Oregon Bulletin
June 1, 2011
Rule Caption: Amended
to update and incorporate policies and By-laws into rule.
Adm. Order No.: OEBB 9-2011
Filed with Sec. of State: 5-3-2011
Certified to be Effective: 5-3-11
Notice Publication Date: 1-1-2011
Rules Amended: 111-002-0005
Subject: The amendments to 111-002-0005 include early
retirees and dependents as well as the educational entities that we provide
services to and ultimately impact. Other amendments to this rule also include
statements about what authority may be delegated to staff. Previously, this was
in the OEBB By-laws but did not exist in rule. These amendments incorporate
into rule several statements that are written in policy or the Board By-laws.
Based upon this new knowledge and the review of our rules, it was determined
that this is very important to include several statements that guide our
administrative process into rule. All amendments have been reviewed by DOJ.
Rules Coordinator: April Kelly—(503) 378-6588
111-002-0005
Powers and
Duties of the Board
(1)
Pursuant to ORS 243.864, it will be within the powers and duties of the Board
to study all matters connected with providing adequate benefit plan coverage
for Eligible Employees, Early Retirees and their Dependents, with concern for
the welfare of the Employees, Early Retirees and their Dependents and
affordability for the Educational Entities.
(2) The
board will design benefit plans, devise specifications, invite proposals,
analyze responses to requests for proposals, and decide on the award of
contracts for benefit plan coverage of Eligible Employees, Early Retirees and
their Dependents.
(3) The
Board will work collaboratively with Educational Entities, members, carriers
and providers to offer value-added benefit plans that support improvement in
members’ health status, hold carriers and providers accountable for outcomes,
and provide affordable benefits and services. The board will place emphasis on:
(a)
Employee choice among high-quality benefit plans;
(b) A
competitive marketplace;
(c) Benefit
plan performance and information;
(d)
Educational Entity flexibility in benefit plan design and contracting;
(e) Quality
customer services;
(f)
Creativity and innovation;
(g) Benefit
plans as part of total employee compensation;
(h)
Improvement of employee health;
(i) An
innovative delivery system;
(j) A focus
on improving quality and outcomes;
(k)
Promotion of health and wellness;
(l)
Appropriate provider, health plan, and consumer incentives;
(m)
Accessible and understandable information about costs, outcomes, and other
health data; and
(n)
Benefits that are affordable to the Educational Entities and Employees, Early
Retirees and their Dependents.
(4) The
Board may retain consultants, brokers, or other advisory personnel as it
determines necessary and will employ such personnel as are required to perform
the functions of the Board.
(5) The
Board may delegate authority to the Administrator and Staff to complete duties
described in (2)–(4) above.
Stat. Auth:
ORS 243.864 - 243.886
Stats.
Implemented: ORS 243.864
Hist.: OEBB
1-2007(Temp), f. & cert. ef. 7-23-07 thru 1-4-08; OEBB 1-2008, f. &
cert. ef. 1-4-08; OEBB 17-2010(Temp), f. & cert. ef. 12-13-10 thru 6-10-11;
OEBB 9-2011, f. & cert. ef. 5-3-11
Rule Caption: Amendments to procurement and contracting rules per DOJ review.
Adm. Order No.: OEBB 10-2011
Filed with Sec. of State: 5-3-2011
Certified to be Effective: 5-3-11
Notice Publication Date: 1-1-2011
Rules Adopted: 111-005-0047, 111-005-0055, 111-005-0080
Rules Amended: 111-005-0010, 111-005-0015, 111-005-0020, 111-005-0040, 111-005-0042,
111-005-0044, 111-005-0046, 111-005-0050
Rules Repealed: 111-005-0060, 111-005-0070
Subject: All amendments made to OEBB’s division 5 are changes
that were reviewed by DOJ. These amendments clarify that the DOJ Model Public
Contract Rules apply when OEBB’s and DAS’ procurement and contracting rules do
not. In addition, amendments made to division 5 have been updated to reflect
the more detailed standards now found in the state public contracting and
procurement rules and statutes.
Rules Coordinator: April Kelly—(503) 378-6588
111-005-0010
Policy
The policy
of the Oregon Educators Benefit Board (OEBB) is to select contractors and
consultants in an expeditious, fair, and efficient manner that is consistent
with the goal of delivering high-quality benefits and other services at a cost
that is affordable to the Employees, Early Retirees and their Dependents and
Educational Entities, and meets the requirements of ORS 243.866. The Board may
enter into more than one contract for each type of benefit plan or other
service sought.
Stat.
Auth.: Ch. 7 OL 2007
Stats.
Implemented: Ch. 7 OL 2007
Hist.: OEBB
1-2007(Temp), f. & cert. ef. 7-23-07 thru 1-4-08; OEBB 1-2008, f. &
cert. ef. 1-4-08; OEBB 18-2010(Temp), f. & cert. ef. 12-13-10 thru 6-10-11;
OEBB 10-2011, f. & cert. ef. 5-3-11
111-005-0015
Renewal,
Screening and Selection for Benefits, Vendor and Personal Services Contracts
(1) The
Board is charged with the obligation of obtaining Benefit Plans to provide
Benefits to Eligible Employees, Early Retirees and their Dependents . OARs
111-005-0040 through 111-005-0080 set forth the screening, selection and
renewal process to be used for all such Benefit Plan contracts. The Board has
sole authority for procuring all benefits and services contemplated by ORS
243.860 through ORS 243.886.
(2) Except
as provided in OARs 111-005-0040 through 111-005-0080, the Board adopts the DOJ
model public contract rules in OAR 137, division 46 (General Provisions Related
to Public Contracting) and division 47 (Public Procurements for Goods or
Services), effective June 15, 2010, as the contracting rules that shall apply
to its procurements for Benefit Plan contracts.
(3) The
Board adopts the DOJ model public contract rules in OAR 137, division 46
(General Provisions Related to Public Contracting) and division 47 (Public
Procurements for Goods or Services), effective April 15, 2011, as the
contracting rules that shall apply to its procurements for vendor and personal
service contracts within the Board’s contracting authority.
Stat.
Auth.: Ch. 7 OL 2007
Stats.
Implemented: Sec. 19, Ch. 7 OL 2007
Hist.: OEBB
1-2007(Temp), f. & cert. ef. 7-23-07 thru 1-4-08; OEBB 1-2008, f. &
cert. ef. 1-4-08; OEBB 18-2010(Temp), f. & cert. ef. 12-13-10 thru 6-10-11;
OEBB 10-2011, f. & cert. ef. 5-3-11
111-005-0020
Definitions
For the
purposes of OARs 111-005-0010, 111-005-0015 and 111-005-0040 through
111-005-0080 the following definitions will apply:
(1) “Apparent
successful proposer” or “ASP” means the organization selected as a result of a
competitive and completed procurement process.
(2) “Consultant”
means brokers or other advisory personnel hired by the Board to:
(a) Assist
in acquiring adequate benefit plan coverage for eligible Educational Entity
Employees, Early Retirees and their Dependents;
(b) Assist
in the study of all matters connected with the provision of adequate benefit
plan coverage for eligible Educational Entity Employees, Early Retirees and
their Dependents;
(c) Assist
in the development and implementation of decision-making processes;
(d) Design
and implement additional programs to review, monitor and assist in the
improvement of eligible Educational Entity Employees, Early Retirees and their
Dependents health; and
(e) Provide
other services as required by the Board.
(3) “Contractor”
means an individual or firm who provides services to the Board under a public
contract.
(4) “Emergency”
means circumstances that:
(a) Could
not have been reasonably foreseen;
(b) Create
a substantial risk of loss, damage or interruption of Benefits or other
services or a substantial threat to property, public health, welfare or safety;
and
(c) Require
prompt execution of a contract to remedy the condition.
(5) “Extensive
procurement” means the process of soliciting proposals and bids and selecting a
contractor for services amounting to $150,000 and over.
(6) “Intermediate
procurement” means the process of soliciting proposals and bids and selecting a
contractor for services amounting to under $150,000 but over $5,000.
(7) “ORPIN”
means the Oregon Procurement Information Network, an online service operated by
the Department of Administrative Services that displays procurements and contracts
issued by the state of Oregon’s agencies.
(8) “Person”
means a natural person capable of being legally bound, a sole proprietorship, a
corporation, a partnership, a limited liability company or partnership, a
limited partnership, a for-profit or nonprofit unincorporated association, a
business trust, two or more persons having a joint or common economic interest,
any other person with legal capacity to contract or a public body.
(9) “Proposal”
means a competitive document, binding on the proposer and submitted in response
to a Request for Proposal.
(10) “Proposer”
means a Person submitting a proposal in response to a Request for Proposal.
(11) “Renewal
contractor” means a contractor or consultant who provided the same or similar
employee benefit plan or other services under a contract with the Board in the
plan year immediately prior.
(12) “Request
for Proposal” or “RFP” means all documents, whether attached or incorporated by
reference, used for soliciting proposals.
(13) “Responsible
proposer” means a person who meets the standards of responsibility described in
OAR 111-005-0055.
(14) “Responsive
proposal” means a proposal that substantially complies with the request for
proposals and all prescribed procurement procedures and requirements.
(15) “Selection
committee” means the group of individuals appointed by the Board Chair or
approved by the Board to review, evaluate and score proposals received as part
of an intermediate or extensive procurement.
(16) “Small
procurement” means the process of securing contractors or consultants for
services amounting to $5,000 or less.
(17) “Sole
source” means the only contractor or consultant of a particular product or
service reasonably available.
Stat.
Auth.: Ch. 7 OL 2007
Stats.
Implemented: Sec. 19, Ch. 7 OL 2007
Hist.: OEBB
1-2007(Temp), f. & cert. ef. 7-23-07 thru 1-4-08; OEBB 1-2008, f. &
cert. ef. 1-4-08; OEBB 18-2010(Temp), f. & cert. ef. 12-13-10 thru 6-10-11;
OEBB 10-2011, f. & cert. ef. 5-3-11
111-005-0040
Extensive
Procurement Process
The Board
will use the following procedure except as provided for under OAR 111-005-0046
or 111-005-0048.
(1)
Announcement. The Board will post solicitation notices for benefits via the
Oregon Procurement and Information Network (ORPIN). The Board may also post
solicitation notices for benefits in trade periodicals or newspapers of general
or specialized circulation. The solicitation notice will include a description
of the benefits or services sought, the scope of the services required,
evaluation and selection criteria, and a description of any special
requirements. The notice will invite qualified prospective proposers to submit
proposals. The notice will specify when and where to obtain the RFP, where to
return the proposal, the method of submission, and the closing date.
(2) No
remuneration will be offered to prospective proposers for attendance, travel,
document preparation, etc. Unless otherwise specified in the RFP, the
pre-proposal conference will:
(a) Be
voluntary; and
(b) Be held
in Salem, Oregon.
(3) RFP protest;
request for change or request for clarification.
(a)
Protest.
(A) A
proposer may deliver a protest to the Board not less than ten calendar days
prior to closing, unless otherwise specified in the RFP.
(B)
Proposer protests must be in writing and must include:
(i) A
detailed statement of the legal and factual grounds for the protest;
(ii) A
description of the resulting prejudice to the proposer; and
(iii) A
statement of the desired changes to the RFP.
(C) The
Board will not consider a proposer’s protest after the submission deadline.
(i) The
Board will provide notice to the applicable entity if it entirely rejects a
protest. If the Board agrees with the entity’s protest, in whole or in part,
the Board will issue an addendum reflecting its determination under OAR
137-030-0055 and 137-047-0430 or cancel the solicitation under 137-030-0115.
(ii) If the
Board receives a written protest from a proposer according to this rule, the
closing may be extended if the Board determines an extension is necessary to
consider the protest and to issue any addendum to the RFP.
(b) Request
for change.
(A) A
proposer may request in writing a change to the RFP specifications, unless
otherwise specified in the RFP. If the RFP allows a proposer to make a request
for changes and does not specify otherwise, proposer must deliver the written
request for change to the Board not less than ten calendar days prior to
closing.
(B) A
proposer’s written request for change must include a statement of the requested
changes to the RFP specifications, including the reason for the requested
change.
(C) The
Board will not consider a proposer’s request for change after the submission
deadline.
(i) The
Board will provide notice to the applicable entity if it entirely rejects a
change. If the Board agrees with the entity’s request for change, in whole or
in part, the Board will issue an addendum reflecting its determination under
OAR 137-030-0055 and 137-047-0430 or cancel the solicitation under
137-030-0115.
(ii) If the
Board receives a written request for a change from a proposer according to this
rule, closing may be extended if the Board determines an extension is necessary
to consider the request and to issue any addendum to the RFP.
(c) Request
for clarification.
(A) A
proposer may request in writing clarification of the RFP specifications, unless
otherwise specified in the RFP. If the RFP allows a proposer to make a request
for clarification and does not specify otherwise, a proposer must deliver the
written request for clarification to the Board not less than ten calendar days
prior to closing.
(B) A
proposer may request that the Board clarify any provision of the RFP.
(C) The
Board will not consider a proposer’s request for clarification after the
submission deadline. The Board’s clarification to a proposer, whether orally or
in writing, does not change the RFP and is not binding on the Board unless the
Board amends the RFP by addendum.
(4) Addenda
to an RFP following an appeal or request for change or clarification.
(a)
Issuance; receipt. The Board may change an RFP only by written addenda. A
proposer must provide written acknowledgement of receipt of all issued addenda
with its proposal, unless the Board otherwise specifies in the addenda.
(b) Notice
and distribution. The RFP must specify how the Board will provide notice of
addenda and how the Board will make the addenda available.
(c)
Timelines; extensions. The Board will issue addenda within a reasonable time to
allow prospective proposers to consider the addenda in preparing their
proposals. The Board may extend the closing if the Board determines prospective
proposers need additional time to review and respond to addenda. The Board will
not issue addenda less than 72 hours before the closing unless an addendum also
extends the closing, except to the extent required by public interest.
(d) Request
for change or protest. A proposer may submit a written request for change or
protest to the addendum by the close of the Board’s next business day after
issuance of the addendum, unless a different deadline is set forth in an
addendum.
(5)
Submission. All proposals submitted must comply with the procurement’s
specifications.
(a) If
portions of the proposal to any solicitation are deemed unacceptable or
non-responsive to the specifications of the solicitation, the proposal will be
deemed non-responsive and will not be given further evaluation or
consideration. If a proposal to any solicitation is delivered late, it will be
deemed non-responsive to the specification of the solicitation and will be
returned to the proposer unopened.
(b)
Submission of proposals must be in written hard copy or electronic format and
delivered, as required by the specifications of the solicitation. OEBB is not
responsible for unreadable or incomplete electronic transmissions of proposals
or for electronic transmissions that are not received by the designated OEBB
recipient by the closing date and time stated in the RFP.
(6)
Evaluation. The Selection Committee will evaluate proposals only in accordance
with criteria set forth in the RFP and applicable law. The Selection Committee
and/or Consultants will provide their recommendations to the Board on the
apparent successful proposer(s).
(7)
Rejection of proposal. The Board may reject any proposal for good cause and
deem it as non-responsive upon written finding that it is in the states’,
Educational Entities’, or Employees, Early Retirees and their Dependents ‘
interest to do so or acceptance of the proposal may impair the integrity of the
procurement process. The Board will notify the proposer of its rejection of the
proposal in writing and provide the good cause justification and finding. OEBB
is not liable to any Proposer for any loss or expense caused by or resulting
from any rejection, cancellation, delay or suspension. Without limiting the
generality of the foregoing, the Board may reject any Proposal upon OEBB’s
finding that the Proposal:
(a) Is
contingent upon OEBB’s acceptance of terms and conditions (including
Specifications) that differ from the RFP;
(b) Takes
exception to terms and conditions set forth in the RFP;
(c)
Attempts to prevent public disclosure of matters in contravention of the terms
and conditions of the RFP or in contravention of applicable law;
(d) Offers
services that fail to meet the specifications of the RFP;
(e) Is
late;
(f) Is not
in substantial compliance with the RFP;
(g) Is not
in substantial compliance with all prescribed procurement procedures;
(h) Is from
a Proposer that has been debarred as set forth in ORS 279B.130;
(i) Has
failed to provide the certification of non-discrimination required under ORS
279A.110(4); or
(j) Is from
a Proposer found non-responsible as described in OAR 111-005-0055.
(8) Intent
to award, discuss or negotiate. After the protest period provided in subsection
(3)(a) expires, or after the Board has provided a final response to any
protest, whichever date is later, the Board may engage in discussions and
negotiations with proposers in the competitive range.
(9)
Discussions and negotiations. If the Board chooses to enter into discussions
and negotiations with the Proposers in the competitive range, the Board will
proceed as follows:
(a)
Initiating discussions. The Board must initiate oral or written discussions and
negotiations with all of the proposers in the competitive range regarding their
proposals.
(b)
Conducting discussions. The Board may conduct discussions and negotiations with
each proposer in the competitive range as necessary to fulfill the purposes of
this section, but need not conduct the same amount of discussions or
negotiations with each proposer. The Board may terminate discussions and
negotiations with any proposer in the competitive range at any time. All
proposers in the competitive range will be offered the opportunity to discuss
their proposals with the Board before the Board notifies proposers of the award
decisions. In conducting discussions, the Board and any designated
representatives:
(A) Will
treat all proposers fairly and will not favor any proposer over another.
(B) Will
not discuss proposers’ proposals with any other proposers and will maintain all
proposals as confidential documents to the extent permitted by the Public
Records Law.
(C) Will
not divulge the name of the proposers or the content of the proposals until
cost negotiations are complete or an apparent successful proposer has been
announced.
(D) Will
determine whether other factors, including but not limited to, Oregon residency
of the primary business office and proposer demonstration of services and
products, will be used to determine the apparent successful proposer, if a tie
between proposers occurs.
(c) At any
time during the period allowed for discussions and negotiations, the Board may:
(A)
Continue discussions and negotiations with a particular proposer or proposers;
or
(B)
Terminate discussions with a particular proposer and continue discussions with
other proposers in the competitive range.
(d) The
Board may continue discussions and negotiations with proposers until
determining who will be awarded contracts.
(10) Notice
of intent to award. The Board will provide written notice to all proposers of
intent to award the contract, unless otherwise provided in the RFP. The Board’s
award will not be final until the later of the following:
(a) Seven
calendar days after the date of the notice, unless the RFP provided a different
period for protest; or
(b) The
Board’s written response to all timely filed protests that denies the protests
and affirms the award.
(11) Right
to protest award. An adversely affected or aggrieved proposer may submit to the
Board a written protest of the Board’s intent to award. The protest must be
made within seven calendar days after issuance of the notice of intent to award
the contract, unless otherwise specified in the RFP.
(a) The
proposer’s protest must be in writing and must specify the grounds upon which
the protest is based.
(b) A
proposer is adversely affected or aggrieved only if the Proposer would be
eligible to be awarded the contract in the event that the protest were
successful, and the reason for the protest is that:
(A) All
higher ranked Proposals are nonresponsive;
(B) OEBB
has failed to conduct the evaluation of Proposals in accordance with the
criteria or processes described in the RFP;
(C) OEBB
has abused its discretion in rejecting the protestor’s Proposal as nonresponsive;
or
(D) OEBB’s
evaluation of Proposals or OEBB’s subsequent determination of award is
otherwise in violation of OEBB’s rules or ORS 243.860 to 243.886.
(c) The
Board will not consider a protest submitted after the time period specified in
this section or a different period if provided in the RFP.
(d) The
Board Chair, or designee, has the authority to settle or resolve a written
protest meeting the submission requirements of this rule.
(e) If a
protest is not settled, the Board Chair, or designee, will promptly issue a
written decision on the protest. Judicial review of this decision will be
available if provided by statute.
(12) Award
of contracts. The Board will approve the apparent successful proposer(s) based
on the Selection Committee and/or Consultants recommendation and the evaluation
criteria included in OAR 111-002-0005(3) and the RFP including, but not limited
to, contractor or consultant availability; capability; experience; approach;
compensation requirements; previous litigation and remedy applied; customer
service history with the OEBB, members and clients; debarment status; and
references.
(13)
Confidentiality: Until after the notice of intent to award and contract is
issued, Proposals are not required to be open for public inspection, and OEBB
shall in good faith seek to protect Proposals from disclosure under ORS
192.502(4) as a confidential submission or under other applicable exemptions
from disclosure. After the notice of intent to award and contract is issued,
OEBB may withhold from disclosure to the public, materials included in a
Proposal that are exempt or conditionally exempt from disclosure under ORS
192.501 or 192.502.
(14)
Contract. The successful proposer must promptly execute the contract after the
award is final and all contractual terms and conditions have been negotiated
and agreed upon. The Board Chair, or designee, will execute the contract only
after it has obtained all applicable required documents and contractor
signatures.
Stat.
Auth.: Ch. 7 OL 2007
Stats.
Implemented: Sec. 19, Ch. 7 OL 2007
Hist.: OEBB
1-2007(Temp), f. & cert. ef. 7-23-07 thru 1-4-08; OEBB 1-2008, f. &
cert. ef. 1-4-08; OEBB 18-2010(Temp), f. & cert. ef. 12-13-10 thru 6-10-11;
OEBB 10-2011, f. & cert. ef. 5-3-11
111-005-0042
Intermediate
Procurement Process
For an
intermediate procurement, the Board will use the following procedure except as
provided for under OAR 111-005-0046 or 111-005-0048.
(1)
Announcement. The Board will post solicitation notices for benefits via the Oregon
Procurement and Information Network (ORPIN). The Board may also post
solicitation notices for benefits in trade periodicals or newspapers of general
or specialized circulation. The notice will include a description of the
benefits or services sought, the scope of the services required, and a
description of any special requirements. The notice will invite qualified
prospective proposers to submit proposals. The notice will specify when and
where to obtain the RFP and return the proposal and the closing date.
(2)
Submission. All submitted proposals must comply with the RFP’s specifications.
If portions of the proposal to any solicitation are deemed unacceptable or
non-responsive to the specifications of the solicitation, the proposal will be
deemed non-responsive and will not be given further evaluation or
consideration. If a proposal to any solicitation is delivered late, it will be
deemed non-responsive to the specification of the solicitation and will be
returned to the proposer unopened.
(a)
Submission of proposals must be in written hard copy or electronic format and
delivered as required by the specifications of the solicitation. OEBB is not
responsible for unreadable or incomplete electronic transmissions of proposals
or for electronic transmissions that are not received by the designated OEBB
recipient by the closing date and time stated in the RFP.
(b) The
proposal from the prospective proposer will describe the proposer’s
credentials, performance data and other information sufficient to establish proposer’s
qualifications for providing the benefits sought and all other information
requested in the RFP.
(3)
Evaluation. The Selection Committee will evaluate proposals only in accordance
with criteria set forth in the RFP and applicable law. The Selection Committee
and/or Consultants will provide their recommendations to the Board on the
apparent successful proposer(s).
(4)
Discussions and negotiations. If the Board chooses to enter into discussions
and negotiations with the proposers, the Board:
(a) Will
treat all proposers fairly and will not favor any proposer over another.
(b) Will
not discuss proposers’ proposals with any other proposers and will maintain all
proposals as confidential documents.
(c) Will
not divulge the name of the proposers or the content of the proposals until
cost negotiations are complete.
(d) Will
determine whether other factors, including but not limited to, Oregon residency
of the primary business office and proposer demonstration of services and
products, will be used to award the contract.
(5) Notice
of intent to award. The Board will provide written notice to all proposers of
intent to award the contract, unless otherwise provided in the RFP. The Board’s
award will not be final until the later of the following:
(a) Seven
calendar days after the date of the notice, unless the RFP provided a different
period for protest; or
(b) The
Board’s written response to all timely filed protests that denies the protests
and affirms the award.
(6) Right
to protest award. An adversely affected or aggrieved proposer may submit to the
Board a written protest of the Board’s intent to award. The protest must be
made within seven calendar days after issuance of the notice of intent to award
the contract, unless otherwise specified in the RFP.
(a) The
proposer’s protest must be in writing and must specify the grounds upon which
the protest is based.
(b) A
proposer is adversely affected or aggrieved only if:
(A) the
proposer is eligible for award of the contract as a responsible proposer; and
(B) the
Board committed a substantial violation of a provision in the RFP or of an
applicable procurement statute or administrative rule.
(c) The
Board will not consider a protest submitted after the time period specified in
this section or a different period if provided in the RFP.
(d) The
Board Chair, or designee, has the authority to settle or resolve a written
protest meeting the submission requirements of this rule.
(e) If a
protest is not settled, the Board Chair, or designee, will promptly issue a
written decision on the protest. Judicial review of this decision will be
available if provided by statute.
(7) Award
of contracts. The Board will approve the apparent successful proposer(s) based
on the evaluation the Selection Committee and/or Consultant recommendation and
the criteria included in OAR 111-002-0005(3) and the RFP including, but not
limited to, contractor availability; capability; experience; approach;
compensation requirements; previous litigation and remedy applied; customer
service history with the OEBB, members and clients; debarment status; and
references. The Board will place emphasis on employee choice among high-quality
plans, plan performance and information, a competitive marketplace, employer
flexibility in plan design and contracting, quality customer service,
creativity and innovation and the improvement of employee health.
(8)
Confidentiality: Until after the notice of intent to award and contract is
issued, Proposals are not required to be open for public inspection, and OEBB
shall in good faith seek to protect Proposals from disclosure under ORS
192.502(4) as a confidential submission or under other applicable exemptions
from disclosure. After the notice of intent to award and contract is issued,
OEBB may withhold from disclosure to the public, materials included in a
Proposal that are exempt or conditionally exempt from disclosure under ORS
192.501 or 192.502.
(9)
Contract. The successful proposer must promptly execute the contract after the
award is final. The Board Chair, or designee, will execute the contract only
after it has obtained all applicable required documents and contractor
signatures.
(10) An
amendment for additional services shall not increase the total contract cost to
a sum that is greater than twenty-five percent of the original contract cost.
Stat.
Auth.: Ch. 7 OL 2007
Stats.
Implemented: Sec. 19, Ch. 7 OL 2007
Hist.: OEBB
1-2007(Temp), f. & cert. ef. 7-23-07 thru 1-4-08; OEBB 1-2008, f. &
cert. ef. 1-4-08; OEBB 18-2010(Temp), f. & cert. ef. 12-13-10 thru 6-10-11;
OEBB 10-2011, f. & cert. ef. 5-3-11
111-005-0044
Small
Procurement Process
For a small
procurement, OEBB may procure contractor services in any manner it deems
practical, including by direct selection, negotiation and award.
(1) The
Board Chair delegates authority to the OEBB Administrator and Deputy
Administrator to enter into contracts on behalf of the Board.
(2) Award
of contracts. The OEBB Administrator or Deputy Administrator will base
selections on evaluation criteria which may include, but is not limited to,
contractor availability; capability; experience; approach; compensation
requirements; previous litigation and remedy applied; customer service history
with the OEBB, members and clients; debarment status; and references. Emphasis
will be placed on quality customer service, creativity and innovation and the
improvement of employee health.
(3) Contract.
The selected contractor must promptly execute the contract. The OEBB
Administrator or Deputy Administrator will execute the contract only after
obtaining all applicable required documents and contractor signatures.
(4) An
amendment for additional services shall not increase the total contract cost to
a sum that is greater than twenty-five percent of the original contract cost.
Stat.
Auth.: Ch. 7 OL 2007
Stats.
Implemented: Sec. 19, Ch. 7 OL 2007
Hist.: OEBB
1-2007(Temp), f. & cert. ef. 7-23-07 thru 1-4-08; OEBB 1-2008, f. &
cert. ef. 1-4-08; OEBB 18-2010(Temp), f. & cert. ef. 12-13-10 thru 6-10-11;
OEBB 10-2011, f. & cert. ef. 5-3-11
111-005-0046
Sole Source
Procurement Process
The Board
may award a contract for Benefits without competition when the Administrator of
OEBB determines in writing that the services are available from only one
source, or the contractor is defined as a Qualified Rehabilitation Facility as
defined in Oregon’s public contracting code.
(1) The
determination of a sole source must be based on written findings that may
include:
(a) That
the efficient utilization of existing services requires the acquisition of
compatible services;
(b) That
the services required for the exchange of software or data with other public or
private agencies are available from only one source;
(c) That
the services are for use in a pilot or an experimental project; or
(d) Other
findings that support the conclusion that the goods or services are available
from only one source.
(2) To the
extent reasonably practical, OEBB shall negotiate with the sole source to
obtain contract terms advantageous to OEBB.
(3)
Contract. The single source provider must promptly execute the contract after
the award is final. The Board Chair, or designee, will execute the contract
only after it has obtained all applicable required documents and contractor
signatures.
Stat.
Auth.: Ch. 7 OL 2007
Stats.
Implemented: Sec. 19, Ch. 7 OL 2007
Hist.: OEBB
1-2007(Temp), f. & cert. ef. 7-23-07 thru 1-4-08; OEBB 1-2008, f. &
cert. ef. 1-4-08; OEBB 18-2010(Temp), f. & cert. ef. 12-13-10 thru 6-10-11;
OEBB 10-2011, f. & cert. ef. 5-3-11
111-005-0047
Renewal
Process
(1) If the
Board does not issue an RFP or Single Source procurements to solicit formal
proposals from qualified potential Contractors or Vendors, the Board may
directly negotiate and enter into renewal contracts each plan year with renewal
contractors to provide Benefits and other services without following the
procedures set forth in sections 111-005-0040.
(2) The
Board may renew contracts with renewal contractors for as many years as the
Board determines is in the best interest of the state, Educational Entities and
Employees, Early Retirees and their Dependents.
(3) The
Board may invite renewal Proposals from those Contractors or Vendors who
provided the same or similar employee Benefit Plan or other services in the
year immediately prior. An employee Benefit Plan or other services contract is
similar if it is reasonably related to the scope of work described in the
procurement under which such a contract was awarded.
Stat.
Auth.: ORS 243.860 - 243.886
Stats.
Implemented: ORS 243.864
Hist.: OEBB
18-2010(Temp), f. & cert. ef. 12-13-10 thru 6-10-11; OEBB 10-2011, f. &
cert. ef. 5-3-11
111-005-0050
Mistakes
(1)
Treatment of mistakes. If the OEBB discovers certain mistakes in a proposal
before award of the contract, and the mistakes are not identified as those
qualifying as non-responsive to the specifications of the procurement, the OEBB
may take the following action:
(a) Waive
or permit a proposer to correct a minor informality. A minor informality is a
matter of form rather than substance that is evident on the face of the
proposal, or an insignificant mistake that can be waived or corrected without
prejudice to other proposers. Mistakes including, but not limited to,
signatures not affixed to the proposal document, proposals sent to the
incorrect address, insufficient number of proposals submitted, or incorrect
format will not be considered minor.
(b) Correct
a clerical error if the intended proposal and the error are evident on the face
of the proposal, or other documents submitted with the proposal, and the
proposer confirms the correction in writing. A clerical error includes, but is
not limited to, a proposer’s error in transcribing its proposal.
(2)
Rejection for mistakes. OEBB may reject any proposal in which a mistake is
evident on the face of the proposal and the intended correct proposal is not
evident or cannot be substantiated from documents accompanying the proposal. In
order to ensure integrity of the competitive procurement process and to assure
fair treatment of proposers, mistakes discovered that are contrary to the
specifications of the procurement will be carefully reviewed and will be determined,
under sole authority of the OEBB, to be waived or not be waived.
(3) If the
OEBB discovers mistakes in the proposal after award, and the mistakes are not
considered minor, the Board reserves the right to determine if the award will
be revoked. The Board will then re-evaluate proposals deemed to be in second,
third, fourth, etc., in the standings.
Stat.
Auth.: Ch. 7 OL 2007
Stats.
Implemented: Sec. 19, Ch. 7 OL 2007
Hist.: OEBB
1-2007(Temp), f. & cert. ef. 7-23-07 thru 1-4-08; OEBB 1-2008, f. &
cert. ef. 1-4-08; OEBB 18-2010(Temp), f. & cert. ef. 12-13-10 thru 6-10-11;
OEBB 10-2011, f. & cert. ef. 5-3-11
111-005-0055
Responsible
Proposer
(1) Before
awarding a Contract, the Board must have information that indicates the
Proposer meets the applicable standards of responsibility. OEBB shall prepare a
written determination of non-responsibility for a Proposer if OEBB determines
that the Proposer does not meet the standards of responsibility.
(2) In
determining whether a Proposer has met the standards of responsibility, OEBB
shall consider whether a Proposer:
(a) Has
available the appropriate financial, material, equipment, facility and
personnel resources and expertise, or has the ability to obtain the resources
and expertise, necessary to meet all contractual responsibilities.
(b)
Completed previous contracts of a similar nature with a satisfactory record of
performance. For purposes of this paragraph, a satisfactory record of
performance means that to the extent that the costs associated with and time
available to perform a previous contract remained within the Proposer’s
control, the Proposer stayed within the time and budget allotted for the
procurement and otherwise performed the contract in a satisfactory manner. OEBB
shall document the Proposer’s record of performance if OEBB finds under this
paragraph that the Proposer is not responsible.
(c) Has a
satisfactory record of integrity. OEBB in evaluating the Proposer’s record of
integrity may consider, among other things, whether the Proposer has previous criminal
convictions for offenses related to obtaining or attempting to obtain a
contract or subcontract or in connection with the Proposer’s performance of a
contract or subcontract. OEBB shall document the Proposer’s record of integrity
if OEBB finds under this paragraph that the Proposer is not responsible.
(d) Is
legally qualified to contract with OEBB.
(e)
Supplied all necessary information in connection with the inquiry concerning
responsibility. If a Proposer fails to promptly supply information concerning
responsibility that OEBB requests, OEBB shall determine the Proposer’s
responsibility based on available information or may find that the Proposer is
not responsible.
(f) Was not
debarred by OEBB in accordance with ORS 279B.130.
(3) OEBB
may refuse to disclose outside of OEBB confidential information furnished by a
Proposer under this section when the Proposer has clearly identified in writing
the information the Proposer seeks to have treated as confidential and OEBB has
authority under ORS 192.410 to 192.505 to withhold the identified information
from disclosure.
Stat.
Auth.: ORS 243.860 - 243.886
Stats.
Implemented: ORS 243.864
Hist.: OEBB
18-2010(Temp), f. & cert. ef. 12-13-10 thru 6-10-11; OEBB 10-2011, f. &
cert. ef. 5-3-11
111-005-0080
Contract
Amendments
OEBB may
amend a contract without additional competition in any of the following
circumstances:
(1) The
amendment is within the scope of the procurement as described in RFP, the sole
source determination, or special procurement (the “Procurement Document”). An
amendment is not within the scope of the procurement if the Agency determines
that if it had described the changes to be made by the amendment in the
Procurement Document, it would likely have increased competition or affected
award of the contract.
(2) These
rules otherwise permit OEBB to award a contract without competition for the
goods or services to be procured under the amendment.
(3) The
amendment is necessary to comply with a change in law that affects performance
of the contract.
(4) The
amendment results from renegotiation of the terms and conditions, including the
contract price, of a contract and the amendment is advantageous to OEBB,
subject to all of the following conditions:
(a) The
Services to be provided under the amended contract are the same as the Services
to be provided under the unamended contract.
(b) OEBB
determines that, with all things considered, the amended contract is at least
as favorable to OEBB as the unamended contract.
(c) The
amended contract does not have a total term greater than allowed in the
Procurement Document after combining the initial and extended terms.
Stat.
Auth.: ORS 243.860 - 243.886
Stats.
Implemented: ORS 243.864
Hist.: OEBB
18-2010(Temp), f. & cert. ef. 12-13-10 thru 6-10-11; OEBB 10-2011, f. &
cert. ef. 5-3-11
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, 2010.
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