations set forth in section (3) of this rule, the contents of a case
record include, but are not limited to:
(a) The names of the obligor, beneficiary and obligee
or other payee;
(b) The addresses of the obligor, beneficiary and
obligee or other payee;
(c) The contact address and address of service of the
obligee, beneficiary or obligor;
(d) The name and address of the obligor’s employer;
(e) The social security numbers of the obligor, the
obligee and beneficiaries;
(f) The record of all legal and collection actions
taken on the case;
(g) The record of all accrual and billings, payments,
distribution and disbursement of payments;
(h) The narrative record; and
(i) The contents of any paper file maintained for
purposes of establishment and/or enforcement of a child support order or for
accounting purposes.
(3) Any data listed in section (2) of this rule or any
other data that resides on the Child Support Enforcement Automated System
(CSEAS) that is extracted from computer interfaces with other agencies’
computer systems is not considered to be child support information until or
unless the data is used for child support purposes. Until such data is used for
child support purposes it is not subject to any exceptions to confidentiality
and it may not be released to any other person or agency in any circumstance,
except as provided in ORS 25.260(5) and as may be provided in other agency
rule.
(4) Child support case related records, files, papers
and communications are confidential and may not be disclosed or used for
purposes other than those directly connected to the administration of the CSP
except:
(a) Information may be shared as provided in ORS
25.260(5), OAR 137-055-1320 and 137-055-1360 and as may be provided in other
agency rule;
(b) Information may be shared for purposes of any
investigation, prosecution or criminal or civil proceeding conducted in
connection with the administration of:
(A) Title IV-D of the Social Security Act, child
support programs in Oregon and other states;
(B) Title IV-A of the Social Security Act, Temporary
Assistance to Needy Families; or
(C) Title XIX of the Social Security Act, Medicaid
programs;
(c) Information may be shared as required by state or
federal statute or rule;
(d)(A) Elected federal and state legislators and the
Governor are considered to be within the chain of oversight of the CSP.
Information about a child support case may be shared with these elected
officials and their staff in response to issues brought by constituents who are
parties to the case;
(B) County commissioners exercise a constituent
representative function in county government for county administered programs.
District attorney offices that operate child support programs may respond to
constituent issues brought by county commissioners of the same county if the
constituent is a party in a case administered by that office. District
attorneys are DOJ sub-recipients. CSP Administration may also respond to
constituent issues brought by county commissioners on district attorney
administered child support cases where the constituent is a party;
(C) Information disclosed under paragraphs (A) and (B)
of this subsection is subject to the restrictions in subsections (6)(a) and (b)
of this rule;
(e) When a party requires the use of an interpreter in
communicating with the administrator, information given to such an interpreter
is not a violation of any provision of this rule; and
(f) A person who is the executor of the estate or
personal representative of a deceased party is entitled to receive any
information that the deceased party would have been entitled to receive.
(5)(a) The CSP may release information to a private
industry council as provided in 42 USC 654a(f)(5).
(b) The information released under subsection (a) of
this section may be provided to a private industry council only for the purpose
of identifying and contacting noncustodial parents regarding participation of
the noncustodial parents in welfare-to-work grants under 42 USC 603(a)(5).
(c) For the purposes of this section, “private industry
council” means, with respect to a service delivery area, the private industry
council or local workforce investment board established for the service
delivery area pursuant to Title I of the Workforce Investment Act (29 USC 2801,
et seq.). “Private industry council” includes workforce centers and one-stop
career centers.
(6)(a) Information from a case record may be disclosed
to a party in that case outside a legal proceeding, except for the following
personal information about the other party:
(A) The residence or mailing address of the other party
if that other party is not the state;
(B) The social security number of the other party;
(C) The name, address and telephone number of the other
party’s employers;
(D) The telephone number of the other party;
(E) Financial institution account information of the
other party;
(F) The driver’s license number of the other party; and
(G) Any other information which may identify the
location of the minor child or other party, such as day care provider’s name
and address.
(b) Except for personal information described in
subsection (a) of this section, information from a case record may be provided
to a party via the CSP web page if appropriate personal identifiers, such as
social security number, case number or date of birth are required to be
provided in order to access such information.
(7) Notwithstanding the provisions of subsections
(6)(a) and (b) of this rule, a party’s personal information may be released to
a state agency under the provisions of 45 CFR 303.21.
(8) Notwithstanding the provisions of subsection
(6)(a), an employee may disclose personal information described in paragraphs
(6)(a)(A) through (6)(a)(G) to a party, if disclosure of the information is
otherwise required by rule or statute.
(9) Any information from the case record, including any
information derived from another agency, that was used for any calculations or
determinations relevant to the legal action may be disclosed to a party. Where
there is a finding of risk and order for nondisclosure of information pursuant
to OAR 137-055-1160, all nondisclosable information must be redacted before
documents are released.
(10) Requestors may be required to pay for the actual
costs of staff time and materials to produce copies of case records before documents
are released.
(11)(a) Information from case records may be disclosed
to persons not a party to the child support case who are making contact with
the CSP on behalf of a party, if the following conditions are met:
(A) The person who is not a party to the case provides
the social security number of the party for whom they are making the inquiry or
the child support case number;
(B) The person who is not a party to the case making
the contact on behalf of the party is the current spouse or domestic partner of
the party and residing with the party or a parent or legal guardian of the
party; and
(C) The CSP determines that the person is making case
inquiries on behalf of the party and disclosure of such information would
normally be made to the party in reply to such an inquiry.
(b) Disclosure of information is limited to the
specific inquiries made on behalf of the party and is subject to the
restrictions in subsections (6)(a) and (b) of this rule.
(12) Except as provided in subsections (11)(a) and (b)
of this rule, information from a case record may not be disclosed to a person
who is not a party to the case unless:
(a) The party has granted written consent to release
the information to the person; or
(b) The person has power of attorney for the party, the
duration and scope of which authorizes release of information from a case
record at the time that the person requests such information. The power of
attorney remains in effect until a written request to withdraw the power of
attorney is submitted by the party or by the person, unless otherwise noted on
the power of attorney.
(13) A child support case account balance is derived
from the child support judgment, which is public information, and from the record
of payments, which is not. Therefore, the case balance is not public
information, is confidential and may not be released to persons not a party
except as otherwise provided in this rule.
(14) Information obtained from the Internal Revenue
Service and/or the Oregon Department of Revenue is subject to confidentiality
rules imposed by those agencies even if those rules are more restrictive than
the standards set in this rule, and may not be released for purposes other than
those specified by those agencies.
(15) Criminal record information obtained from the Law
Enforcement Data System or any other law enforcement source may be used for
child support purposes only and may not be disclosed to parties or any other
person or agency outside of the CSP. Information about the prosecution of child
support related crimes initiated by the administrator may be released to
parties in the child support case.
(16) Employees with access to computer records or
records of any other nature available to them as employees may not access such
records that pertain to their own child support case or the child support case
of any relative or other person with whom the employee has a personal
friendship or business association. No employee may perform casework on their
own child support case or the case of any relative or other person with whom
the employee has a personal friendship or business association.
(17) When an employee receives information that gives
reasonable cause to believe that a child has suffered abuse as defined in ORS
419B.005(1)(a) the employee must make a report to the Department of Human
Services as the agency that provides child welfare services and, if
appropriate, to a law enforcement agency if abuse is discovered while providing
program services.
(18) Employees who are subject to the Disciplinary
Rules of the Oregon Code of Professional Responsibility must comply with those
rules regarding mandatory reporting of child abuse. To the extent that those
rules mandate a stricter standard than required by this rule, the Disciplinary
Rules also apply.
(19) If an employee discloses or uses the contents of
any child support records, files, papers or communications in violation of this
rule, the employee is subject to progressive discipline, up to and including dismissal
from employment.
(20) To ensure knowledge of the requirements of this
rule, employees with access to computer records, or records of any other nature
available to them as employees, are required annually to:
(a) Review this rule and the CSP Director’s automated
tutorial on confidentiality;
(b) Complete with 100 percent success the CSP
Director’s automated examination on confidentiality; and
(c) Sign a certificate acknowledging confidentiality
requirements. The certificate must be in the form prescribed by the CSP
Director.
(21)(a) For DOJ employees, each signed certificate must
be forwarded to DOJ Human Resources, with a copy kept in the employee’s local
office drop file;
(b) For district attorney employees, each signed
certificate must be kept in accordance with county personnel practices.
(22) Notwithstanding any other provision of this rule,
an employee may release a party’s name and address to a local law enforcement
agency when necessary to prevent a criminal act that is likely to result in
death or substantial bodily harm.
Stat. Auth.: ORS 25.260, 180.345
Stats. Implemented: ORS 25.260,
127.005, 411.320
Hist.: AFS 23-1997, f. 12-29-97,
cert. ef. 1-1-98; AFS 19-1998, f. 10-5-98, cert. ef. 10-7-98; AFS 32-2000, f.
11-29-00, cert. ef. 12-1-00, Renumbered from 461-195-0291; SSP 4-2003, f.
2-25-03, cert. ef. 3-1-03; DOJ 6-2003(Temp), f. 6-25-03, cert. ef. 7-1-03 thru
12-28-03, Renumbered from 461-200-1160; DOJ 10-2003, f. 9-29-03, cert. ef.
10-1-03, Renumbered from 461-200-1160; DOJ 2-2004, f. 1-2-04 cert. ef. 1-5-04;
DOJ 12-2004, f. & cert. ef. 10-1-04; DOJ 8-2005(Temp), f. & cert. ef.
9-1-05 thru 2-17-06; DOJ 1-2006, f & cert. ef. 1-3-06; DOJ 5-2006, f.
6-29-06, cert. ef. 7-3-06; DOJ 8-2007, f. 9-28-07, cert. ef. 10-1-07; DOJ 1-2010,
f. & cert. ef. 1-4-10; DOJ 11-2011(Temp), f. 12-1-11, cert. ef. 12-5-11
thru 5-29-12
137-055-1145
Access to Child Support Records
(1) When information may be shared pursuant to ORS
25.260, this rule clarifies the type of information which may be accessed
through automation or contact and who is authorized to access the information.
(2)(a) Information which may be accessed from the Child
Support Enforcement Automated System (CSEAS) records by an agency administering
programs under Title IV-A of the Social Security Act may include:
(A) Obligor name, social security number, date of
birth, address and phone number;
(B) Obligee name, social security number, date of birth
and address;
(C) Title IV-A case number;
(D) Whether the case carries identifiers indicating:
(i) There is a finding or determination of good cause
under OAR 137-055-1090, 413-100-0830, 461-120-0350, 461-120-0360, 461-135-1200
or 461-135-1205;
(ii) There is an order for nondisclosure of information
pursuant to OAR 137-055-1160; or
(iii) There is a contact address;
(E) Obligor employer name, address, federal
identification number and wages;
(F) Obligor unemployment compensation benefits;
(G) Obligor’s gross quarterly compensation;
(H) The nameof any jurisdiction with a child support case
or order;
(I) Child’s name, date of birth and social security
number;
(J) The date(s) and amount(s) of any support payment
distributed and to whom or where it was distributed; and
(K) Any information which is not considered
confidential, including but not limited to the child support case number,
caseload assignment and Child Support Program (CSP) employee roster.
(b) Information which may be accessed from CSEAS
records by an agency administering programs under Title XIX of the Social
Security Act may include:
(A) Obligor name, social security number, date of
birth, address and phone number;
(B) Obligee name, social security number, date of birth
and address;
(C) Title IV-A case number;
(D) Whether the case carries identifiers indicating:
(i) There is a finding or determination of good cause
under OAR 137-055-1090, 413-100-0830, 461-120-0350, 461-120-0360, 461-135-1200
or 461-135-1205;
(ii) There is an order for nondisclosure of information
pursuant to OAR 137-055-1160; or
(iii) There is a contact address;
(E) Obligor’s employer name, address, federal
identification number and wages;
(F) Obligor’s unemployment compensation benefits;
(G) Obligor’s gross quarterly compensation;
(H) The name of any jurisdiction with a child support
case or order;
(I) Child’s name, date of birth and social security
number;
(J) Whether health care coverage is ordered;
(K) Whether health care coverage is provided;
(L) Insurer name, address and health insurance policy
number;
(M) The date(s) and amount(s) of any support payment made
to the obligee; and
(N) Any information which is not considered
confidential, including but not limited to the child support case number,
caseload assignment and CSP employee roster.
(c) Information which may be accessed from CSEAS
records by an agency administering programs under Title I, X, XIV or XVI of the
Social Security Act, an agency administering the Food Stamp program, the State
Employment Services Agency (including agencies which administer the
unemployment compensation program), and agencies administering workers’
compensation programs is limited to obligor name, social security number and
address and employer name, address and federal identification number.
(A) Notwithstanding the provisions of subsection
(2)(c), if an agency identified in that subsection receives a written consent
to release information as provided in OAR 137-055-1140(12), the agency may have
access to information that may be released to a party.
(B) In addition to the information listed in subsection
(2)(c), the State Employment Services Agency (including agencies which
administer the unemployment compensation program) may have access to the
history of the obligor’s employers’ names, addresses and federal identification
numbers.
(d) Information which may be accessed from CSEAS
records by a private industry council, as defined in OAR 137-055-1140, is
limited to obligor name, address, phone number and Title IV-A case number.
(3) An agency administering a program identified in
section (2) of this rule may obtain access for its employees to CSEAS records
by entering into an interagency agreement with the Child Support Program (CSP).
Any agreement must include provisions under which the agency seeking access
agrees to put into place a process that ensures:
(a) Each employee given access has read and understands
the CSP rules and Division of Child Support conflict of interest policy;
(b) Each employee given access agrees to abide by the
terms of the CSP rules and policy;
(c) Each employee given access agrees to access and use
information only for the purposes for which access is allowed as described in
this rule;
(d) Employees can identify and be screened from
conflict of interest cases;
(e) The agency, on a regular basis, audits access by
employees, including verification of the purpose for which information is
accessed and provides the CSP with the results of the audit;
(f) Violations are reported to the CSP, including the
steps taken by the agency to prevent future violation;
(g) Access is revoked as provided in section (4) of
this rule; and
(h) Access rights are updated, including notifying the
CSP when an employee terminates or is transferred.
(4) If an employee of an agency described in section
(2) of this rule discloses or inappropriately uses the information covered by
this rule:
(a) The CSP Director, after consulting with the
employee’s agency, will determine whether the disclosure or usage occurred or
likely occurred; and
(b) The employee’s access to information from CSEAS
records will be revoked:
(A) Temporarily, if a determination by the CSP Director
is pending; or
(B) Permanently, if a determination by the CSP Director
is made that disclosure or usage occurred or likely occurred.
(c) The provisions of this section are in addition to
any other penalty for disclosure or usage of confidential information imposed
by the employee’s agency or by any other provision of law.
(5) CSP staff may disclose case information to an
employee of an agency described in subsection (2)(a) when:
(a) That agency’s employee requests specific
information from a branch office;
(b) The employee’s agency has entered into an agreement
as provided in section (3) of this rule; and
(c) The source of the information is not the Internal
Revenue Service.
(6) CSP staff may disclose information to an employee
of an agency described in subsection (2)(b) when:
(a) That agency’s employee requests specific
information from a branch office;
(b) The employee’s agency has entered into an agreement
as provided in section (3) of this rule; and
(c) The source of the information is not:
(A) The Internal Revenue Service;
(B) The National Directory of New Hires; or
(C) The Federal Case Registry.
(7) Information for which disclosure is allowed under
section (5) or (6) of this rule may be accessed from CSEAS records if feasible.
Stat. Auth.: ORS 25.260, 180.345
& 180.380
Stats. Implemented: ORS 25.260
Hist.: DOJ 12-2004, f. & cert.
ef. 10-1-04; DOJ 1-2006, f & cert. ef. 1-3-06; DOJ 5-2006, f. 6-29-06,
cert. ef. 7-3-06; DOJ 1-2010, f. & cert. ef. 1-4-10; DOJ 3-2011(Temp), f.
& cert. ef. 3-31-11 thru 9-26-11; DOJ 4-2011, f. & cert. ef. 7-1-11;
Suspended by DOJ 11-2011(Temp), f. 12-1-11, cert. ef. 12-5-11 thru 5-29-12
Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2011.
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