(1) These Section 102 rules implement ORS chapter 279B, Public Procurements and apply to the Procurement of Goods or Services. Note: As to Public Contracts for construction services that are not Public Improvement Contracts, even though the procurement not be subject to the requirements of ORS Chapter 279C and Section 103, the non-procurement provisions of ORS Chapter 279C and Section 103 rules may still be applicable to the resulting Contracts. See Section 103-0140.

(2) These Section 102 rules govern the Procurement of Personal Services Contracts (see Section 102-0277).

(3) These Section 102 rules become effective on March 1, 2005 and apply to Contracts first advertised, but if not advertised then entered into, on or after March 1, 2005.

102-0100 Definitions

(1) “Advantageous” means in the City's best interests, as assessed according to the judgment of the Awarding Authority.

(2) “Affected Person” or “Affected Offeror” means a Person whose ability to participate in a Procurement is adversely affected by an Awarding Authority decision.

(3) “Scope” means the range and attributes of the Goods or Services described in the applicable Procurement document.

SOURCE SELECTION

102-0250 Methods of Source Selection

Except as permitted by ORS 279B.065 through 279B.085 and ORS 279A.200 through 279A.225, the PCO shall Award a Public Contract for Goods or Services based on Offers received in response to either competitive sealed Bids pursuant to ORS 279B.055 or competitive sealed Proposals pursuant to ORS 279B.060

102-0255 Competitive Sealed Bidding

(1) Generally. The PCO may procure Goods or Services by competitive sealed bidding as set forth in ORS 279B.055. An Invitation to Bid is used to initiate a competitive sealed bidding solicitation and shall contain the information required by ORS 279B.055(2) and by section 2 of this rule. The PCO shall provide public notice of the competitive sealed bidding solicitation as set forth in Section 102-0300.

(2) Invitation to Bid. In addition to the provisions required by ORS 279B.055(2), the Invitation to Bid shall 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 PCO or PCO’s representatives at the conference are not binding upon the PCO unless confirmed by Written Addendum.

(B) The form and instructions for submission of Bids and any other special information, e.g., whether Bids may be submitted by electronic means (See Section 102-0330 for required provisions of electronic Bids);

(D) The office where the Solicitation Document may be reviewed;

(E) A statement that each Bidder must identify whether the Bidder is a “resident Bidder,” as defined in ORS 279A.120(1);

(F) Contractor’s certification of nondiscrimination in obtaining required subcontractors in accordance with ORS 279A.110(4). (See Section 101-0210(3)); and

(G) How the PCO will notify Bidders of Addenda and how the PCO will make Addenda available (See Section 102-0430).

(b) City Need. The character of the Goods or Services the PCO is purchasing including, if applicable, a description of the acquisition, Specifications, delivery or performance schedule, inspection and acceptance requirements.

(A) The anticipated solicitation schedule, deadlines, protest process, and evaluation process;

(B) The PCO shall set forth objective evaluation criteria in the Solicitation Document in accordance with the requirements of ORS 279B.055(6)(a). Evaluation criteria need not be precise predictors of actual future costs, but to the extent possible, such evaluation factors shall be reasonable estimates of actual future costs based on information the PCO has available concerning future use; and

(C) If the PCO intends to either Award a Contract or to seek Award of the Contract from the governing body of the City (depending on the Awarding Authority designated under these Rules) to more than one Bidder pursuant to Section 102-0600(4)(c), the PCO shall identify in the Solicitation Document the manner in which it will determine the number of Contracts to be Awarded.

(d) Applicable preferences pursuant to ORS 279B.055(6)(b).

(e) All Contract terms and conditions, including a provision indicating whether the Contractor can assign the Contract, delegate its duties, or subcontract the delivery of the Goods or Services without prior written approval from the PCO.

102-0257 Multistep Sealed Bids

(1) Generally. The PCO may procure Goods or Services by using multistep competitive sealed Bids pursuant to ORS 279.055(12).

(2) Phased Process. Multistep bidding is a phased process that seeks necessary information or unpriced technical Bids in the initial phase and regular competitive sealed bidding, inviting Bidders who submitted technically eligible Bids in the initial phase to submit competitive sealed price Bids on the technical Bids in the final phase. The Contract shall be Awarded to the lowest Responsible Bidder. If time is a factor, the PCO may require Bidders to submit a separate sealed price Bid during the initial phase to be opened after the technical evaluation.

(3) Public Notice. Whenever multistep sealed Bids are used, public notice for the first phase shall be given in accordance with Section 102-0300. Public notice is not required for the subsequent phases. However, the PCO shall give notice of subsequent phases to all Bidders and inform Bidders of the right to protest Addenda issued after initial Closing pursuant to Section 102-0430 and inform Bidders excluded from the subsequent phases of the right, if any, to protest exclusion pursuant to Section 102-0720.

(4) Procedures Generally. In addition to the procedures set forth in Section 102-0300 through Section 102-0490, the PCO shall employ the procedures set forth in this rule for multistep bidding:

(a) Solicitation Protest. Prior to the Closing of phase one, the PCO shall provide an opportunity to protest the solicitation and under ORS 279B.405 and Section 102-0730.

(b) Addenda Protest. The PCO may, provide an opportunity to protest any Addenda issued during phase two pursuant to Section 102-0430(3)(b).

(c) Exclusion Protest. The PCO may, but is not required to provide an opportunity for a Bidder to protest exclusion from the second round of multistep sealed Bids as set forth in Section 102-0720.

(d) Administrative Remedy. Proposers may submit a protest to any Addenda or to any action by the PCO that has the effect of excluding the Proposer from the second phase of multistep bidding to the extent such protests are provided for in the Solicitation Document or required by this section. Failure to so protest shall be considered the Bidders’s failure to pursue an administrative remedy made available to the Bidder by the PCO.

(e) Award Protest. The PCO shall provide an opportunity to protest the PCO’s intent to either Award a Contract or to seek Award of the Contract from the governing body of the PCO (depending on the Awarding Authority designated under these Rules) pursuant to ORS 279B.410 and Section 102-0740. An Affected Bidder may protest, for any of the bases set forth in Section 102-0720(2), its exclusion from the second phase of a multistep sealed Bid, or an Addendum issued following initial Closing, if the PCO did not previously provide Bidders the opportunity to protest such exclusion or Addendum.

(5) Procedure for Phase One of Multistep Sealed Bids.

(a) Form. Multistep sealed bidding shall be initiated by the issuance of an Invitation to Bid in the form and manner required for competitive sealed Bids except as hereinafter provided. In addition to the requirements set forth in Section 102-0255(2), the multistep Invitation to Bid shall state:

(A) That un-priced technical Bids are requested;

(B) Whether price Bids are to be submitted at the same time as un-priced technical Bids; if they are, that such price Bids shall be submitted in a separate sealed envelope;

(C) That the solicitation is a multistep sealed Bid Procurement, and priced Bids will be considered only in the second phase and only from those Bidders whose un-priced technical Bids are found eligible in the first phase;

(D) The criteria to be used in the evaluation of un-priced technical Bids;

(E) That the PCO, to the extent that it finds necessary, may conduct oral or written discussions for the purposes of clarification of the un-priced technical Bids;

(F) That the Goods or Services being procured shall be furnished generally in accordance with the Bidder's technical Bid as found to be finally eligible and shall meet the requirements of the Invitation to Bid.

(G) Whether Bidders excluded from subsequent phases have a right to protest the exclusion before the notice of intent to Award. Such information can be given or changed by Addenda.

(b) Addenda to the Invitation to Bid. After receipt of un-priced technical Bids, Addenda to the Invitation to Bid shall be distributed only to Bidders who submitted un-priced technical Bids.

(d) Evaluation of Un-Priced Technical Bids. Un-priced technical Bids submitted by Bidders shall be evaluated solely in accordance with the criteria set forth in the Invitation to Bid. Un-priced technical Bids shall be categorized as:

(A) Eligible;

(B) Potentially eligible; that is, reasonably susceptible of being made eligible; or

(C) Ineligible. The PCO shall record in writing the basis for determining a Bid ineligible and make it part of the Procurement file. The PCO may initiate phase two of the procedure if, in the PCO's opinion, there are sufficient eligible un-priced technical Bids to assure effective price competition in the second phase without technical discussions. If the PCO finds that such is not the case, the PCO may issue an Addendum to the Invitation to Bid or engage in technical discussions as set forth in subsection (5)(e) of this rule.

(e) Discussion of Un-priced Technical Bids. The PCO may seek clarification of a technical Bid by any eligible, or potentially eligible Bidder. During the course of such discussions, the PCO shall not disclose any information derived from one un-priced technical Bid to any other Bidder. Once discussions are begun, any Bidder who has not been notified that its Bid has been finally found ineligible may submit supplemental information amending its technical Bid at any time until the Closing of the final step established by the PCO. Such submission may be made at the request of the PCO or upon the Bidder's own initiative.

(f) Notice of Ineligible Un-priced Technical Bid. When the PCO determines a Bidder's un-priced technical Bid to be ineligible, such Bidder shall not be afforded an additional opportunity to supplement its technical Bids.

(g) Mistakes During Multistep Sealed Bidding. Mistakes may be corrected or Bids may be withdrawn during phase one:

(A) Before un-priced technical Bids are considered;

(B) After any discussions have commenced under subsection(5)(e);

(D) In accord with Section 102-0470.

(6) Procedure for Phase Two of Multistep Sealed Bids.

(a) Initiation. Upon the completion of phase one, the PCO shall either:

(A) Open price Bids submitted in phase one (if price Bids were required to be submitted) from Bidders whose un-priced technical Bids were found to be eligible; or

(B) If price Bids have not been submitted, technical discussions have been held, or Addenda to the Invitation to Bid have been issued, invite each eligible Bidder to submit a price Bid.

(b) Conduct. Phase Two shall be conducted as any other competitive sealed Bid Procurement except:

(A) As specifically set forth in this rule;

(B) No public notice need be given of this invitation to submit price Bids because such notice was previously given.

102-0260 Competitive Sealed Proposals

(1) Generally. The PCO may procure Goods or Services by competitive sealed Proposals as set forth in ORS 279B.060. A Request for Proposal is used to initiate a competitive sealed Proposal solicitation and shall contain the information required by ORS 279B.060(2) and by section 2 of this rule. The PCO shall provide public notice of the competitive sealed Proposal as set forth in Section 102-0300.

(2) Request for Proposal. In addition to the provisions required by ORS 279B.060(2), the Request for Proposal shall 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; and

(ii) Whether attendance at the conference will be mandatory or voluntary; and

(iii) A provision that provides that statements made by the PCO’s representatives at the conference are not binding upon the PCO 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 Section 102-0330 for required provisions of electronic Proposals);

(D) The office where the Solicitation Document may be reviewed;

(E) Contractor’s certification of nondiscrimination in obtaining required subcontractors in accordance with ORS 279A.110(4); and

(F) How the PCO will notify Proposers of Addenda and how the PCO will make Addenda available. (See Section 102-0430).

(A) The anticipated solicitation schedule, deadlines, protest process, and evaluation process;

(B) The PCO shall set forth selection criteria in the Solicitation Document in accordance with the requirements of ORS 279B.060(2)(h)(E). Evaluation criteria need not be precise predictors of actual future costs and performance, but to the extent possible, such factors shall be reasonable estimates of actual future costs based on information available to the PCO; and

(C) If the PCO intends to either Award a Contract or to seek Award of the Contract from the governing body of the PCO (depending on the Awarding Authority designated under these Rules) to more than one Proposer pursuant to Section 102-0600(4)(d), the PCO must identify in the Solicitation Document the manner in which it will determine the number of Contracts to be Awarded.

(d) Applicable Preferences described in ORS 279A.125(2) and 282.210.

(e) All Contract terms and conditions, including a provision indicating whether the Contractor can assign the Contract, delegate its duties, or subcontract the Goods or Services without prior written approval from the PCO.

102-0261 Procedures for Competitive Range, Multi-tiered and Multistep Proposals

(1) Generally. The PCO may procure Goods or Services employing any combination of the methods of Contractor selection as set forth in ORS 279B.060(6)(b). In addition to the procedures set forth in Section 102-0300 through Section 102-0490 for methods of Contractor selection that call for the establishment of a Competitive Range or include discussions or negotiations, the PCO shall employ the procedures set forth in this rule for Competitive Range, multi-tiered and multistep Proposals.

(2) Solicitation Protest. Prior to the initial Closing, the PCO shall provide an opportunity to protest the solicitation under ORS 279B.405 and Section 102-0730.

(3) Addenda Protest. The PCO may provide an opportunity to protest, pursuant Section 102-0430, any Addenda issued pursuant to ORS 279B.060(6)(d).

(4) Exclusion Protest. The PCO 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 Section 102-0720.

(5) Administrative Remedy. Proposers may submit a protest to any Addenda or to any action by the PCO that has the effect of excluding the Proposer from subsequent phases of a multiple-tiered or multistep Request for Proposals to the extent such protests are provided for in the Solicitation Document. Failure to so protest shall be considered the Proposer’s failure to pursue an administrative remedy made available to the Proposer by the PCO.

(6) Award Protest. The PCO shall provide an opportunity to protest its intent to Award a Contract pursuant to ORS 279B.410 and Section 102-0740. An Affected Proposer may protest, for any of the bases set forth in Section 102-0720(2), its exclusion from the Competitive Range or any phase of a multi-tiered or multistep sealed Proposal, or an Addendum issued following initial Closing, if the PCO did not previously provide Proposers the opportunity to protest such exclusion or Addendum.

102-0262 Competitive Range, Discussions and Negotiations

(1) Competitive Range. When the PCO’s solicitation process conducted pursuant to ORS 279B.060(6)(b) calls for the PCO to establish a Competitive Range at any stage in the Procurement process, the PCO shall do so as follows:

(a) Determining Competitive Range.

(A) The PCO shall establish a Competitive Range after evaluating all Responsive 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 PCO shall determine and rank the Proposers in the Competitive Range.

(B) The PCO may increase the number of Proposers in the Competitive Range if the PCO'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 most Advantageous Proposer. The PCO may decrease the number of Proposers in the initial Competitive Range only if the excluded Proposers have no reasonable chance to be the most advantageous Proposer.

(b) Protesting Competitive Range. The PCO shall provide Written notice to all Proposers identifying Proposers in the Competitive Range. The PCO may provide an opportunity for Proposers excluded from the Competitive Range to protest the PCO's evaluation and determination of the Competitive Range in accordance with Section 102-0720.

(c) Intent to Award; Discuss or Negotiate. After determination of the Competitive Range and after any protest period provided in accordance with subsection (1)(b) expires, or after the PCO has provided a final response to any protest, whichever date is later, the PCO 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 PCO's intent to Award in accordance with Section 102-0740 and ORS 279B.410.

(ii) After the protest period provided in accordance with Section 102-0740 expires, or after the PCO has provided a final response to any protest, whichever date is later, the PCO shall commence negotiations in accordance with section (3) of this rule with Proposers in the Competitive Range; or

(B) Engage in discussions with Proposers in the Competitive Range and accept revised Proposals from them as set forth in section (2) of this rule and following such discussions and receipt and evaluation of revised Proposals, conduct negotiations as set forth in section (3) of this rule with the Proposers in the Competitive Range.

(2) Discussions; Revised Proposals. If the PCO chooses to enter into discussions with and receive best and final Offers (See Section 102-0262(4)), the PCO shall proceed as follows:

(a) Initiating Discussions. The PCO shall initiate oral or written discussions with all Proposers submitting Responsive Proposals or all Proposers in the Competitive Range (collectively “eligible Proposers”) regarding their Proposals with respect to the provisions of the RFP that the PCO identified in the RFP as the subject of discussions. The PCO may conduct discussions for the following purposes:

(A) Informing eligible Proposers of deficiencies in their initial Proposals;

(B) Notifying eligible Proposers of parts of their Proposals for which the PCO would like additional information; or

(C) Otherwise allowing eligible Proposers to develop revised Proposals that will allow the PCO to obtain the best Proposal based on the requirements and evaluation criteria set forth in the Request for Proposals.

(b) Conducting Discussions. The PCO may conduct discussions with each eligible Proposer necessary to fulfill the purposes of this section 2, but need not conduct the same amount of discussions with each eligible Proposer. The PCO may terminate discussions with any eligible Proposer at any time. However, the PCO shall offer all eligible Proposers the same opportunity to discuss their Proposals with the PCO before the PCO notifies eligible Proposers of the date and time pursuant to section 4 that best and final Proposals will be due.

(A) In conducting discussions, the PCO:

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

(ii) Shall disclose other eligible Proposer’s Proposals or discussions only in accordance with 279B.060(6)(a)(B) or (C);

(iii) May adjust the evaluation of a Proposal as a result of a discussion under this section. The conditions, terms, or price of the Proposal may be altered or otherwise changed during the course of the discussions provided the changes are within the scope of the Request for Proposals.

(B) At any time during the time allowed for discussions, the PCO may:

(i) Continue discussions with a particular eligible Proposer;

(ii) Terminate discussions with a particular eligible Proposer and continue discussions with other eligible Proposers; or

(iii) Conclude discussions with all remaining eligible Proposers and provide notice pursuant to section 4 of this rule to the eligible Proposers requesting best and final Offers.

(3) Negotiations.

(a) Initiating Negotiations. The PCO may commence serial negotiations with the highest-ranked eligible Proposers or commence simultaneous negotiations with all eligible Proposers as follows:

(A) After initial determination of which Proposals are Responsive; or

(B) After initial determination of the Competitive Range in accordance with section (1) of this rule; or

(C) After conclusion of discussions with all eligible Proposers and evaluation of revised Proposals (See section (2) of this rule).

(b) Conducting Negotiations.

(A) Scope. The PCO 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 or Addenda thereto. Accordingly, Proposers shall not submit, and the PCO 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 or Addenda thereto.

(B) Terminating Negotiations. At any time during discussions or negotiations that the PCO conducts in accordance with sections (2) or (3) of this rule, the PCO may terminate discussions or negotiations with the highest-ranked Proposer, or the Proposer with whom it is currently discussing or negotiating, if the PCO reasonably believes that:

(i) The Proposer is not discussing or negotiating in good faith; or

(ii) 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.

(c) Continuing Serial Negotiations. If the PCO is conducting serial negotiations and the PCO terminates negotiations with a Proposer in accordance with paragraph 3(b)(B) of this rule, the PCO may then commence negotiations with the next highest scoring Proposer in the Competitive Range, and continue the process described in section (3) of this rule until the PCO has either:

(A) Determined to Award the Contract to the Proposer with whom it is currently discussing or negotiating; or

(B) Completed one round of discussions or negotiations with all Proposers in the Competitive Range, unless the PCO provided for more than one round of discussions or negotiations in the Request for Proposals, in which case the PCO has completed all rounds of discussions or negotiations.

(d) Competitive Simultaneous Negotiations. If the PCO chooses to conduct competitive negotiations, the PCO may negotiate simultaneously with competing Proposers. The PCO:

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

(B) May disclose other Proposer’s Proposals or the substance of negotiations with other Proposers only if the PCO notifies all of the Proposers with whom the PCO will engage in negotiations of the PCO’s intent to disclose before engaging in negotiations with any Proposer.

(e) Any oral modification of a Proposal resulting from negotiations under this section (3) shall be reduced to Writing by the Proposer.

(4) Best and Final Offers. If best and final Offers are required, the PCO shall establish a common date and time by which Proposers must submit best and final Offers. Best and final Offers shall be submitted only once; provided, however, the PCO may make a written determination that it is in the PCO’s best interest to conduct additional discussions, negotiations or change the PCO’s requirements and require another submission of best and final Offers. Otherwise, no discussion of or changes in the best and final Offers shall be allowed prior to Award. Proposers shall also be informed if they do not submit notice of withdrawal or another best and final Offer, their immediately previous Offer will be construed as their best the final Offer. The PCO shall evaluate Offers as modified by the best and final Offer. The PCO shall conduct evaluations conducted as described in Section 102-0600. The PCO shall not modify evaluation factors or their relative importance after the date and time that best and final Offers are due.

102-0263 Multistep Sealed Proposals

(1) Generally. The PCO may procure Goods or Services by using multistep competitive sealed Proposals pursuant to ORS 279.060(6)(b)(G).

(2) Phased Process. Multistep sealed Proposals is a phased Procurement process that seeks necessary information or un-priced technical Proposals in the initial phase and invites Proposers who submitted technically qualified Proposals in the initial phase to submit competitive sealed price Proposals on the technical Proposers in the final phase. The Contract shall be Awarded to the Responsible Proposer submitting the most Advantageous Proposal in accordance with the terms of the Solicitation Document applicable to the final phase. If time is a factor, the PCO may require Proposers to submit a separate sealed price Proposal during the initial phase to be opened after the technical evaluation.

(3) Public Notice. Whenever multistep sealed Proposals are used, public notice for the first phase shall be given in accordance with Section 102-0300. Public notice is not required for the subsequent phases. However, the PCO shall give notice of the subsequent phases to all Proposers and inform any Proposers excluded from the subsequent phases of the right, if any, to protest exclusion pursuant to Section 102-0720.

(4) Procedure for Phase One of Multistep Sealed Proposals.

(a) Form. Multistep sealed Proposals shall be initiated by the issuance of a Request for Proposal in the form and manner required for competitive sealed Proposals except as provided in this rule. In addition to the requirements set forth in Section 102-0260(2), the multistep Request for Proposal shall state:

(A) That un-priced technical Proposals are requested;

(B) Whether price Proposals are to be submitted at the same time as un-priced technical Proposals; that if they are, such price Proposals shall be submitted in a separate sealed envelope;

(C) That the solicitation is a multistep sealed Proposal Procurement, and that priced Proposals will be considered only in the subsequent phases from those Proposers whose un-priced technical Proposals are found qualified in the first phase;

(D) The criteria to be used in the evaluation of un-priced technical Proposals;

(E) That the PCO, to the extent that it finds necessary, may conduct oral or written discussions of the un-priced technical Proposals;

(F) 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 Proposal.

(G) Whether Proposers excluded from subsequent phases have a right to protest the exclusion. Such information can be given or changed through Addenda.

(b) Addenda to the Request for Proposal. After receipt of un-priced technical Proposals, Addenda to the Request for Proposal shall be distributed only to Proposers who submitted un-priced technical Proposals.

(d) Evaluation of Un-Priced Technical Proposals. Un-priced technical Proposals shall be evaluated solely in accordance with the criteria set forth in the Request for Proposal. Un-priced technical Proposals shall be categorized as:

(A) Qualified;

(B) Potentially qualified; that is, reasonably susceptible of being made qualified; or

(C) Unqualified. The PCO shall record in writing the basis for determining a Proposal unqualified and make it part of the Procurement file. The PCO may initiate phase two of the procedure if, in the PCO's opinion, there are sufficient qualified or potentially qualified un-priced technical Proposals to assure effective price competition in the second phase without technical discussions. If the PCO finds that such is not the case, the PCO shall issue an Addendum to the Request for Proposal or engage in technical discussions as set forth in subsection 4(e).

(e) Discussion of Un-priced Technical Proposals. The PCO 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 PCO shall not disclose any information derived from one un-priced technical Proposal to any other Proposer. Once discussions are begun, any Proposer who has not been notified that its Proposal has been finally found unqualified may submit supplemental information amending its technical Proposal at any time until the Closing date established by the PCO. Such submission may be made at the request of the PCO or upon the Proposer’s own initiative.

(f) Notice of Unqualified Un-priced Technical Proposal. When the PCO determines a Proposer’s un-priced technical Proposal to be unqualified, such Proposer shall not be afforded an additional opportunity to supplement its technical Proposals.

(g) Mistakes During Multistep Sealed Proposals. Mistakes may be corrected or Proposals may be withdrawn during phase one:

(A) Before un-priced technical Proposals are considered;

(B) After any discussions have commenced under subsection 4(e) of this rule;

(D) In accordance with Section 102-0470.

(5) Procedure for Subsequent Phases.

(a) Initiation. Upon the completion of phase one, the PCO shall either:

(A) Open price Proposals submitted in phase one (if price Proposals were required to be submitted) from Proposers whose un-priced technical Proposals were found to be qualified; or

(B) If price Proposals have not been submitted, technical discussions have been held, or Addenda to the Request for Proposals have been issued, invite each qualified Proposer to submit price Proposals.

(b) Conduct. Phase two shall be conducted as any other competitive sealed Proposal solicitation except:

(A) As specifically set forth in this rule; and

(B) No public notice need be given of the request to submit price Proposals because such notice was previously given.

102-0265 Small Procurements

(1) Generally. For Procurements of Goods or Services less than or equal to $5,000, a PCO may Award a Contract as a small Procurement pursuant to ORS 279B.065, if the PCO has determined that the awarding of the contract without formal competitive bidding will result in cost savings and the following conditions are complied with:

(a) The contract is for a single project, and is not a component of or related to any other project; and

(b) When the amount of the contract does not exceed $5,000, the PCO should, where feasible, obtain competitive quotes.

(2). Award of Contract. If a Contract is awarded, the PCO shall award the contract to the Offeror whose quote or proposal will best serve the interests of the City, taking into account price as well as considerations including, but not limited to, experience, expertise, product functionality, suitability for a particular purpose and contractor responsibility under ORS 279B.110.

(3) Amendments. A PCO may amend a Public Contract Awarded as a small Procurement in accordance Section 102-0800, but the cumulative amendments shall not increase the total Contract Price to greater than $6,000.

102-0270 Intermediate Procurements

(1) Generally. For Procurements of Goods or Services greater than $5000 and less than or equal to $150,000, the PCO may Award a Contract as an intermediate Procurement pursuant to ORS 279B.070.

(2) Written Solicitations. For intermediate Procurements equal to or exceeding $75,000, a PCO shall use a Written solicitation to obtain quotes, Bids or Proposals.

(3) Negotiations. The PCO may negotiate with a Proposer to clarify its quote, Bid, or Proposal or to effect modifications that will make the quote, Bid, or Proposal acceptable or make the quote, Bid, or Proposal more Advantageous to the PCO.

(4) Amendments. The PCO may amend a Public Contract Awarded as an intermediate Procurement in accordance with Section 102-0800, but the cumulative amendments shall not increase the total Contract Price to a sum that is greater than twenty-five percent (25%) of the original Contract price.

102-0275 Sole-source Procurements

(1) Generally. The Awarding Authority may Award a Public Contract without competition as a sole-source Procurement pursuant to the requirements of ORS 279B.075.

(2) Public Notice. If, but for the PCO’s determination that the Awarding Authority may enter into a Contract as a sole-source, the Awarding Authority would be required to select a Contractor using source selection methods set forth in either ORS 279B.055[Competitive Sealed Bidding] or ORS 279B.060[Competitive Sealed Proposals], the PCO shall give public notice of the PCO’s determination that the Goods or Services or class of Goods or Services are available from only one source in a manner similar to public notice of competitive sealed Bids under ORS 279B.055(4) and Section 102-0300. The public notice shall describe the Goods or Services to be acquired by a sole-source Procurement, identify the prospective Contractor and include the date, time and place that protests are due. The PCO shall give such public notice at least fourteen (14) Days before Award of the Contract.

(3) Protest. An Affected Person may protest the PCO’s determination that the Goods or Services or class of Goods or Services are available from only one source in accordance with Section 102-0710.

102-0277 Personal Services Procurements

(1) Generally. The Awarding Authority may Award a Contract for Personal Services without competitive bidding or solicitation of quotations, except as hereafter provided in subsection (2) below. The PCO shall take into account the Selection Factors in subsection 3 below in selecting the Contractor.

(2) Exceptions.

(a) Selection of engineer, architect and land surveyors for project funded by more than 35% from State Highway Fund and project exceeds $400,000.00) shall comply with the special solicitation procedures in ORS 279C.100.

(b) If the Contract Price of the Contract for Personal Services is greater than $100,000, the PCO shall comply with the requirements of subsection (4) below.

(3) Selection Factors. The Contractor shall be selected based on an evaluation of the services needed, the abilities of the contractors, the uniqueness of the service, the general performance of the contractor, cost, residency (see Section 101-0300), and other factors set forth by the PCO. The Contract need not be awarded to the Contractor submitting the least costly proposal. However, if a contract is not awarded to the lowest contractor, the PCO shall prepare and place in the project file a written statement of the reasons for the award.

(4) When the Contract Price of the Contract for Personal Services is in excess of $100,000 (including any non-discretionary renewal by the City), the PCO shall prepare a Request for Proposal (“RFP”), specifying the nature of the service needed, a detailed description of the work to be performed, the minimum qualifications of contractors and any other relevant information on which a selection can be made. The PCO shall solicit and shall obtain at least three competitive proposals based on the RFP, unless three proposals are not available. The PCO may place appropriate notices and advertisements in at least one trade magazine and/or newspaper of general circulation.

102-0280 Emergency Procurements

The Awarding Authority may Award a Public Contract as an Emergency Procurement pursuant to the requirements of ORS 279B.080. When an Emergency Procurement is authorized, the Procurement shall be made with competition that is practicable under the circumstances.

102-0285 Special Procurements

(1) Generally. The Awarding Authority may Award a Public Contract as a Special Procurement pursuant to the requirements of ORS 279B.085.

(2) Public Notice. The PCO shall give public notice of (1) the PCO’s request for approval of a Special Procurement and (2) the Board’s approval of a Special Procurement in a manner similar to public notice of competitive sealed Bids under ORS 279B.055(4) and Section 102-0300. The public notice shall describe the Goods or Services or class of Goods or Services to be acquired through the Special Procurement. The PCO shall give such public notice of its request for approval of a Special Procurement at least seven (7) Days prior to the approval of the Special Procurement by the Board. The PCO shall give such public notice of the approval of a Special Procurement at least fourteen (14) Days before Award of the Contract.

(3) Protest. An Affected Person may protest the approval of or request for approval of a Special Procurement in accordance with ORS 279B.400 and Section 102-0700.

102-0290 Cooperative Procurements

The City may participate in, sponsor, conduct, or administer Cooperative Procurements as set forth in ORS 279A.200 through 279A.225 and Sections 101-0400 through 101-0480.

PROCUREMENT PROCESS

102-0300 Public Notice of Solicitation Documents

(1) Notice of Solicitation Documents; Fee. The PCO shall provide public notice of every Solicitation Document in accordance with section (2) of this rule. The PCO may give additional notice using any method it determines appropriate to foster and promote competition, including:

(a) Mailing notice of the availability of the Solicitation Document to Persons that have expressed an interest in the City’s Procurements;

(b) Placing notice on the City’s Electronic Procurement System; or

(2) Advertising. The PCO shall advertise every notice of a Solicitation Document as follows:

(a) The PCO shall publish the advertisement for Offers in accordance with the requirements of ORS 279B.055(4) and 279B.060(4); or

(b) A PCO may publish the advertisement for Offers on the City’s Electronic Procurement System instead of publishing notice in a newspaper of general circulation as required by ORS 279B.055(4)(b) if, by rule or order, the Board has authorized the PCO to publish notice of Solicitation Documents on the City’s Electronic Procurement System.

(3) Content of Advertisement. All advertisements for Offers shall set forth:

(a) Where, when, how, and for how long the Solicitation Document may be obtained;

(b) A general description of the Goods or Services to be acquired;

(c) The interval between the first date of notice of the Solicitation Document given in accordance with subsection 2(a) or (b) above and Closing, which shall not be less than fourteen (14) Days for an Invitation to Bid and thirty (30) Days for a Request for Proposals, unless the PCO determines that a shorter interval is in the public's interest, and that a shorter interval will not substantially affect competition. However, in no event shall the interval between the first date of notice of the Solicitation Document given in accordance with subsection 2(a) or (b) above and Closing be less then seven (7) Days as set forth in ORS 279B.055(4)(f). The PCO shall document the specific reasons for the shorter public notice period in the Procurement file;

(d) The date that Persons must file applications for prequalification if prequalification is a requirement and the class of Goods or Services is one for which Persons must be prequalified;

(e) The office where Contract terms, conditions and Specifications may be reviewed;

(f) The name, title and address of the individual authorized by the PCO to receive Offers;

(g) The scheduled Opening; and

(h) Any other information the PCO deems appropriate.

(4) (reserved).

(5) Fees. The PCO may charge a fee or require a deposit for the Solicitation Document.

(6) Notice of Addenda. The PCO shall provide potential Offerors notice of any Addenda to a Solicitation Document in accordance with Section 102-0430.

102-0310 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. The Offer is a “Firm Offer,” i.e., the Offer shall be held open by the Offeror for the Awarding Authority’s acceptance for the period specified in Section 102-0480. The Awarding Authority’s Award of the Contract constitutes acceptance of the Offer and binds the Offeror to the Contract.

(2) Contingent Offers. Except to the extent the Proposer is authorized to propose certain terms and conditions pursuant to Section 102-0262, a Proposer shall not make its Offer contingent upon the 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 proposal of alternative terms under Section 102-0262, the Offeror's Offer includes the nonnegotiable terms and conditions and any proposed terms and conditions offered for negotiation upon and to the extent accepted by the PCO in Writing.

102-0320 Facsimile Bids and Proposals

(1) PCO Authorization. A PCO may authorize Offerors to submit facsimile Offers. If the PCO determines that Bid or Proposal security is or will be required, the PCO should not authorize facsimile Offers unless the PCO has another method for receipt of such security. Prior to authorizing the submission of facsimile Offers, the PCO shall determine that the applicable department’s equipment and personnel are capable of receiving the size and volume of anticipated Offers within a short period of time. In addition, the PCO shall establish administrative procedures and controls:

(a) To receive, identify, record, and safeguard facsimile Offers;

(b) To ensure timely delivery of Offers to the location of Opening; and

(2) Provisions To Be Included in Solicitation Document. In addition to all other requirements, if the PCO authorizes a facsimile Offer, the PCO will include in the Solicitation Document the following:

(a) A provision substantially in the form of the following: “A ‘facsimile Offer,’ as used in this Solicitation Document, means an Offer, modification of an Offer, or withdrawal of an Offer that is transmitted to and received by the PCO via a facsimile machine”;

(b) A provision substantially in the form of the following: “Offerors may submit facsimile Offers in response to this Solicitation Document. The entire response must arrive at the place and by the time specified in this Solicitation Document”;

(d) A provision substantially in the form of the following: “The [Awarding Authority] reserves the right to Award the Contract solely on the basis of a facsimile Offer. However, upon the PCO's request the apparent successful Offeror shall promptly submit its complete original Signed Offer”;

(e) The data and compatibility characteristics of the PCO's receiving facsimile machine as follows:

(A) Telephone number; and

(B) Compatibility characteristics, e.g. make and model number, receiving speed, communications protocol; and

(f) A provision that the City is not responsible for any failure attributable to the transmission or receipt of the facsimile Offer including, but not limited to the following:

(A) Receipt of garbled or incomplete documents;

(B) Availability or condition of the receiving facsimile machine;

(D) Delay in transmission or receipt of documents;

(E) Failure of the Offeror to properly identify the Offer documents;

(F) Illegibility of Offer documents; and

(G) Security and confidentiality of data.

102-0330 Electronic Procurement

(1) Electronic Procurement Authorized.

(a) The PCO may conduct all phases of a Procurement, including without limitation the posting of Electronic Advertisements and the receipt of Electronic Offers, by electronic methods if and to the extent the PCO specifies in a Solicitation Document, a request for quotes, or any other Written instructions on how to participate in the Procurement.

(b) The PCO shall open an Electronic Offer in accordance with electronic security measures in effect at the PCO at the time of its receipt of the Electronic Offer. Unless the PCO provides procedures for the secure receipt of Electronic Offers, the Person submitting the Electronic Offer assumes the risk of premature disclosure due to submission in unsealed form.

(c) The City’s use of electronic Signatures shall be consistent with applicable statutes and rules. A PCO may limit the use of electronic methods of conducting a Procurement as Advantageous to the City.

(d) If the PCO determines that Bid or Proposal security is or will be required, the PCO should not authorize Electronic Offers unless the PCO has another method for receipt of such security.

(2) Rules Governing Electronic Procurements. The PCO shall conduct all portions of an electronic Procurement in accordance with these Section 102 rules, unless otherwise set forth in this rule.

(3) Preliminary Matters. As a condition of participation in an electronic Procurement the PCO may require potential Contractors to register with the PCO before the date and time on which the PCO will first accept Offers, to agree to the terms, conditions, or other requirements of a Solicitation Document, or to agree to terms and conditions governing the Procurement, such as procedures that the PCO may use to attribute, authenticate or verify the accuracy of an Electronic Offer, or the actions that constitute an electronic Signature.

(4) Offer Process. The PCO may specify that Persons must submit an Electronic Offer by a particular date and time, or that Persons may submit multiple Electronic Offers during a period of time established in the Electronic Advertisement. When the PCO specifies that Persons may submit multiple Electronic Offers during a specified period of time, the PCO must designate a time and date on which Persons may begin to submit Electronic Offers, and a time and date after which Persons may no longer submit Electronic Offers. The date and time after which Persons may no longer submit Electronic Offers need not be specified by a particular date and time, but may be specified by a description of the conditions that, when they occur, will establish the date and time after which Persons may no longer submit Electronic Offers. When the PCO will accept Electronic Offers for a period of time, then at the designated date and time that the PCO will first receive Electronic Offers, the PCO must begin to accept real time Electronic Offers on the City’s Electronic Procurement System, and shall continue to accept Electronic Offers in accordance with subsection 5(b) of this rule until the date and time specified by the PCO, after which the PCO will no longer accept Electronic Offers.

(5) Receipt of Electronic Offers.

(a) When a PCO conducts an electronic Procurement that provides that all Electronic Offers must be submitted by a particular date and time, the PCO shall receive the Electronic Offers in accordance with these Section 102 rules.

(b) When the PCO specifies that Persons may submit multiple Offers during a period of time, the PCO shall accept Electronic Offers, and Persons may submit Electronic Offers, in accordance with the following:

(A) Following receipt of the first Electronic Offer after the day and time the PCO first receives Electronic Offers, the PCO shall post on the City’s Electronic Procurement System, and updated on a real time basis, the lowest Electronic Offer price or the highest ranking Electronic Offer. At any time before the date and time after which the PCO will no longer receive Electronic Offers, a Person may revise its Electronic Offer, except that a Person may not lower its price unless that price is below the then lowest Electronic Offer.

(B) A Person may not increase the price set forth in an Electronic Offer after the day and time that the PCO first accepts Electronic Offers.

(C) A Person may withdraw an Electronic Offer only in compliance with these Section 102 rules. If a Person withdraws an Electronic Offer, it may not later submit an Electronic Offer at a price higher than that set forth in the withdrawn Electronic Offer.

(6) Failure of the E-Procurement System. In the event of a failure of the City’s Electronic Procurement System that interferes with the ability of Persons to submit Electronic Offers, protest or to otherwise participate in the Procurement, the PCO may cancel the Procurement in accordance with Section 102-0660, or may extend the date and time for receipt of Electronic Offers by providing notice of the extension immediately after the Electronic Procurement System becomes available.

BID AND PROPOSAL PREPARATION

102-0400 Offer Preparation

(1) Instructions. An Offeror shall submit and Sign its Offer in accordance with the instructions set forth in the Solicitation Document. An Offeror shall initial and submit any correction or erasure to its Offer prior to Opening in accordance with the requirements for submitting an Offer set forth in the Solicitation Document.

(2) Forms. An Offeror shall submit its Offer on the form(s) provided in the Solicitation Document, unless an Offeror is otherwise instructed in the Solicitation Document.

(3) Documents. An Offeror shall provide the PCO with all documents and descriptive literature required by the Solicitation Document.

(4) Electronic Submissions. If the Solicitation Document permitted Electronic Offers under Section 102-0330, an Offeror may submit its Offer electronically. The PCO shall not consider Electronic Offers unless authorized by the Solicitation Document.

102-0410 Offer Submission

(1) Product Samples and Descriptive Literature. The PCO may require product samples or descriptive literature if the PCO determines either is necessary or desirable to evaluate the quality, features or characteristics of an Offer. The PCO will dispose of product samples, or make them available for the Offeror to retrieve in accordance with the Solicitation Document.

(2) Identification of Offers

(a) To ensure proper identification and handling, Offers shall be submitted in a sealed envelope appropriately marked or in the envelope provided by the PCO, whichever is applicable. If the PCO permits Electronic Offers or facsimile Offers in the Solicitation Document, the Offeror may submit and identify Electronic Offers or facsimile Offers in accordance with these Section 102 rules and the instructions set forth in the Solicitation Document.

(b) The City is not responsible for Offers submitted in any manner, format or to any delivery point other than as required in the Solicitation Document.

(3) Receipt of Offers. The Offeror is responsible for ensuring the PCO receives its Offer at the required delivery point prior to the Closing, regardless of the method used to submit or transmit the Offer.

102-0420 Pre-Offer Conferences

(1) Purpose. The PCO may hold pre-Offer conferences with prospective Offerors prior to Closing, to explain the Procurement requirements, obtain information, or to conduct site inspections.

(2) Required Attendance. The PCO may require attendance at the pre-Offer conference as a condition for making an Offer.

(3) Scheduled Time. If the PCO holds a pre-Offer conference, it shall be held within a reasonable time after the Solicitation Document has been issued, but in no event less than 3 Days before the Closing Date for receipt of Offers.

(4) Statements Not Binding. Statements made by the PCO, the PCO’s representative, or any City consultants, e.g., architect, engineer, at the pre-Offer conference do not change the Solicitation Document unless the PCO confirms such statements with a Written Addendum to the Solicitation Document.

(5) City Announcement. The PCO must set forth notice of any pre-Offer conference in the Solicitation Document in accordance with Section 102-0255(2) or Section 102-0260(2).

102-0430 Addenda to Solicitation Document

(1) Issuance; Receipt. The PCO 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 PCO otherwise specifies in the Addenda.

(2) Notice and Distribution. The PCO 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 PCO will provide notice of Addenda and how the PCO will make the Addenda available before Closing, and at each subsequent step or tier of evaluation if the PCO will engage in a multistep competitive sealed Bid process in accordance with Section 102-0257, or a multi-tiered or multistep competitive sealed Proposal process in accordance with Section 102-0261 through Section 102-0263. The following is an example of how a PCO may specify how it will provide notice of Addenda: “PCO will not mail notice of Addenda, but will publish notice of any Addenda on the City's web site (www.ci.oswego.or.us), [department name] department home page, link to “Contract Advertisements”. Addenda may be downloaded off the City's web site. Offerors should frequently check the City'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 PCO shall issue Addenda within a reasonable time to allow prospective Offerors to consider the Addenda in preparing their Offers. The PCO may extend the Closing if the PCO determines prospective Offerors need additional time to review and respond to Addenda. Except to the extent required by a countervailing public interest, the PCO shall not issue Addenda less than 48 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 Section 102-0261 through 102-0263 must be issued no fewer than five (5) Days before the beginning of that tier or step of competition, unless the PCO determines that a shorter period is sufficient to allow Offerors to prepare for that tier or step of competition. The PCO 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 Section 102-0730, by the close of the City'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 Section 102-0730, 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 Section 102-0730, then the PCO may consider an Offeror's request for change or protest to the Addendum only, and the PCO 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 PCO 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 ORS 279B.060.

102-0440 Pre-Closing Modification or Withdrawal of Offers

(1) Modifications. An Offeror may modify its Offer in Writing prior to the Closing. An Offeror shall prepare and submit any modification to its Offer to the PCO in accordance with Section 102-0400 and 102-0410, unless otherwise specified in the Solicitation Document. Any modification must include the Offeror's statement that the modification amends and supersedes the prior Offer. The Offeror shall mark the submitted modification as follows:

(a) Bid (or Proposal) Modification; and

(b) Solicitation Document Number (or other identification as specified in the Solicitation Document).

(2) Withdrawals.

(a) An Offeror may withdraw its Offer by Written notice submitted on the Offeror's letterhead, Signed by an authorized representative of the Offeror, delivered to the individual and location specified in the Solicitation Document (or the place of Closing if no location is specified), and received by the PCO prior to the Closing. The Offeror or authorized representative of the Offeror may also withdraw its Offer in person prior to the Closing, upon presentation of appropriate identification and evidence of authority satisfactory to the PCO.

(b) The PCO may release an unopened Offer withdrawn under subsection 2(a) of this rule to the Offeror or its authorized representative, after voiding any date and time stamp mark.

(A) Bid (or Proposal) Withdrawal; and

(B) Solicitation Document Number (or Other Identification as specified in the Solicitation Document).

(3) Documentation. The PCO shall include all documents relating to the modification or withdrawal of Offers in the appropriate Procurement file.

102-0450 Receipt, Opening, and Recording of Offers; Confidentiality of Offers.

(1) Receipt. The PCO shall electronically or mechanically time-stamp or hand-mark each Offer and any modification upon receipt. The PCO shall not open the Offer or modification upon receipt, but shall maintain it as confidential and secure until Opening. If the PCO inadvertently opens an Offer or a modification prior to the Opening, the PCO shall return the Offer or modification to its secure and confidential state until Opening. The PCO shall document the resealing for the Procurement file (e.g. “PCO inadvertently opened the Offer due to improper identification of the Offer.”).

(2) Opening and Recording. The PCO shall publicly open Offers including any modifications made to the Offer pursuant to Section 102-0440(1). In the case of Invitations to Bid, to the extent practicable, the PCO shall read aloud the name of each Bidder, and such other information as the PCO considers appropriate. However, the PCO may withhold from disclosure information in accordance with ORS 279B.055(5)(c) and 279B.060(5). In the case of Requests for Proposals or voluminous Bids, if the Solicitation Document so provides, or if all Bidders at the Opening consent, the PCO need not read Offers aloud.

102-0460 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. The Awarding Authority shall not consider late Offers, withdrawals or modifications except as permitted in Section 102-0470 or 102-0262.

102-0470 Mistakes

(1) Generally. To protect the integrity of the competitive Procurement process and to assure fair treatment of Offerors, the PCO should carefully consider whether to permit waiver, correction or withdrawal of Offers for certain mistakes.

(2) Treatment of Mistakes. The PCO shall not allow an Offeror to correct or withdraw an Offer for an error in judgment. If the PCO discovers certain mistakes in an Offer after Opening, but before Award of the Contract, the PCO may take the following action:

(a) A PCO may waive, or permit an Offeror to correct, a minor informality. A minor informality is a matter of form rather than substance that is evident on the face of the Offer, or an insignificant mistake that can be waived or corrected without prejudice to other Offerors. Examples of minor informalities include an Offeror’s failure to:

(A) Return the correct number of Signed Offers or the correct number of other documents required by the Solicitation Document;

(B) Sign the Offer in the designated block, provided a Signature appears elsewhere in the Offer, evidencing an intent to be bound; and

(C) Acknowledge receipt of an Addendum to the Solicitation Document, provided that it is clear on the face of the Offer that the Offeror received the Addendum and intended to be bound by its terms; or the Addendum involved did not affect price, quality or delivery.

(b) The PCO may correct a clerical error if the error is evident on the face of the Offer or other documents submitted with the Offer, and the Offeror confirms the PCO's correction in Writing. A clerical error is an Offeror's error in transcribing its Offer. Examples include typographical mistakes, errors in extending unit prices, transposition errors, arithmetical errors, instances in which the intended correct unit or amount is evident by simple arithmetic calculations (for example a missing unit price may be established by dividing the total price for the units by the quantity of units for that item or a missing, or incorrect total price for an item may be established by multiplying the unit price by the quantity when those figures are available in the Offer). In the event of a discrepancy, unit prices shall prevail over extended prices.

(c) A PCO may permit an Offeror to withdraw an Offer based on one or more clerical errors in the Offer only if the Offeror shows with objective proof and by clear and convincing evidence:

(A) The nature of the error;

(B) That the error is not a minor informality under this subsection or an error in judgment;

(D) That the Offeror acted in good faith in submitting an Offer that contained the claimed error and in claiming that the alleged error in the Offer exists;

(E) That the Offeror acted without gross negligence in submitting an Offer that contained a claimed error;

(F) That the Offeror will suffer substantial detriment if the PCO does not grant the Offeror permission to withdraw the Offer;

(G) That the City's or the public's status has not changed so significantly that relief from the forfeiture will work a substantial hardship on the City or the public it represents; and

(H) That the Offeror promptly gave notice of the claimed error to the PCO.

(d) The criteria in subsection (2)(c) of this rule shall determine whether a PCO will permit an Offeror to withdraw its Offer after Closing. These criteria also shall apply to the question of whether a PCO will permit an Offeror to withdraw its Offer without forfeiture of its Bid bond (or other Bid or Proposal security), or without liability to the City based on the difference between the amount of the Offeror's Offer and the amount of the Contract actually awarded by the Awarding Authority, whether by Award to the next lowest Responsive and Responsible Bidder or the most Advantageous Responsive and Responsible Proposer, or by resort to a new solicitation.

(3) Rejection for Mistakes. The PCO shall reject any Offer in which a mistake is evident on the face of the Offer and the intended correct Offer is not evident or cannot be substantiated from documents submitted with the Offer.

(4) Identification of Mistakes after Award. The procedures and criteria set forth above are Offeror’s only opportunity to correct mistakes or withdraw Offers because of a mistake. Following Award, an Offeror is bound by its Offer, and may withdraw its Offer or rescind a Contract entered into pursuant to this Section 102 only to the extent permitted by applicable law.

102-0480 Time for Offer Acceptance

An Offeror's Offer is a Firm Offer, irrevocable, valid and binding on the Offeror for not less than thirty (30) Days following Closing unless otherwise specified in the Solicitation Document.

102-0490 Extension of Time for Acceptance of Offer

The PCO may request, orally or in Writing, that Offerors extend, in Writing, the time during which the Awarding Authority may consider their Offer(s). If an Offeror agrees to such extension, the Offer shall continue as a Firm Offer, irrevocable, valid and binding on the Offeror for the agreed-upon extension period.

QUALIFICATIONS AND DUTIES

102-0500 Responsibility of Bidders and Proposers

Before a Contract is Awarded the PCO shall determine that the Bidder submitting the lowest Bid or Proposer submitting the most Advantageous Proposal is Responsible. The PCO shall use the standards set forth in ORS 279B.110 and Section 102-0640(1)(c)(F) to determine if a Bidder or Proposer is Responsible. In the event the PCO determines a Bidder or Proposer is not Responsible, the PCO shall prepare a Written determination of non-Responsibility as required by ORS 279B.110 and shall reject the Offer.

102-0525 Qualified Products Lists

The PCO may develop and maintain a qualified products list pursuant to ORS 279B.115.

102-0550 Prequalification of Prospective Offerors

(1) The PCO may prequalify prospective Offerors pursuant to ORS 279B.120 and 279B.125.

(2) Notwithstanding the prohibition against revocation of prequalification in ORS 279B.120(3), the PCO may determine that a prequalified Offeror is not Responsible prior to Contract Award.

102-0575 Debarment of Prospective Offerors

(1) Generally. The PCO may Debar prospective Offerors for the reasons set forth in ORS 279A.110 or after providing notice and the opportunity for hearing as set forth in ORS 279B.130.

(2) Responsibility. Notwithstanding the limitation on the term for Debarment in ORS 279B.130(1)(b), the PCO may determine that a previously Debarred Offeror is not Responsible prior to Contract Award.

(3) Imputed Knowledge. The PCO may attribute improper conduct of a Person or its affiliate or affiliates having a contract with a prospective Offeror to the prospective Offeror for purposes of Debarment where the impropriety occurred in connection with the Person’s duty for or on behalf of, or with the knowledge, approval, or acquiescence of, the prospective Offeror.

(4) Limited Participation. A PCO may allow a Debarred Person to participate in solicitations and Contracts on a limited basis during the Debarment period upon Written determination that participation is Advantageous to the City. The determination shall specify the factors on which it is based and define the extent of the limits imposed.

OFFER EVALUATION AND AWARD

102-0600 Offer Evaluation and Award

(1) Evaluation. The PCO 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 PCO shall not evaluate Offers using any other requirement or criterion.

(a) Evaluation of Bids.

(A) Nonresident Bidders. In determining the lowest Responsive Bid, the PCO shall apply the reciprocal preference set forth in ORS 279A.120(2)(b) and Section 101-0310 for Nonresident Bidders.

(B) Public Printing. The PCO 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 PCO determines that one or more Bids are identical under Section 101-0300, the Awarding Authority shall Award a Contract in accordance with the procedures set forth in Section 101-0300.

(b) Evaluation of Proposals.

(A) Award When Proposals are Identical. If the PCO determines that one or more Proposals are identical under Section 101-0300, the Awarding Authority shall Award a Contract in accordance with the procedures set forth in Section 101-0300.

(B) Public Printing. The PCO 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 Awarding Authority shall give preference for recycled materials as set forth in ORS 279A.125 and Section 101-0320.

(2) Clarification of Bids. After Bid Opening, a PCO may conduct discussions with apparent Responsive Bidders for the purpose of clarification to assure full understanding of the Bid. All Bids, in the PCO’s sole discretion, needing clarification shall be accorded such an opportunity. The PCO shall document clarification of any Bidder’s Bid in the Procurement file.

(3) Negotiations Prohibited.

(a) Bids. Except as permitted by section 2 of this rule, a PCO shall not negotiate with any Bidder. After Award of the Contract, the PCO and Contractor may only modify the Contract in accordance with Section 102-0800.

(b) Requests for Proposals. A PCO may conduct discussions or negotiate with Proposers only in accordance with ORS 279B.060(6)(b) and Section 102-0262 After Award of the Contract, the PCO and Contractor may only modify the Contract in accordance with Section 102-0800.

(4) Award.

(a) General. If Awarded, the Awarding Authority shall Award the Contract to the Responsible Bidder submitting the lowest, Responsive Bid or the Responsible Proposer submitting the most Advantageous, Responsive Proposal. The Awarding Authority 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 City’s expected purchases, or grand total of all items.

(A) Notwithstanding subsection 4(a) of this rule, an Awarding Authority 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 City’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. 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 Awarding Authority from Awarding a single Contract for such Invitation to Bid.

(B) If an Invitation to Bid permits the Award of multiple Contracts, the PCO 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, an Awarding Authority 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 City’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 Awarding Authority from Awarding a single Contract for such Request for Proposals.

(B) If a Request for Proposals permits the Award of multiple Contracts, the PCO shall specify in the Request for Proposals the criteria it will use to choose from the multiple Contracts when purchasing Goods or Services.

(e) Partial Awards. If after evaluation of Offers, the PCO determines that an acceptable Offer has been received for only parts of the requirements of the Solicitation Document:

(A) The Awarding Authority may Award a Contract for the parts of the Solicitation Document for which acceptable Offers have been received; or

(B) The PCO 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. The Awarding Authority may Award all or none of the Offers if the PCO’s evaluation shows an all or none Award to be the lowest cost for Bids or the most Advantageous for Proposals of those submitted.

102-0610 Notice of Intent to Award

(1) Notice of Intent to Award. The PCO shall provide Written notice of intent to Award to all Bidders and Proposers as required by ORS 279B.135 at least seven (7) Days before the Award of a Contract, unless the PCO determines that circumstances require prompt execution of the Contract, in which case the PCO may provide a shorter notice period. The PCO shall document the specific reasons for the shorter notice period in the Procurement file.

(2) Finality. The Awarding Authority’s Award shall not be final until the later of the following:

(a) The expiration of the protest period provided pursuant to Section 102-0740; or

(b) The PCO provides Written responses to all timely-filed protests denying the protests.

102-0620 Documentation of Award

(1) Basis of Award. After Award, the PCO shall make a record showing the basis for determining the successful Offeror part of the City's Procurement file.

(2) Contents of Award Record. The PCO's record shall include:

(a) For Bids:

(A) Bids;

(B) Completed Bid tabulation sheet; and

(b) For Proposals:

(A) Proposals;

(B) The completed evaluation of the Proposals;

(D) If the PCO engaged in any of the methods of Contractor selection described in ORS 279B.060(6)(b) and Section 102-0261 through 102-0263, Written documentation of the content of any discussions, negotiations, best and final Offers, or any other procedures the PCO used to select a Proposer to which the Awarding Authority Awarded a Contract.

102-0630 Availability of Award Decisions

(1) Contract Documents. To the extent required by the Solicitation Document, the PCO shall deliver to the successful Offeror a Contract, Signed purchase order, Price Agreement, or other Contract documents as applicable.

(2) Availability of Award Decisions. A Person may obtain copies of tabulations of Awarded Bids or evaluation summaries of Proposals upon payment of the amount charged for production of public records by the City, as specified in the then applicable City Master Fee Schedule, in person or by submitting to the PCO a Written request accompanied by payment. The requesting Person shall provide the Solicitation Document number and enclose a self-addressed, stamped envelope. In addition, the PCO may make available tabulations of Bids and Proposals through the Electronic Procurement System of the City or the City’s website.

(3) Availability of Procurement Files. After notice of intent to Award, the PCO shall make Procurement files available in accordance with applicable law.

102-0640 Rejection of an Offer

(1) Rejection of an Offer.

(a) A PCO may reject any Offer as set forth in ORS 279B.100.

(b) The PCO shall reject an Offer upon the PCO's finding that the Offer:

(A) Is contingent upon the City's acceptance of terms and conditions (including Specifications) that differ from the Solicitation Document;

(B) Takes exception to terms and conditions (including Specifications) set forth in the Solicitation Document;

(C) Attempts to prevent public disclosure of matters in contravention of the terms and conditions of the Solicitation Document or in contravention of applicable law;

(D) Offers Goods or Services that fail to meet the Specifications of the Solicitation Document;

(E) Is late;

(F) Is not in substantial compliance with the Solicitation Document; or

(G) Is not in substantial compliance with all prescribed public Procurement procedures.

(A) Has not been prequalified under ORS 279B.120 and the PCO required mandatory prequalification;

(B) Has been Debarred as set forth in ORS 279B.130 or has been disqualified pursant to Section 101-0210(4) (DBE Disqualification);

(D) Has not submitted properly executed Bid or Proposal security as required by the Solicitation Document;

(E) Has failed to provide the certification of non-discrimination required under ORS 279A.110(4); or

(F) Is non-Responsible. Offerors are required to demonstrate their ability to perform satisfactorily under a Contract. Before the Contract is Awarded, the PCO must have information that indicates that the Offeror meets the applicable standards of Responsibility. To be a Responsible Offeror, the PCO must determine pursuant to ORS 279B.110 that the Offeror:

(i) Has available the appropriate financial, material, equipment, facility and personnel resources and expertise, or ability to obtain the resources and expertise, necessary to indicate the capability of the Offeror to meet all contractual responsibilities; and

(ii) Has a satisfactory record of contract performance. The PCO should carefully scrutinize an Offeror's record of contract performance if the Offeror is or recently has been materially deficient in contract performance. In reviewing the Offeror's performance, the PCO should determine whether the Offeror's deficient performance was expressly excused under the terms of the contract, or whether the Offeror took appropriate corrective action. The PCO may review the Offeror's performance on both private and public contracts in determining the Offeror's record of contract performance. The PCO shall make its basis for determining an Offeror non-Responsible under this subparagraph part of the Procurement file pursuant to ORS 279B.110(2)(b);

(iii) Has a satisfactory record of integrity. An Offeror may lack integrity if the PCO determines the Offeror demonstrates a lack of business ethics such as violation of state environmental laws or false certifications made to a Contracting Agency, as defined under ORS 279A.010(1)(b). A PCO may find an Offeror non-Responsible based on the lack of integrity of any Person having influence or control over the Offeror (such as a key employee of the Offeror that has the authority to significantly influence the Offeror's performance of the Contract or a parent company, predecessor or successor Person). The standards for Debarment under ORS 279B.130 may be used to determine an Offeror's integrity. The PCO shall make its basis for determining that an Offeror is non-Responsible under this subparagraph part of the Procurement file pursuant to ORS 279B.110(2)(c);

(iv) Is qualified legally to contract with the City; and

(v) Has supplied all necessary information in connection with the inquiry concerning Responsibility. If the Offeror fails to promptly supply information requested by the PCO concerning Responsibility, the PCO shall base the determination of Responsibility upon any available information, or may find the Offeror non-Responsible.

(2) Form of Business Entity. For purposes of this rule, the PCO may investigate any Person submitting an Offer. The investigation may include that Person's officers, directors, owners, affiliates, or any other Person acquiring ownership of the Person to determine application of this rule or to apply the Debarment provisions of ORS 279B.130.

102-0650 Rejection of All Offers

(1) Rejection. The PCO may reject all Offers as set forth in ORS 279B.100. The PCO shall notify all Offerors of the rejection of all Offers, along with the reasons for rejection of all Offers.

(2) Criteria. The PCO may reject all Offers based upon the following criteria:

(a) The content of or an error in the Solicitation Document, or the Procurement process unnecessarily restricted competition for the Contract;

(b) The price, quality or performance presented by the Offerors are too costly or of insufficient quality to justify acceptance of any Offer;

(c) Misconduct, error, or ambiguous or misleading provisions in the Solicitation Document threaten the fairness and integrity of the competitive process;

(d) Causes other than legitimate market forces threaten the integrity of the competitive process. These causes may include, without limitation, those that tend to limit competition, such as restrictions on competition, collusion, corruption, unlawful anti-competitive conduct, and inadvertent or intentional errors in the Solicitation Document;

(e) The PCO cancels the Procurement or solicitation in accordance with Section 102-0660; or

(f) Any other circumstance indicating that Awarding the Contract would not be in the public interest.

102-0660 Cancellation of Procurement or Solicitation

(1) Cancellation in the Public Interest. The PCO may cancel a Procurement or solicitation as set forth in ORS 279B.100.

(2) Notice of Cancellation Before Opening. If the PCO cancels a Procurement or solicitation prior to Opening, the PCO shall provide Written notice of cancellation in the same manner that the PCO initially provided notice of the solicitation. Such notice of cancellation shall:

(a) Identify the Solicitation Document;

(b) Briefly explain the reason for cancellation; and

(3) Notice of Cancellation After Opening. If the PCO cancels a Procurement or solicitation after Opening, the PCO shall provide Written notice of cancellation to all Offerors who submitted Offers.

102-0670 Disposition of Offers if Procurement or Solicitation Canceled

(1) Prior to Opening. If the PCO cancels a Procurement or solicitation prior to Opening, the PCO shall return all Offers it received to Offerors unopened, provided the Offeror submitted its Offer in a hard copy format with a clearly visible return address. If there is no return address on the envelope, the PCO shall open the Offer to determine the source and then return it to the Offeror. For Electronic Offers, the PCO shall delete the Offers from the PCO’s Electronic Procurement System or information technology system to the extent feasible; if not feasible, such offers shall be deemed to retain their confidentiality.

(2) After Opening. If the PCO cancels a Procurement or solicitation after Opening, the PCO:

(a) May return Proposals in accordance with ORS 279B.060(5)(c); and.

(b) Shall keep Bids in the Procurement file.

(3) Rejection of All Offers. If the PCO rejects all Offers, the PCO shall keep all Proposals and Bids in the Procurement file.

LEGAL REMEDIES

102-0700 Protests and Judicial Review of Special Procurements

(1) Purpose. An Affected Person may protest the approval of or request for approval of a Special Procurement. Pursuant to ORS 279B.400(1), before seeking judicial review of the approval or request for approval of a Special Procurement, an Affected Person must file a Written protest with the City Manager of the City or Executive Director for LORA, as appropriate, and exhaust all administrative remedies.

(2) Delivery.

(a) Protest of Request for Approval of a Special Procurement. An Affected Person must deliver a Written protest to the City Manager of the City or Executive Director for LORA, as appropriate within fourteen (14) Days after the first date of public notice of a proposed Special Procurement, unless a different protest period is provided in the public notice of the proposed Special Procurement.

(b) Protest of Approval of a Special Procurement. Notwithstanding the requirements for filing a writ of review under ORS chapter 34, pursuant to ORS 279B.400(4)(a), an Affected Person must deliver a Written protest to the City Manager of the City or Executive Director for LORA, as appropriate within fourteen (14) Days after the first date of public notice of the approval of a Special Procurement by the Board, unless a different protest period is provided in the public notice of the approval of a Special Procurement.

(3) Content of Protest. The Written protest must include:

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

(b) A description of the resulting harm to the Affected Person; and

(4) Board Response.

(a) Protest of Request for Approval of a Special Procurement: The Board shall not consider an Affected Person’s protest of the PCO’s request for approval of a Special Procurement submitted after the timeline established for submitting such protest under this rule or such different time period as may be provided in the public notice of the request for approval of a proposed Special Procurement. The Board shall issue a Written disposition of the protest in a timely manner. If the Board upholds the protest, in whole or in part, it may in its sole discretion implement the sustained protest in the approval of the Special Procurement, or deny the request for approval of the Special Procurement.

(b) Protest of Approval of a Special Procurement: The Board shall not consider an Affected Person’s protest of the approval of a Special Procurement submitted after the timeline established for submitting such protest under this rule or such different time period as may be provided in the public notice of the approval of a Special Procurement. The Board shall issue a Written disposition of the protest in a timely manner. If the Board upholds the protest, in whole or in part, it may in its sole discretion implement the sustained protest in the approval of the Special Procurement, or revoke the approval of the Special Procurement.

(5) Judicial Review. An Affected Person may not seek judicial review of the Board’s denial of a protest of a request for approval of a Special Procurement. An Affected Person may seek judicial review of the Board’s decision relating to a protest of the approval of a Special Procurement in accordance with ORS 279B.400.

102-0710 Protests and Judicial Review of Sole-Source Procurements

(1) Purpose. For sole-source Procurements requiring public notice under Section 102-0275, an Affected Person may protest the determination of the PCO that the Goods or Services or class of Goods or Services are available from only one source. Pursuant to ORS 279B.420(3)(f), before seeking judicial review, an Affected Person must file a Written protest with the City Manager of the City or Executive Director for LORA, as appropriate, and exhaust all administrative remedies.

(2) Delivery. Unless otherwise specified in the public notice of the sole-source Procurement, an Affected Person must deliver a Written protest to the Written protest with the City Manager of the City or Executive Director for LORA, as appropriate within seven (7) Days after the first date of public notice of the sole-source Procurement, unless a different protest period is provided in the public notice of a sole-source Procurement.

(3) Content of Protest. The Written protest must include:

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

(b) A description of the resulting harm to the Affected Person; and

(4) Response. The City Manager of the City or Executive Director for LORA, as appropriate shall not consider an Affected Person’s sole-source Procurement protest submitted after the timeline established for submitting such protest under this rule, or such different time period as may be provided in the public notice of the sole-source Procurement. The City Manager of the City or Executive Director for LORA, as appropriate shall issue a Written disposition of the protest in a timely manner. If the City Manager or Executive Director upholds the protest, in whole or in part, the Awarding Authority shall not enter into a sole-source Contract.

(5) Judicial Review. Judicial review of the City Manager’s or Executive Director’s disposition of a sole-source Procurement protest shall be in accordance with ORS 279B.420.

102-0720 Protests and Judicial Review of Multi-Tiered and Multistep Solicitations

(1) Purpose. An Affected Offeror may protest exclusion from the Competitive Range or from subsequent tiers or steps of a solicitation in accordance with the applicable Solicitation Document. When such a protest is permitted by the Solicitation Document, then pursuant to ORS 279B.420(3)(f), before seeking judicial review, an Affected Offeror must file a Written protest with the City Manager of the City or Executive Director for LORA, as appropriate and exhaust all administrative remedies.

(2) Basis for Protest. An Affected Offeror may protest its exclusion from a tier or step of competition only if the Offeror is Responsible and submitted a Responsive Offer and but for the PCO’s mistake in evaluating the Offeror’s or other Offerors’ Offers, the protesting Offeror would have been eligible to participate in the next tier or step of competition. (For example, the protesting Offeror must claim it is eligible for inclusion in the Competitive Range if all ineligible higher-scoring Offerors are removed from consideration, and that those ineligible Offerors are ineligible for inclusion in the Competitive Range because: their Proposals were not Responsive, or the PCO committed a substantial violation of a provision in the Solicitation Document or of an applicable Procurement statute or administrative rule, and the protesting Offeror was unfairly evaluated and would have, but for such substantial violation, been included in the Competitive Range.)

(3) Delivery. Unless otherwise specified in the Solicitation Document, an Affected Offeror must deliver a Written protest to the City Manager of the City or Executive Director for LORA, as appropriate within seven (7) Days after issuance of the notice of the Competitive Range or notice of subsequent tiers or steps.

(4) Content of Protest. The Affected Offeror's protest shall be in Writing and must specify the grounds upon which the protest is based.

(5) Response. The City Manager of the City or Executive Director for LORA, as appropriate shall not consider an Affected Offeror’s multi-tiered or multistep solicitation protest submitted after the timeline established for submitting such protest under this rule, or such different time period as may be provided in the Solicitation Document. The City Manager or Executive Director shall issue a Written disposition of the protest in a timely manner. If the City Manager or Executive Director upholds the protest, in whole or in part, the PCO may in its sole discretion either issue an Addendum under Section 102-0430 reflecting its disposition or cancel the Procurement or solicitation under Section 102-0660.

(6) Judicial Review. Judicial review of the City Manager’s or Executive Director’s decision relating to a multi-tiered or multistep solicitation protest shall be in accordance with ORS 279B.420.

102-0730 Protests and Judicial Review of Solicitations

(1) Purpose.

(a) A prospective Offeror may protest the Procurement process or the Solicitation Document for a Contract solicited under ORS 279B.055, 279B.060 and 279B.085 as set forth in ORS 279B.405(2)(a). Pursuant to ORS 279B.405(3), before seeking judicial review, a prospective Offeror must file a Written protest with the City and exhaust all administrative remedies.

(b) Contract-Specific Special Procurements. Notwithstanding section 1(a) of this rule, a Person may not protest, challenge, or review a Contract-Specific Special Procurement except upon the occurrence of the conditions set forth ORS 279B.405(2)(b).

(2) Delivery. Unless otherwise specified in the Solicitation Document, a prospective Offeror must deliver a Written protest to the PCO not less than ten (10) Days prior to Closing.

(3) Content of Protest. In addition to the information required by ORS 279B.405(4), a prospective Offeror's Written protest shall include a statement of the desired changes to the Procurement process or the Solicitation Document that the prospective Offeror believes will remedy the conditions upon which the prospective Offeror based its protest.

(4) Response. The PCO shall not consider a Prospective Offeror's solicitation protest submitted after the timeline established for submitting such protest under this rule, or such different time period as may be provided in the Solicitation Document. The PCO shall consider the protest if it is timely filed and meets the conditions set forth in ORS 279B.405(4). The PCO shall issue a Written disposition of the protest in accordance with the timeline set forth in ORS 279B.405(6). If the PCO upholds the protest, in whole or in part, the PCO may in its sole discretion either issue an Addendum reflecting its disposition under Section 102-0430 or cancel the Procurement or solicitation under Section 102-0660.

(5) Extension of Closing. If the PCO receives a protest from a prospective Offeror in accordance with this rule, the PCO may extend Closing if the PCO determines an extension is necessary to consider and respond to the protest.

(6) Clarification. Prior to the deadline for submitting a protest, a prospective Offeror may request that the PCO clarify any provision of the Solicitation Document. The PCO's clarification to an Offeror, whether orally or in Writing, does not change the Solicitation Document and is not binding on the City unless the PCO amends the Solicitation Document by Addendum.

(7) Judicial Review. Judicial review of the PCO’s decision relating to a solicitation protest shall be in accordance with ORS 279B.405.

102-0740 Protests and Judicial Review of Contract Award

(1) Purpose. An Offeror may protest the Award of a Contract, or the intent to Award of a Contract, whichever occurs first, if the conditions set forth in ORS 279B.410(1) are satisfied. An Offeror must file a Written protest as required by these Rules and exhaust all administrative remedies before seeking judicial review of the Contract Award decision.

(2) Delivery. Unless otherwise specified in the Solicitation Document, an Offeror must deliver a Written protest to the City Manager of the City or Executive Director for LORA, as appropriate within seven (7) Days after issuance of the notice of intent to Award the Contract.

(3) Content of Protest. An Offeror’s Written protest shall specify the grounds for the protest to be considered by the PCO pursuant to ORS 279B.410(2).

(4) Response. The City Manager of the City or Executive Director for LORA, as appropriate shall not consider an Offeror’s Contract Award protest submitted after the timeline established for submitting such protest under this rule, or such different time period as may be provided in the Solicitation Document. The City Manager or Executive Director shall issue a Written disposition of the protest in a timely manner as set forth in ORS 279B.410(4). If the City Manager or Executive Director upholds the protest, in whole or in part, the Awarding Authority may in the Awarding Authority’s sole discretion either Award the Contract to the successful protestor or direct cancellation of the Procurement or solicitation.

(5) Judicial Review. Judicial review of the City Manager or Executive Director’s decision relating to a Contract Award protest shall be in accordance with ORS 279B.415.

102-0745 Protests and Judicial Review of Qualified Products List Decisions

(1) Purpose. A prospective Offeror may protest the PCO’s decision to exclude the prospective Offeror’s Goods from the PCO’s qualified products list under ORS 279B.115. A prospective Offeror must file a Written protest and exhaust all administrative remedies before seeking judicial review of the PCO’s qualified products list decision.

(2) Delivery. Unless otherwise stated in the PCO’s notice to prospective Offerors of the opportunity to submit Goods for inclusion on the qualified products list, a prospective Offeror must deliver a Written protest to the PCO within seven (7) Days after issuance of the PCO’s decision to exclude the prospective Offeror’s Goods from the qualified products list.

(3) Content of Protest. The prospective Offeror’s protest shall be in Writing and must specify the grounds upon which the protest is based.

(4) Response. The PCO shall not consider a prospective Offeror’s qualified products list protest submitted after the timeline established for submitting such protest under this rule, or such different time period as may be provided in the PCO’s notice to prospective Offerors of the opportunity to submit Goods for inclusion on the qualified products list. The PCO shall issue a Written disposition of the protest in a timely manner. If the PCO upholds the protest, it shall include the successful protestor’s Goods on the qualified products list.

(5) Judicial Review. Judicial review of the PCO’s decision relating to a qualified products list protest shall be in accordance with ORS 279B.425.

102-0750 Judicial Review of Other Violations

Any violation of ORS chapter 279A or 279B for which no judicial remedy is otherwise provided in the Public Contracting Code is subject to judicial review as set forth in ORS 279B.420.

102-0760 Review of Prequalification and Debarment Decisions

Review of the PCO’s prequalification and Debarment decisions shall be as set forth in ORS 279B.425.

102-0800 Contract Amendments

(1) Additional Goods or Services. A Contract may be amended without additional competition to add additional Goods or Services within the Scope of the Solicitation Document, or if no Solicitation Document, the Contract, or in the instance of a Special Procurement the approval of Special Procurement subject to the following conditions:

(a) The original Contract was Awarded pursuant to ORS 279B.055, 279B.060, 279B.065, 279B.070, 279B.075, 279B.085, or 279A.200 through 279A.225; and

(b) One of the following two conditions are satisfied:

(A) The additional Goods or Services are required by reason of existing or new laws, rules, regulations or ordinances of federal, state or local agencies, that affect performance of the original Contract; or

(B) The prices for the Goods or Services are modified only as follows:

(i) When prices for the Goods or Services are based on unit prices, unit prices that establish the cost basis for the additional Goods or Services were provided in the Offer or original Contract and those prices do not increase except as permitted by an escalation clause in the Contract; or,

(ii) When prices for the Goods or Services are not based on unit prices, options that establish the cost basis for the additional Goods or Services were provided in the Solicitation Document, Offer, or original Contract.

(2) Renegotiated Contract. A PCO may renegotiate the terms and conditions, including the Contract Price, of a Contract without additional competition and the Contract may be amended if it is Advantageous to the City subject to the following conditions:

(a) The amended Contract is within the Scope of the Solicitation Document, or if no Solicitation Document, the Contract, or in the instance of a Special Procurement the approval of Special Procurement;

(b) A PCO must determine that, with all things considered, the renegotiated Contract is at least as favorable to the City as the original Contract; and

(c) The renegotiated Contract will not have a total term greater than allowed in the original Solicitation Document, Contract or approval of a Special Procurement after combining the initial and extended terms. For example, a one-year Contract, 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. Also, if multiple Contracts with a single Contractor are restated as a single Contract, the term of the single Contract may not have a total term greater than the longest term of any of the prior Contracts.

(d) If a Contractor offers a lower price in exchange for a change in term or condition that was expressly rejected in the original solicitation, the amended Contract may be structured with this changed term as an optional, but not as a mandatory Contract term.

(e) If the Contract is the result of a Cooperative Procurement, the amended Contract may not materially change the terms, conditions, and prices of the Original Contract.

(3) Small or Intermediate Contract. A Contract Awarded as small or intermediate Procurement may be amended pursuant to sections 1 or 2 of this rule, provided also the total increase in Contract price does not exceed the amount set forth in Section 102-0265 for small Procurements and Section 102-0270 for intermediate Procurements.

(4) Emergency Contract. A Contract Awarded as an emergency Procurement may be amended if the emergency justification for entering into the Contract still exists, and the amendment is necessary to address the continuing emergency.

(5) Price Agreements. The Award Authority may amend or terminate a Price Agreement as follows:

(a) As permitted by the Price Agreement;

(b) As permitted by this rule;

(d) As permitted by applicable law.