Or. Admin. Code § 137-047-0250 - Source Selection
(1)
Except as permitted by ORS 279B.065 through 279B.085 and 279A.200 through
279A.225, a Contracting Agency shall Award a Contract for Goods or Services, or
both based on Offers received in response to either competitive sealed Bids
pursuant to 279B.055 or competitive sealed Proposals pursuant to
279B.060.
(2) Written Cost Analysis
for Contracts for Services. Before conducting the Procurement of a Contract for
Services that is subject to ORS 279B.030, 279B.033, and ORS 279B.036, a
Contracting Agency must, in the absence of a determination under section 34 of
that enactment that performing the services with the Contracting Agency's own
personnel and resources is not feasible, conduct a Written cost
analysis.
(3) Feasibility
Determination for Contracts for Services. A Contracting Agency may proceed with
the procurement of a Contract for Services without conducting a cost analysis
under ORS 279B.033 if the Contracting Agency makes Written findings that one or
more of the special circumstances described in ORS 279B.036, make the
Contracting Agency's use of its own personnel and resources to provide the
Services not feasible.
(4) Special
Circumstances. The special circumstances identified in ORS 279B.036 that
require a Contracting Agency to procure the Services by Contract include any
circumstances, conditions or occurrences that would make the Services, if
performed by the Contracting Agency's employees, incapable of being managed,
utilized or dealt with successfully in terms of the quality, timeliness of
completion, success in obtaining desired results, or other reasonable needs of
the Contracting Agency.
(5) Written
Cost Analysis under ORS 279B.036.
(a) Basic
Comparison. The Written cost analysis must compare an estimate of the
Contracting Agency's cost of performing the Services with an estimate of the
cost a potential Contractor would incur in performing the Services. However,
The Contracting Agency may proceed with the Procurement for Services only if it
determines that the Contracting Agency would incur more cost in performing the
Services with the Contracting Agency's own personnel than it would incur in
procuring the Services from a Contractor. In making this determination, the
cost the Contracting Agency would incur in procuring the Services from a
Contractor includes the fair market value of any interest in equipment,
materials or other assets the Contracting Agency will provide to the Contractor
for the performance of the Services.
(b) Costs of Using Contracting Agency's Own
Personnel and Resources. When estimating the Contracting Agency's cost of
performing the Services, the Contracting Agency shall consider cost factors
that include:
(A) The salary or wage and
benefit costs for the employees of the Contracting Agency who would be directly
involved in performing the Services, to the extent those costs reflect the
proportion of the activity of those employees in the direct provision of the
Services. These costs include those salary or wage and benefit costs of the
employees who inspect, supervise or monitor the performance of the Services, to
the extent those costs reflect the proportion of the activity of those
employees in the direct inspection, supervision, or monitoring of the
performance of the subject Services.
(B) The material costs necessary to the
performance of the Services, including the costs for space, energy,
transportation, storage, equipment and supplies used or consumed in the
provision of the Services.
(C) The
costs incurred in planning for, training for, starting up, implementing,
transporting and delivering the Services.
(D) Any costs related to stopping and
dismantling a project or operation because the Contracting Agency intends to
procure a limited quantity of Services or to procure the Services within a
defined or limited period of time.
(E) The miscellaneous costs related to
performing the Services. These costs exclude the Contracting Agency's indirect
overhead costs for existing salaries or wages and benefits for administrators,
and exclude costs for rent, equipment, utilities and materials, except to the
extent the cost items identified in this sentence are attributed solely to
performing the Services and would not be incurred unless the Contracting Agency
performed the Services.
(F) ORS
279B.033 provides that an estimate of the Contracting Agency's costs of
performing the Services includes the costs described in subsections (5)(b)(A)
through (E) of this rule. Therefore, those costs do not constitute an exclusive
list of cost information. A Contracting Agency may consider other reliable
information that bears on the cost to the Contracting Agency of performing the
Services. For example, if the Contracting Agency has accounted for its actual
costs of performing the Services under consideration, or reasonably comparable
Services, in a relatively recent Services project, the Contracting Agency may
consider those actual costs in making its estimate.
(c) Costs a Potential Contractor Would Incur.
When estimating the costs a potential Contractor would incur in performing the
Services, the Contracting Agency shall consider cost factors that include:
(A) The average or actual salary or wage and
benefit costs for Contractors and Contractor employees:
(i) Who work in the business or industry most
closely involved in performing the Services; and
(ii) Who would be necessary and directly
involved in performing the Services or who would inspect, supervise or monitor
the performance of the Services.
(B) The material costs necessary to the
performance of the Services, including the costs for space, energy,
transportation, storage, raw and finished materials, equipment and supplies
used or consumed in the provision of the Services.
(C) The miscellaneous costs related to
performing the Services. These miscellaneous costs include reasonably
foreseeable fluctuations in the costs listed in subsections (5)(c)(A) and (B)
of this rule over the expected duration of the Procurement.
(D) ORS 279B.033 provides that an estimate of
the costs a potential Contractor would incur in performing the Services
includes the costs described in subsections (5)(c)(A) through (C) of this rule.
Therefore, those costs do not constitute an exclusive list of cost information.
A Contracting Agency may consider other reliable information that bears on the
costs a potential Contractor would incur. For example, if the Contracting
Agency, in the reasonably near past, received Bids or Proposals for the
performance of the Services under consideration, or reasonably comparable
Services, the Contracting Agency may consider the pricing offered in those Bids
or Proposals in making its estimate. Similarly, the Contracting Agency may
consider what it actually paid out under a Contract for the same or similar
Services. For the purposes of these examples, the reasonably near past is
limited to Contracts, Bids or Proposals entered into or received within the
five years preceding the date of the cost estimate. The Contracting Agency must
take into account, when considering the pricing offered in previous Bids,
Proposals or Contracts, adjustments to the pricing in light of measures of
market price adjustments like the consumer price indexes that apply to the
Services.
(6)
Decision Based on Cost Comparison. After comparing the difference between the
costs estimated for the Contracting Agency to perform the Services under
section (5)(b) and the estimated costs a potential Contractor would incur in
performing the Services under section (5)(c), the Contracting Agency may
proceed with the Procurement only if the Contracting Agency would incur more
cost in performing the Services with the agency's own personnel and resources
than it would incur in procuring the Services from a Contractor.
(7) Exception Based on Salaries or Wages and
Benefits. If the sole reason that the costs estimated for the Contracting
Agency to perform the Services under section (5)(b) exceed the estimated costs
a potential Contractor would incur in performing the Services under section
(5)(c) is because the average or actual salary or wage and benefit costs for
Contractors and their employees estimated under subsection (5)(c)(A) are lower
than the salary or wage and benefit costs for employees of the Contracting
Agency under subsection (5)(b)(A), then the Contracting Agency may not proceed
with the Procurement.
(8) Exception
Based on Lack of Contracting Agency Personnel and Resources; Reporting. In
cases in which the Contracting Agency determines that it would incur less cost
in providing the Services with its own personnel and resources, the Contracting
Agency nevertheless may proceed with the Procurement if, at the time the
Contracting Agency intends to conduct the Procurement, the Contracting Agency
determines that it lacks personnel and resources to perform the Services within
the time the Contracting Agency requires them. When a Contracting Agency
conducts a Procurement under this section, the Contracting Agency must:
(a) Make and keep a Written determination
that it lacks personnel and resources to perform the Services within the time
the Contracting Agency requires them and of the basis for the Contracting
Agency's decision to proceed with the Procurement.
(b) If the Contracting Agency is a Local
Contracting Agency, provide to its Local Contract Review Board, each calendar
quarter, copies of each Written cost analysis and Written
determination.
(c) If the
Contracting Agency is a State Contracting Agency, provide to the Emergency
Board, each calendar quarter, copies of each Written cost analysis and Written
determination.
(d) If the
Contracting Agency is a State Contracting Agency, prepare a request to the
Governor for an appropriation and authority necessary for the State Contracting
Agency to hire personnel and obtain resources necessary to perform the Services
that are the subjects of the Written cost analyses and Written determinations
within the time needed by the State Contracting Agency. The request to the
Governor must include copies of the records submitted to the Emergency Board
under subsection (8)(c) of this rule.
Notes
Statutory/Other Authority: ORS 279A.065, OL 2009, c 880, §§ 3 & §§ 4
Statutes/Other Implemented: ORS 279B.050, OL 2009, c 880 & § 2-4
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