LAKE OSEWEGO PUBLIC
CONTRACT RULES 2005
SECTION 103
GENERAL PROVISIONS RELATED TO PUBLIC CONTRACTS FOR CONSTRUCTION SERVICES
Competitive
Bidding Requirement
Contracts
for Construction Other Than Public Improvements
Emergency
Contracts; Bidding and Bonding Exemptions
Intermediate
Procurements; Competitive Quotes and Amendments
Solicitation
Documents; Required Provisions; Assignment or Transfer
Notice
and Advertising Requirements; Posting.
Eligibility
to Bid or Propose; Registration or License
Addenda
to Solicitation Documents
Request
for Clarification or Change; Solicitation Protests
Cancellation
of Solicitation Document
Pre-Closing
Modification or Withdrawal of Offers
Receipt,
Opening and Recording of Offers; Confidentiality of Offers
Late
Bids, Late Withdrawals and Late Modifications
First-Tier
Subcontractors; Disclosure and Substitution
Bid
or Proposal Evaluation Criteria
Offer Evaluation and Award; Determination of
Responsibility
Documentation of Award; Availability of Award Decisions
Time
for PCO Acceptance; Extension
Negotiation
With Bidders Prohibited
Negotiation
When Bids Exceed Cost Estimate
Protest
of Contractor Selection, Contract Award
Performance
and Payment Security; Waiver
103-0461 Waiver of Requirement for Bid Security,
Performance and Payment Bonds
ALTERNATIVE
CONTRACTING METHODS
Definitions
for Alternative Contracting Methods
Competitive
Proposals; Procedure
Energy
Savings Performance Contracts (ESPC)
Construction
Manager/General Contractor (CM/GC)
Waiver
of Delay Damages Against Public Policy.
Specifications;
Brand Name Products
Records
Maintenance; Right to Audit Records
Payment
for Unpaid Labor or Supplies
Contract
Suspension; Termination Procedures
Changes
to the Work and Contract Amendments
(1) These division 49Section 103 rules apply to
Public Improvement Contracts as well as Public Contracts for ordinary
construction services that are not Public Improvements. Model Rules that
apply specifically to Public Improvement Contracts are so identified. Notwithstanding
the foregoing, pursuant to ORS 279C.320(1), this Section 103 does not apply to procurement of Contracts for
(a). minor alteration, ordinary
repair or maintenance of
Public improvements; or
(b) Any
other construction contract that is not defined as public improvement under ORS
279A.010;
except for emergency contracts that are regulated under ORS
279C.335.
(2) These division 49Section 103 rules address matters covered in
ORS Chapter 279C (with the exception of Architectural, Engineering,
Land Surveying and Related Services, all of which are addressed in division 48
of the Model Rules).
(3) These division 49Section 103 Model rules become
effective on March 1, 2005 and apply to the Contracts described in section (1)
above first advertised, but if not advertised then entered into, on or after
March 1, 2005.
Stat. Auth.: ORS 279A.065
Stats. Implemented: ORS 279A.065
In addition to the general Code policies set forth in ORS
279A.015, the ORS 279C.300 policy on competition and the ORS 279C.305 policy on
least-cost for Public Improvements apply to these division 49Section 103 rules.
(1) “Conduct Disqualification” means a
Disqualification pursuant to ORS 279C.440.
(2) “Disqualification” means the
preclusion of a Person from contracting with a Contracting AgencyThe PCO for a period of
time in accordance with OAR 137-049Section 103-0370. Disqualification may be a
Conduct Disqualification or DBE Disqualification.
(3) “Foreign Contractor” means a Contractor that is
not domiciled in or registered to do business in the State of Oregon. See OAR 137-049Section 103-0480.
(4) “Notice” means any of the alternative forms of public announcement of Procurements, as described in OAR 137-049-0210.
A Contracting AgencyThe PCO shall solicit Bids
for Public Improvement Contracts by Invitation to Bid ("ITB"), except
as otherwise exempted, allowed
or required pursuant to ORS 279C.335 on Competitive Bidding exceptions and
exemptions, 279A.030 on federal law overrides or ORS 279A.100 on
affirmative action. Also see OAR 137-049Sections 103-0600 to 137-049103-0690 regarding the use
of Alternative Contracting Methods and the exemption process.
Stat. Auth.: ORS 279A.065
Stats. Implemented: ORS 279C.335
(1) Procurement Under ORS Chapter 279B. Pursuant to ORS 279C.320, Public Contracts for construction
services that are not Public Improvement Contracts, other than Emergency
Contracts regulated under ORS 279C.335(5) and OAR 137-049Section 103-0150, may be procured and amended as general
trade services under the provisions of ORS Chapter 279B and Section 101 and 102 rules, rather than
under the provisions of ORS Chapter 279C and these division 49Section 103 rules.
(2) Application of ORS Chapter 279C. Non-procurement
provisions of ORS Chapter 279C and these division 49Section 103 rules may
still be applicable to the resulting Contracts. See, for example, particular statutes on Disqualification (ORS
279C.440, 445 and 450); Legal Actions (ORS 279C.460 and 465); Required Contract
Conditions (ORS 279C.505, 515, 520 and 530); Hours of Labor (ORS 279C.540 and
545); Retainage (ORS 279C.550, 560 and 565); Subcontracts (ORS 279C.580);
Action on Payment Bonds (ORS 279C.600, 605, 610, 615, 620 and 625); Termination
(ORS 279C.650, 650, 660 and 670); and all of the Prevailing Wage Rates requirements
(ORS 279C.800 through 870) for Public Works Contracts.
(1) Emergency Declaration. Pursuant
to ORS 279C.335(5) and this rule, ta Contracting Agencyhe PCO may declare that
Emergency circumstances exist that require prompt execution of a Public
Contract for Emergency construction or repair Work. The declaration shall be
made at an administrative level consistent with the Contracting AgencyCity’s internal policies,
by a written declaration that describes the circumstances creating the
Emergency and the anticipated harm from failure to enter into an Emergency
Contract. The Emergency declaration shall exempt the Public Contract from the
competitive bidding requirements of ORS 279C.335(1) and shall thereafter be
kept on file as a public record.
(2) Competition for Contracts. The Contracting AgencyPCO shall ensure
competition for an Emergency Contract as reasonable and appropriate under the
Emergency circumstances, and may include written requests for Offers, oral
requests for Offers or direct appointment without competition in cases of
extreme necessity, in whatever Solicitation time periods the Contracting
AgencyPCO
considers reasonable in responding to the Emergency.
(3) Contract Award. Any Contract Awarded under this rule must be Awarded within 60 Days after declaration of the Emergency, unless an extension is granted under ORS 279C.335(5).
(4) Contract Scope. Although no dollar limitation applies to Emergency Contracts, the scope of the Contract must be limited to Work that is necessary and appropriate to remedy the conditions creating the Emergency as described in the declaration.
(5) Contract Modification. Emergency Contracts may be modified by change order or amendment to address the conditions described in the original declaration or an amended declaration that further describes additional work necessary and appropriate for related Emergency circumstances.
(6) Excusing Bonds. Pursuant to ORS 279C.380(4) and this
rule, the Emergency declaration may also state that the Contracting AgencyCity waives the
requirement of furnishing a performance bond and payment bond for the Emergency
Contract. After making such an Emergency declaration the bonding requirements
are excused for the procurement.
(1) General. Public Improvement Contracts estimated by the Contracting
AgencyPCO
not to exceed $100,000, or not to exceed $50,000 in the case of Contracts for
highways, bridges and other transportation projects, may be Awarded in
accordance with intermediate level procurement procedures for competitive
quotes established by this rule.
(2) Selection Criteria. The selection criteria may be limited to price or some combination of price, experience, specific expertise, availability, project understanding, contractor capacity, responsibility and similar factors.
(3) Request for Quotes. Contracting AgenciesThe PCO shall utilize
written requests for quotes whenever reasonably practicable. Written request for quotes shall include the selection
criteria to be utilized in selecting a Contractor and, if the criteria are not
of equal value, their relative value or ranking.
When requesting quotations orally, prior to requesting the
price quote the Contracting AgencyPCO shall state any
additional selection criteria and, if the criteria are not of equal value,
their relative value. For Public Works Contracts, oral
quotations may be utilized only in the event that Written copies of the
prevailing wage rates are not required by the Bureau of Labor and Industries.
(4) Number of Quotes; Record Required. Contracting AgenciesThe PCO shall seek at
least three competitive quotes, and keep a written record of the sources and
amounts of the quotes received. If three quotes are not reasonably available
the Contracting
AgencyPCO
shall make a written record of the effort made to obtain those quotes.
(5) Award. If Awarded, the Contracting AgencyAwarding Authority shall Award the Contract to the
prospective contractor whose quote will best serve the interests of the Contracting
AgencyCity,
taking into account the announced selection criteria. If Award is not made to
the Offeror offering the lowest price, the Contracting AgencyPCO shall make a written
record of the basis for Award.
(6) Price Increases. Intermediate
level Public Improvement Contracts obtained by competitive quotes may be
increased above the original amount of Award by Contracting AgencyPCO issuance of a Change
to the Work or Amendment, and approval of the Change Order pursuant to OAR 137-049Section 103-0910, within
the following limitations:
(a) Up to an aggregate Contract
Price increase of 25% over the original Contract amount when ta Contracting Agencyhe PCO’s contracting
officer determines that a price increase is warranted for
additional reasonably related Work, and;
(b) Up to an aggregate Contract Price
increase of 50% over the original Contract amount, when ta Contracting Agencyhe PCO’s contracting officer d determines that a price
increase is warranted for additional reasonably related Work and:
(i) ta Contracting Agencyhe City Manager of the City or Executive Director for
LORA, as appropriate, if the PCO was the Awarding Authority, or
(ii) the City Council, if the City
Council was the Awarding Authority, official, board or governing
body with administrative or review authority over the contracting officer approves
the increase.
(7) Amendments. Amendments of intermediate level Public
Improvement Contracts that exceed the thresholds stated in section (1) are
specifically authorized by the cCode, when made in accordance with this rule.
Accordingly, such amendments are not considered new
procurements and do not require an exemption from competitive bidding.
Stat. Auth.: ORS 279A.065
Stats. Implemented: Temporary provisions relating to competitive quotes were
not codified but compiled as Legislative Counsel notes following ORS
279C.410.
(1) Solicitation Document. Pursuant to ORS 279C.365 and this rule, the Solicitation Document shall include the following:
(a) General Information.
(A) Identification of the Public Improvement project, including the character of the Work, and applicable plans, Specifications and other Contract documents;
(B) 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) That statements made by the Contracting
AgencyPCO or PCO's representatives, including City consultants,
e.g. architect, engineer, at
the conference are not binding upon the Contracting AgencyCity unless confirmed by
Written Addendum.
(C) The deadline for submitting mandatory prequalification applications and the class or classes of Work for which Offerors must be prequalified if prequalification is a requirement;
(D) The name and title of the
authorized Contracting Agency Person designated
for receipt of Offers and contact Person (if different);
(E) Instructions and information
concerning the form and submission of Offers, including the address of the
office to which Offers must be delivered, any Bid or Proposal security
requirements, and any other required information or special information, e.g.,
whether Offers may be submitted by facsimile or electronic means (See OAR 137-049Section 103-0300 regarding
facsimile Bids or Proposals and OAR 137-049Section 103-0310 regarding electronic
Procurement);
(F) The time, date and place of Opening;
(G) The time and date of Closing
after which ta Contracting
Agencyhe PCO
will not accept Offers, which time shall be not less than five Days after the
date of the last publication of the advertisement, and may in the discretion of the PCO, if
permitted by ORS 279C.365(1)(d), permit the submission and receipt of bids by
electronic means. Although a minimum of five Days is prescribed, Contracting
Agencies the
PCO is are encouraged to use at least a 14
Day Solicitation period when feasible. If the Contracting AgencyPCO is issuing an ITB that
may result in a Public Improvement Contract with a value in excess of $100,000,
the Contracting
AgencyPCO
shall designate a time of Closing consistent with the first-tier subcontractor
disclosure requirements of ORS 279C.370(1)(b) and OAR 137-049Section 103-0360. For
timing issues relating to Addenda, see OAR 137-049Section 103-0250;
(H) The office where the Specifications for the Work may be reviewed;
(I) A statement that each Bidder to an ITB must identify whether the Bidder is a "resident Bidder," as defined in ORS 279A.120;
(J) If the Contract resulting from
a Solicitation will be a Contract for a Public Work subject to ORS 279C.800 to
279C.870 or the Davis-Bacon Act (40 U.S.C. 276a), a statement that no Offer
will be received or considered by the Contracting AgencyCity unless the Offer contains a statement by the Offeror
as a part of its Offer that "Contractor agrees to be bound by and will
comply with the provisions of ORS 279C.840 or 40 U.S.C. 276a.";
(K) A statement that the Contracting
AgencyCity
will not receive or consider an Offer for a Public Improvement Contract unless
the Offeror is registered with the Construction Contractors Board, or is
licensed by the State Landscape Contractors Board, as specified in OAR 137-049Section 103-0230;
(L) Whether a Contractor or a subcontractor under the Contract must be licensed under ORS 468A.720 regarding asbestos abatement projects;
(M) Contractor's certification of
nondiscrimination in obtaining required subcontractors in accordance with ORS
279A.110(4). (See OAR 137-049Section 103-0440(3));
(N) How the Contracting AgencyPCO will notify Offerors
of Addenda and how the Contracting AgencyPCO will make Addenda
available (See OAR 137-049Section 103-0250); and
(O) When applicable, instructions
and forms regarding First-Tier Subcontractor Disclosure requirements, as set
forth in OAR
137-049Section
103-0360.
(b) Evaluation Process:
(A) A statement that the Contracting
AgencyPCO
may reject any Offer not in compliance with all prescribed Public Contracting
procedures and requirements, and may reject for good cause all Offers upon the Contracting
AgencyPCO's
finding that it is in the public interest to do so;
(B) The anticipated Solicitation schedule, deadlines, protest process and evaluation process, if any;
(C) Evaluation criteria, including
the relative value applicable to each criterion, that the Contracting AgencyPCO will use to determine
the Responsible Bidder with the lowest Responsive Bid (where Award is based
solely on price) or the Responsible Proposer or Proposers with the best
Responsive Proposal or Proposals (where use of Competitive Proposals is
authorized under ORS 279C.335 and OAR 137-049Section 103-0620), along with the process the
Contracting
AgencyPCO
will use to determine acceptability of the Work;
(i) If the Solicitation Document
is an Invitation to Bid, the Contracting AgencyPCO shall set forth any
special price evaluation factors in the Solicitation Document. Examples of such
factors include, but are not limited to, conversion costs, transportation cost,
volume weighing, trade-in allowances, cash discounts, depreciation allowances,
cartage penalties, ownership or life-cycle cost formulas. Price evaluation
factors need not be precise predictors of actual future costs; but, to the
extent possible, such evaluation factors shall be objective, reasonable
estimates based upon information the Contracting AgencyPCO has available
concerning future use;
(ii) If the Solicitation Document
is a Request for Proposals, the Contracting AgencyPCO shall refer to the
additional requirements of OAR 137-049Section 103-0650;
and
(dc) Contract Provisions. TThe Contracting
AgencyPCO
shall include all Contract terms and conditions,
including warranties, insurance and bonding requirements, that the Contracting
AgencyPCO
considers appropriate for the Public Improvement project. The Contracting
AgencyPCO
must also include all applicable Contract provisions required by Oregon law as
follows:
(A) Prompt payment to all Persons supplying labor or material; contributions to Industrial Accident Fund; liens and withholding taxes (ORS 279.505(1));
(B) Demonstrate that an employee drug testing program is in place (ORS 279C.505(2));
(C) If the Contract calls for demolition Work described in ORS 279C.510(1), a condition requiring the Contractor to salvage or recycle construction and demolition debris, if feasible and cost-effective;
(D) If the Contract calls for lawn or landscape maintenance, a condition requiring the Contractor to compost or mulch yard waste material at an approved site, if feasible and cost effective (ORS 279C.510(2);
(E) Payment of claims by public officers (ORS 279C.515(1));
(F) Contractor and first-tier subcontractor liability for late payment on Public Improvement Contracts pursuant to ORS 279C.515(2), including the rate of interest;
(G) Person's right to file a complaint with the Construction Contractors Board for all Contracts related to a Public Improvement Contract (ORS 279C.515(3));
(H) Hours of labor in compliance with ORS 279C.520;
(I) Environmental and natural resources regulations (279C.525);
(J) Payment for medical care and attention to employees (ORS 279C.530(1));
(K) A Contract provision substantially as follows: "All employers, including Contractor, that employ subject Workers who Work under this Contract in the State of Oregon shall comply with ORS 656.017 and provide the required Workers' Compensation coverage, unless such employers are exempt under ORS 656.126. Contractor shall ensure that each of its subcontractors complies with these requirements." (ORS 279C.530(2));
(L) Maximum hours, holidays and overtime (ORS 279C.540);
(M) Time limitation on claims for overtime (ORS 279C.545);
(N) Prevailing wage rates (ORS 279C.800 to 279C.870);
(O) Fee paid to BOLI (ORS 279C.830);
(P) Retainage (ORS 279C.550 to 279C.570);
(Q) Prompt payment policy, progress payments, rate of interest (ORS 279C.570);
(R) Contractor's relations with subcontractors (ORS 279C.580);
(S) Notice of claim (ORS 279C.605);
(T) Contractor's certification of compliance with the Oregon tax laws in accordance with ORS 305.385; and
(U) Contractor's certification that all subcontractors performing Work described in ORS 701.005(2) (i.e., construction Work) will be registered with the Construction Contractors Board or licensed by the State Landscape Contractors Board in accordance with ORS 701.035 to 701.055 before the subcontractors commence Work under the Contract.
(2) Assignment or Transfer Restricted. Unless otherwise
provided in the Contract, the Contractor shall not assign, sell, dispose of, or
transfer rights, nor delegate duties under the Contract, either in whole or in
part, without the Contracting AgencyPCO's prior Written
consent. Unless otherwise agreed by the Contracting AgencyPCO in Writing, such
consent shall not relieve the Contractor of any obligations under the Contract.
Any assignee or transferee shall be considered the agent of the Contractor and
be bound to abide by all provisions of the Contract. If the Contracting AgencyPCO consents in Writing to
an assignment, sale, disposal or transfer of the Contractor's rights or
delegation of Contractor's duties, the Contractor and its surety, if any, shall
remain liable to the Contracting AgencyPCO for complete
performance of the Contract as if no such assignment, sale, disposal, transfer
or delegation had occurred unless the Contracting AgencyPCO otherwise agrees in
Writing.
(1) Notice and
Distribution Fee. A Contracting AgencyThe PCO shall furnish
“Notice” as set forth below in subsections (a) through (c), to a number of
Persons sufficient for the purpose of fostering and promoting competition. The
Notice shall indicate where, when, how and for how long the Solicitation
Document may be obtained and generally describe the Public Improvement project
or Work. The Notice may contain any other appropriate information. The Contracting
AgencyPCO
may charge a fee or require a deposit for the Solicitation Document. The Contracting
AgencyPCO
may furnish Notice using any method determined to foster and promote
competition, including:
(a) Mailing Notice of the
availability of Solicitation Documents to Persons that have expressed an
interest in the Contracting AgencyCity's Procurements;
(b) Placing Notice on the Contracting
AgencyCity’s
Electronic Procurement System; or
(c) Placing Notice on the Contracting
AgencyCity's
Internet Web site.
(2) Advertising.
Pursuant to ORS 279C.360 and this rule, a Contracting Agencythe PCO shall advertise every Solicitation for
competitive Bids or competitive Proposals for a Public Improvement Contract,
unless the Contract Review Authority for that Contracting
AgencyBoard
has exempted the Solicitation from the advertisement requirement as part of a
competitive Bidding exemption under ORS 279C.335.
(a) Unless the Contracting AgencyPCO publishes by
Electronic Advertisement as permitted under subsection 2(b), the Contracting
AgencyPCO
shall publish the advertisement for Offers at least once in at least one
newspaper of general circulation in the area where the Contract is to be
performed and in as many additional issues and publications as the Contracting
AgencyPCO
may determine to be necessary or desirable to foster and promote competition.
(b) A Contracting AgencyThe PCO may publish by
Electronic Advertisement if the Contract Review Authority for the Contracting
AgencyBoard
determines Electronic Advertisement is likely to be cost effective and, by rule
or order, authorizes Electronic Advertisement.
(c) In addition to the Contracting
Agency's publication required under
subsection 2(a) or 2(b), the Contracting AgencyPCO shall also publish an
advertisement for Offers in at least one trade newspaper of general statewide
circulation if the Contract is for a Public Improvement with an estimated cost
in excess of $125,000.
(d) All advertisements for Offers shall set forth:
(A) The Public Improvement project;
(B) The office where Contract terms, conditions and Specifications may be reviewed;
(C) The date that Persons must file applications for prequalification under ORS 279C.340, if prequalification is a requirement, and the class or classes of Work for which Persons must be prequalified;
(D) The scheduled Closing, which shall not be less than five Days after the date of the last publication of the advertisement;
(E) The name, title and address of
the Contracting
Agency Person authorized to receive Offers;
(F) The scheduled Opening; and
(G) If applicable, that the Contract is for a Public Work subject to ORS 279C.800 to 279C.870 or the Davis-Bacon Act (40 U.S.C. 276(a)).
(3) Minority,
Women Emerging Small Business. State Contracting Agencies
shall provide timely notice of all Solicitations to the Advocate for Minority,
Women and Emerging Small Business if the estimated Contract Price exceeds
$5,000. See ORS 200.035.
(1) Prequalification. Pursuant to ORS 279C.430 and this rule, two types of prequalification are authorized:
(a) Mandatory Prequalification.
A
Contracting AgencyThe City may, by rule, resolution, ordinance or
other law or regulation, or
upon the discretion of the PCO, require mandatory prequalification of
Offerors on forms prescribed by the Contracting AgencyCity Manager or Executive
Director's Contract Review Authority. A Contracting
AgencyThe PCO
must indicate in the Solicitation Document if it will require mandatory
prequalification is
required. Mandatory prequalification is when a Contracting Agencythe PCO conditions a Person's submission of an
Offer upon the Person's prequalification. TThe Contracting AgencyPCO shall not consider an
Offer from a Person that is not prequalified if the Contracting AgencyPCO required
prequalification.
(b) Permissive Prequalification.
A
Contracting AgencyThe PCO may prequalify a Person for the Contracting
AgencyPCO's
Solicitation list on forms prescribed by the Contracting AgencyCity Manager or Executive
Director's Contract Review Authority, but in
permissive prequalification the Contracting AgencyPCO shall not limit
distribution of a Solicitation to that list.
(2) Prequalification
Presumed. If an Offeror is currently prequalified by either the Oregon
Department of Transportation or the Oregon Department of Administrative
Services to perform Contracts, the Offeror shall be rebuttably presumed
qualified to perform similar Work for other Contracting Agenciesthe City.
(3) Standards for
Prequalification. A Person may prequalify by demonstrating to the Contracting
AgencyPCO's
satisfaction:
(a) That the Person's financial, material, equipment, facility and personnel resources and expertise, or ability to obtain such resources and expertise, indicate that the Person is capable of meeting all contractual responsibilities;
(b) The Person's record of performance;
(c) The Person's record of integrity;
(d) The Person is qualified to
contract with the Contracting AgencyCity.
(See, OAR 137-049Section 103-0390(2)
regarding standards of responsibility.)
(4) Notice Of Denial.
If a Person fails to prequalify for a mandatory prequalification, the Contracting
AgencyPCO
shall notify the Person, specify the reasons under section (3) of this rule and
inform the Person of the Person's right to a hearing under ORS 279C.445 and
279C.450.
(1) Construction
Contracts. A Contracting AgencyThe PCO shall not consider
a Person's Offer to do Work as a contractor, as defined in ORS 701.005(2),
unless the Person has a current, valid certificate of registration issued by
the Construction Contractors Board at the time the Offer is made.
(2) Landscape
Contracts. A Contracting AgencyThe PCO shall not consider
a Person's Offer to do Work as a landscape contractor as defined in ORS
671.520(2), unless the Person has a current, valid landscape contractors
license issued pursuant to ORS 671.560 by the State Landscape Contractors Board
at the time the offer is made.
(3) Noncomplying
Entities. The Contracting AgencyPCO shall deem an Offer
received from a Person that fails to comply with this rule nonresponsive and
shall reject the Offer as stated in ORS 279C.365(1)(k), unless contrary to
federal law or subject to different timing requirements set by federal funding
agencies.
(1) Purpose. A Contracting
AgencyThe 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 Contracting
AgencyPCO
may require attendance at the pre-Offer conference as a condition for making an
Offer. Unless otherwise specified in the Solicitation Document, a mandatory
attendance requirement is considered to have been met if, at any time during
the mandatory meeting, a representative of an offering firm is present.
(3) Scheduled time.
If a
Contracting Agencythe 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 7 days prior to the Closing Date.
but sufficiently before the Closing to allow
Offerors to consider information provided at that conference.
(4) Statements Not
Binding. Statements made by a Contracting Agencythe PCO, the PCO's representatives, or City consultants, e.g.,
architect or engineer, at the pre-Offer conference do not change the
Solicitation Document unless the Contracting AgencyPCO confirms such
statements with a Written Addendum to the Solicitation Document.
(5) Contracting
AgencyPCO
Announcement. The Contracting AgencyPCO must set forth notice
of any pre-Offer conference in the Solicitation Document in accordance with OAR 137-049Section 103-0200(1)(a)(B).
(1) Issuance;
Receipt. The Contracting AgencyPCO may change a
Solicitation Document only by Written Addenda. An Offeror shall provide Written
acknowledgement of receipt of all issued Addenda with its Offer, unless the Contracting
AgencyPCO
otherwise specifies in the Addenda or in the Solicitation Document.
(2) Notice and
Distribution. The Contracting AgencyPCO shall notify
prospective Offerors of Addenda consistent with the standards of Notice set
forth in OAR
137-049Section
103-0210(1). The Solicitation Document shall specify how the Contracting
AgencyPCO
will provide notice of Addenda and how the Contracting AgencyPCO will make the Addenda
available (see, OAR 137-049Section 103-0200(1)(a)(N). For example,
"Contracting
AgencyPCO
will not mail notice of Addenda, but will publish notice of any Addenda on Contracting
AgencyPCO's
Web site. Addenda may be downloaded off the Contracting AgencyCity's Web site. Offerors
should frequently check the Contracting AgencyCity’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. The Contracting AgencyPCO shall issue Addenda
within a reasonable time to allow prospective Offerors to consider the Addenda
in preparing their Offers. The Contracting AgencyPCO may extend the Closing
if the Contracting
AgencyPCO
determines prospective Offerors need additional time to review and respond to
Addenda. Except to the extent required by public interest, the Contracting
AgencyPCO
shall not issue Addenda less than 72 48 hours before the Closing unless the
Addendum also extends the Closing.
(4) Request for
Change or Protest. Unless a different deadline is set forth in the
Addendum, an Offeror may submit a Written request for change or protest to the
Addendum, as provided in OAR 137-049Section 103-0260, by the close of the Contracting
AgencyCity'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 OAR 137-049Section 103-0260,
whichever date is later. The Contracting AgencyPCO shall consider only an
Offeror's request for change or protest to the Addendum; the Contracting
AgencyPCO
shall not consider a request for change or protest to matters not added or
modified by the Addendum, unless the Offeror submits the request for change or
protest before the deadline for the Contracting Agency’s receipt of
request for change or protests as set forth in OAR 137-049Section 103-0260(2) and
(3).
(1) Clarification.
Prior to the deadline for submitting a Written request for change or protest,
an Offeror may request that the Contracting AgencyPCO clarify any provision
of the Solicitation Document. The Contracting AgencyPCO's clarification to an
Offeror, whether orally or in Writing, does not change the Solicitation
Document and is not binding on the Contracting AgencyPCO unless the Contracting
AgencyPCO
amends the Solicitation Document by Addendum.
(2) Request for Change.
(a) Delivery. An Offeror may
request in Writing a change to the Specifications or Contract terms and conditions.
Unless otherwise specified in the Solicitation Document, an Offeror must
deliver the Written request for change to the Contracting AgencyPCO not less than 10 Days
prior to Closing;
(b) Content of Request for Change.
(A) An Offeror's Written request for change shall include a statement of the requested change(s) to the Contract terms and conditions, including any Specifications, together with the reason for the requested change.
(B) An Offeror shall mark its request for change as follows:
(i) “Contract Provision Request for Change”; and
(ii) Solicitation Document number (or other identification as specified in the Solicitation Document).
(3) Protest.
(a) Delivery. An Offeror may
protest Specifications or Contract terms and conditions. Unless otherwise specified
in the Solicitation Document, an Offeror must deliver a Written protest on
those matters to the Contracting AgencyCity Manager or Executive
Director, as appropriate, not less than 10 Days prior to Closing;
(b) Content of Protest.
(A) An Offeror's Written protest shall include:
(i) A detailed statement of the
legal and factual grounds for the protest;
(ii) A description of the resulting prejudice to the Offeror; and
(iii) A statement of the desired changes to the Contract terms and conditions, including any Specifications.
(B) An Offeror shall mark its protest as follows:
(i) “Contract Provision Protest”; and
(ii) Solicitation Document number (or other identification as specified in the Solicitation Document)
(4) Contracting
Agency Response. The Contracting
AgencyCity
Manager or Executive Director, as appropriate is not required to consider
an Offeror's request for change or protest after the deadline established for
submitting such request or protest. The Contracting AgencyCity Manager or Executive
Director, as appropriate shall provide notice to the applicable Person if
it the City Manager or Executive Director, as appropriate entirely rejects a
protest. If the Contracting AgencyCity Manager or Executive
Director, as appropriate agrees with the Person's request or protest, in
whole or in part, the Contracting AgencyCity Manager or Executive
Director, as appropriate shall either issue an Addendum reflecting its
determination under OAR 137-049Section 103-0260 or cancel the Solicitation
under OAR
137-049Section
103-0270.
(5) Extension of
Closing. If a Contracting Agencythe City Manager or Executive Director, as appropriate
receives a Written request for change or protest from an Offeror in accordance
with this rule, the Contracting AgencyPCO may extend Closing if
the Contracting
AgencyPCO
determines an extension is necessary to consider the request or protest and
issue an Addendum, if any, to the Solicitation Document.
(1) Cancellation in
the Public Interest. A Contracting AgencyThe PCO may cancel a
Solicitation for good cause if the Contracting AgencyPCO finds that
cancellation is in the public interest. The Contracting AgencyPCO's reasons for
cancellation shall be made part of the Solicitation file.
(2) Notice of
Cancellation. If the Contracting AgencyPCO cancels a Solicitation
prior to Opening, the Contracting AgencyPCO shall provide Notice
of cancellation in accordance with OAR 137-049Section 103-0210(1). Such notice of
cancellation shall:
(a) Identify the Solicitation;
(b) Briefly explain the reason for cancellation; and
(c) If appropriate, explain that an opportunity will be given to compete on any resolicitation.
(3) Disposition of Offers.
(a) Prior to Offer Opening. If the Contracting AgencyPCO cancels a Solicitation
prior to Offer Opening, the Contracting AgencyPCO 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 Contracting AgencyPCO shall open the Offer
to determine the source and then return it to the Offeror.
(b) After Offer Opening. If the Contracting AgencyPCO rejects all Offers,
the Contracting
AgencyPCO
shall retain all such Offers as part of the Contracting AgencyPCO's Solicitation file.
(1) Offer and Acceptance. The Bid or Proposal is the Bidder's or Proposer's offer to enter into a Contract.
(a) In competitive Bidding, the
Offer is always a "Firm Offer," i.e., the Offer shall be held open by
the Offeror for the Contracting AgencyAwarding Authority’s
acceptance for the period specified in OAR 137-049Section 103-0410. The Contracting Agency's Award of the
Contract to a Bidder constitutes acceptance of the Offer and binds the Offeror
to the Contract.
(b) In competitive Proposals, the
Solicitation Document shall describe whether Offers are to be made and
considered as “Firm Offers” that may be accepted without negotiation, as in the
case of competitive Bidding, or whether Offers are subject to discussion,
negotiation or otherwise are not to be considered as final offers. See OAR 137-049Section 103-0650 on
Requests for Proposals and OAR 137-049Section 103-0290 on Bid or Proposal Security.
(2) Responsive Offer.
A
Contracting AgencyThe Awarding Authority may Award a Contract only to a Responsible Offeror
with a Responsive Offer.
(3) Contingent
Offers. Except to the extent that an Offeror is authorized to propose
certain terms and conditions pursuant to OAR 137-049Section 103-0650, an
Offeror shall not make an Offer contingent upon the Contracting AgencyAwarding Authority's
acceptance of any terms or conditions (including Specifications) other than
those contained in the Solicitation Document.
(4) Offeror's
Acknowledgement. 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 OAR 137-049Section 103-0650, 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 Contracting AgencyPCO in Writing.
(5) Instructions. An Offeror shall submit and Sign its Offer in accordance with the Solicitation Document. An Offeror shall initial and submit any correction or erasure to its Offer prior to the Opening in accordance with the requirements for submitting an Offer under the Solicitation Document.
(6) 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.
(7) Documents.
An Offeror shall provide the Contracting AgencyPCO with all documents and
descriptive literature required under the Solicitation Document.
(8) Facsimile or
Electronic Submissions. If the Contracting AgencyPCO permits facsimile or
electronic Offers in the Solicitation Document, the Offeror may submit
facsimile or electronic Offers in accordance with the Solicitation Document.
The Contracting
AgencyPCO
shall not consider facsimile or electronic Offers unless authorized by the
Solicitation Document.
(9) Product Samples
and Descriptive Literature. A Contracting AgencyThe PCO may require
Product Samples or descriptive literature if it is necessary or desirable to
evaluate the quality, features or characteristics of the offered items. The Contracting
AgencyPCO
will dispose of Product Samples, or return or make available for return Product
Samples to the Offeror in accordance with the Solicitation Document.
(10) 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 Contracting AgencyPCO, whichever is
applicable.
(b) The Contracting AgencyPCO is not responsible for
Offers submitted in any manner, format or to any delivery point other than as
required in the Solicitation Document.
(11) Receipt of Offers.
The Offeror is responsible for ensuring that the Contracting AgencyPCO receives its Offer at
the required delivery point prior to the Closing, regardless of the method used
to submit or transmit the Offer.
(1) Security Amount.
If a
Contracting Agencythe PCO requires Bid or Proposal security, it
shall be not
more than 10% or less than 5% of the Offeror's Bid
or Proposal, consisting of the base Bid or Proposal together with all additive
alternates. A Contracting AgencyThe PCO shall not use Bid
or Proposal security to discourage competition. The Contracting AgencyPCO shall clearly state
any Bid or Proposal security requirements in its Solicitation Document. The
Offeror shall forfeit Bid or Proposal security after Award if the Offeror fails
to execute the Contract and promptly return it with any required Performance
Bond and Payment Bond and, in the case of Proposal security, with any required
proof of insurance. See ORS 279C.365(4) and ORS 279C.385.
(2) Requirement for
Bid Security (Optional for Proposals). Unless a Contracting Agencythe Board has otherwise exempted a Solicitation
or class of Solicitations from Bid security pursuant to ORS 279C.390 (See Section 103-0461), the Contracting
AgencyPCO
shall require Bid security for its Solicitation of Bids for Public
Improvements. The Contracting AgencyPCO may require Bid
security even if it has exempted a class of Solicitations from Bid security. Contracting
Agencies may require Proposal security may be required in RFPs when Award of a Public
Improvement Contract may be made without negotiation following receipt of a
Firm Offer as described in OAR 137-049Section 103-0280(1)(b). See ORS 279C.400(5).
(3) Form of Bid or Proposal Security. A Contracting AgencyThe PCO may accept only
the following forms of Bid or Proposal security:
(a) A surety bond from a surety company authorized to do business in the State of Oregon;
(b) An irrevocable letter of credit issued by an insured institution as defined in ORS 706.008; or
(c) A cashier's check or Offeror's certified check.
(4) Return of
Security. A Contracting AgencyThe PCO shall return or
release the Bid or Proposal security of all unsuccessful Offerors after a
Contract has been fully executed and all required proofs of insurance and bonds have been provided,
or after all Offers have been rejected. The Contracting AgencyPCO may return the Bid or
Proposal security of unsuccessful Offerors prior to Award if the return does
not prejudice Contract Award and the security of at least the Bidders with the
three lowest Bids, or the Proposers with the three highest scoring Proposals,
is retained pending execution of a Contract.
(1) Contracting
AgencyPCO
Authorization. A Contracting AgencyThe PCO may authorize
Offerors to submit facsimile Offers. If the Contracting AgencyPCO determines that Bid or
Proposal security is or will be required, the Contracting AgencyPCO shall not authorize
facsimile Offers unless the Contracting AgencyPCO has established a
method for receipt of such security. Prior to authorizing the submission of facsimile
Offers, the Contracting AgencyPCO shall determine that
the Contracting
Agency's equipment and personnel are capable
of receiving the size and volume of anticipated Offers within a short period of
time. In addition, the Contracting AgencyPCO 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
(c) To preserve the Offers as sealed.
(2) Provisions To Be
Included in Solicitation Document. In addition to all other
requirements, if the Contracting AgencyPCO authorizes a facsimile
Offer for Bids or Proposals, the Contracting AgencyPCO shall include in the
Solicitation Document (other than in a request for quotes) 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 Contracting AgencyPCO 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.”;
(c) A provision that requires Offerors to Sign their facsimile Offers;
(d) A provision substantially in
the form of the following: “The Contracting Agency[Awarding Authority]
reserves the right to Award the Contract solely on the basis of the facsimile
Offer. However, upon the Contracting AgencyPCO's request the apparent
successful Offeror shall promptly submit its complete original Signed Offer. “;
(e) The data and compatibility
characteristics of the Contracting AgencyCity'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 Contracting
AgencyCity
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;
(C) Incompatibility between the sending and 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.
Stat. Auth.: ORS 279A.065
Stats. Implemented: ORS 279C.365
(1) General. Contracting AgenciesThe PCO may utilize
Electronic Advertisement of Public Improvement Contracts in accordance with ORS
279C.360(1), provided that advertisement of such Contracts with an estimated
Contract Price in excess of $125,000 must also be published in a trade
newspaper of general statewide circulation, and may post notices of intent to
Award electronically as provided by ORS 279C.410(7).
(2) Alternative Procedures. In the
event that
a Contracting Agencythe City desires to allow Electronic Offers for a
Public Improvement Contract, it shall first promulgate supporting procedures
substantially in conformance with OAR 137-047Section 102-0330
(Electronic Procurement under ORS Chapter 279B), taking into account ORS
Chapter 279C requirements for written bids, opening bids publicly, bid
security, first-tier subcontractor disclosure and inclusion of prevailing wage
rates.
(3) Interpretation. Nothing in
this rule shall be construed as prohibiting Contracting Agencies from making
procurement documents for Public Improvement Contracts available in electronic
format as well as in hard copy when Bids are to be submitted only in hard copy.
(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 Contracting
AgencyPCO
in accordance with OAR 137-049Section 103-0280, 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 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 location specified
in the Solicitation Document (or the place of Closing if no location is
specified), and received by the Contracting AgencyPCO 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 satisfactory evidence of authority.
(b) The Contracting AgencyPCO may release an
unopened Offer withdrawn under subsection 2(a) to the Offeror or its authorized
representative, after voiding any date and time stamp mark.
(c) The Offeror shall mark the Written request to withdraw an Offer as follows:
(A) Bid (or Proposal) Withdrawal; and
(B) Solicitation Number (or Other Identification as specified in the Solicitation Document).
(3) Documentation.
The Contracting
AgencyPCO
shall include all documents relating to the modification or withdrawal of
Offers in the appropriate Solicitation file.
(1) Receipt. A Contracting
AgencyThe PCO
shall electronically or mechanically time-stamp or hand-mark each Offer and any
modification upon receipt. The Contracting AgencyPCO shall not open the
Offer or modification upon receipt, but shall maintain it as confidential and
secure until Opening. If the Contracting AgencyPCO inadvertently opens an
Offer or a modification prior to the Opening, the Contracting AgencyPCO shall return the Offer
or modification to its secure and confidential state until Opening. The Contracting
AgencyPCO
shall document the resealing for the Procurement file (e.g. "Contracting
AgencyPCO
inadvertently opened the Offer due to improper identification of the
Offer").
(2) Opening and
Recording. A Contracting AgencyThe PCO shall publicly
open Offers including any modifications made to the Offer pursuant to OAR 137-049Section 103-0320. In the
case of Invitations to Bid, to the extent practicable, the Contracting AgencyPCO shall read aloud the
name of each Bidder, the Bid price(s), and such other information as the Contracting
AgencyPCO
considers appropriate. 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 Contracting
AgencyPCO
will need not read Offers
aloud.
(3) Availability.
After Opening, the Contracting AgencyPCO shall make Bids
available for public inspection, but pursuant to ORS 279C.410 Proposals are not
subject to disclosure until after notice of intent to award is issued. In any
event Contracting Agencies may withhold from disclosure those portions of an Offer that the Offeror
designates as trade secrets or as confidential proprietary data in accordance
with applicable law. See ORS 192.501(2); ORS 646.461 to 646.475. To the extent
the Contracting
AgencyPCO
determines such designation is not in accordance with applicable law, the Contracting
AgencyPCO
shall make those portions available for public inspection. The Offeror shall
separate information designated as confidential from other nonconfidential
information at the time of submitting its Offer. Prices, makes, model
or catalog numbers of items offered, scheduled delivery dates, and terms of
payment are not confidential, and shall be publicly available regardless of an
Offeror's designation to the contrary.
Any Offer received after Closing is late. An Offeror's
request for withdrawal or modification of an Offer received after Closing is
late. A
Contracting AgencyThe Awarding Authority shall not consider late
Offers, withdrawals or modifications except as permitted in OAR 137-049Section 103-0350 or 137-049103-0390.
(1) Generally.
To protect the integrity of the competitive Procurement process and to assure
fair treatment of Offerors, a Contracting Agencythe PCO should carefully consider whether to
permit waiver, correction or withdrawal of Offers for certain mistakes.
(2) Contracting
AgencyPCO
Treatment of Mistakes. A Contracting AgencyThe PCO shall not allow an
Offeror to correct or withdraw an Offer for an error in judgment. If the Contracting
AgencyPCO
discovers certain mistakes in an Offer after Opening, but before Award of the
Contract, the Contracting AgencyPCO may take the following
action:
(a) A Contracting AgencyThe 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) A Contracting AgencyThe 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 Contracting
AgencyPCO'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 Contracting AgencyThe 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;
(C) That the error cannot be corrected or waived under subsection (b) of this section;
(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 Contracting AgencyPCO does not grant the
Offeror permission to withdraw the Offer;
(G) That the Contracting AgencyCity's or the public's
status has not changed so significantly that relief from the forfeiture will
work a substantial hardship on the Contracting AgencyPCO or the public it
represents; and
(H) That the Offeror promptly gave
notice of the claimed error to the Contracting AgencyPCO.
(d) The criteria in subsection
(2)(c) of this rule shall determine whether a Contracting Agencythe PCO will permit an Offeror to withdraw its
Offer after Closing. These criteria also shall apply to the question of whether
a Contracting
Agencythe 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 Contracting AgencyPCO based on the
difference between the amount of the Offeror's Offer and the amount of the
Contract actually awarded by the Contracting AgencyAwarding Authority,
whether by Award to the next lowest Responsive and Responsible Bidder or the
best Responsive and Responsible Proposer, or by resort to a new solicitation.
(3) Rejection for
Mistakes. The Contracting AgencyPCO 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 division 49Section 103 only to the
extent permitted by applicable law.
(1) Required Disclosure. Within two working hours after the
Bid Closing on an ITB for a Public Improvement having a Contract Price anticipated estimatedby the Contracting
AgencyPCO
to exceed $100,000, all Bidders shall submit to the Contracting AgencyPCO a disclosure form as
described by ORS 279C.370(2), identifying any first-tier subcontractors (those
Entities that would be contracting directly with the prime contractor) that
will be furnishing labor or labor and materials on the Contract, if Awarded, whose
subcontract value would be equal to or greater than:
(a) Five percent of the total Contract Price, but at least $15,000; or
(b) $350,000, regardless of the percentage of the total Contract Price.
(2) Bid Closing, Disclosure Deadline and Bid Opening. For each
ITB to which this rule applies, the Contracting AgencyPCO shall:
(a) Set the Bid Closing on a Tuesday, Wednesday or Thursday, and at a time between 2 p.m. and 5 p.m., except that these Bid Closing restrictions do not apply to an ITB for maintenance or construction of highways, bridges or other transportation facilities, and provided that the two-hour disclosure deadline described by this rule would not then fall on a legal holiday;
(b) Open Bids publicly immediately after the Bid Closing; and
(c) Consider for Contract Award
only those Bids for which the required disclosure has been submitted by the
announced deadline on forms prescribed by the Contracting AgencyPCO.
(3) Bidder Instructions and Disclosure Form. For the
purposes of this rule, a Contracting Agencythe PCO in its the Solicitation shall:
(a) Prescribe the disclosure form that must be utilized, substantially in the form set forth in ORS 279C.370(2); and
(b) Provide instructions in a notice substantially similar to the following:
“Instructions for First-Tier
Subcontractor Disclosure”
Bidders are required to disclose information about certain first-tier subcontractors when the contract value for a Public Improvement is greater than $100,000 (see ORS 279C.370). Specifically, when the contract amount of a first-tier subcontractor furnishing labor or labor and materials would be greater than or equal to: (i) 5% of the project Bid, but at least $15,000, or (ii) $350,000 regardless of the percentage, the Bidder must disclose the following information about that subcontract either in its Bid submission, or within two hours after Bid Closing:
(1) The subcontractor's name,
(2) The category of Work that the subcontractor would be performing, and
(3) The dollar value of the subcontract.
If the Bidder will not be using any subcontractors that are subject to the above disclosure requirements, the Bidder is required to indicate "NONE" on the accompanying form.
THE CONTRACTING AGENCYPCO MUST REJECT A BID IF
THE BIDDER FAILS TO SUBMIT THE DISCLOSURE FORM WITH THIS INFORMATION BY THE
STATED DEADLINE (see OAR 137-049Section 103-0360)."
(4) Submission. A Bidder shall submit the disclosure form required by this rule either in its Bid submission, or within two Working hours after Bid Closing in the manner specified by the ITB.
(5) Responsiveness. Compliance with the disclosure and submittal requirements of ORS 279C.370 and this rule is a matter of Responsiveness. Bids that are submitted by Bid Closing, but for which the disclosure submittal has not been made by the specified deadline, are not Responsive and shall not be considered for Contract Award.
(6) Contracting AgencyCity Role. Contracting
Agencies The
PCO shall obtain, and make available for public inspection, the
disclosure forms required by ORS 279C.370 and this rule. Contracting AgenciesThe PCO shall also provide
copies of disclosure forms to the Bureau of Labor and Industries as required by
ORS 279C.835. Contracting AgenciesThe PCO are is not required to
determine the accuracy or completeness of the information provided on
disclosure forms.
(7) Substitution. Substitution of affected first-tier
subcontractors shall be made only in accordance with ORS 279C.585. Contracting
AgenciesThe
PCO shall accept Written submissions filed under that statute as public
records. Aside from issues involving inadvertent clerical error under ORS
279C.585, Contracting
Agenciesthe
City does not
have a statutory role or duty to review, approve or resolve disputes concerning
such substitutions. See ORS 279C.590 regarding complaints to the Construction
Contractors Board on improper substitution.
(1) Authority.
A
Contracting AgencyThe PCO may disqualify a Person from
consideration of Award of the Contracting AgencyCity's Contracts after
providing the Person with notice and a reasonable opportunity to be heard in
accordance with sections (2) and (4) of this rule.
(a) Standards for Conduct Disqualification.
As provided in ORS 279C.440, a Contracting Agencythe PCO may disqualify a Person for:
(A) Conviction for the commission of a criminal offense as an incident in obtaining or attempting to obtain a public or private contract or subcontract, or in the performance of such contract or subcontract.
(B) Conviction under state or federal statutes of embezzlement, theft, forgery, bribery, falsification or destruction of records, receiving stolen property or any other offense indicating a lack of business integrity or business honesty that currently, seriously and directly affects the Person's responsibility as a contractor.
(C) Conviction under state or federal antitrust statutes.
(D) Violation of a contract
provision that is regarded by the Contracting AgencyPCO to be so serious as to
justify Conduct Disqualification. A violation under this subsection 1(a)(D) may
include but is not limited to material failure to perform the terms of a
contract or an unsatisfactory performance in accordance with the terms of the
contract. However, a Person's failure to perform or unsatisfactory performance
caused by acts beyond the Person's control is not a basis for Disqualification.
(b) Standards for DBE
Disqualification. As provided in ORS 200.065, 200.075 or 279A.110, a Contracting
Agencythe PCO may disqualify a
Person's right to submit an Offer or to participate in a Contract (e.g.
subcontractors) as follows:
(A) For a DBE Disqualification
under ORS 200.065, the Contracting AgencyPCO may disqualify a
Person upon finding that:
(i) The Person fraudulently obtained or retained or attempted to obtain or retain or aided another Person to fraudulently obtain or retain or attempt to obtain or retain certification as a disadvantaged, minority, women or emerging small business enterprise; or
(ii) The Person knowingly made a false claim that any Person is qualified for certification or is certified under ORS 200.055 for the purpose of gaining a Contract or subcontract or other benefit; or
(iii) The Person has been disqualified
by another Contracting AgencyContracting Agency (as defined in ORS 279A.010(1)(b)), pursuant to ORS 200.065.
(B) For a DBE Disqualification
under ORS 200.075, the Contracting AgencyPCO may disqualify a
Person upon finding that:
(i) The Person has entered into an agreement representing that a disadvantaged, minority, women, or emerging small business enterprise, certified pursuant to ORS 200.055 ("Certified Enterprise"), will perform or supply materials under a Public Improvement Contract without the knowledge and consent of the Certified Enterprise; or
(ii) The Person exercises management and decision-making control over the internal operations, as defined by ORS 200.075(1)(b), of any Certified Enterprise; or
(iii) The Person uses a Certified Enterprise to perform services under a contract or to provide supplies under a Public Improvement Contract to meet an established Certified Enterprise goal, and such enterprise does not perform a commercially useful function, as defined by ORS 200.075(3), in performing its obligations under the contract.
(iv) If a Person is Disqualified
for a DBE Disqualification under ORS 200.075 for a City Contract, the affected Contracting
AgencyPCO
shall not permit such Person to participate in that Contracting
Agency'sthe City’s Contracts or submit an Offer.
(C) For a DBE Disqualification
under ORS 279A.110, a Contracting AgencyThe PCO may disqualify a
Person if the Contracting AgencyPCO finds that the Person
discriminated against minority, women or emerging small business enterprises in
awarding a subcontract under a contract with that Contracting
Agencythe City.
(2) Notice of Intent
to Disqualify. The Contracting AgencyPCO shall notify the
Person in Writing of a proposed Disqualification personally or by registered or
certified mail, return receipt requested. This notice shall:
(a) State that the Contracting
AgencyPCO
intends to disqualify the Person;
(b) Set forth the reasons for the Disqualification;
(c) Include a statement of the
Person's right to a hearing if requested in Writing within the time stated in
the notice and that if the Contracting AgencyPCO does not receive the
Person's Written request for a hearing within the time stated, the Person shall
have waived its right to a hearing;
(d) Include a statement of the authority and jurisdiction under which the hearing will be held;
(e) Include a reference to the particular sections of the statutes and rules involved;
(f) State the proposed Disqualification period; and
(g) State that the Person may be represented by legal counsel.
(3) Hearing.
The City Manager of the
City or Executive Director of LORA Contracting Agency shall schedule a
hearing upon the Contracting AgencyPCO receipt of the
Person's timely request. The Contracting AgencyPCO shall notify the
Person of the time and place of the hearing and provide information on the
procedures, right of representation and other rights related to the conduct of
the hearing prior to hearing.
(4) Notice of
Disqualification. The Contracting Agency City Manager of the City or
Executive Director of LORA will notify the Person in Writing of its
Disqualification, personally or by registered or certified mail, return receipt
requested. The notice shall contain:
(a) The effective date and period of Disqualification;
(b) The grounds for Disqualification; and
(c) A statement of the Person's
appeal rights and applicable appeal deadlines. For a Conduct Disqualification
or a DBE Disqualification under ORS 279A.110, the disqualified person must
notify the Contracting AgencyPCO in Writing within
three business Days after receipt of the Contracting Agency's notice
of Disqualification if the Person intends to appeal the Contracting Agency's decision.
(1) General.
A Public Improvement Contract, if Awarded, shall be Awarded to the Responsible
Bidder submitting the lowest Responsive Bid, or to the Responsible Proposer
submitting the best Responsive Proposal. See OAR 137-049Section 103-0390, and
Rules for Alternative Contracting Methods at OAR 137-049Section 103-0600 to 137-049103-0690.
(2) Bid Evaluation Criteria. Invitations to Bid may solicit lump-sum Offers, unit-price Offers or a combination of the two.
(a) Lump Sum. If the ITB
requires a lump-sum Bid, without additive or deductive alternates, or if the Contracting
AgencyAwarding
Authority elects not to award additive or deductive alternates, Bids
shall be compared on the basis of lump-sum prices, or lump-sum base Bid prices,
as applicable. If the ITB calls for a lump-sum base Bid, plus additive or
deductive alternates, the total Bid price shall be calculated by adding to or
deducting from the base Bid those alternates selected by the Contracting
AgencyAwarding
Authority, for the purpose of comparing Bids.
(b) Unit Price. If the Bid
includes unit pricing for estimated quantities, the total Bid price shall be
calculated by multiplying the estimated quantities by the unit prices submitted
by the Bidder, and adjusting for any additive or deductive alternates selected
by the Contracting
AgencyAwarding
Authority, for the purpose of comparing Bids. Contracting AgenciesThe PCO shall specify
within the Solicitation Document the estimated quantity of the procurement to
be used for determination of the low Bidder. In the event of mathematical
discrepancies between unit price and any extended price calculations submitted
by the Bidder, the unit price shall govern.
See OAR 137-049Section 103-0350(2)(b).
(3) Proposal
Evaluation Criteria. If the Contracting AgencyBoard's Contract Review Authority
has exempted the Procurement of a Public Improvement from the competitive
Bidding requirements of ORS 279C.335(1), and has directed the Contracting
AgencyPCO
to use an Alternative Contracting Method under ORS 279C.335(3), the Contracting
AgencyPCO
shall set forth the evaluation criteria in the Solicitation Documents. See OAR 137-049Section 103-0650, OAR 137-049Section 103-0650, ORS
279C.335 and 279C.405.
(1) General. If Awarded, the Contracting AgencyAwarding Authority shall
Award the Contract to the Responsible Bidder submitting the lowest, Responsive
Bid or the Responsible Proposer or Proposers submitting the best, Responsive
Proposal or Proposals, provided that such Person is not listed by the
Construction Contractors Board as disqualified to hold a Public Improvement
Contract. See ORS 279C.375(2)(a). The Contracting AgencyAwarding 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.
(2) Determination of Responsibility. Offerors are required
to demonstrate their ability to perform satisfactorily under a Contract. Before
the Awarding a Contract is Awarded, the Contracting
AgencyPCO
must have information that indicates that the Offeror meets the standards of
responsibility set forth in ORS 279.375(2)(b). To be a Responsible Offeror, the
Contracting
AgencyPCO
must determine that the Offeror:
(a) Has available the appropriate financial, material, equipment, facility and personnel resources and expertise, or ability to obtain the resources and expertise, necessary to demonstrate the capability of the Offeror to meet all contractual responsibilities;
(b) Has a satisfactory record of
contract performance. A Contracting AgencyThe 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 Contracting AgencyPCO should determine
whether the Offeror's deficient performance was expressly excused under the
terms of contract, or whether the Offeror took appropriate corrective action.
The Contracting
AgencyPCO
may review the Offeror's performance on both private and Public Contracts in
determining the Offeror's record of contract performance. The Contracting
AgencyPCO
shall make its basis for determining an Offeror not Responsible under this
paragraph part of the Solicitation file;
(c) Has a satisfactory record of
integrity. An Offeror may lack integrity if a Contracting AgencyThe PCO determines the
Offeror demonstrates a lack of business ethics such as violation of state
environmental laws or false certifications made to a Contracting AgencyThe PCO. A Contracting
AgencyThe PCO
may find an Offeror not 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 Conduct Disqualification under OAR 137-049Section 103-0370 may be
used to determine an Offeror's integrity. The Contracting AgencyPCO shall make its basis
for determining that an Offeror is not Responsible under this paragraph part of
the Solicitation file;
(d) Is qualified legally to
contract with the Contracting AgencyCity; and
(e) Has supplied all necessary
information in connection with the inquiry concerning responsibility. If the
Offeror fails to promptly supply information requested by the Contracting
AgencyPCO
concerning responsibility, the Contracting AgencyPCO shall base the
determination of responsibility upon any available information, or may find the
Offeror not Responsible.
(3) Scope
of Contracting Agency Evaluation.
The Contracting
AgencyPCO
shall evaluate an Offer only as set forth in the Solicitation Document and in
accordance with applicable law. The Contracting AgencyPCO shall not evaluate an
Offer using any other requirement or criterion.
(4) Offeror Submissions.
(a) The Contracting AgencyPCO may require an Offeror
to submit Product Samples, descriptive literature, technical data, or other
material and may also require any of the following prior to Award:
(A) Demonstration, inspection or testing of a product prior to Award for characteristics such as compatibility, quality or workmanship;
(B) Examination of such elements as appearance or finish; or
(C) Other examinations to determine whether the product conforms to Specifications.
(b) The Contracting AgencyPCO shall evaluate product
acceptability only in accordance with the criteria disclosed in the
Solicitation Document to determine that a product is acceptable. The Contracting
AgencyPCO
shall reject an Offer providing any product that does not meet the Solicitation
Document requirements. A Contracting AgencyThe PCO's rejection of an
Offer because it offers nonconforming Work or materials is not Disqualification
and is not appealable under ORS 279C.445.
(5) Evaluation of
Bids. The Contracting AgencyPCO shall use only
objective criteria to evaluate Bids as set forth in the ITB. The Contracting
AgencyPCO
shall evaluate Bids to determine which Responsible Offeror offers the lowest
Responsive Bid.
(a) Nonresident Bidders. In
determining the lowest Responsive Bid, the Contracting AgencyPCO shall, in accordance
with OAR
137-046Section
101-0310, add a percentage increase to the Bid of a nonresident Bidder
equal to the percentage, if any, of the preference given to that Bidder in the
state in which the Bidder resides.
(b) Clarifications. In evaluating
Bids, a
Contracting AgencyThe PCO may seek information from a Bidder
only to clarify the Bidder's Bid. Such clarification shall not vary, contradict
or supplement the Bid. A Bidder must submit Written and Signed clarifications
and such clarifications shall become part of the Bidder's Bid.
(c) Negotiation Prohibited. The Contracting
AgencyPCO
shall not negotiate scope of Work or other terms or conditions under an
Invitation to Bid process prior to Award.
(6) Evaluation of
Proposals. See OAR 137-049Section 103-0650 regarding rules applicable
to Requests for Proposals.
(1) Basis of Award.
After Award, the Contracting AgencyPCO shall make a record
showing the basis for determining the successful Offeror part of the Contracting
AgencyPCO's
Solicitation file.
(2) Contents of
Award Record for Bids. The Contracting AgencyPCO's record shall
include:
(a) All submitted Bids;
(b) Completed Bid tabulation sheet; and
(c) Written justification for any rejection of lower Bids.
(3) Contents of
Award Record for Proposals. Where the use of Requests for Proposals is
authorized as set forth in OAR 137-049Section 103-0650, the Contracting AgencyPCO's record shall
include:
(a) All submitted Proposals.
(b) The completed evaluation of the Proposals;
(c) Written justification for any rejection of higher scoring Proposals or for failing to meet mandatory requirements of the Request for Proposal; and
(d) If the Contracting AgencyPCO permitted negotiations
in accordance with Section 137-049103-0650, the Contracting
AgencyPCO's
completed evaluation of the initial Proposals and the Contracting AgencyPCO's completed evaluation
of final Proposals.
(4) Contract
Document. The Contracting AgencyPCO shall deliver a fully
executed copy of the final Contract to the successful Offeror.
(5) Bid Tabulations and Award Summaries. Upon request of any
Person the Contracting AgencyPCO shall provide
tabulations of Awarded Bids or evaluation summaries of Proposals upon payment in the amount charged for
production of public records by the City, as specified in the then applicable City
Master Fee Schedulefor a nominal charge which may be payable in
advance. Requests must contain the Solicitation Document number
and, if requested, be accompanied by a self-addressed, stamped envelope. Contracting
Agenciesthe
PCO may also provide tabulations of Bids and Proposals Awarded on
designated Web sites or on the Contracting AgencyCity’s Electronic
Procurement System.
(6) Availability of
Solicitation Files. The Contracting AgencyPCO shall make completed
Solicitation files available for public review at the office of the Contracting AgencyPCO.
(7) Copies from
Solicitation Files. Any Person may obtain copies of material from
Solicitation files upon payment of the amount charged for production of public records
by the City, as specified in the then applicable City Master Fee Schedulea reasonable
copying charge.
(1) Time for Offer Acceptance. An Offeror's Bid, or Proposal
submitted as a Firm Offer (see OAR 137-049Section 103-0280), is irrevocable, valid and
binding on the Offeror for not less than 30 Days from Closing unless otherwise
specified in the Solicitation Document.
(2) Extension of Acceptance Time. A Contracting AgencyThe PCO may request,
orally or in Writing, that Offerors extend, in Writing, the time during which
the Contracting
AgencyPCO
may consider and accept 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.
(1) Bids.
Except as permitted by ORS 279C.340 and OAR 137-049Section 103-0430 when all
bids exceed the cost estimate, a Contracting Agencythe PCO shall not negotiate with any Bidder
prior to Contract Award. After Award of the Contract, the Contracting AgencyPCO and Contractor may
modify the Contract only by change order or amendment to the Contract in
accordance with OAR 137-049Section 103-0860.
(2) Requests for
Proposals. A Contracting AgencyThe PCO may conduct
discussions or negotiations with Proposers only in accordance with the
requirements of OAR 137-049Section 103-0650.
(1) Generally.
In accordance with ORS 279C.340, if all Responsive Bids from Responsible Bidders
on a competitively Bid Project exceed the Contracting AgencyPCO's Cost Estimate, prior
to Contract Award the Contracting AgencyPCO may negotiate Value
Engineering and Other Options with the Responsible Bidder submitting the
lowest, Responsive Bid in an attempt to bring the Project within the Contracting
AgencyProject's
Cost Estimate. The subcontractor disclosure and substitution requirements of OAR 137-049Section 103-0360 do not
apply to negotiations under this rule.
(2) Definitions. The following definitions apply to this administrative rule:
(a) “Cost Estimate” means the Contracting AgencyCity's most recent
pre-Bid, good faith assessment of anticipated Contract costs, consisting either
of an estimate of an architect, engineer or other qualified professional, or
confidential cost calculation Worksheets, where available, and otherwise
consisting of formal planning or budgetary documents.
(b) “Other Options” means those items generally considered
appropriate for negotiation in the RFP process, relating to the details of
Contract performance as specified in OAR 137-049Section 103-0650, but excluding any material
requirements previously announced in the Solicitation process that would likely
affect the field of competition.
(c) “Project” means a Public Improvement.
(d) “Value Engineering” means the identification of alternative methods, materials or systems which provide for comparable function at reduced initial or life-time cost. It includes proposed changes to the plans, Specifications, or other Contract requirements which may be made, consistent with industry practice, under the original Contract by mutual agreement in order to take advantage of potential cost savings without impairing the essential functions or characteristics of the Public Improvement. Cost savings include those resulting from life cycle costing, which may either increase or decrease absolute costs over varying time periods.
(3) Rejection of
Bids. In determining whether all Responsive Bids from Responsible
Bidders exceed the Cost Estimate, only those Bids that have been formally
rejected, or Bids from Bidders who have been formally disqualified by the Contracting
AgencyPCO,
shall be excluded from consideration.
(4) Scope of
Negotiations. Contracting AgenciesThe PCO shall not proceed
with Contract Award if the scope of the Project is significantly changed from
the original Bid. The scope is considered to have been significantly changed if
the pool of competition would likely have been affected by the change; that is,
if other Bidders would have been expected by the Contracting AgencyPCO to participate in the
Bidding process had the change been made during the Solicitation process rather
than during negotiation. This rule shall not be construed to prohibit
resolicitation of trade subcontracts.
(5) Discontinuing
Negotiations. The Contracting AgencyPCO may discontinue
negotiations at any time, and shall do so if it appears to the Contracting
AgencyPCO
that the apparent low Bidder is not negotiating in good faith or fails to share
cost and pricing information upon request. Failure to rebid any portion of the
project, or to obtain subcontractor pricing information upon request, shall be
considered a lack of good faith.
(6) Limitation. Negotiations may be undertaken only with the lowest Responsive, Responsible Bidder pursuant to ORS 279C.340. That statute does not provide any additional authority to further negotiate with Bidders next in line for Contract Award.
(7) Public Records. To the extent that a Bidder's records used in Contract negotiations under ORS 279C.340 are public records, they are exempt from disclosure until after the negotiated Contract has been awarded or the negotiation process has been terminated, at which time they are subject to disclosure pursuant to the provisions of the Oregon Public Records Law, ORS 192.410 to 192.505.
(1) Rejection of an Offer.
(a) A Contracting AgencyThe PCO may reject any
Offer upon finding that to accept the Offer may impair the integrity of the
Procurement process or that rejecting the Offer is in the public interest.
(b) The Contracting AgencyPCO shall reject an Offer
upon the Contracting
AgencyPCO's
finding that the Offer:
(A) Is contingent upon the Contracting
AgencyCity's
acceptance of terms and conditions (including Specifications) that differ from
the Solicitation Document;
(B) Takes exception to terms and conditions (including Specifications);
(C) Attempts to prevent public disclosure of matters in contravention of the terms and conditions of Solicitation Document or in contravention of applicable law;
(D) Offers Work or goods that fail to meet the Specifications of the Solicitation Document;
(E) Is late;
(F) Is not in substantial compliance with the Solicitation Documents;
(G) Is not in substantial compliance with all prescribed public Solicitation procedures.
(c) The Contracting AgencyPCO shall reject an Offer
upon the Contracting
AgencyPCO's
finding that the Offeror:
(A) Has not been prequalified
under ORS 279C.430 and the Contracting AgencyPCO required mandatory
prequalification;
(B) Has been Disqualified;
(C) Has been declared ineligible under ORS 279C.860 by the Commissioner of Bureau of Labor and Industries and the Contract is for a Public Work;
(D) Is listed as not qualified by the Construction Contractors Board, if the Contract is for a Public Improvement;
(E) Has not met the requirements of ORS 279A.105 if required by the Solicitation Document;
(F) Has not submitted properly executed Bid or Proposal security as required by the Solicitation Document;
(G) Has failed to provide the certification required under section 3 of this rule;
(H) Is not Responsible. See OAR 137-049Section 103-0390(2)
regarding Contracting
AgencyPCO
determination that the Offeror has met statutory standards of responsibility.
(2) Form of Business.
For purposes of this rule, the Contracting AgencyPCO 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
Disqualification provisions of ORS 279C.440 to 279C.450 and OAR 137-049Section 103-0370.
(3) Certification of
Non-Discrimination. The Offeror shall certify and deliver to the Contracting
AgencyPCO
Written certification, as part of the Offer that the Offeror has not
discriminated and will not discriminate against minority, women or emerging
small business enterprises in obtaining any required subcontracts. Failure to
do so shall be grounds for disqualification.
(4) Rejection of all
Offers. A Contracting AgencyThe PCO may reject all
Offers for good cause upon the Contracting AgencyPCO's Written finding it
is in the public interest to do so. The Contracting AgencyPCO shall notify all
Offerors of the rejection of all Offers, along with the good cause
justification and finding.
(5) Criteria for
Rejection of All Offers. The Contracting AgencyPCO may reject all Offers
upon a Written finding that:
(a) The content of or an error in the Solicitation Document, or the Solicitation process unnecessarily restricted competition for the Contract;
(b) The price, quality or performance presented by the Offerors is too costly or of insufficient quality to justify acceptance of the 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 Procurement process. These causes include, but are not limited to, 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 Contracting AgencyPCO cancels the
Solicitation in accordance with OAR 137-049Section 103-0270; or
(f) Any other circumstance indicating that Awarding the Contract would not be in the public interest.
(1) Purpose.
An adversely affected or aggrieved Offeror must exhaust all avenues of
administrative review and relief before seeking judicial review of the Contracting
Agency's Contractor selection or Contract
Award decision.
(2) Notice of
Competitive Range. Unless otherwise provided in the RFP, when the
competitive proposal process is authorized under OAR 137-049Section 103-0650, the Contracting
AgencyPCO
shall provide Written notice to all Proposers of the Contracting AgencyPCO's determination of the
Proposers included in the Competitive Range. The Contracting AgencyPCO's notice of the
Proposers included in the Competitive Range shall not be final until the later
of the following:
(a) 10 Days after the date of the notice, unless otherwise provided therein; or
(b) Until the Contracting AgencyPCO provides a Written
response to all timely-filed protests that denies the protest and affirms the
notice of the Proposers included in the Competitive Range.
(3) Notice of Intent
to Award. Unless otherwise provided in the Solicitation Document, the Contracting
AgencyPCO
shall provide Written or
electronic notice to all Offerors of the Contracting Agency's intent
to Award the Contract. The Contracting AgencyPCO's Award shall not be
final until the later of the following:
(a) Seven Days after the date of the notice, unless the Solicitation Document provided a different period for protest; or
(b) The Contracting AgencyPCO provides a Written
response to all timely-filed protests that denies the protest and affirms
the Award.
(4) Right to Protest Award.
(a) An adversely affected or aggrieved
Offeror may submit to the Contracting AgencyPCO a Written protest of
the Contracting
Agency's intent to Award within seven Days
after issuance of the notice of intent to Award the Contract, unless a
different protest period is provided under the Solicitation Document.
(b) The Offeror's protest must be in Writing and must specify the grounds upon which the protest is based.
(c) An Offeror is adversely affected or aggrieved only if the Offeror is eligible for Award of the Contract as the Responsible Bidder submitting the lowest Responsive Bid or the Responsible Proposer submitting the best Responsive Proposal and is next in line for Award, i.e., the protesting Offeror must claim that all lower Bidders or higher-scored Proposers are ineligible for Award:
(A) Because their Offers were nonresponsive; or
(B) The Contracting AgencyPCO 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 the Responsible Bidder offering the lowest Bid or the
Responsible Proposer offering the highest-ranked Proposal.
(d) The Contracting AgencyPCO shall not consider a
protest submitted after the time period established in this rule or such
different period as may be provided in the Solicitation Document. A Proposer
may not protest a Contracting Agencythe PCO’s decision not to increase the size of
the Competitive Range above the size of the Competitive Range set forth in the
RFP.
(5) Right to Protest Competitive Range.
(a) An adversely affected or
aggrieved Proposer may submit to the Contracting AgencyPCO a Written protest of
the Contracting
AgencyPCO's
decision to exclude the Proposer from the Competitive Range within seven Days
after issuance of the notice of the Competitive Range, unless a different
protest period is provided under the Solicitation Document. (See procedural
requirements for the use of RFPs at OAR 137-049Section 103-0650.)
(b) The Proposer's protest shall be in Writing and must specify the grounds upon which the protest is based.
(c) A Proposer is adversely affected only if the Proposer is responsible and submitted a Responsive Proposal and is eligible for inclusion in the Competitive Range, i.e., the protesting Proposer must claim it is eligible for inclusion in the Competitive Range if all ineligible higher-scoring Proposers are removed from consideration, and that those ineligible Proposers are ineligible for inclusion in the Competitive Range because:
(A) Their Proposals were not responsive; or
(B) The Contracting AgencyPCO committed a
substantial violation of a provision in the RFP or of an applicable Procurement
statute or administrative rule, and the protesting Proposer was unfairly
evaluated and would have, but for such substantial violation, been included in
the Competitive Range.
(d) The Contracting AgencyPCO shall not consider a
protest submitted after the time period established in this rule or such
different period as may be provided in the Solicitation Document. A Proposer
may not protest a Contracting Agencythe PCO's decision not to increase the size of
the Competitive Range above the size of the Competitive Range set forth in the
RFP.
(6) Authority to Resolve
Protests. The head of the Contracting AgencyCity Manager of the City or the
Executive Director of LORA, or such Person's designee, may settle or
resolve a Written protest submitted in accordance with the requirements of this
rule.
(7) Decision.
If a protest is not settled, the City Manager of the City or the Executive Director
of LORAhead of the Contracting Agency,
or such Person's designee, shall promptly issue a Written decision on the
protest. Judicial review of this decision will be available if provided by
statute.
(8) Award.
The successful Offeror shall promptly execute the Contract after the Award is
final. The Contracting Agencydesignated official of the City
shall execute the Contract only after it has obtained all applicable required
documents and approvals.
(1) Public
Improvement Contracts. Unless the required performance bond and payment bond is waived
under ORS 279C.380(1)(a), excused pursuant to either ORS 279C.380 or in cases of
emergency under ORS 279C.380(4), or unless the Contracting AgencyBoard's Contract Review Authority
exempts a Contract or classes of contracts from the required performance bond
and payment bond pursuant to ORS 279C.390 (See Section 103-0461), the Contractor shall
execute and deliver to the Contracting AgencyPCO a performance bond and
a payment bond each in a sum equal to the Contract Price for all Public
Improvement Contracts. However, under ORS 279C.390(3)(b) the Director of
the Oregon Department of Transportation may reduce the performance bond amount
for contracts financed from the proceeds of bonds issued under ORS
367.620(3)(a).
(2) Other Construction
Contracts. A Contracting AgencyThe PCO may require
performance security for other construction Contracts that are not Public
Improvement Contracts. Such requirements shall be expressly set forth in the
Solicitation Document.
(3) Requirement for
Surety Bond. The Contracting AgencyPCO shall accept only a
performance bond furnished by a surety company authorized to do business in
Oregon unless otherwise specified in the Solicitation Document (i.e., the Contracting
AgencyPCO
may accept a cashier's check or certified check in lieu or all or a portion of
the required performance bond if specified in the Solicitation Document). The
payment bond must be furnished by a surety company authorized to do business in
Oregon, and in an amount equal to the full contract price.
(4) Time for
Submission. The apparent successful Offeror must promptly furnish the
required performance security upon the Contracting AgencyPCO's request. If the
Offeror fails to furnish the performance security as requested, the Contracting
AgencyPCO
may reject the Offer and Award the Contract to the Responsible Bidder with the
next lowest Responsive Bid or the Responsible Proposer with the next
highest-scoring Responsive Proposal, and, at the Contracting AgencyPCO's discretion, the
Offeror shall forfeit its Bid or Proposal security.
Pursuant to ORS 279C.390 and Section 103-0460(1), the requirements for bid security, performance and payment bonds for following classes
of Public Improvement Contracts are waived, unless the PCO elects to require such bonds, but in such event the PCO shall not exercise such
discretion to
discourage competition:
(1). Public Improvement Contracts with a Contract Price equal to or less than $50,000, except as may be otherwise required by these rules.
If the Contractor provided a performance bond, the Contracting AgencyPCO may afford the
Contractor's surety the opportunity to provide a substitute contractor to
complete performance of the Contract. A substitute contractor shall perform all
remaining Contract Work and comply with all terms and conditions of the Contract,
including the provisions of the performance bond and the payment bond. Such
substitute performance does not involve the Award of a new Contract and shall
not be subject to the competitive Procurement provisions of ORS Chapter 279C.
If the Contract Price exceeds $10,000 and the Contractor is
a Foreign Contractor, the Contractor shall promptly report to the Oregon
Department of Revenue on forms provided by the Department of Revenue, the
Contract Price, terms of payment, Contract duration and such other information
as the Department of Revenue may require before final payment can be made on
the Contract. A copy of the report shall be forwarded to the Contracting
AgencyPCO.
The Contracting
AgencyPCO
Awarding
the Contract shall be satisfy satisfied itself that the
above requirements have been complied with before it the issues final
payment on the Contract is
issued.
OAR 137-049Sections 103-0600 to 137-049103-0690 are intended
to provide guidance to Contracting Agencies in regardings to the use of
Alternative Contracting Methods for Public Improvement Contracts, as may be
directed by a Contracting Agency's Contract
Review Authority under ORS 279C.335. Those methods, including include,
but are not limited to, Design-Build, Energy Savings Performance Contract
(ESPC) and Construction Manager/General Contractor (CM/GC) forms of
contracting. As to ESPC contracting, these OAR 137-049Section 103-0600 to 137-049103-0690 rules implement
the requirements of ORS 279C.335 pertaining to the adoption of model
rules appropriate for use by all Contracting Agencies to
govern the procedures for entering into ESPCs.
The following definitions shall apply to these OAR 137-049Section 103-0600 to 137-049103-0690 rules, unless the
context requires otherwise:
(1) “Alternative Contracting Methods” means innovative Procurement techniques for
obtaining Public Improvement Contracts, utilizing processes other than the
traditional method of Design-Bid-Build (with Award based solely on price, in
which a final design is issued with formal Bid documents, construction services
are obtained by sealed Bid Awarded to the lowest Responsive, Responsible
Bidder, and the project is built in accordance with those documents). In
industry practice, such methods commonly include variations of Design-Build
contracting, CM/GC forms of contracting and ESPCs, which are specifically addressed
in these OAR
137-049Section
103-0600 to 137-049103-0690 rules, as well as other developing
techniques such as general "performance
contracting" and "cost plus time" contracting, for which
procedural requirements are identified under these OAR 137-049Section 103-0600 to 137-049103-0690 rules.
(2) “Construction Manager/General Contractor” (or "“CM/GC"”) means a form of Procurement that
results in a Public Improvement Contract for a Construction Manager/General
Contractor to undertake project team involvement with design development;
constructability reviews; value engineering, scheduling, estimating and
subcontracting services; establish a Guaranteed Maximum Price to complete the
Contract Work; act as General Contractor; hold all subcontracts, self-perform
portions of the Work as may be allowed by the Contracting Agency under
the CM/GC Contract; coordinate and manage the building process; provide general
Contractor expertise; and act as a member of the project team along with the Contracting
AgencyPCO,
other City employees, architect/engineers
and other consultants. CM/GC also refers to a Contractor under this form of
Contract, sometimes known as the "Construction Manager at Risk."
(3) “Design-Build” means
a form of Procurement that results in a Public Improvement Contract in which
the construction Contractor also provides or obtains specified design services,
participates on the project team with the Contracting AgencyPCO, and manages both
design and construction. In this form of Contract, a single Person provides the
Contracting
AgencyCity
with all of the services necessary to both design and construct the project.
(4) “Energy
Conservation Measures”
(or "ECMs") (also known as "energy efficiency
measures") means, as used in ESPC Procurement, any equipment,
fixture or furnishing to be added to or used in an existing building or
structure, and any repair, alteration or improvement to an existing building or
structure that is designed to reduce energy consumption and related costs,
including those costs related to electrical energy, thermal energy, water
consumption, waste disposal, and future contract-labor costs and materials
costs associated with maintenance of the building or structure. For purposes of
these OAR
137-049Section
103-0600 to 137-049103-0690 rules, use of either or both of the
terms “building” or “structure” shall be deemed to include existing energy,
water and waste disposal systems connected or related to or otherwise used for
the building or structure when such system(s) are included in the project,
either as part of the project together with the building or structure, or when
such system(s) are the focus of the project. Maintenance services are not
Energy Conservation Measures, for purposes of these OAR 137-049Section 103-0600 to 137-049103-0690 rules.
(5) “Energy Savings Guarantee” means the energy savings and
performance guarantee provided by the ESCO under an ESPC Procurement, which
guarantees to the Contracting AgencyCity that certain energy
savings and performance will be achieved for the project covered by the RFP,
through the installation and implementation of the agreed-upon ECMs for the
project. The Energy Savings Guarantee shall include, but shall not be limited
to, the specific energy savings and performance levels and amounts that will be
guaranteed, provisions related to the financial remedies available to the Contracting
AgencyCity
in the event the guaranteed savings and performance are not achieved, the
specific conditions under which the ESCO will guarantee energy savings and performance
(including the specific responsibilities of the Contracting AgencyCity after final
completion of the design and construction phase), and the term of the energy
savings and performance guarantee.
(6) “Energy
Savings Performance Contract” (or "ESPC")
means a Public Improvement Contract between a Contracting Agencythe City and a Qualified Energy Service Company
for the identification, evaluation, recommendation, design and construction of
Energy Conservation Measures, including a Design-Build Contract, that guarantee
energy savings or performance.
(7) “Guaranteed Maximum Price” (or "GMP") means the
total maximum price provided to the Contracting AgencyCity by the Contractor,
and accepted by the Contracting AgencyCity, that includes all
reimbursable costs of and fees for completion of the Contract Work, as defined
by the Public Improvement Contract, except for material changes in the scope of
Work. It may also include particularly identified contingency amounts.
(8) “Measurement and Verification” (or "M & V") means, as used in ESPC Procurement, the examination of installed ECMs using the International Performance Measurement and Verification Protocol ("IPMVP"), or any other comparable protocol or process, to monitor and verify the operation of energy-using systems pre-installation and post-installation.
(9) “Project Development Plan” means a secondary phase of services
performed by an ESCO in an ESPC Procurement when the ESCO performs more
extensive design of the agreed-upon ECMs for the project, provides the detailed
provisions of the ESCO's Energy
Savings Guarantee that the fully installed and commissioned ECMs will achieve a
particular energy savings level for the building or structure, and prepares an
overall report or plan summarizing the ESCO's services during this secondary phase of the Work and otherwise
explaining how the agreed-upon ECMs will be implemented during the design and
construction phase of the Work; The term "Project Development Plan"
can also refer to the report or plan provided by the ESCO at the conclusion of
this phase of the Work.
(10) “Qualified
Energy Service Company”
(or "ESCO")
means, as used in ESPC Procurement, a company, firm or other legal Person with
the following characteristics: demonstrated technical, operational, financial
and managerial capabilities to design, install, construct, commission, manage,
measure and verify, and otherwise implement Energy Conservation Measures and
other Work on building systems or building components that are directly related
to the ECMs in existing buildings and structures; a prior record of
successfully performing ESPCs on projects involving existing buildings and
structures that are comparable to the project under consideration by the Contracting
AgencyPCO;
and the financial strength to effectively guarantee energy savings and
performance under the ESPC for the project in question, or the ability to
secure necessary financial measures to effectively guarantee energy savings
under an ESPC for that project.
(11) “Technical Energy Audit” means, as used in ESPC Procurement,
the initial phase of services to be performed by an ESCO that includes a detailed evaluation of an existing building
or structure, an evaluation of the potential ECMs that could be effectively
utilized at the facility, and preparation of a report to the Contracting
AgencyPCO
of the ESCO's Findings during
this initial phase of the Work; the term "Technical Energy Audit" can
also refer to the report provided by the ESCO at the conclusion of this phase
of the Work.
Stat. Auth.: ORS 279A.065
Stats. Implemented: ORS 279C.335 & ORS 279A.065
Use of Alternative Contracting Methods
(1) Competitive
Bidding Exemptions. ORS Chapter 279C requires a competitive Bidding
process for Public Improvement Contracts unless a statutory exception applies,
a class of Contracts has been exempted or an individual Contract has been
exempted in accordance with ORS 279C.335 and any applicable RContracting Agency rules.
Use of Alternative Contracting Methods may be directed by a Contracting AgencyBoard's Contract Review Authority
as an exception to the prescribed Public Contracting practices in Oregon, and
their use must be justified in accordance with the Code and these OAR 137-049Section 103-0600 to 137-049103-0690 rules. See OAR 137-049Section 103-0630 regarding
required Findings and restrictions on class exemptions.
(2) Energy
Savings Performance Contracts. Unlike other Alternative Contracting Methods
covered by OAR 137-049Section 103-0600 to 137-049103-0690, ESPCs may be
exempted from the competitive Bidding process for Public Improvement Contracts
pursuant to ORS 279C.335, if the Contracting AgencyPCO complies with the
procedures set forth in OAR 137-049Section 103-0600 to 137-049103-0690 related to the
Solicitation, negotiation and contracting for ESPC services.
(3) Post-Project
Evaluation. ORS 279C.355 requires that the Contracting
AgencyPCO
prepare a formal post-project evaluation of Public Improvement projects in
excess of $100,000 for which the competitive Bidding process was not used. The
purpose of this evaluation is to determine whether it was actually in the Contracting
AgencyCity's
best interest to use an Alternative Contracting Method. The evaluation must be
delivered to the Contracting AgencyBoard’s Contract Review Authority
within 30 Days of the date the Contracting AgencyPCO "accepts"
the Public Improvement project, which event is typically defined in the
Contract. In the absence of such definition, acceptance of the Project occurs
on the later of the date of final payment or the date of final completion of
the Work. ORS 279C.355 describes the timing and content of this evaluation,
with three required elements:
(a) Financial information, consisting of cost estimates, any Guaranteed Maximum Price, changes and actual costs;
(b) A narrative description of successes and failures during design, engineering and construction; and
(c) An objective assessment of the use of the Alternative Contracting Method as compared to the exemption Findings.
(1) Cost Savings Factors. When Findings are required under ORS 279C.335 to exempt a Contract or class of Contracts from competitive Bidding requirements, the "substantial cost savings" criterion at ORS 279C.335(2)(b) allows consideration of the type, cost, amount of the Contract, number of Entities available to Bid, and "such other factors as may be deemed appropriate".
(2) Required Information. Likewise, the statutory definition
of "Findings" at ORS 279.330 means the justification for a Contracting
Agencythe conclusion that includes, "but is not limited
to," information regarding eight identified areas.
(3) Addressing Cost Savings. Accordingly, when the Contract or class of Contracts under consideration for an exemption contemplates the use of Alternative Contracting Methods, the "substantial cost savings" requirement may be addressed by a combination of:
(a) Specified Findings that address the factors and other information specifically identified by statute, including an analysis or reasonable forecast of future cost savings as well as present cost savings; and
(b) Additional Findings that address industry practices, surveys, trends, past experiences, evaluations of completed projects required by ORS 279C.355 and related information regarding the expected benefits and drawbacks of particular Alternative Contracting Methods. To the extent practicable, such Findings shall relate back to the specific characteristics of the project or projects at issue in the exemption request.
(4) Favoritism and Competition. The criteria at ORS 279C.335(2)(a) that it is "unlikely" that the exemption will "encourage favoritism" or "substantially diminish competition" may be addressed in contemplating the use of Alternative Contracting Methods by specifying the manner in which an RFP process will be utilized, that the Procurement will be formally advertised with public notice and disclosure of the planned Alternative Contracting Method, competition will be encouraged, Award made based upon identified selection criteria and an opportunity to protest that Award.
(5) Class Exemptions. In making the findings supporting a
class exemption the Contracting AgencyPCO shall clearly identify
the class with respect to its defining characteristics. Those characteristics
shall include some combination of Project descriptions or locations, time
periods, contract values or method of procurement or other factors that distinguish
the limited and related class of Projects from a Contracting Agencythe City’s’s
overall construction program. Classes shall not be defined solely by funding
sources, such as a particular bond fund, or by method of procurement, but must
be defined by characteristics that reasonably relate to the exemption criteria
set forth in ORS 279C.335(2).
(6) Public Hearing. Before final adoption of Findings
exempting a Public Improvement Contract from the requirement of competitive
bidding, a
Contracting Agencythe Awarding Authority shall give notice and hold
a public hearing as required by ORS 279C.335(4). The hearing shall be for the
purpose of receiving public comment on the Contracting AgencyAwarding Authority's draft
Findings.
Contracting AgenciesThe PCO may utilize the
following RFP process for Public Improvement Contracts, allowing flexibility in
both Proposal evaluation and Contract negotiation, only in accordance with ORS
279C.400 to 279C.410 and OAR 137-049Section 103-0600 to 137-049103-690, unless other
applicable statutes control a Contracting Agencythe PCO's use of competitive Proposals for
Public Improvement Contracts. Also see the subdivision of rules in this
division entitled Formal Procurement Rules, OAR 137-049Section 103-0200 to 137-049103-0480, and RFP related
rules under the Alternative Contracting Methods subdivision at OAR 137-049Section 103-0640 to 137-049103-0660. For ESPCs, the
following RFP process shall be utilized if a Contracting Agencythe PCO desires the Procurement process to be
exempt from the competitive Bidding requirements of ORS 279C.335. The RFP
process for the Alternative Contracting Methods identified in OAR 137-049Section 103-0600 to 137-049103-0690 includes the
following steps:
(1) Proposal
Evaluation. Factors in addition to price may be considered in the
selection process, but only as set forth in the RFP. For ESPC Proposal
evaluations, the Contracting AgencyPCO may provide in the RFP
that qualifications-based evaluation factors will outweigh the Contracting
AgencyCity's
consideration of price-related factors, due to the fact that prices for the
major components of the Work to be performed during the ESPC process
contemplated by the RFP will likely not be determinable at the time of Proposal
evaluation. Proposal evaluation shall be as objective as possible. Evaluation
factors need not be precise predictors of future costs and performance, but to
the extent possible such evaluation factors shall:
(a) Be reasonable estimates based
on information available to the Contracting AgencyPCO;
(b) Treat all Proposals equitably; and
(c) Recognize that public policy
requires that Public Improvements be constructed at the least overall cost to
the Contracting
AgencyCity.
See ORS 279C.305.
(2) Evaluation Factors.
(a) In basic negotiated construction contracting, where the only reason for an RFP is to consider factors other than price, those factors may consist of firm and personnel experience on similar projects, adequacy of equipment and physical plant, sources of supply, availability of key personnel, financial capacity, past performance, safety records, project understanding, proposed methods of construction, proposed milestone dates, references, service, and related matters that affect cost or quality.
(b) In CM/GC contracting, in addition to (a) above, those factors may also include the ability to respond to the technical complexity or unique character of the project, analyze and propose solutions or approaches to complex project problems, coordination of multiple disciplines, the time required to commence and complete the improvement, and related matters that affect cost or quality.
(c) In Design-Build contracting, in addition to (a) and (b) above, those factors may also include design professional qualifications, specialized experience, preliminary design submittals, technical merit, design-builder team experience and related matters that affect cost or quality.
(d) In ESPC contracting, in
addition to the factors set forth in subsections (a), (b) and (c) above, those
factors may also include sample Technical Energy Audits from similar projects,
sample M & V reports, financial statements and related information of the
ESCO for a time period established in the RFP, financial statements and related
information of joint venturers comprising the ESCO, the ESCO's capabilities and
experience in performing energy baseline studies for facilities (independently
or in cooperation with an independent third-party energy baseline consultant),
past performance of the ESCO in meeting energy guarantee Contract levels, the
specific Person that will provide the Energy Savings Guarantee to be offered by
the ESCO, the ESCO's management plan for the project, information on the
specific methods, techniques and equipment that the ESCO will use in the
performance of the Work under the ESPC, the ESCO's team members and consultants
to be assigned to the project, the ESCO's experience in the Energy Savings
Performance Contracting field, the ESCO's experience acting as the prime
contractor on previous ESPC projects (as opposed to a sub-contractor or
consultant to a prime ESCO), the ESCO's vendor and product neutrality related
to the development of ECMs, the ESCO's project history related to removal from
an ESPC project or the inability or unwillingness of the ESCO to complete an
ESPC project, the ESCO's M & V capabilities and experience (independently
or in cooperation with an independent third-party M & V consultant), the
ESCO's ability to explain the unique risks associated with ESPC projects and
the assignment of risk in the particular project between the Contracting
AgencyPCO
and the ESCO, the ESCO's equipment performance guarantee policies and procedures,
the ESCO's energy savings and cost savings guarantee policies and procedures,
the ESCO's project cost guarantee policies and procedures, the ESCO's pricing
methodologies, the price that the ESCO will charge for the Technical Energy
Audit phase of the Work and the ESCO's fee structure for all phases of the
ESPC.
(3) Contract
Negotiations. Contract terms may be negotiated to the extent allowed by
the RFP and OAR 137-049Section 103-0600 to 137-049103-0690, provided that
the general Work scope remains the same and that the field of competition does
not change as a result of material changes to the requirements stated in the
Solicitation Document. See OAR 137-049Section 103-0650. Terms that may be
negotiated consist of details of Contract performance, methods of construction,
timing, assignment of risk in specified areas, fee, and other matters that
affect cost or quality. In ESPC contracting, terms that may be negotiated also
include the scope of preliminary design of ECMs to be evaluated by the parties
during the Technical Energy Audit phase of the Work, the scope of services to
be performed by the ESCO during the Project Development Plan phase of the Work,
the detailed provisions of the Energy Savings Guarantee to be provided by the
ESCO and scope of Work, methodologies and compensation terms and conditions
during the design and construction phase and M & V phase of the Work,
consistent with the requirements of OAR 137-049Section 103-0680 below.
(1) Generally. The use of competitive proposals must be
specially authorized for a Public Improvement Contract under the competitive
bidding requirement of ORS 279C.335 (1), OAR 137-049Section 103-0130 and OAR 137-049Section 103-0600 to 137-049103-0690. Also see ORS
279C.400 to 279C.410 for statutory requirements regarding competitive
Proposals, and OAR 137-049Section 103-0640 regarding competitive
Proposal procedures.
(2) Solicitation Documents. In addition to the Solicitation
Document requirements of OAR 137-049Section 103-0200, this rule applies to the
requirements for Requests for Proposals. RFP Solicitation Documents shall
conform to the following standards:
(a) The Contracting AgencyPCO shall set forth
selection criteria in the Solicitation Document. Examples of evaluation
criteria include price or cost, quality of a product or service, past
performance, management, capability, personnel qualification, prior experience,
compatibility, reliability, operating efficiency, expansion potential,
experience of key personnel, adequacy of equipment or physical plant, financial
wherewithal, sources of supply, references and warranty provisions. See OAR 137-049Section 103-0640.
Evaluation factors need not be precise predictors of actual future costs and
performance, but to the extent possible, such factors shall be reasonable
estimates based on information available to the Contracting AgencyPCO;
(b) When the Contracting AgencyPCO is willing to
negotiate terms and conditions of the Contract or allow submission of revised
Proposals following discussions, the Contracting AgencyPCO must identify the
specific terms and conditions in or provisions of the Solicitation Document
that are subject to negotiation or discussion and authorize Offerors to propose
certain alternative terms and conditions in lieu of the terms and conditions
the Contracting
AgencyPCO
has identified as authorized for negotiation. The Contracting AgencyPCO must describe the
evaluation and discussion or negotiation process, including how the Contracting
AgencyPCO
will establish the Competitive Range;
(c) When the Contracting AgencyPCO intends to Award, or recommend Award of
Contracts to more than one Proposer, the Contracting AgencyPCO must identify in the
Solicitation Document the manner in which it the PCO will determine the
number of Contracts it willto be Awarded. The Contracting AgencyPCO shall also include the
criteria it
will used
to determine how the Contracting AgencyCity will endeavor to
achieve optimal value, utility and substantial fairness when selecting a
particular Contractor to provide goods or services from those Contractors
Awarded Contracts.
(3) Evaluation of Proposals.
(a) Evaluation. The Contracting
AgencyPCO
shall evaluate Proposals only in accordance with criteria set forth in the RFP
and applicable law. The Contracting AgencyPCO shall evaluate
Proposals to determine the Responsible Proposer or Proposers submitting the
best Responsive Proposal or Proposals.
(A) Clarifications. In evaluating
Proposals, a Contracting AgencyThe PCO may seek
information from a Proposer to clarify the Proposer's Proposal. A Proposer must
submit Written and Signed clarifications and such clarifications shall become
part of the Proposer's Proposal.
(B) Limited Negotiation. If the Contracting
AgencyPCO
did not permit negotiation in its Request for Proposals, the Contracting
AgencyPCO
may, nonetheless, negotiate with the highest-ranked Proposer, but may then only
negotiate the:
(i) Statement of Work; and
(ii) Contract Price as it is affected by negotiating the statement of Work.
(iii) The process for discussions or negotiations that is outlined and explained in subsections (5)(b) and (6) of this rule does not apply to this limited negotiation.
(b) Discussions; Negotiations.
If the Contracting
AgencyPCO
permitted discussions or negotiations in the Request for Proposals, the Contracting
AgencyPCO
shall evaluate Proposals and establish the Competitive Range, and may then conduct
discussions and negotiations in accordance with this rule.
(A) If the Solicitation Document
provided that discussions or negotiations may occur at Contracting AgencyPCO's discretion, the Contracting
AgencyPCO
may forego discussions and negotiations and evaluate all Proposals in
accordance with this rule.
(B) If the Contracting AgencyPCO proceeds with
discussions or negotiations, the Contracting AgencyPCO shall establish a
negotiation team tailored for the acquisition. The Contracting AgencyCity's team may include
legal, technical and negotiating personnel.
(c) Cancellation. Nothing in
this rule shall restrict or prohibit the Contracting AgencyPCO from canceling the
Solicitation at any time.
(4) Competitive Range; Protest; Award.
(a) Determining Competitive Range.
(A) If the Contracting AgencyPCO does not cancel the
Solicitation, after the Opening the Contracting AgencyPCO will evaluate all
Proposals in accordance with the evaluation criteria set forth in the Request
for Proposals. After evaluation of all Proposals in accordance with the
criteria set forth in the Request for Proposals, the Contracting AgencyPCO will determine and
rank the Proposers in the Competitive Range.
(B) The Contracting AgencyPCO may increase the
number of Proposers in the Competitive Range if the Contracting AgencyPCO's evaluation of
Proposals establishes a natural break in the scores of Proposers indicating a
number of Proposers greater than the initial Competitive Range are closely
competitive, or have a reasonable chance of being determined the best Proposer
after the Contracting
AgencyPCO's
evaluation of revised Proposals submitted in accordance with the process
described in this rule.
(b) Protesting Competitive Range.
The Contracting
AgencyPCO
shall provide Written notice to all Proposers identifying Proposers in the
Competitive Range. A Proposer that is not within the Competitive Range may
protest the Contracting AgencyPCO's evaluation and
determination of the Competitive Range in accordance with OAR 137-049Section 103-0450.
(c) Intent to Award; Discuss or
Negotiate. After the protest period provided in accordance with these rules
expires, or after the Contracting AgencyPCO has provided a final
response to any protest, whichever date is later, the Contracting AgencyPCO may either:
(A) Provide Written notice to all
Proposers in the Competitive Range of its the intent to Award the Contract to the
highest-ranked Proposer in the Competitive Range.
(i) An unsuccessful Proposer may
protest the Contracting Agency's intent to Award
in accordance with OAR 137-049Section 103-0450.
(ii) After the protest period
provided in accordance with OAR 137-049Section 103-0450 expires, or after the Contracting
AgencyPCO
has provided a final response to any protest, whichever date is later, the Contracting
AgencyPCO
shall commence final Contract negotiations with the highest-ranked Proposer in
the Competitive Range; or
(B) Engage in discussions with Proposers in the Competitive Range and accept revised Proposals from them, and, following such discussions and receipt and evaluation of revised Proposals, conduct negotiations with the Proposers in the Competitive Range.
(5) Discussions;
Revised Proposals. If the Contracting AgencyPCO chooses to enter into
discussions with and receive revised Proposals from the Proposers in the
Competitive Range, the Contracting AgencyPCO shall proceed as
follows:
(a) Initiating Discussions.
The Contracting
AgencyPCO
shall initiate oral or Written discussions with all of the Proposers in the
Competitive Range regarding their Proposals with respect to the provisions of
the RFP that the Contracting AgencyPCO identified in the RFP
as the subject of discussions. The Contracting AgencyPCO may conduct
discussions for the following purposes:
(A) Informing Proposers of deficiencies in their initial Proposals;
(B) Notifying Proposers of parts
of their Proposals for which the Contracting AgencyPCO would like additional
information; and
(C) Otherwise allowing Proposers
to develop revised Proposals that will allow the Contracting AgencyCity to obtain the best
Proposal based on the requirements and evaluation criteria set forth in the
Request for Proposals.
(b) Conducting Discussions.
The Contracting
AgencyPCO
may conduct discussions with each Proposer in the Competitive Range necessary
to fulfill the purposes of this section, but need not conduct the same amount
of discussions with each Proposer. The Contracting AgencyPCO may terminate
discussions with any Proposer in the Competitive Range at any time. However,
the Contracting
AgencyPCO
shall offer all Proposers in the Competitive Range the opportunity to discuss
their Proposals with Contracting AgencyPCO before the Contracting
AgencyPCO
notifies Proposers of the date and time pursuant to this section that revised
Proposals will be due.
(A) In conducting
discussions, the Contracting AgencyPCO:
(i) Shall treat all Proposers fairly and shall not favor any Proposer over another;
(ii) Shall not discuss other Proposers' Proposals;
(iii) Shall not suggest specific revisions that a Proposer should make to its Proposal, and shall not otherwise direct the Proposer to make any specific revisions to its Proposal.
(B) At any time
during the time allowed for discussions, the Contracting AgencyPCO may:
(i) Continue discussions with a particular Proposer;
(ii) Terminate discussions with a particular Proposer and continue discussions with other Proposers in the Competitive Range; or
(iii) Conclude discussions with all remaining Proposers in the Competitive Range and provide notice to the Proposers in the Competitive Range to submit revised Proposals.
(c) Revised Proposals. If
the Contracting
AgencyPCO
does not cancel the Solicitation at the conclusion of the Contracting AgencyPCO's discussions with all
remaining Proposers in the Competitive Range, the Contracting AgencyPCO shall give all
remaining Proposers in the Competitive Range notice of the date and time by
which they must submit revised Proposals. This notice constitutes the Contracting
AgencyPCO's
termination of discussions, and Proposers must submit revised Proposals by the
date and time set forth in the Contracting AgencyPCO's notice.
(A) Upon receipt of the revised
Proposals, the Contracting AgencyPCO shall score the
revised Proposals based upon the evaluation criteria set forth in the Request
for Proposals, and rank the revised Proposals based on the Contracting AgencyPCO's scoring.
(B) The Contracting AgencyPCO may conduct
discussions with and accept only one revised Proposal from each Proposer in the
Competitive Range unless otherwise set forth in the Request for Proposals.
(d) Intent to Award; Protest.
The Contracting
AgencyPCO
shall provide Written notice to all Proposers in the Competitive Range of the Contracting
Agency's intent to Award, or to recommend Award of
the Contract. An unsuccessful Proposer may protest the Contracting Agency's intent
to Award in accordance with OAR 137-049Section 103-0450. After the protest period
provided in accordance with that rule expires, or after the Contracting AgencyPCO has provided a final
response to any protest, whichever date is later, the Contracting AgencyPCO shall commence final
Contract negotiations.
(6) Negotiations.
(a) Initiating Negotiations.
The Contracting
AgencyPCO
may determine to commence negotiations with the highest-ranked Proposer in the
Competitive Range following the:
(A) Initial determination of the Competitive Range; or
(B) Conclusion of discussions with all Proposers in the Competitive Range and evaluation of revised Proposals.
(b) Conducting Negotiations.
(A) Scope. The Contracting
AgencyPCO
may negotiate:
(i) The statement of Work;
(ii) The Contract Price as it is affected by negotiating the statement of Work; and
(iii) Any other terms and
conditions reasonably related to those expressly authorized for negotiation in
the Request for Proposals. Accordingly, Proposers shall not submit, and Contracting
AgencyPCO
shall not accept, for negotiation any alternative terms and conditions that are
not reasonably related to those expressly authorized for negotiation in the
Request for Proposals.
(c) Terminating Negotiations.
At any time during discussions or negotiations that the Contracting AgencyPCO conducts in accordance
with this rule, the Contracting AgencyPCO may terminate
discussions or negotiations with the highest-ranked Proposer, or the Proposer
with whom it is currently discussing or negotiating, if the Contracting AgencyPCO reasonably believes
that:
(A) The Proposer is not discussing or negotiating in good faith; or
(B) Further discussions or negotiations with the Proposer will not result in the parties agreeing to the terms and conditions of a final Contract in a timely manner.
(d) Continuing Negotiations.
If the Contracting
AgencyPCO
terminates discussions or negotiations with a Proposer, the Contracting AgencyPCO may then commence
negotiations with the next highest scoring Proposer in the Competitive Range,
and continue the process described in this rule until the Contracting AgencyPCO has either:
(A) Determined to Award, or if not the Awarding Authority, determined to recommend Award to the Awarding Authority of 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 Contracting
AgencyPCO
provided for more than one round of discussions or negotiations in the Request
for Proposals.
(1) A Request for Proposals may result in a lump sum Contract Price, as in the case of competitive Bidding. Alternatively, a cost reimbursement Contract may be negotiated.
(2) Economic incentives or disincentives may be included to
reflect stated Contracting AgencyCity purposes related to
time of completion, safety or other Public Contracting objectives, including
total least cost mechanisms such as life cycle costing.
(3) A Guaranteed Maximum Price (GMP) is used as the pricing
mechanism for CM/GC where a total Contract Price is provided in the design
phase in order to assist the Contracting AgencyPCO in determining whether
the project scope is within the Contracting AgencyCity's budget, and
allowing for design changes during preliminary design rather than after final
design Work has been completed.
(a) If this collaborative process
is successful, the Contractor shall propose a final GMP, which may be accepted
by the Contracting
Agency Awarding Authority and included within the Contract.
(b) If this collaborative process
is not successful, and no mutually agreeable resolution on GMP can be achieved
with the Contractor, then the Contracting AgencyPCO shall terminate the
Contract. The public Contracting AgencyPCO may then proceed to
negotiate a new Contract (and GMP) with the firm that was next ranked in the
original selection process, or employ other means for continuing the project
under ORS Chapter 279C.
(4) When cost reimbursement Contracts are utilized,
regardless of whether a GMP is included, the Contracting AgencyPCO shall provide for
audit controls that will effectively verify rates and ensure that costs are
reasonable, allowable and properly allocated.
(1) General.
The Design-Build form of contracting, as defined at OAR 137-049Section 103-0610(3), has
technical complexities that are not readily apparent. Contracting AgenciesThe PCO shall should use this
contracting method only with the assistance of knowledgeable staff or
consultants who are experienced in its use. In order to use the Design-Build
process, the Contracting AgencyPCO must be able to
reasonably anticipate the following types of benefits:
(a) Obtaining, through a Design-Build team, engineering design, plan preparation, value engineering, construction engineering, construction, quality control and required documentation as a fully integrated function with a single point of responsibility;
(b) Integrating value engineering suggestions into the design phase, as the construction Contractor joins the project team early with design responsibilities under a team approach, with the potential of reducing Contract changes;
(c) Reducing the risk of design flaws, misunderstandings and conflicts inherent in construction Contractors building from designs in which they have had no opportunity for input, with the potential of reducing Contract claims;
(d) Shortening project time as construction activity (early submittals, mobilization, subcontracting and advance Work) commences prior to completion of a "Biddable" design, or where a design solution is still required (as in complex or phased projects); or
(e) Obtaining innovative design solutions through the collaboration of the Contractor and design team, which would not otherwise be possible if the Contractor had not yet been selected.
(2) Authority.
Contracting
Agencies The
PCO shall
should utilize
the Design-Build form of contracting only in accordance with the requirements
of these OARsSection 137-049103-0600 to 137-049103-0690 rules. See
particularly OAR 137-049Section 103-0620 on "Use of Alternative
Contracting Methods" and OAR 137-049Section 103-0680 pertaining to ESPCs.
(3) Selection.
Design-Build selection criteria may include those factors set forth above in OAR 137-049Section 103-0640(2)(a),
(b) and (c).
(4) QBS
Inapplicable. Because the value of construction services
predominates the Design-Build form of contracting, the qualifications based
selection (QBS) process mandated by ORS 279C.110 for State Contracting Agencies
in obtaining certain consultant services is not applicable(reserved).
(5) Licensing.
If a Design-Build Contractor is not an Oregon licensed design professional, the
Contracting
AgencyPCO
shall require that the Design-Build Contractor disclose in its Written Offer
that it is not an Oregon licensed design professional, and identify the Oregon
licensed design professional(s) who will provide design services. See ORS
671.030(5) regarding the offer of architectural services, and ORS 672.060(11)
regarding the offer of engineering services that are appurtenant to
construction services.
(6) Performance Security. ORS 279C.380(1)(a) provides that for Design-Build Contracts the surety's obligation on performance bonds, or the Bidder's obligation on cashier's or certified checks accepted in lieu thereof, includes the preparation and completion of design and related professional services specified in the Contract. This additional obligation, beyond performance of construction services, extends only to the provision of professional services and related design revisions, corrective Work and associated costs prior to final completion of the Contract (or for such longer time as may be defined in the Contract). The obligation is not intended to be a substitute for professional liability insurance, and does not include errors and omissions or latent defects coverage.
(7) Contract
Requirements. Contracting Agencies shall conform
tTheir
Design-Build contracting practices shall conform to the following requirements:
(a) Design Services. The level or type of design services required must be clearly defined within the Procurement documents and Contract, along with a description of the level or type of design services previously performed for the project. The services to be performed shall be clearly delineated as either design Specifications or performance standards, and performance measurements must be identified.
(b) Professional Liability.
The Contract shall clearly identify the liability of design professionals with
respect to the Design-Build Contractor and the Contracting AgencyCity, as well as
requirements for professional liability insurance.
(c) Risk Allocation. The
Contract shall clearly identify the extent to which the Contracting AgencyCity requires an express
indemnification from the Design-Build Contractor for any failure to perform,
including professional errors and omissions, design warranties, construction
operations and faulty Work claims.
(d) Warranties. The Contract
shall clearly identify any express warranties made to the Contracting AgencyCity regarding characteristics or capabilities of the
completed project (regardless of whether errors occur as the result of improper
design, construction, or both), including any warranty that a design will be
produced that meets the stated project performance and budget guidelines.
(e) Incentives. The Contract shall clearly identify any economic incentives and disincentives, the specific criteria that apply and their relationship to other financial elements of the Contract.
(f) Honoraria. If allowed by
the RFP, honoraria or stipends may be provided for early design submittals from
qualified finalists during the Solicitation process on the basis that the Contracting
AgencyCity
is benefited from such deliverables.
(1) Generally. These OAR 137-049Section 103-0600 to 137-049103-0690 rules include a limited, efficient method for Public
Contract Contracting Agencies to enter into ESPCs outside the
competitive Bidding requirements of ORS 279C.335 for existing buildings or
structures, but not for new construction. If a Contracting Agencythe PCO chooses not to utilize the ESPC
Procurement method provided for by these OAR 137-049Section 103-0600 to 137-049103-0690 rules, the Contracting AgencyAwarding Authority may
still enter into an ESPC by complying with the competitive Bidding exemption
process set forth in ORS 279C.335, or by otherwise complying with the Procurement
requirements applicable to any Contracting Agency not subject
to all the requirements of ORS 279C.335.
(2) ESPC Contracting
Method. The ESPC form of contracting, as defined at OAR 137-049Section 103-0610(6), has
unique technical complexities associated with the determination of what ECMs
are feasible for the Contracting AgencyCity, as well as the
additional technical complexities associated with a Design-Build Contract.
Contracting Agencies shall only utilize the ESPC contracting method with the
assistance of knowledgeable staff or consultants who are experienced in its
use. In order to utilize the ESPC contracting process, the Contracting AgencyPCO must be able to
reasonably anticipate one or more of the following types of benefits:
(a) Obtaining, through an ESCO, the following types of integrated services: facility profiling, energy baseline studies, ECMs, Technical Energy Audits, project development planning, engineering design, plan preparation, cost estimating, life cycle costing, construction administration, project management, construction, quality control, operations and maintenance staff training, commissioning services, M & V services and required documentation as a fully integrated function with a single point of responsibility;
(b) Obtaining, through an ESCO, an Energy Savings Guarantee;
(c) Integrating the Technical Energy Audit phase and the Project Development Plan phase into the design and construction phase of Work on the project;
(d) Reducing the risk of design flaws, misunderstandings and conflicts inherent in the construction process, through the integration of ESPC services;
(e) Obtaining innovative design solutions through the collaboration of the members of the ESCO integrated ESPC services team;
(f) Integrating cost-effective ECMs into an existing building or structure, so that the ECMs pay for themselves through savings realized over the useful life of the ECMs;
(g) Preliminary design,
development, implementation and an Energy Savings Guarantee of ECMs into an
existing building or structure through an ESPC, as a distinct part of a major
remodel
of that building or structure that is being performed under a separate remodeling
Contract; and
(h) Satisfying local energy efficiency design criteria or requirements.
(3) Authority.
The ESPC form of contracting shall be used only in accordance with the
requirements of these Section 103-0600 to 103-0690 rules, in orderContracting
Agencies desiring to pursue an exemption from the competitive Bidding
requirements of ORS 279C.335 (and, if applicable, ORS 351.086), shall
utilize.
the ESPC
form of contracting only in accordance with the requirements of these OAR 137-049-0600 to 137-049-0690 rules.
(4) No Findings
Required. A Contracting AgencyThe PCO is only required
to comply with the ESPC contracting procedures set forth in these OAR 137-049Section 103-0600 to 137-049103-0690 rules in order
for the ESPC to be exempt from the competitive Bidding processes of ORS
279C.335. No Findings are required for an ESPC to be exempt from the
competitive Bidding process for Public Improvement Contracts pursuant to ORS
279C.335, unless the Contracting AgencyCity is subject to the
requirements of ORS 279C.335 and the PCO chooses not to comply with the ESPC
contracting procedures set forth in these OAR 137-049Section 103-0600 to 137-049103-0690 rules.
(5) Selection.
ESPC selection criteria may include those factors set forth above in OAR 137-049Section 103-0640(2)(a),
(b), (c) and (d). Since the Energy Savings Guarantee is such a fundamental
component in the ESPC contracting process, Proposers must disclose in their
Proposals the identity of any Person providing (directly or indirectly) any
Energy Savings Guarantee that may be offered by the successful ESCO during the
course of the performance of the ESPC, along with any financial statements and
related information pertaining to any such Person.
(6) (QBS Inapplicable. Because the
value of construction services predominates in the ESPC method of contracting,
the qualifications based selection (QBS) process mandated by ORS 279C.110 for
State Contracting Agencies in obtaining certain consultant services is not
applicable. reserved)
(7) Licensing.
If the ESCO is not an Oregon licensed design professional, the Contracting AgencyPCO shall require that the
ESCO disclose in the ESPC that it is not an Oregon licensed design
professional, and identify the Oregon licensed design professional(s) who will
provide design services. See ORS 671.030(5) regarding the offer of architectural
services, and ORS 672.060(11) regarding the offer of engineering services that
are appurtenant to construction services.
(8) Performance
Security. At the point in the ESPC when the parties enter into a binding
Contract that constitutes a Design-Build Contract, the ESCO must provide a
performance bond and a payment bond, each for 100% of the full Contract Price,
including the construction and design and related professional services
specified in the ESPC Design-Build Contract, pursuant to ORS 279C.380(1)(a).
For ESPC Design-Build Contracts, these "design
and related professional services"
include conventional design services, commissioning services, training services
for the Contracting
AgencyCity's
operations and maintenance staff, and any similar professional services
provided by the ESCO under the ESPC Design-Build Contract prior to final
completion of construction. M & V services, and any services associated
with the ESCO's Energy Savings Guarantee are not included in these ORS
279C.380(1)(a) "design and
related professional services."
Nevertheless, a Contracting Agencythe PCO may require that the ESCO provide
performance security for M & V services and any services associated with
the ESCO's Energy Savings Guarantee, if the Contracting AgencyPCO so provides in the
RFP.
(9) Contracting
Requirements. Contracting Agencies shall conform tTheir ESPC contracting
practices shall conform to
the following requirements:
(a) General ESPC Contracting
Practices. An ESPC involves a
multi-phase project, which includes the following contractual elements:
(A) A contractual structure which includes general Contract terms
describing the relationship of the parties, the various phases of the Work, the
contractual terms governing the Technical Energy Audit for the project, the
contractual terms governing the Project Development Plan for the project, the
contractual terms governing the final design and construction of the project,
the contractual terms governing the performance of the M & V services for
the project, and the detailed provisions of the ESCO's Energy Savings Guarantee for the project.
(B) The various phases of the ESCO's Work will include the following:
(i) The Technical Energy Audit phase of the Work;
(ii) The Project Development Plan phase of the Work;
(iii) A third phase of the Work that constitutes a Design-Build Contract,
during which the ESCO completes any plans and Specifications required to
implement the ECMs that have been agreed to by the parties to the ESPC, and the
ESCO performs all construction, commissioning, construction administration and
related services to actually construct the project; and
(iv) A final phase of the Work, whereby the ESCO, independently or in
cooperation with an independent consultant hired by the Contracting AgencyCity, performs M & V
services to ensure that the Energy Savings Guarantee identified by the ESCO in
the earlier phases of the Work and agreed to by the parties has actually been
achieved.
(b) Design-Build Contracting
Requirements in ESPCs. At the point in the ESPC when the parties enter into
a binding Contract that constitutes a Design-Build Contract, the Contracting
Agency shall conform its Design-Build
contracting practices shall
be conformed to the Design-Build contracting requirements set forth in OAR 137-040Section 103-05670(7) above.
(c) Pricing Alternatives. The Contracting AgencyPCO may utilize one of the
following pricing alternatives in an ESPC:
(A) A fixed price for each phase of the services to be provided by the ESCO;
(B) A cost reimbursement pricing mechanism, with a maximum not-to-exceed price or a GMP; or
(C) A combination of a fixed fee
for certain components of the services to be performed, a cost reimbursement
pricing mechanism for the construction services to be performed with a GMP, a
single or annual fixed fee for M & V services to be performed for an
identified time period after final completion of the construction Work, and a
single or annual Energy Savings Guarantee fixed fee payable for an identified
time period after final completion of the construction Work that is conditioned
on certain energy savings being achieved at the facility by the ECMs that have
been implemented by the ESCO during the project (in the event an annual M &
V services fee and annual Energy Savings Guarantee fee is utilized by the
parties, the parties may provide in the Design-Build Contract that, at the sole
option of the Contracting AgencyPCO, the ESCO's M & V
services may be terminated prior to the completion of the M & V/Energy
Savings Guarantee period and the Contracting AgencyCity's future obligation
to pay the M & V services fee and Energy Savings Guarantee fee will
likewise be terminated, under terms agreed to by the parties).
(d) Permitted ESPC Scope of Work.
The scope of Work under the ESPC is restricted to implementation and
installation of ECMs, as well as other Work on building systems or building
components that are directly related to the ECMs, and that, as an integrated
unit, will pay for themselves over the useful life of the ECMs installed. The
permitted scope of Work for ESPCs resulting from a Solicitation under these Section 137-049103-0600 to 137-049103-0690 rules does not
include maintenance services for the project facility.
(1) General.
The CM/GC form of contracting, as defined at OAR 137-049Section 103-0610(2), is a
technically complex project delivery system. Contracting Agencies shallThe PCO should use this
contracting method only with the assistance of knowledgeable staff or
consultants who have a demonstrated capability of managing the CM/GC process in
the necessary disciplines of engineering, construction scheduling and cost control,
accounting, legal, Public Contracting and project management. Unlike the
Design-Build form of contracting, the CM/GC form of contracting does not
contemplate a "single point of responsibility" under which the
Contractor is responsible for successful completion of all Work related to a
performance Specification. The CM/GC has defined contract obligations,
including responsibilities as part of the project team along with the Contracting
AgencyPCO
and design professional, although in CM/GC there is a separate contract between
the Contracting
AgencyCity
and design professional. In order to utilize the CM/GC method, the Contracting
AgencyPCO
must be able to reasonably anticipate the following types of benefits:
(a) Time Savings. The Public
Improvement has significant schedule ramifications, such that concurrent design
and construction are necessary in order to meet critical deadlines and shorten
the overall duration of construction. The Contracting AgencyPCO may consider
operational and financial data that show significant savings or increased
opportunities for generating revenue as a result of early completion, as well
as less disruption to public facilities as a result of shortened construction
periods;
(b) Cost Savings. Early
Contractor input during the design process is expected to contribute to
significant cost savings. The Contracting AgencyPCO may consider value
engineering, building systems analysis, life cycle costing analysis and
construction planning that lead to cost savings. The Contracting AgencyPCO shall specify any
special factors influencing this analysis, including high rates of inflation,
market uncertainty due to material and labor fluctuations or scarcities, and
the need for specialized construction expertise due to technical challenges; or
(c) Technical Complexity.
The Public Improvement presents significant technical complexities that are
best addressed by a collaborative or team effort between the Contracting
AgencyPCO,
design professionals and Contractor, in which the Contractor will assist in
addressing specific project challenges through pre-construction services. The Contracting
AgencyPCO
may consider the need for Contractor input on issues such as operations of the
facility during construction, tenant occupancy, public safety, delivery of an
early budget or GMP, financing, historic preservation, difficult remodelmodeling projects
and projects requiring complex phasing or highly coordinated scheduling.
(2) Authority.
Contracting Agencies shall use the CM/GC form of contracting only in accordance
with the requirements of these rules. See particularly OAR 137-049Section 103-0620 on
"Use of Alternative Contracting Methods".
(3) Selection.
CM/GC selection criteria may include those factors set forth above in OAR 137-049Section 103-0640(2)(b).
(4) Basis for
Payment. The CM/GC process adds specified Construction Manager services
to traditional General Contractor services, requiring full Contract performance
within a negotiated Guaranteed Maximum Price (GMP). The basis for payment is reimbursable
direct costs as defined under the Contract, plus a fee constituting full
payment for Work and services rendered, which together shall not exceed the
GMP. See GMP definition at OAR 137-049Section 103-0610(7) and Pricing Mechanisms at
OAR
137-049Section
103-0660.
(5) Contract
Requirements. Contracting Agencies shall conform their The CM/GC contracting
practices shall conform to
the following requirements:
(a) Setting the GMP. The GMP shall be set at an identified time consistent with industry practice, after supporting information reasonably considered necessary to its use has been developed, and the supporting information shall define with particularity both what is included and excluded from the GMP. A set of drawings and Specifications shall be produced establishing the GMP scope.
(b) Adjustments to the GMP. The Contract shall clearly identify the standards or factors under which changes or additional Work will be considered outside of the Work scope that warrants an increase in the GMP, as well as criteria for decreasing the GMP. The GMP shall not be increased without a concomitant increase to the scope defined at the establishment of the GMP or most recent GMP amendment.
(c) Cost Savings. The
Contract shall clearly identify the disposition of any cost savings resulting
from completion of the Work below the GMP; that is, under what circumstances,
if any, the CM/GC might share in those cost savings, or whether they accrue
only to the Contracting AgencyCity's benefit. (Note that
unless there is a clearly articulated reason for sharing such cost savings,
they should accrue to the Contracting AgencyCity.)
(d) Cost Reimbursement. The Contract shall clearly identify what items or categories of items are eligible for cost reimbursement within the GMP, including any category of "General Conditions" (a general grouping of direct costs that are not separately invoiced, subcontracted or included within either overhead or fee), and may also incorporate a mutually-agreeable cost-reimbursement standard.
(e) Audit. Cost reimbursements shall be made subject to final audit adjustment, and the Contract shall establish an audit process to ensure that Contract costs are allowable, properly allocated and reasonable.
(f) Fee. Compensation
for the CM/GC's services shall be paid on the basis of a fee that is inclusive
of profit, overhead and all other indirect or non-reimbursable costs. Costs
determined to be included within the fee should be expressly defined wherever
possible. The fee, first expressed as a proposed percentage of all reimbursable
costs, shall be identified during and become an element of the selection
process. It shall subsequently be expressed as a fixed amount when the GMP is
established.
(g) Incentives. The Contract
shall clearly identify any economic incentives, the specific criteria that
apply and their relationship to other financial elements of the Contract
(including the GMP).
(h) Controlled
Insurance Programs. For projects anticipated to exceed $75 Million,
the Contract shall clearly identify whether an Owner Controlled or Contractor
Controlled Insurance Program is anticipated or allowable. If so, the Contract
shall clearly identify (1) anticipated cost savings from reduced premiums,
claims reductions and other factors, (2) the allocation of cost savings, and
(3) safety responsibilities and/or incentives.
(i) Early Work. The RFP
shall clearly identify, whenever feasible, the circumstances under which any of
the following activities may be authorized and undertaken for compensation
prior to establishing the GMP:
(A) Early Procurement of
materials and supplies;
(B) Early release of Bid
packages for such things as site development; and
(C) Other advance Work related
to critical components of the Contract.
(j) Subcontractor
Selection. The Contract shall clearly describe the methods
by which the CM/GC shall publicly receive, open and record Bids or price
quotations, and competitively select subcontractors to perform the Contract
Work based upon price, as well as the mechanisms by which the Contracting
Agency may waive those requirements. The documents shall
also describe completely the methods by which the CM/GC and its affiliated or
subsidiary entities may compete to perform the Work, including, at a minimum,
advance notice to the public of the CM/GC's intent to compete and a public
Opening of Bids or quotations by an independent party.
(k) Subcontractor
Approvals and Protests. The Contract shall clearly
establish whether the Contracting Agency must approve subcontract
awards, and to what extent, if any, the Contracting Agency will resolve
Procurement protests of subcontractors and suppliers. The related procedures
and reporting mechanisms shall be established with certainty, including whether
the CM/GC acts as the Contracting Agency's representative in this
process and whether the CM/GC's subcontracting records are considered to be
public records. In any event, the Contracting Agency shall retain
the right to monitor the subcontracting process in order to protect Contracting
Agency’s interests.
(l) CM/GC
Self-Performance. Whenever feasible, the Contract shall establish
the elements of Work the CM/GC may self-perform without competition, including,
for example, the Work of the job-site general conditions. In the alternative,
the Contract shall include a process for Contracting Agency approval of
CM/GC self-performance.
(m) Socio-Economic
Programs. The Contract shall clearly identify conditions
relating to any required socio-economic programs (such as Affirmative Action or
Prison Inmate Labor Programs), including the manner in which such programs
affect the CM/GC's subcontracting requirements, the enforcement mechanisms
available, and the respective responsibilities of the CM/GC and Contracting
Agency.
Stat. Auth.: ORS 279A.065
Stats. Implemented: ORS 297C.335 & ORS 279C.380(2)
Contracting AgenciesThe PCO shall include in
all formal Solicitations for Public Improvement Contracts all of the ORS
Chapter 279C required Contract clauses, as set forth in the checklist contained
in OAR
137-049Section
103-0200(1)(c) regarding Solicitation Documents. The following series of
rules provide further guidance regarding particular Public Contract provisions.
Stat. Auth.: ORS 279A.065
Stats. Implemented: ORS 297C.505 to ORS 279C.545 & ORS 279C.800 to 279C.870
Contracting AgenciesThe PCO shall not place
any provision in a Public Improvement Contract purporting to waive, release, or
extinguish the rights of a Contractor to damages resulting from a Contracting
Agencythe
City’s's unreasonable delay in performing
the Contract. However, Contract provisions requiring notice of delay, providing
for alternative dispute resolution such as arbitration (where allowable) or
mediation, providing other procedures for settling contract disputes, or
providing for reasonable liquidated damages, are permissible.
(1) Withholding of
Retainage. Except to the extent a Contracting
Agency's enabling laws require
otherwise, a Contracting Agencythe City shall not retain an amount in excess of
five percent of the Contract Price for Work completed. If
the Contractor has performed at least 50 percent of the Contract Work and is
progressing satisfactorily, upon the Contractor's submission of Written
application containing the surety's Written approval, the Contracting AgencyPCO may, in its the PCO’s discretion,
reduce or eliminate retainage on any remaining progress payments. The Contracting
AgencyPCO
shall respond in Writing to all such applications within a reasonable time.
When the Contract Work is 97-1/2 percent completed, the Contracting AgencyPCO may, at its discretion
and without application by the Contractor, reduce the retained amount to 100
percent of the value of the remaining unperformed Contract Work. A Contracting
AgencyThe PCO
may at any time reinstate retainage. Retainage shall be included in the final
payment of the Contract Price.
(2) Deposit in
interest-bearing accounts. Upon request of the Contractor, a Contracting
Agencythe PCO shall deposit cash
retainage in an interest-bearing account in a bank, savings bank, trust
company, or savings association, for the benefit of the Contracting AgencyCity. Earnings on such
account shall accrue to the Contractor. State Contracting Agencies shall
establish the account through the State Treasurer.
(3) Alternatives to
cash retainage. In lieu of cash retainage to be held by a Contracting
Agencythe City, the Contractor may substitute one of
the following:
(a) Deposit of securities:
(A) The Contractor may deposit
bonds or securities with the Contracting AgencyCity or in any bank or
trust company to be held for the benefit of the Contracting AgencyCity. In such event, the Contracting
AgencyPCO
shall reduce the retainage by an amount equal to the value of the bonds and
securities, and reimburse the excess to the Contractor.
(B) Bonds and securities deposited or acquired in lieu of retainage shall be of a character approved by the Oregon Department of Administrative Services, which may include, without limitation:
(i) Bills, certificates, notes or bonds of the United States.
(ii) Other obligations of the United States or its Contracting Agencies.
(iii) Obligations of any corporation wholly owned by the Federal Government.
(iv) Indebtedness of the Federal National Mortgage Association.
(C) Upon the Contracting AgencyPCO's determination that
all requirements for the protection of the Contracting AgencyCity's interests have been
fulfilled, it shall release to the Contractor all bonds and securities
deposited in lieu of retainage.
(b) Deposit of surety bond. A Contracting
AgencyThe PCO,
at its PCO’s discretion, may
allow the Contractor to deposit a surety bond in a form acceptable to the Contracting
AgencyPCO
in lieu of all or a portion of funds retained or to be retained. A Contractor
depositing such a bond shall accept surety bonds from its subcontractors and
suppliers in lieu of retainage. In such cases, retainage shall be reduced by an
amount equal to the value of the bond, and the excess shall be reimbursed.
(4) Recovery of
costs. A Contracting AgencyThe City may recover from the Contractor all
costs incurred in the proper handling of cash retainage and securities, by
reduction of the final payment.
(1) Request for
progress payments. Each month the Contractor shall submit to the Contracting
AgencyPCO
its Written request for a progress payment based upon an estimated percentage
of Contract completion. At the Contracting AgencyPCO's discretion, this
request may also include the value of material to be incorporated in the
completed Work that has been delivered to the premises and appropriately
stored. The sum of these estimates is referred to as the "value of
completed Work." With these estimates as a base, the Contracting AgencyPCO will make a progress
payment to the Contractor, which shall be equal to: (i) the value of completed
Work; (ii) less those amounts that have been previously paid; (iii) less other
amounts that may be deductible or owing and due to the Contracting AgencyPCO for any cause; and
(iv) less the appropriate amount of retainage.
(2) Progress payments do not mean acceptance of Work. Progress payments shall not be construed as an acceptance or approval of any part of the Work, and shall not relieve the Contractor of responsibility for defective workmanship or material.
Stat. Auth.: ORS 279A.065
Stats. Implemented: ORS 279C.570
(1) Prompt payment policy. A Contracting AgencyThe City shall pay promptly all payments due and
owing to the Contractor on Contracts for Public Improvements.
(2) Interest on
progress payments. Late payment interest shall begin to accrue on
payments due and owing on the earlier of 30 Days after receipt of invoice or 15
Days after Contracting AgencyPCO approval of payment
(the "Progress Payment Due Date"). The interest rate shall equal
three times the discount rate on 90-day commercial paper in effect on the
Progress Payment Due Date at the Federal Reserve Bank in the Federal Reserve
district that includes Oregon, up to a maximum rate of 30 percent.
(3) Interest on final payment. Final payment on the Contract Price, including retainage, shall be due and owing no later than 30 Days after Contract completion and acceptance of the Work. Late-payment interest on such final payment shall thereafter accrue at the rate of one and one-half percent per month until paid.
(4) Settlement or
judgment interest. In the event of a dispute as to compensation due a
Contractor for Work performed, upon settlement or judgment in favor of the
Contractor, interest on the amount of the settlement or judgment shall be added
to, and not made part of, the settlement or judgment. Such interest, at the
discount rate on 90-day commercial paper in effect at the Federal Reserve Bank
in the Federal Reserve District that includes Oregon, shall accrue from the
later of the Progress Payment Due Date, or thirty Days after the Contractor
submitted a claim for payment to the Contracting AgencyPCO in Writing or
otherwise in accordance with the Contract requirements.
(1) Notification of
Completion; inspection. The Contractor shall notify the Contracting
AgencyPCO
in Writing when the Contractor considers the Contract Work completed. Within 15
Days of receiving Contractor's notice, the Contracting AgencyPCO will inspect the
project and project records, and will either accept the Work or notify the
Contractor of remaining Work to be performed.
(2) Acknowledgment
of acceptance. When the Contracting AgencyPCO finds that all Work
required under the Contract has been completed satisfactorily, the Contracting
AgencyPCO
shall acknowledge acceptance of the Work in Writing.
(1) Generally. ORS 279C.800 to 279C.870 regulates Public Works Contracts, as defined in ORS 279C.800(5), and requirements for payment of prevailing wage rates. Also see administrative rules of the Bureau of Labor and Industries (BOLI) at OAR Chapter 839.
(2) Required Contract Conditions. As detailed in the above statutes and rules, every Public Works Contract must contain the following provisions:
(a) Contracting AgencyCity authority to pay
certain unpaid claims and charge such amounts to Contractors, as set forth in
ORS 279C.515(1).
(b) Maximum hours of labor and overtime, as set forth in ORS 279C.520(1).
(c) Employer notice to employees of hours and days that employees may be required to work, as set forth in ORS 279C.520(2).
(d) Contractor required payments for certain services related to sickness or injury, as set forth in ORS 279C.530.
(e) Requirement for payment of prevailing rate of wage, as set forth in ORS 279C.830(1).
(f) Requirement for payment of fee to BOLI, as set forth in ORS 279C.830(2) and administrative rule of the BOLI commissioner.
(3) Requirements for Specifications. The Specifications for every Public Works Contract, consisting of the procurement package (such as the Project Manual, Bid or Proposal Booklets, Request for Quotes or similar procurement Specifications), must contain the following provisions:
(a) The prevailing rate of wage, as
required by ORS 279C.830(1), physically contained within or attached to hard
copies of procurement Specifications, and by a downloadable direct link to the
specific wage rates that apply to the project (either on the Contracting
AgencyCity
web site or the BOLI web site) when procurement Specifications are also made
available in electronic format.
(b) Reference to payment of fee to BOLI, as required by ORS 279C.830(2).
(1) Generally.
The Contracting
Agency's Solicitation Document shall not expressly
or implicitly require any product by brand name or mark, nor shall it require
the product of any particular manufacturer or seller, except pursuant to an
exemption granted under ORS 279C.345(2).
(2) Equivalents.
A
Contracting AgencyThe PCO may identify products by brand names
so long as the following language: "approved equal"; "or
equal"; "approved equivalent" or "equivalent," or
similar language is included in the Solicitation Document. The Contracting
AgencyPCO
shall determine, in its sole discretion, whether an Offeror's alternate product
is "equal" or "equivalent."
Stat. Auth.: ORS 279A.065
Stats. Implemented: ORS 279C.345
(1) Records
Maintenance; Access. Contractors and subcontractors shall maintain all
fiscal records relating to Contracts in accordance with generally accepted
accounting principles ("GAAP"). In addition, Contractors and
subcontractors shall maintain all other records necessary to clearly document
(i) their performance; and (ii) any claims arising from or relating to their
performance under a Public Contract. Contractors and subcontractors shall make
all records pertaining to their performance and any claims under a Contract
(the books, fiscal records and all other records, hereafter referred to as
"Records") accessible to the Contracting AgencyPCO at reasonable times
and places, whether or not litigation has been filed as to such claims.
(2) Inspection and
Audit. A Contracting AgencyThe PCO may, at reasonable
times and places, have access to and an opportunity to inspect, examine, copy,
and audit the Records of any Person that has submitted cost or pricing data
according to the terms of a Contract to the extent that the Records relate to
such cost or pricing data. If the Person must provide cost or pricing data
under a Contract, the Person shall maintain such Records that relate to the
cost or pricing data for 3 years from the date of final payment under the
Contract, unless a shorter period is otherwise authorized in Writing.
(3) Records
Inspection; Contract Audit. The Contracting AgencyPCO or the PCO’s designees , and its
authorized representatives, shall be entitled to inspect, examine,
copy, and audit any Contractor's or subcontractor's Records, as provided in section
1 of this rule. The Contractor and subcontractor shall maintain the Records and
keep the Records accessible and available at reasonable times and places for a
minimum period of 3 years from the date of final payment under the Contract or
subcontract, as applicable, or until the conclusion of any audit, controversy
or litigation arising out of or related to the Contract, whichever date is
later, unless a shorter period is otherwise authorized in Writing.
(1) Contract
incomplete. If the Contract is still in force, the Contracting AgencyPCO may, after consultation with the City Attorney or LORA Board Counsel, as
appropriate, in
accordance with ORS 279C.515(1), pay a valid claim to the Person furnishing the
labor or services, and charge the amount against payments due or to become due
to the Contractor under the Contract. If a Contracting Agencythe PCO chooses to make such a payment as
provided in ORS 279C.515(1), the Contractor and the Contractor's surety shall
not be relieved from liability for unpaid claims.
(2) Contract
completed. If the Contract has been completed and all funds disbursed to
the prime Contractor, all claims shall be referred to the Contractor's surety
for resolution. The Contracting AgencyPCO shall not make
payments to subcontractors or suppliers for Work already paid for by the Contracting
AgencyCity.
(1) Suspension of Work. In the event a Contracting Agencythe PCO suspends performance of Work for any
reason considered by the Contracting AgencyPCO to be in the public
interest other than a labor dispute, the Contractor shall be entitled to a
reasonable extension of Contract time, and to reasonable compensation for all
costs, including a reasonable allowance for related overhead, incurred by the
Contractor as a result of the suspension.
(2) Termination of Contract by mutual agreement for reasons other than default.
(a) Reasons for termination. The parties may agree to terminate the Contract or a divisible portion thereof if:
(A) The Contracting AgencyPCO suspends Work under
the Contract for any reason considered to be in the public interest (other than
a labor dispute, or any judicial proceeding relating to the Work filed to
resolve a labor dispute); and
(B) Circumstances or conditions are such that it is impracticable within a reasonable time to proceed with a substantial portion of the Work.
(b) Payment. When a Contract, or
any divisible portion thereof, is terminated pursuant to this section (2), the Contracting
AgencyCity
shall pay the Contractor a reasonable amount of compensation for preparatory
Work completed, and for costs and expenses arising out of termination. The Contracting
AgencyCity
shall also pay for all Work completed, based on the Contract Price. Unless the
Work completed is subject to unit or itemized pricing under the Contract,
payment shall be calculated based on percent of Contract completed. No claim
for loss of anticipated profits will be allowed.
(3) Public interest termination by Contracting
Agency. A Contracting AgencyThe PCO may include in its the Contracts terms
detailing the circumstances under which the Contractor shall be entitled to
compensation as a matter of right in the event the Contracting AgencyCity unilaterally
terminates the Contract for any reason considered by the Contracting AgencyPCO to be in the public
interest.
(4) Responsibility for completed Work. Termination of the Contract or a divisible portion thereof pursuant to this rule shall not relieve either the Contractor or its surety of liability for claims arising out of the Work performed.
(5) Remedies cumulative. The Contracting AgencyCity may, at its discretion, avail itself of any or all
rights or remedies set forth in these rules, in the Contract, or available at
law or in equity.
Stat. Auth.: ORS 279A.065
Stats. Implemented: ORS 279C.650, ORS 279C.326, ORS
279C.655, ORS 279C.660, ORS 279C.665 & ORS 279C.670
(1) Definitions for
Rule. As used in this rule:
(a) “Amendment” means a Written modification to the terms
and conditions of a Public Improvement Contract, other than by Changes to the
Work, within the general scope of the original Procurement that requires mutual
agreement between the Contracting AgencyCity and the Contractor.
(b) “Changes to the Work” means a mutually agreed upon change
order, or a construction change directive or other Written order issued by the Contracting
Agency Change
Order Authority or its authorized representatives to
the Contractor requiring a change in the Work within the general scope of a
Public Improvement Contract and issued under its changes provisions in
administering the Contract and, if applicable, adjusting the Contract Price or
contract time for the changed work.
(2) Changes Provisions. Changes to the Work are anticipated
in construction and, accordingly, Contracting Agenciesthe PCO shall include
changes provisions in all Public Improvement Contracts that detail the scope of
the changes clause, provide pricing mechanisms, authorize the Contracting
AgencyChange
Order Authority or its authorized representatives to
issue Changes to the Work and provide a procedure for addressing Contractor
claims for additional time or compensation. When Changes to the Work are agreed
to or issued consistent with the Contract’s changes provisions they are not
considered to be new Procurements and an exemption from competitive bidding is
not required for their issuance by Contracting Agencies.
(3) Change Order Authority. Contracting Agencies may
establish internal limitations and delegations for authorizing Changes to the
Work, including dollar limitations. Dollar limitations on Changes to the Work
are not set by these Model Rules, but such changes are limited by the above
definition of that termThe Change Order Authority is designated in Section
101-0140.
(4) Contract Amendments. In addition to the exemption from competitive
bidding requirements provided for Emergency Contracts (Section 103-150),
intermediate level Public Improvement Contracts (Section 103-0160), and for substitute Contractors
provided in subsection (5) below, Contract Amendments within the general
scope of the original Procurement are not considered to be new Procurements and
an exemption from competitive bidding is not required in order to add components
or phases of Work specified in or reasonably implied from the Solicitation
Document. Amendments to a Public Improvement Contract may be made only when:
(a) They are within the general scope of the original Procurement;
(b) The field of competition and Contractor selection would not likely have been affected by the Contract modification. Factors to be considered in making that determination include similarities in Work, project site, relative dollar values, differences in risk allocation and whether the original Procurement was accomplished through Competitive Bidding, Competitive Proposals, competitive quotes, sole source or Emergency contract;
(c) In the case of a Contract obtained under an Alternative Contracting Method, any additional Work was specified or reasonably implied within the findings supporting the competitive bidding exemption; and
(d) The Amendment is made consistent with applicable legal requirements.
Stat. Auth.: ORS 279A.065
Stats. Implemented: ORS 279A.065 & ORS 279C.400(1)
GENK0876 (8/26/04)