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The Oregon Administrative Rules contain OARs filed through October 15, 2014
 
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OREGON HEALTH AUTHORITY,
PUBLIC EMPLOYEES' BENEFIT BOARD

 

DIVISION 5

RENEWAL, SCREENING AND SELECTION FOR BENEFITS
AND CONSULTANTS CONTRACTS

101-005-0010

Renewal, Screening and Selection for Benefit, Vendor and Consultant Contracts

(1) The Board is charged with the obligation of obtaining Benefit Plans to provide Benefits to Eligible Employees. OARs 101-005-0040 through 101-005-0140 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 243.061 through 243.302.

(2) Except as provided in OAR 101-005-0040 through 101-005-0140, 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 January 1, 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 January 1, 2010, as the contracting rules that shall apply to its procurements for Vendor and consultant contracts within the Board’s contracting authority.

Stat. Auth.: ORS 243.061 - 243.302
Stats. Implemented: ORS 243.125
Hist.: PEBB 1-2003, f. & cert. ef. 12-4-03; PEBB 1-2004, f. & cert. ef. 7-2-04; PEBB 2-2005, f. 7-26-05, cert. ef. 7-29-05; PEBB 3-2010, f. 9-23-10, cert. ef. 10-1-10

101-005-0020

Policy

The policy of the Board is to select Contractors in an expeditious and efficient a manner that is consistent with the goal of delivering high quality Benefits and other services at a cost that is affordable to both the employees and the state, consistent with the requirements of ORS 242.135 and OAR 101-002-0005. The Board may enter into more than one contract for each type of Benefit Plan or other service sought.

Stat. Auth.: ORS 243.061 - 243.302
Stats. Implemented: ORS 243.125 & 243.135(2)
Hist.: PEBB 1-2003, f. & cert. ef. 12-4-03; PEBB 1-2004, f. & cert. ef. 7-2-04; PEBB 2-2005, f. 7-26-05, cert. ef. 7-29-05; PEBB 3-2010, f. 9-23-10, cert. ef. 10-1-10

101-005-0030

Definitions

For the purposes of OARs 101-005-0010 through 101-005-0140 the following terms have the meanings indicated below.

(1) "Benefit Plan" includes, but is not limited to:

(a) Contracts for insurance or other benefit based on life; supplemental medical, supplemental dental, optical, accidental death or disability insurance; group medical, surgical, hospital, flexible spending account, or any other remedial care recognized by state law; and related services and supplies.

(b) Comparable benefits for employees who rely on spiritual means of healing;

(c) Self insurance programs managed by the Board, and;

(d) Employee assistance programs.

(2) "Benefits" means those goods and services provided under Benefit Plans.

(3) "Board" means the ten-member Public Employees' Benefit Board. created by ORS 243.061.

(4) "Consultant" means consultants, brokers or other advisory personnel hired by the Board pursuant to ORS 243.125(5) to assist in acquiring adequate Benefit Plan coverage for eligible state employees; assist in the study of all matters connected with the provision of adequate Benefit Plan coverage for eligible state employees; assist in the development and implementation of decision-making processes; design and implement additional programs to review, monitor and assist in the improvement of Eligible Employees and their dependents' health; and provide other services as required by the Board.

(5) "Contractor" means an individual or firm selected to provide Benefits Plan services and other services with whom the Board contracts;

(6) "Eligible Employee" shall have the same definition as is described in ORS 243.105(4).

(7) "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.

(8) “PEBB” means the agency, overseen by the Board, that is within the Department of Administrative Services until the operational transfer to the Oregon Health Authority described in OAR 943-001-0015(2).

(9) “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.

(10) "Proposal" means a competitive Proposal, binding on the Proposer and submitted in response to a Request for Proposals.

(11) "Proposer" means a Person who submits a Proposal in response to a Request for Proposals.

(12) "Renewal Contractors" means those Contractors who provided the same or similar employee Benefit Plan or other services under a contract with the Board 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.

(13) "Request for Proposals" or "RFP" means all documents, whether attached or incorporated by reference, used for soliciting Proposals.

(14) "Responsible Proposer" means a person who meets the standards of responsibility described in OAR 101-005-0130.

(15) "Responsive Proposal" means a Proposal that substantially complies with the request for proposals and all prescribed procurement procedures and requirements.

(16) "Single Source" means the only vendor of a particular product or service reasonably available. If the Board chooses to procure a particular Benefit or service that is only available from one vendor, documentation must be maintained to support the determination that the product or service is available only from that one seller.

(17) "Formal Selection Procedure” means the process described in OAR 101-005-0040(1).

(18) "Informal Selection Procedure” means the process described in OAR 101-005-0040(2).

(19) "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.

(20) "Selection Committee" means the group of individuals comprised of PEBB staff, Board members, constituents, or consultants associated with PEBB who review, score, and recommend an Apparent Successful Proposer (ASP selected as a result of a RFP issued by PEBB) to the Board for approval.

(21) "Vendor" means the contractors from which PEBB will secure services other than Benefits.

Stat. Auth.: ORS 243.125(1)
Stats. Implemented: ORS 243.105(1), (2), & (4) & 243.125(5)
Hist.: PEBB 1-2003, f. & cert. ef. 12-4-03; PEBB 1-2004, f. & cert. ef. 7-2-04; PEBB 2-2005, f. 7-26-05, cert. ef. 7-29-05; PEBB 1-2009(Temp), f. & cert. ef. 2-24-09 thru 8-22-09; PEBB 2-2009, f. 7-29-09, cert. ef. 8-1-09; PEBB 3-2010, f. 9-23-10, cert. ef. 10-1-10

101-005-0040

Procurement and Renewal Processes

(1) Formal Selection Procedure: This procedure will be used for the procurement of Benefits Exceptions to this procedure are specified in sections (2), (3), (4) and (5).

(a) Announcement: The Board will give notice of intent to contract for Benefits via the Oregon Procurement Information Network (ORPIN). The notice shall include a description of the Benefits or services sought the scope of the services required, and a description of special requirements, if any. The notice will invite qualified prospective contractors to apply. The notice will specify when and where the application may be obtained, to whom it must be returned, and the closing date.

(b) Proposal: The Proposal from the prospective contractors will consist of a statement that describes the prospective contractor's credentials, performance data and other information sufficient to establish contractor's qualifications for providing the Benefits or services sought, as well as any other information requested in the announcement.

(c) Evaluation: The Board or its designees will evaluate the qualifications of all applicants and select prospective contractors as set forth in OAR 101-005-0110.

(d) Award of Contracts: The Board will make final selections based on the criteria included in OAR 101-002-005(3).

(e) Confidentiality: Until after the notice of intent to award a contract is issued, Proposals are not required to be open for public inspection, and PEBB 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 a contract is issued, PEBB 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.

(2)(a) Informal Selection Procedure: This procedure may be used at the Board's discretion, when the informal selection procedure will not interfere with competition among prospective contractors, reduce the quality of services, is an amount less than $150,000 in contract costs, or will not increase costs. The Board will contact a minimum of three prospective contractors known to the Board to be qualified to propose the sought-after services. The selection will be made by the Board based upon the factors described in paragraph (1) (d) of this rule. If three quotes are not received, the Board will make a written record of its efforts to obtain quotes.

(b) When informal selection procedure has been used, the cumulative amendment(s) to the contract shall not increase the total contract cost to sum that is greater than twenty-five percent (25%) of the original contract cost.

(3)(a) Sole Source Procedure: PEBB may award a contract for Benefits without competition when the Administrator of PEBB 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.

(b) 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.

(c) To the extent reasonably practical, PEBB shall negotiate with the sole source to obtain contract terms advantageous to PEBB.

(4) Renewal Procedure: 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 (1) and (2) above. The Board may renew contracts with Renewal Contractors for as many years as the Board determines is in the best interest of the state and employees. 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 reasonable related to the scope of work described in the procurement under which such a contract was awarded. The Board will negotiate with Renewal Contractors and enter into contracts with them after giving full consideration to the factors listed in paragraph (1)(d) or to such of those factors as the Board determines shall be evaluated for the renewal.

(5) Emergency Appointment Procedure: The Board may select a Benefit Plan or other service Contractor without following any of the above procedures when Emergency conditions require. In such instance, the recommended appointment and a written description of the conditions requiring the use of this appointment procedure shall be submitted to the Board. The Board will determine if an Emergency exists, declare the Emergency and negotiate a contract with the Contractor after giving full consideration to the factors listed in paragraph (1)(d).

Stat. Auth.: ORS 243.061 - 243.302
Stats. Implemented: ORS 243.135
Hist.: PEBB 1-2003, f. & cert. ef. 12-4-03; PEBB 1-2004, f. & cert. ef. 7-2-04; PEBB 2-2005, f. 7-26-05, cert. ef. 7-29-05; PEBB 1-2009(Temp), f. & cert. ef. 2-24-09 thru 8-22-09; PEBB 2-2009, f. 7-29-09, cert. ef. 8-1-09; PEBB 3-2010, f. 9-23-10, cert. ef. 10-1-10, PEBB 2-2013(Temp), f. & cert. ef. 10-2-13 thru 3-28-14; Administrative correction, 4-24-14

101-005-0050

Mistakes

(1) Treatment of Mistakes. If the Board 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 Board may take the following action:

(a) The Board may waive, or permit a Proposer to correct a minor informality. A minor informality is a matter of form(s) 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, incorrect format, etc., will not be considered minor.

(b) The Board may 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 Board's correction in writing. A clerical error is a Proposer's error in transcribing its Proposal.

(2) Rejection for Mistakes. The Board 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; i.e., documents submitted with the Proposal. In order to insure 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 the sole authority of the Board, to be waived or not be waived.

(3) If the Board 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 and then will re-evaluate proposals deemed to be in second, third, fourth, etc., in the standings.

Stat. Auth.: ORS 243.061 - 243.302
Stats. Implemented: ORS 243.125(1)
Hist.: PEBB 1-2003, f. & cert. ef. 12-4-03; PEBB 1-2004, f. & cert. ef. 7-2-04; PEBB 2-2005, f. 7-26-05, cert. ef. 7-29-05; PEBB 3-2010, f. 9-23-10, cert. ef. 10-1-10

101-005-0070

Contract Amendments

PEBB 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 PEBB 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 PEBB, 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) PEBB determines that, with all things considered, the amended contract is at least as favorable to PEBB 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 243.061 - 243.302
Stats. Implemented: ORS 243.135 & 243.125
Hist.: PEBB 1-2003, f. & cert. ef. 12-4-03; PEBB 1-2004, f. & cert. ef. 7-2-04; PEBB 2-2005, f. 7-26-05, cert. ef. 7-29-05; PEBB 1-2009(Temp), f. & cert. ef. 2-24-09 thru 8-22-09; PEBB 2-2009, f. 7-29-09, cert. ef. 8-1-09; PEBB 3-2010, f. 9-23-10, cert. ef. 10-1-10

101-005-0075

Pre-Proposal Conference

(1) Unless identified in the procurement as required, the Pre-Proposal Conference will:

(a) Include voluntary attendance;

(b) Will be held in Salem, Oregon; and

(c) Will identify attendees by name and company represented;

(2) If the Pre-Proposal Conference requires mandatory attendance by prospective proposers, no remuneration will be offered to prospective proposers for attendance, travel, document preparation, etc.

Stat. Auth.: ORS 243.061 - 243.302
Stats. Implemented: ORS 243.135 & 243.125
Hist.: PEBB 2-2005, f. 7-26-05, cert. ef. 7-29-05

101-005-0080

RFP Protest; Request for Change; Request for Clarification

(1) Protest.

(a) Unless otherwise specified in the RFP, a Proposer must deliver a written protest to the Board not less than 10 (ten) calendar days prior to closing;

(b) Content of Protest. A Proposer's written protest shall include:

(A) A detailed statement of the legal and factual grounds for the protest;

(B) A description of the resulting prejudice to the Proposer; and

(C) A statement of the desired changes to the RFP.

(2) Request for Change.

(a) Unless otherwise specified in the RFP, a Proposer may request in writing a change to the Contract terms and conditions. If the RFP allows for a Proposer to make a request for changes, and unless otherwise specified in the RFP, a Proposer must deliver the written request for change to the Board not less than 10 (ten) calendar days prior to closing;

(b) A Proposer's written request for change shall include a statement of the requested changes to the Contract terms and conditions, including specifications together with the reason for the requested change.

(3) Board Response. The Board shall not consider a Proposer's request for change or protest after the deadline established for submitting such request or protest. The Board shall provide notice to the applicable entity if it entirely rejects a protest. If the Board agrees with the entity's request or protest, in whole or in part, the Board shall either issue an addendum reflecting its determination under OAR 137-047-0430 or cancel the solicitation under 137-047-0660.

(4) Extension of Closing. If the Board receives a written request for change or protest from a Proposer in accordance with this rule, the Board may extend closing if the Board determines an extension is necessary to consider the request or protest and to issue an addendum, if any, to the RFP.

(5) Clarification. Prior to the deadline for submitting a written request for change or protest, a Proposer may request that the Board clarify any provision of the RFP. 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.

Stat. Auth.: ORS 243.061 - 243.302
Stats. Implemented: ORS 243.135 & 243.125
Hist.: PEBB 1-2003, f. & cert. ef. 12-4-03; PEBB 1-2004, f. & cert. ef. 7-2-04; PEBB 2-2005, f. 7-26-05, cert. ef. 7-29-05; PEBB 1-2009(Temp), f. & cert. ef. 2-24-09 thru 8-22-09; PEBB 2-2009, f. 7-29-09, cert. ef. 8-1-09

101-005-0090

Addenda to an RFP

(1) Issuance; Receipt. The Board may change an RFP only by written addenda.

(2) Notice and Distribution. The RFP shall specify how the Board will provide notice of addenda and how the Board will make the addenda available.

(3) Timelines; Extensions. The Board shall 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. Except to the extent required by public interest, the Board shall not issue addenda less than 72 hours before the closing unless an addendum also extends the Closing.

(4) Request for Change or Protest. Unless a different deadline is set forth in an addendum, 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.

Stat. Auth.: ORS 243.061 - 243.302
Stats. Implemented: ORS 243.135 & 243.125
Hist.: PEBB 1-2003, f. & cert. ef. 12-4-03; PEBB 1-2004, f. & cert. ef. 7-2-04; PEBB 2-2005, f. 7-26-05, cert. ef. 7-29-05; PEBB 3-2010, f. 9-23-10, cert. ef. 10-1-10

101-005-0100

Extension of Time for Acceptance of Proposal

The Board may request, orally or in writing that Proposers extend, in writing, the time during which the Board may consider their Proposal. If a Proposer agrees to such extension, the Proposal shall continue as irrevocable, valid and binding on the Proposer for the agreed-upon extension period.

Stat. Auth.: ORS 243.061 - 243.302
Stats. Implemented: ORS.243.125(1)
Hist.: PEBB 1-2003, f. & cert. ef. 12-4-03; PEBB 1-2004, f. & cert. ef. 7-2-04; PEBB 2-2005, f. 7-26-05, cert. ef. 7-29-05

101-005-0105

Submission of Proposals; Format; Timing

(1) All Proposals submitted as a result of a Formal Solicitation, Informal Solicitation, or Single Source Solicitation shall comply with the procurement'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.

(2) Submission of Proposals shall be in writing and shall be delivered in the written format, as required by the specifications of the solicitation. Proposals shall also be submitted electronically in any reasonable format specified in the RFP.

Stat. Auth.: ORS 243.061 - 243.302
Stats. Implemented: ORS.243.125(1)
Hist.: PEBB 2-2005, f. 7-26-05, cert. ef. 7-29-05; PEBB 3-2010, f. 9-23-10, cert. ef. 10-1-10, PEBB 2-2013(Temp), f. & cert. ef. 10-2-13 thru 3-28-14; Administrative correction, 4-24-14

101-005-0110

Evaluation of Proposals

(1) Evaluation. The evaluation process described in this rule applies to the Formal Selection Procedure set forth in OAR 101-005-0040(1). The Board and any assigned representatives, including but not limited to, PEBB stakeholders staff, or Consultants, hereinafter identified as the Selection Committee, shall evaluate Proposals only in accordance with criteria set forth in the RFP and applicable law. The Board shall evaluate Proposals to determine the Responsible Proposer or Proposers submitting the best responsive Proposal or Proposals.

(2) Competitive Range; Protest; Award.

(a) Determining Competitive Range. If the Board does not cancel the solicitation, the Board will evaluate all Proposals in accordance with the evaluation criteria set forth in the RFP. After evaluation of all Proposals in accordance with the criteria set forth in the RFP, the Board will determine the Proposers in the competitive range.

(b) Protesting Competitive Range. The Board 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 Board's evaluation and determination of the competitive range in not more than two (2) business days after the Board has sent written e-mail notice of the competitive range to all Proposers.

(c) Intent to Award; Discuss or Negotiate. After the protest period provided in accordance with paragraph (2)(b) 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.

(3) Discussions and Negotiations. If the Board chooses to enter into discussions and negotiations with the Proposers in the competitive range, the Board shall proceed as follows:

(a) Initiating Discussions. The Board shall 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 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. However, the Board shall offer all Proposers in the competitive range the opportunity to discuss their Proposals with the Board before the Board notifies Proposers of the award decisions.

(A) In conducting discussions, the Board and any designated representatives:

(i) Shall treat all Proposers fairly and shall not favor any Proposer over another;

(ii) Shall not discuss Proposers' Proposals with any other Proposers and shall maintain all Proposals as confidential documents to the extent permitted by the Public Records Law.

(iii) Shall not divulge the name(s) of the Proposers or the content of the Proposals until such time as cost negotiations are complete or an Apparent Successful Proposer has been announced.

(iv) Shall 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, should a tie between Proposers occur.

(B) At any time during the time allowed for discussions and negotiations, the Board may:

(i) Continue discussions and negotiations with a particular Proposer or Proposers, or;

(ii) Terminate discussions with a particular Proposer and continue discussions with other Proposers in the competitive range;

(C) The Board may continue discussions and negotiations with Proposers until the Board has determined which Proposer or Proposers shall be awarded contracts.

(c) Intent to Award; Protest. The Board shall provide written notice to all Proposers in the competitive range of the Board's intent to award the contracts. An unsuccessful Proposer may protest the Board's intent to award in accordance with OAR 101-005-0140. After the protest period provided in accordance with 101-005-0140 expires, or after the Board has provided a final response to any protest, whichever date is later, the Board may commence final Contract execution with the successful Proposer or Proposers.

Stat. Auth.: ORS 243.061 - 243.302
Stats. Implemented: ORS 243.135 & 243.125
Hist.: PEBB 1-2003, f. & cert. ef. 12-4-03; PEBB 1-2004, f. & cert. ef. 7-2-04; PEBB 2-2005, f. 7-26-05, cert. ef. 7-29-05; PEBB 3-2010, f. 9-23-10, cert. ef. 10-1-10, PEBB 2-2013(Temp), f. & cert. ef. 10-2-13 thru 3-28-14; Administrative correction, 4-24-14

101-005-0120

Rejection of a Proposal

Rejection of Proposals.

(1) The Board may reject any Proposal upon PEBB's finding that the Proposal:

(a) Is contingent upon PEBB'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) Has been debarred as set forth in ORS 279 B.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 101-005-0130.

(2) The Board may for good cause reject all Proposals in whole or in part or may cancel, delay or suspend the RFP upon the Board's written finding it is in the state's or employees' interest to do so. The Board shall notify all Proposers of the rejection of all Proposals, along with the good cause justification and finding. PEBB is not liable to any Proposer for any loss or expense caused by or resulting from the rejection, cancellation, delay or suspension.

Stat. Auth.: ORS 243.061 - 243.302
Stats. Implemented: ORS 243.135 & 243.125
Hist.: PEBB 1-2003, f. & cert. ef. 12-4-03; PEBB 1-2004, f. & cert. ef. 7-2-04; PEBB 2-2005, f. 7-26-05, cert. ef. 7-29-05; PEBB 3-2010, f. 9-23-10, cert. ef. 10-1-10

101-005-0130

Responsible Proposer

(1) Before awarding a Contract, the Board must have information that indicates the Proposer meets the applicable standards of responsibility. PEBB shall prepare a written determination of non responsibility for a Proposer if PEBB determines that the Proposer does not meet the standards of responsibility.

(2) In determining whether a Proposer has met the standards of responsibility, PEBB 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. PEBB shall document the Proposer’s record of performance if PEBB finds under this paragraph that the Proposer is not responsible.

(c) Has a satisfactory record of integrity. PEBB 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. PEBB shall document the Proposer’s record of integrity if PEBB finds under this paragraph that the Proposer is not responsible.

(d) Is legally qualified to contract with PEBB.

(e) Supplied all necessary information in connection with the inquiry concerning responsibility. If a Proposer fails to promptly supply information concerning responsibility that PEBB requests, PEBB shall determine the Proposer’s responsibility based on available information or may find that the Proposer is not responsible.

(f) Was not debarred by PEBB in accordance with ORS 279B.130.

(3) PEBB may refuse to disclose outside of PEBB 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 PEBB has authority under ORS 192.410 to 192.505 to withhold the identified information from disclosure.

Stat. Auth.: ORS 243.061 - 243.302
Stats. Implemented: ORS 243.135 & 243.125
Hist.: PEBB 1-2003, f. & cert. ef. 12-4-03; PEBB 1-2004, f. & cert. ef. 7-2-04; PEBB 2-2005, f. 7-26-05, cert. ef. 7-29-05; PEBB 3-2010, f. 9-23-10, cert. ef. 10-1-10

101-005-0140

Protest of Contractor Selection, Contract Award

(1) Purpose. An adversely affected or aggrieved Proposer must exhaust all avenues of administrative review and relief before seeking judicial review of the Board's Contractor selection or contract award decision.

(2) Notice of Intent to Award. Unless otherwise provided in the RFP, the Board shall provide written notice to all Proposers of the Board's intent to award the contract(s). The Board's award(s) shall not be final until the later of the following:

(a) Seven (7) days after the date of the notice, unless the RFP provided a different period for protest, or;

(b) The Board provides a written response to all timely filed protests that denies the protests and affirms the award.

(3) 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 within seven (7) days after issuance of the notice of intent to award the contract, unless a different protest period is provided under the RFP.

(a) The Proposer's protest shall 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) PEBB has failed to conduct the evaluation of Proposals in accordance with the criteria or processes described in the RFP;

(C) PEBB has abused its discretion in rejecting the protestor’s Proposal as nonresponsive; or

(D) PEBB’s evaluation of Proposals or PEBB’s subsequent determination of award is otherwise in violation of PEBB’s rules or ORS 243.105 to 243.285.

(c) The Board shall not consider a protest submitted after the time period established in this rule or such different period as may be provided in the RFP.

(4) Authority to Resolve Protests. The chairperson of the Board, or his or her designee, has the authority to settle or resolve a written protest submitted in accordance with the requirements of this rule.

(5) Decision. If a protest is not settled, the chairperson of the Board, or his or her designee, shall promptly issue a written decision on the protest. Judicial review of this decision will be available if provided by statute.

(6) Award. The successful Proposer shall promptly execute the contract after the award is final and all contractual terms and conditions have been negotiated and agreed upon. The Board shall execute the contract only after it has obtained all applicable required documents and approvals.

Stat. Auth.: ORS 243.061 - 243.302
Stats. Implemented: ORS 243.135 & 243.125
Hist.: PEBB 1-2003, f. & cert. ef. 12-4-03; PEBB 1-2004, f. & cert. ef. 7-2-04; PEBB 2-2005, f. 7-26-05, cert. ef. 7-29-05; PEBB 3-2010, f. 9-23-10, cert. ef. 10-1-10

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Phone: (503) 986-1523 • Fax: (503) 986-1616 • oregon.sos@state.or.us

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