OAR 137-049-0650
Requests for Proposals (“RFP”)
(1)
Generally. The use of competitive Proposals must be specially authorized for a Public Improvement Contract under the competitive bidding exception and exemption requirements of ORS 279C.335 (Competitive bidding), OAR 137-049-0130 (Competitive Bidding Requirement) and 137-049-0600 (Purpose) to 137-049-0690 (Construction Manager/General Contractor Services (“CM/GC Services”)). Also see ORS 279C.337 (Procurement of construction manager/general contractor services) and 279C.400 (Competitive proposals) to 279C.410 (Receipt of proposals) for statutory requirements regarding competitive Proposals and OAR 137-049-0640 (Competitive Proposals; Procedure) regarding competitive Proposal procedures.(2)
Solicitation Documents. In addition to the Solicitation Document requirements of OAR 137-049-0200 (Solicitation Documents; Required Provisions; Assignment or Transfer), this rule applies to the requirements for RFPs. RFP Solicitation Documents shall conform to the following standards:(a)
The Contracting Agency 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 137-049-0640 (Competitive Proposals; Procedure) regarding Proposal evaluation and evaluation factors. Evaluation factors need not be precise predictors of actual future costs and performance, but to the extent possible, such factors must be reasonable estimates based on information available to the Contracting Agency. Subject to ORS 279C.410 (Receipt of proposals)(4), the Solicitation Document may provide for discussions with Proposers to be conducted for the purpose of Proposal evaluation prior to award or prior to establishing any Competitive Range;(b)
When the Contracting Agency is willing to negotiate terms and conditions of the Contract or allow submission of revised Proposals following discussions, the Contracting Agency shall 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 Agency has identified as authorized for negotiation. The Contracting Agency shall describe the evaluation, discussion and negotiation processes, including how the Contracting Agency will establish the Competitive Range, if any;(c)
The anticipated size of any Competitive Range must be stated in the Solicitation Document, but may be decreased if the number of Proposers that submit responsive Proposals is less that the specified number, or may be increased as provided in OAR 137-049-0650 (Requests for Proposals (“RFP”))(4)(a)(B);(d)
When the Contracting Agency intends to Award Contracts to more than one Proposer, the Contracting Agency shall identify in the Solicitation Document the manner in which it will determine the number of Contracts it will Award. The Contracting Agency shall also include the criteria it will use to determine how the Contracting Agency will endeavor to achieve optimal value, utility and substantial fairness when selecting a particular Contractor to provide Personal Services or Work from those Contractors Awarded Contracts.(3)
Evaluation of Proposals.(a)
Evaluation. The Contracting Agency shall evaluate Proposals only in accordance with criteria set forth in the RFP and applicable law. The Contracting Agency shall evaluate Proposals to determine the Responsible Proposer or Proposers submitting the best Responsive Proposal or Proposals.(A)
Clarifications. In evaluating Proposals, a Contracting Agency may seek information from a Proposer to clarify the Proposer’s Proposal. A Proposer shall submit Written and Signed clarifications and such clarifications shall become part of the Proposer’s Proposal.(B)
Limited Negotiation. If the Contracting Agency did not permit negotiation in its RFP, the Contracting Agency 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. 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 Agency permitted discussions or negotiations in the RFP, the Contracting Agency 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 Agency’s discretion, the Contracting Agency may forego discussions and negotiations and evaluate all Proposals in accordance with this rule.(B)
If the Contracting Agency proceeds with discussions or negotiations, the Contracting Agency shall establish a negotiation team tailored for the acquisition. The Contracting Agency’s team may include legal, technical, auditing and negotiating personnel.(c)
Cancellation. Nothing in this rule shall restrict or prohibit the Contracting Agency from canceling the solicitation at any time.(4)
Competitive Range; Protest; Award.(a)
Determining Competitive Range.(A)
If the Contracting Agency does not cancel the solicitation, after the Opening the Contracting Agency will evaluate all Proposals in accordance with the evaluation criteria set forth in the RFP. After evaluation of all Proposals in accordance with the criteria set forth in the RFP, the Contracting Agency will rank the Proposers based on the Contracting Agency’s scoring and determine the Competitive Range.(B)
The Contracting Agency may increase the number of Proposers in the Competitive Range if the Contracting Agency’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 Agency’s evaluation of revised Proposals submitted in accordance with the process described in this rule.(b)
Protesting Competitive Range. The Contracting Agency 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 Agency’s evaluation and determination of the Competitive Range in accordance with OAR 137-049-0450 (Protest of Contractor Selection, Contract Award).(c)
Intent to Award; Discuss or Negotiate. After the protest period provided in accordance with these rules expires, or after the Contracting Agency has provided a final response to any protest, whichever date is later, the Contracting Agency may either:(A)
Provide Written notice to all Proposers in the Competitive Range of its 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 137-049-0450 (Protest of Contractor Selection, Contract Award).(ii)
After the protest period provided in accordance with OAR 137-049-0450 (Protest of Contractor Selection, Contract Award) expires, or after the Contracting Agency has provided a final response to any protest, whichever date is later, the Contracting Agency 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 Agency chooses to enter into discussions with and receive revised Proposals from the Proposers in the Competitive Range, the Contracting Agency shall proceed as follows:(a)
Initiating Discussions. The Contracting Agency 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 Agency identified in the RFP as the subject of discussions. The Contracting Agency 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 Agency would like additional information; and(C)
Otherwise allowing Proposers to develop revised Proposals that will allow the Contracting Agency to obtain the best Proposal based on the requirements and evaluation criteria set forth in the RFP.(b)
Conducting Discussions. The Contracting Agency 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 Agency may terminate discussions with any Proposer in the Competitive Range at any time. However, the Contracting Agency shall offer all Proposers in the Competitive Range the opportunity to discuss their Proposals with Contracting Agency before the Contracting Agency notifies Proposers of the date and time pursuant to this section that revised Proposals will be due.(A)
In conducting discussions, the Contracting Agency:(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 Agency 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 Agency does not cancel the solicitation at the conclusion of the Contracting Agency’s discussions with all remaining Proposers in the Competitive Range, the Contracting Agency 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 Agency’s termination of discussions, and Proposers must submit revised Proposals by the date and time set forth in the Contracting Agency’s notice.(A)
Upon receipt of the revised Proposals, the Contracting Agency shall evaluate the revised Proposals based upon the evaluation criteria set forth in the RFP, and rank the revised Proposals based on the Contracting Agency’s scoring.(B)
The Contracting Agency may conduct discussions with and accept only one revised Proposal from each Proposer in the Competitive Range unless otherwise set forth in the RFP.(d)
Intent to Award; Protest. The Contracting Agency shall provide Written notice to all Proposers in the Competitive Range of the Contracting Agency’s intent to Award the Contract. An unsuccessful Proposer may protest the Contracting Agency’s intent to Award in accordance with OAR 137-049-0450 (Protest of Contractor Selection, Contract Award). After the protest period provided in accordance with that rule expires, or after the Contracting Agency has provided a final response to any protest, whichever date is later, the Contracting Agency shall commence final Contract negotiations.(6)
Negotiations.(a)
Initiating Negotiations. The Contracting Agency 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. Scope. The Contracting Agency may negotiate:(A)
The statement of Work;(B)
The Contract Price as it is affected by negotiating the statement of Work; and(C)
Any other terms and conditions reasonably related to those expressly authorized for negotiation in the RFP. Accordingly, Proposers shall not submit, and Contracting Agency shall not accept, for negotiation any alternative terms and conditions that are not reasonably related to those expressly authorized for negotiation in the RFP.(c)
Continuing Negotiations. If the Contracting Agency terminates negotiations with a Proposer, the Contracting Agency 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 Agency has:(A)
Determined to Award the Contract to the Proposer with whom it is currently negotiating; or(B)
Completed one round of negotiations with all Proposers in the Competitive Range, unless the Contracting Agency provided for more than one round of discussions or negotiations in the RFP, in which case the Contracting Agency may proceed with any authorized further rounds of discussions or negotiations.(7)
Terminating Discussions or Negotiations. At any time during discussions or negotiations conducted in accordance with this rule, the Contracting Agency may terminate discussions or negotiations with the Proposer with whom it is currently conducting discussions or negotiations if the Contracting Agency 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.
Source:
Rule 137-049-0650 — Requests for Proposals (“RFP”), https://secure.sos.state.or.us/oard/view.action?ruleNumber=137-049-0650.