OAR 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 (Competitive sealed proposals). 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 (Competitive sealed proposals)(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 (Public Notice of Solicitation Documents).(2)
Request for Proposal. In addition to the provisions required by ORS 279B.060 (Competitive sealed proposals)(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 (Electronic Procurement) 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 (Discrimination in subcontracting prohibited)(4). (See OAR 137-046-0210 (Subcontracting to and Contracting with Emerging Small Businesses; Disqualification)(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 (Addenda to Solicitation Document)).(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 (Competitive sealed proposals)(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 (Definitions for ORS 279C.100 to 279C.125) to 279C.125 (Architectural, engineering, photogrammetric mapping, transportation planning and land surveying services selection process for local public improvements procured through state agency), 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 (Competitive sealed proposals)(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 (Multi-tiered and Multistep Proposals)(6).(d)
Applicable Preferences, including those described in ORS 279A.120 (Preference for Oregon goods and services), 279A.125 (Preference for recycled materials)(2) and 282.210 (Performance within state of public printing, binding and stationery work).(e)
For Contracting Agencies subject to ORS 305.385 (Agencies to supply licensee and contractor lists), the Proposers’ certification of compliance with the Oregon tax laws in accordance with ORS 305.385 (Agencies to supply licensee and contractor lists).(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 (Competitive sealed proposals)(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 (Competitive Sealed Proposals)(3)).(g)
As required by ORS 279B.060 (Competitive sealed proposals)(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 (Prequalification of Prospective Offerors; Pre-negotiation of Contract Terms and Conditions)(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 (Pre-Offer Conferences).(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 (Pre-Offer Conferences).(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.(6)
Waiver of Thirty-Percent-to-Contract-Price Weighting Requirement. ORS 279B.060 (Competitive sealed proposals)(3)(e) and (9)(a) generally require a state Contracting Agency, when soliciting a Contract for Goods or Services using a Request-for-Proposal Contractor selection method, to give the proposed Contract price not less than thirty percent of the total weight that the agency gives to the total of all factors in the agency’s final evaluation of a Proposal. ORS 279B.060 (Competitive sealed proposals)(9)(b), however, empowers the director or other head of a state Contracting Agency to waive the at least thirty-percent-to-Contract-price final evaluation weighting requirement if the director or agency head makes a determination that a waiver is in the best interest of the state Contracting Agency. For the purposes of ORS 279B.060 (Competitive sealed proposals)(9)(b), a determination that the waiver of the weighting requirement in ORS 279B.060 (Competitive sealed proposals)(3)(e) and (9)(a) is in the best interest of the state Contracting Agency may be based on factors that may include, but are not limited to, any one or a combination of the following:(a)
Circumstances that support a finding that the requirement would unreasonably limit competition for the advertised Contract or would frustrate the procurement objectives of the state Contracting Agency. For example, where the state Contracting Agency is attempting to attract competition from smaller firms (like businesses owned by service-disabled veterans or emerging small business enterprises that are certified under ORS 200.055 (Certification as disadvantaged business enterprise, minority-owned business, woman-owned business, business that service-disabled veteran owns or emerging small business)), allocating a substantial proportion of the weighting to Contract price may make larger, higher-volume firms disproportionately price-competitive, thereby impairing the smaller firms’ chances of securing a Contract award.(b)
Where the state Contracting Agency will use the Goods or Services over a significant period, so that the long-term costs of acquiring, using, or maintaining them constitutes a more important consideration than just the Contract price. Procurements in which the evaluation of life cycle costing will yield a more accurate assessment of the overall cost to the Contracting Agency or to the public fall within this category.(c)
Procurements in which the value or results of a successfully performed Contract or project are more important than the amount of direct payments under the Contract to be awarded.(d)
Procurements in which the adverse effects (which may include costs or losses) of project failure or of a failure in Contract performance can be anticipated to significantly outweigh the state Contracting Agency’s burden of paying the Contract price.(e)
Circumstances in which the Contract price for the development or production of a design, process, or business solution are projected to be significantly less than the cost to the state Contracting Agency of implementing, operating, or maintaining the resulting design, process, or solution.(f)
Circumstances in which the Contract price for the development or production of a design, process, or business solution is projected to be significantly less than the monetary value to the state Contracting Agency of the successful implementation or the successful operation of the resulting design, process, or solution.(g)
Situations in which the savings the state Contracting Agency will realize from using the design, process, or solution that will result from the performance of the anticipated Contract will be more significant than the amount of the Contract price the state Contracting Agency will pay under the Contract.(h)
Conditions under which the consulting guidance or value-engineering assistance to be provided by the Contractor have the potential to produce long-term savings for the state Contracting Agency or for the public that will significantly exceed the anticipated Contract price of the advertised Contract. Examples may include circumstances in which Contractor expertise or experience in the selection of “next stage” products, configurations, or components for the completion of a project or for the operation of a system or of equipment likely will yield savings or efficiencies that eclipse the amount of the Contract price.(i)
Where the expertise, experience, or precision that a Contractor must provide in the performance of a service Contract or of a Contract for both Goods and Services is demonstrably more critical to the satisfaction of the state Contracting Agency’s procurement objectives than the direct Contract price.(j)
Circumstances in which giving greater weight to the Proposers’ satisfaction of technical, standard, dimensional, or mathematical specifications, and lesser weight to Contract price, will better ensure that the Goods or Services will be compatible with or will operate efficiently or effectively with components, equipment, parts, Services, or information technology (including hardware, Services, or software) with which the Goods or Services will be used, integrated, or coordinated.(k)
Where the Procurement represents the first or an early phase in a multiple phase project or in a multiple set of related Contract solicitations and the results of the Contract award under the Procurement can be anticipated to significantly affect the amount of the state Contracting Agency’s costs in subsequent phases or solicitations.(L)
Where the state Contracting Agency employs serial negotiations or competitive simultaneous negotiations under ORS 279B.060 (Competitive sealed proposals)(8), and the application of the weighting requirement in ORS 279B.060 (Competitive sealed proposals)(3)(e) and (9)(a) could inhibit flexibility in negotiations or impede the ability of the agency or the Proposers to arrive at the most beneficial overall combination of Public Contract elements.(m)
Any other circumstances in which the Contracting Agency’s interest in achieving economy, efficiency, compatibility, or availability in the Procurement of the Goods or Services significantly outweighs the Contract price the state Contracting Agency anticipates to pay under the advertised Contract.(7)
The director or head of a state Contracting Agency, or the designee of the director or agency head, must document in the Procurement file the basis for any determination that the waiver of the thirty-percent weighting requirement is in the best interest of the Contracting Agency. A director or head of a state Contracting Agency, or the designee of the director or agency head, must report each waiver of that requirement to the Director of the Department of Administrative Services in a Written report that outlines the reasons for the waiver. The requirement to report each waiver to the Director of the Department of Administrative Services does not apply to the Secretary of State or the State Treasurer.
Source:
Rule 137-047-0260 — Competitive Sealed Proposals, https://secure.sos.state.or.us/oard/view.action?ruleNumber=137-047-0260.