Or. Admin. Code § 137-047-0260 - Competitive Sealed Proposals
(1)
Generally. A Contracting Agency may procure Goods or Services by competitive
sealed Proposals as set forth in ORS 279B.060. A Contracting Agency shall use a
Request for Proposal to initiate a competitive sealed Proposal solicitation.
The Request for Proposal must contain the information required by 279B.060(2)
and by section (2) of this rule. The Contracting Agency shall provide public
notice of the Request for Proposal as set forth in OAR 137-047-0300.
(2) Request for Proposal. In addition to the
provisions required by ORS 279B.060(2), the Request for Proposal must include
the following:
(a) General Information.
(A) Notice of any pre-Offer conference as
follows:
(i) The time, date and location of
any pre-Offer conference;
(ii)
Whether attendance at the conference will be mandatory or voluntary;
and
(iii) A provision that provides
that statements made by the Contracting Agency's representatives at the
conference are not binding on the Contracting Agency unless confirmed by
Written Addendum.
(B)
The form and instructions for submission of Proposals and any other special
information, e.g., whether Proposals may be submitted by electronic means. (See
OAR 137-047-0330 for required provisions of electronic Proposals);
(C) The time, date and place of
Opening;
(D) The office where the
Solicitation Document may be reviewed;
(E) Proposer's certification of
nondiscrimination in obtaining required subcontractors in accordance with ORS
279A.110(4). (See OAR 137-046-0210(2)); and
(F) How the Contracting Agency will notify
Proposers of Addenda and how the Contracting Agency will make Addenda
available. (See OAR 137-047-0430).
(b) Contracting Agency Need to Purchase. The
character of the Goods or Services the Contracting Agency is purchasing
including, if applicable, a description of the acquisition, Specifications,
delivery or performance schedule, inspection and acceptance requirements. As
required by ORS 279B.060(2)(c), the Contracting Agency's description of its
need to purchase must:
(A) Identify the scope
of the work to be performed under the resulting Contract, if the Contracting
Agency awards one;
(B) Outline the
anticipated duties of the Contractor under any resulting Contract;
(C) Establish the expectations for the
Contractor's performance of any resulting Contract; and
(D) Unless the Contractor under any resulting
Contract will provide architectural, engineering, photogrammetric mapping,
transportation planning, or land surveying services, or related services that
are subject to ORS 279C.100 to 279C.125, or the Contracting Agency for Good
Cause specifies otherwise, the scope of work must require the Contractor to
meet the highest standards prevalent in the industry or business most closely
involved in providing the Goods or Services that the Contracting Agency is
purchasing.
(c) Proposal
and Evaluation Process.
(A) The anticipated
solicitation schedule, deadlines, protest process, and evaluation
process;
(B) The Contracting Agency
shall set forth selection criteria in the Solicitation Document in accordance
with the requirements of ORS 279B.060(3)(e). Evaluation criteria need not be
precise predictors of actual future costs and performance, but to the extent
possible, the criteria shall:
(i) Afford the
Contracting Agency the ability to compare the Proposals and Proposers, applying
the same standards of comparison to all Proposers;
(ii) Rationally reflect Proposers' abilities
to perform the resulting Contract in compliance with the Contract's
requirements; and
(iii) Permit the
Contracting Agency to determine the relative pricing offered by the Proposers,
and to reasonably estimate the costs to the Contracting Agency of entering into
a Contract based on each Proposal, considering information available to the
Contracting Agency and subject to the understanding that the actual Contract
costs may vary as a result of the Statement of Work ultimately negotiated or
the quantity of Goods or Services for which the Contracting Agency
contracts.
(C) If the
Contracting Agency's solicitation process calls for the Contracting Agency to
establish a Competitive Range, the Contracting Agency shall generally describe,
in the Solicitation Document, the criteria or parameters the Contracting Agency
will apply to determine the Competitive Range. The Contracting Agency, however,
subsequently may determine or adjust the number of Proposers in the Competitive
Range in accordance with OAR 137-047-0261(6).
(d) Applicable Preferences, including those
described in ORS 279A.120, 279A.125(2) and 282.210.
(e) For Contracting Agencies subject to ORS
305.385, the Proposers' certification of compliance with the Oregon tax laws in
accordance with ORS 305.385.
(f)
All contractual terms and conditions the Contracting Agency determines are
applicable to the Procurement. The Contracting Agency's determination of
contractual terms and conditions that are applicable to the Procurement may
take into consideration, as authorized by ORS 279B.060(3), those contractual
terms and conditions the Contracting Agency will not include in the Request for
Proposal because the Contracting Agency either will reserve them for
negotiation, or will request Proposers to offer or suggest those terms or
conditions. (See OAR 137-047-0260(3)).
(g) As required by ORS 279B.060(2)(h), the
Contract terms and conditions must specify the consequences of the Contractor's
failure to perform the scope of work or to meet the performance standards
established by the resulting Contract. Those consequences may include, but are
not limited to:
(A) The Contracting Agency's
reduction or withholding of payment under the Contract;
(B) The Contracting Agency's right to require
the Contractor to perform, at the Contractor's expense, any additional work
necessary to perform the scope of work or to meet the performance standards
established by the resulting Contract; and
(C) The Contracting Agency's rights, which
the Contracting Agency may assert individually or in combination, to declare a
default of the resulting Contract, to terminate the resulting Contract, and to
seek damages and other relief available under the resulting Contract or
applicable law.
(3) The Contracting Agency may include the
applicable contractual terms and conditions in the form of Contract provisions,
or legal concepts to be included in the resulting Contract. Further, the
Contracting Agency may specify that it will include or use Proposer's terms and
conditions that have been pre-negotiated under OAR 137-047-0550(3), but the
Contracting Agency may only include or use a Proposer's pre-negotiated terms
and conditions in the resulting Contract to the extent those terms and
conditions do not materially conflict with the applicable contractual terms and
conditions. The Contracting Agency shall not agree to any Proposer's terms and
conditions that were expressly rejected in a solicitation protest under OAR
137-047-0420.
(4) For multiple
Award Contracts, the Contracting Agency may enter into Contracts with different
terms and conditions with each Contractor to the extent those terms and
conditions do not materially conflict with the applicable contractual terms and
conditions. The Contracting Agency shall not agree to any Proposer's terms and
conditions that were expressly rejected in a solicitation protest under OAR
137-047-0420.
(5) Good Cause. For
the purposes of this rule, "Good Cause" means a reasonable explanation for not
requiring Contractor to meet the highest standards prevalent in the industry or
business most closely involved in providing the Goods or Services under the
Contract, and may include an explanation of circumstances that support a
finding that the requirement would unreasonably limit competition or is not in
the best interest of the Contracting Agency. The Contracting Agency shall
document in the Procurement file the basis for the determination of Good Cause
for specifying otherwise. A Contracting Agency will have Good Cause to specify
otherwise when the Contracting Agency determines:
(a) The use or purpose to which the Goods or
Services will be put does not justify a requirement that the Contractor meet
the highest prevalent standards in performing the Contract;
(b) Imposing express technical, standard,
dimensional or mathematical specifications will better ensure that the Goods or
Services will be compatible with, or will operate efficiently or effectively
with, associated information technology, hardware, software, components,
equipment, parts, or on-going Services with which the Goods or Services will be
used, integrated, or coordinated;
(c) The circumstances of the industry or
business that provides the Goods or Services are sufficiently volatile in terms
of innovation or evolution of products, performance techniques, or scientific
developments, that a reliable highest prevalent standard does not exist or has
not been developed;
(d) That other
circumstances exist in which the Contracting Agency's interest in achieving
economy, efficiency, compatibility or availability in the Procurement of the
Goods or Services reasonably outweighs the Contracting Agency's practical need
for the highest standard prevalent in the applicable or closest industry or
business that supplies the Goods or Services to be delivered under the
resulting Contract.
Notes
Statutory/Other Authority: ORS 279A.065
Statutes/Other Implemented: ORS 279B.060, OL 2015 & ch 325 (HB 2716)
State regulations are updated quarterly; we currently have two versions available. Below is a comparison between our most recent version and the prior quarterly release. More comparison features will be added as we have more versions to compare.
No prior version found.