Or. Admin. Code § 137-048-0130 - Applicable Selection Procedures; Pricing Information; Disclosure of Proposals; Conflicts of Interest
(1)
When selecting the most qualified Consultant to perform Architectural,
Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying
Services, Contracting Agencies shall follow the applicable selection procedure
under either OAR 137-048-0200 (Direct Appointment Procedure), 137-048-0210
(Informal Selection Procedure) or 137-048-0220 (Formal Selection Procedure).
State Contracting Agencies selecting a Consultant under this section (1) may
solicit or use pricing policies and pricing Proposals, or other pricing
information, including the number of hours proposed for the services required,
expenses, hourly rates and overhead, to determine a Consultant's compensation
only after the State Contracting Agency has selected the most qualified
Consultant in accordance with the applicable selection procedure; provided,
however, this restriction on a State Contracting Agency's solicitation or use
of pricing policies, pricing Proposals or other pricing information does not
apply to selection procedures used by the State Contracting Agency to select a
Consultant when the Architectural, Engineering, Photogrammetric Mapping,
Transportation Planning or Land Surveying Services for the Project do not
exceed $100,000 or in an Emergency, pursuant to ORS 279C.0110(10) and (11). In
following the Direct Appointment Procedure under OAR 137-048-0200, a State
Contracting Agency or Local Contracting Agency may base its selection of a
Consultant on any information available to the Agency prior to beginning the
Direct Appointment Procedure for the Project involved. Local Contracting
Agencies may solicit or use pricing policies and pricing Proposals, or other
pricing information, including the number of hours proposed for the services
required, expenses, hourly rates and overhead, in any of the Local Contracting
Agencies' selection procedures to select Consultants to perform Architectural,
Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying
Services, pursuant to the requirements of ORS 279C.110(5).
(2) Contracting Agencies selecting a
Consultant to perform Related Services shall follow one of the following
selection procedures:
(a) When selecting a
Consultant on the basis of qualifications alone, Contracting Agencies shall
follow the applicable selection procedure under OAR 137-048-0200 (Direct
Appointment Procedure), 137-048-0210 (Informal Selection Procedure), or
137-048-0220 (Formal Selection Procedure);
(b) When selecting a Consultant on the basis
of price competition alone, Contracting Agencies shall follow the applicable
provisions under OAR 137-048-0200 (Direct Appointment Procedure), the
applicable provisions of 137-048-0210 (Informal Selection Procedure) pertaining
to obtaining and evaluating price Proposals and other pricing information, or
the applicable provisions of 137-048-0220 (Formal Selection Procedure)
pertaining to obtaining and evaluating price Proposals and other pricing
information; and
(c) When selecting
a Consultant on the basis of price and qualifications, Contracting Agencies
shall follow the applicable provisions under OAR 137-048-0200 (Direct
Appointment Procedure), the applicable provisions of 137-048-0210 (Informal
Selection Procedure) pertaining to obtaining and evaluating price and
qualifications Proposals, or the applicable provisions of 137-048-0220 (Formal
Selection Procedure) pertaining to obtaining and evaluating price and
qualifications Proposals. For selections under the informal selection procedure
of OAR 137-048-0210, Contracting Agencies may use abbreviated requests for
Proposals that nevertheless meet the requirements of OAR 137-048-0210, when the
Contracting Agency determines, in its sole discretion, that the characteristics
of the Project and the Related Services required by the Contracting Agency
would be adequately addressed by a more abbreviated request for Proposals
document, generally comparable to the intermediate Procurement procedures and
related documentation under ORS 279B.070 and OAR 137-047-0270. Contracting
Agencies subject to this section (2) may request and consider a Proposer's
pricing policies and pricing Proposals or other pricing information, including
the number of hours proposed for the services required, expenses, hourly rates
and overhead, submitted with a Proposal.
(3) A Contracting Agency is not required to
follow the procedures in Section (1) or Section (2) of this rule, when the
Contracting Agency has established Price Agreements with more than one
Consultant and is selecting a single Consultant to perform Architectural,
Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying
Services or Related Services under an individual work order or task order.
Provided, however, the criteria and procedures the Contracting Agency uses to
select a single Consultant, when the Contracting Agency has established Price
Agreements with more than one Consultant, must meet the requirements of OAR
137-048-0270 (Price Agreements).
(4) Contracting Agencies may use electronic
methods to screen and select a Consultant in accordance with the procedures
described in sections (1) and (2) of this rule. If a Contracting Agency uses
electronic methods to screen and select a Consultant, the Contracting Agency
shall first promulgate rules for conducting the screening and selection
procedure by electronic means, substantially in conformance with OAR
137-047-0330 (Electronic Procurement).
(5) For purposes of these division 48 rules,
a "mixed" Contract is one requiring the Consultant to perform Architectural,
Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying
Services, and also provide Related Services, other Services or other related
Goods under the Contract. A Contracting Agency's classification of a
procurement that will involve a "mixed" Contract will be determined by the
predominant purpose of the Contract. A Contracting Agency will determine the
predominant purpose of the Contract by determining which of the Services
involves the majority of the total Estimated Fee to be paid under the Contract.
If the majority of the total Estimated Fee to be paid under the Contract is for
Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or
Land Surveying Services, the Contracting Agency shall comply with the
requirements of ORS 279C.110 and section (1) of this rule. If majority of the
total Estimated Fee to be paid under the Contract is for Related Services, the
Contracting Agency shall comply with the requirements of ORS 279C.120 and
section (2) of this rule. If the majority of the total Estimated Fee to be paid
under the Contract is for some other Services or Goods under the Public
Contracting Code, the Contracting Agency shall comply with the applicable
provisions of the Public Contracting Code and divisions 46, 47 and 49 of the
Model Rules that match the predominant purpose of the Contract.
(6) In applying these rules, State
Contracting Agencies shall support the State of Oregon's goal of promoting a
sustainable economy in the rural areas of the state.
(7) Consistent with the requirements of ORS
279C.107 and the remaining requirements of ORS 279C.100, 279C.105 and 279C.110
through 279C.125, the following provisions apply to Proposals received by a
Contracting Agency for Architectural, Engineering, Photogrammetric Mapping,
Transportation Planning or Land Surveying Services or Related Services:
(a) The term "competitive proposal," for
purposes of ORS 279C.107, includes Proposals under OAR 137-048-0200 (Direct
Appointment Procedure), 137-048-0210 (Informal Selection Procedure),
137-048-0220 (Formal Selection Procedure) or 137-048-0130(2)(c) (selection
based on price and qualifications) and any Proposals submitted in response to a
selection process for a work order or task order under 137-048-0270 (Price
Agreements).
(b) For purposes of
Proposals received by a Contracting Agency under OAR 137-048-0200 (Direct
Appointment Procedure), a formal notice of intent to award is not required. As
a result, while a Contracting Agency may make Proposals under 137-048-0200
(Direct Appointment Procedure) open for public inspection following the
Contracting Agency's decision to begin Contract negotiations with the selected
Consultant, 137-048-0200 Proposals are not required to be open for public
inspection until after the Contracting Agency has executed a Contract with the
selected Consultant.
(c) In the
limited circumstances permitted by ORS 279C.110, 279C.115 and 279C.120, where
the Contracting Agency is conducting discussions or negotiations with Proposers
who submit Proposals that the Contracting Agency has determined to be closely
competitive or to have a reasonable chance of being selected for award, the
Contracting Agency may open Proposals so as to avoid disclosure of Proposal
contents to competing Proposers, consistent with the requirements of ORS
279C.107. Otherwise, Contracting Agencies may open Proposals in such a way as
to avoid disclosure of the contents until after the Contracting Agency executes
a Contract with the selected Consultant. If the Contracting Agency determines
that it is in the best interest of the Contracting Agency to do so, the
Contracting Agencies may make Proposals available for public inspection
following the Contracting Agency's issuance of a notice of intent to award a
Contract to a Consultant; and
(d)
Disclosure of Proposals and Proposal information is otherwise governed by ORS
279C.107.
(8) As
required by ORS 279C.307(1), pertaining to requirements to ensure the
objectivity and independence of providers of certain Personal Services which
are procured under ORS chapter 279C, Contracting Agencies may not:
(a) Procure the Personal Services identified
in ORS 279C.307 from a Contractor or Consultant or an affiliate of a Contractor
or Consultant who is a party to the Public Contract that is subject to
administration, management, monitoring, inspection, evaluation or oversight by
means of the Personal Services; or
(b) Procure the Personal Services identified
in ORS 279C.307 through the Public Contract that is subject to administration,
management, monitoring, inspection, evaluation or oversight by means of the
Personal Services.
(9)
The requirements of ORS 279C.307(1) and section (8) of this rule apply in the
following circumstances, except as provided in sections (10) and (11) of this
rule:
(a) A Contracting Agency requires the
Procurement of Personal Services for the purpose of administering, managing,
monitoring, inspecting, evaluating compliance with or otherwise overseeing a
Public Contract or performance under a Public Contract that is subject to ORS
chapter 279C. A Public Contract that is "subject to ORS chapter 279C" includes
a Public Contract for Architectural, Engineering, Photogrammetric Mapping,
Transportation Planning or Land Surveying Services, a Public Contract for
Related Services or a Public Contract for construction services under ORS
chapter 279C.
(b) The Procurements
of Personal Services subject to the requirements of ORS 279C.307 include, but
are not limited to, the following:
(A)
Procurements for Architectural, Engineering, Photogrammetric Mapping,
Transportation Planning or Land Surveying Services, which involve overseeing or
monitoring the performance of a construction Contractor under a Public Contract
for construction services subject to ORS chapter 279C;
(B) Procurements for commissioning services,
which involve monitoring, inspecting, evaluating or otherwise overseeing the
performance of a Contractor or Consultant providing Architectural, Engineering,
Photogrammetric Mapping, Transportation Planning or Land Surveying Services or
the performance of a construction Contractor under a Public Contract for
construction services subject to ORS chapter 279C;
(C) Procurements for project management
services, which involve administration, management, monitoring, inspecting,
evaluating compliance with or otherwise overseeing the performance of a
Contractor or Consultant providing Architectural, Engineering, Photogrammetric
Mapping, Transportation Planning or Land Surveying Services, construction
services subject to ORS chapter 279C, commissioning services or other Related
Services for a Project;
(D)
Procurements for special inspections and testing services, which involve
inspecting, testing or otherwise overseeing the performance of a construction
Contractor under a Public Contract for construction services subject to ORS
chapter 279C; and
(E) Procurements
for other Related Services or Personal Services, which involve administering,
managing, monitoring, inspecting, evaluating compliance with or otherwise
overseeing the Public Contracts described in Section (9)(a) of this
rule.
(10)
The requirements of ORS 279C.307(1) and section (8) of this rule do not apply
in the following circumstances, except as further specified below:
(a) To a Contracting Agency's Procurement of
both design services and construction services through a single "Design-Build"
Procurement, as that term is defined in OAR 137-049-0610. Such a Design-Build
Procurement includes a Procurement under an Energy Savings Performance
Contract, as defined in ORS 279A.010. Provided, however, the requirements of
ORS 279C.307 do apply to a Contracting Agency's Procurement of Personal
Services for the purpose of administering, managing, monitoring, inspecting,
evaluating compliance with or otherwise overseeing a Design-Build Contract or
performance under such a Contract resulting from a Design-Build Procurement;
and
(b) To a Contracting Agency's
Procurement of both pre-construction services and construction services through
a single Procurement of Construction Manager/General Contractor Services, as
that term is defined in ORS 279C.332(3). Provided, however, the requirements of
ORS 279C.307 do apply to a Contracting Agency's Procurement of Personal
Services for the purpose of administering, managing, monitoring, inspecting,
evaluating compliance with or otherwise overseeing a Construction
Manager/General Contractor Services Contract or performance under such a
Contract resulting from a Procurement of Construction Manager/General
Contractor Services.
(11) As permitted by ORS 279C.307(3), a
Contracting Agency may apply for an exception to the requirements of ORS
279C.307(1) in the situation when the Contracting Agency anticipates that it
must procure Personal Services for the purpose of administering, managing,
monitoring, inspecting, evaluating compliance with or otherwise overseeing a
Public Contract or performance under a Public Contract that is subject to ORS
chapter 279C, and the Contracting Agency desires to accept a Bid or other
Proposal from a Contractor or Consultant that would otherwise be prohibited
from bidding or proposing to provide the required Personal Services. In order
for the Contracting Agency to obtain such an exception to the requirements of
ORS 279C.307(1), the Contracting Agency must apply for and obtain an approved
exception from the Appropriate Authority for the Contracting Agency before
awarding a contract to the Contractor or Consultant under a Procurement for the
required Personal Services, or before entering into an amendment of an existing
Public Contract with the Contractor or Consultant to obtain the Personal
Services.
(a) Application Requirements. The
Contracting Agency's application to the Appropriate Authority for an exception
under ORS 279C.307(3) must include the following Findings and Justifications:
(A) The Contracting Agency requires the
Personal Services described in ORS 279C.307(1);
(B) Accepting a Bid or Proposal from a
Contractor or Consultant that would be subject to the prohibition described in
ORS 279C.307(1) is in the best interest of the Contracting Agency;
(C) Approving the exception is unlikely to
encourage favoritism in awarding Public Contracts or to substantially diminish
competition for Public Contracts; and
(D) Approving the exception:
(i) Is reasonably expected to result in
substantial cost savings to the Contracting Agency or the public; or
(ii) Otherwise will substantially promote the
public interest in a manner that could not be practicably realized by complying
with the prohibition described in ORS 279C.307(1).
(b) Consultation with Legal
Counsel. A Contracting Agency shall consult with the Contracting Agency's legal
counsel during the exception process provided for in ORS 279C.307(3) as
follows:
(A) During the process of preparing
an application for the exception to ensure compliance with the requirements of
ORS 279C.307 and with the other applicable provisions of ORS Chapter
279C;
(B) Pursuant to the
requirements of an ORS 279C.307(3) exception approved by the Contracting
Agency's Appropriate Authority; and
(C) The Contracting Agency's consultation
with its legal counsel should include discussion and evaluation of mitigation
measures that the Contracting Agency can include in the Procurement and in any
resulting Public Contract for the Personal Services, in order to reduce any
competitive advantage that the Contractor or Consultant may have or may be
perceived to have, and to increase the objectivity and independence of the
Contractor or Consultant during its performance of the Personal
Services.
(c)
Definitions. The following definitions apply to section (11) of this rule:
(A) "Appropriate Authority" means, for a
State Contracting Agency, the Director of the Oregon Department of
Administrative Services; for the Oregon Department of Transportation pursuant
to ORS 279A.050(3)(b), the Director of Transportation; and, for a Local
Contracting Agency, the Local Contracting Agency's local contract review board;
and
(B) "Findings and
Justifications" means the determinations, findings and justifications for a
conclusion that a Contracting Agency, in seeking an exception from the
objectivity and independence requirements of ORS 279C.307(1), reaches based on
the considerations set forth in ORS 279C.307(3)(d) and based on sufficient
supporting facts.
Notes
Statutory/Other Authority: ORS 279A.065, OL 2011 & ch 458
Statutes/Other Implemented: ORS 279A.065, ORS 279C.100-279C.125, OL 2009, ch. 880, sec. 11, OL 2011 & ch 458
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