OAR 731-005-0470
Solicitation Methods
(1)
Policy. It is the policy of the State of Oregon to encourage open and impartial competition in public contracting. ODOT may establish Competition by comparing price, product and service quality, product performance, and an Entity’s ability to perform, technical competence and ability to make timely deliveries. ODOT must make every effort to construct Public Improvements at the least cost to ODOT.(2)
Solicitation Methods. ODOT may encourage meaningful competition through a variety of solicitation methods. ODOT shall choose the solicitation method that is most likely to encourage Offers representing optimal value to ODOT:(a)
ODOT may use an Invitation to Bid if ODOT believes it will receive optimal value by selecting the lowest priced Offer that meets the technical requirements of ODOT’s Specifications;(b)
ODOT may use a Request for Proposal if ODOT believes it will receive optimal value:(A)
By selecting an Offer using both price and non-price related factors; or(B)
By selecting an Offer using both price and non-price related factors and permitting negotiations pursuant to OAR 731-005-0650 (Offer Evaluation and Award).(c)
ODOT may permit negotiations under a Request for Proposal pursuant to OAR 731-005-0650 (Offer Evaluation and Award) if:(A)
ODOT intends to consider alternative terms and conditions to reduce Agency cost or enhance the value of the product or service requested; or(B)
ODOT finds negotiation is required to effect a successful procurement (e.g. the Specifications are complex and ODOT expects numerous queries as to the proper interpretation of the Specification; the Work requires a high level of technical or managerial competence that cannot be defined adequately in the Specifications; or ODOT believes negotiations are necessary to gauge the Proposer’s understanding of complex Specifications).(3)
Solicitation Documents. The Solicitation Document shall 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)
That statements made by ODOT’s representatives at the conference are not binding upon ODOT unless confirmed by Written Addendum.(B)
The deadline for submitting mandatory prequalification applications and the class or classes of Work for which Offerors must be prequalified if prequalification is a requirement;(C)
The name and title of the authorized Agency person designated for receipt of Offers and contact person (if different);(D)
Instructions and information concerning submission requirements including the address of the office to which Offers must be delivered and any other special information, e.g., whether Offers may be submitted by Facsimile, Electronic Data Interchange or Electronic Procurement (See OAR 731-005-0500 (Facsimile Bids and Proposals), 731-005-0505 (Electronic Procurement) and 731-005-0510 (Use of Electronic Data Interchange) for required provisions for Facsimile, Electronic Data Interchange or Electronic Procurement);(E)
The time, date and place of Opening;(F)
The time and date of Closing after which ODOT will not accept Offers, which time shall be not less than five Days after the date of the last publication of the advertisement. The interval between the date of issuance of the Solicitation Document and a Closing should not be less than 14 Days for an ITB and not less than 30 Days for an RFP unless ODOT finds a shorter interval is in the public’s interest. If ODOT is issuing an ITB that may result in a Contract for a Public Improvement with a value in excess of $75,000, ODOT shall not designate a time of Closing that falls when ODOT is closed to the public or after 12 noon on Friday; for timing issues relating to Addenda see OAR 731-005-0580 (Addenda to a Solicitation Document)(3);(G)
The form and submission of Offers and any information required therein, including Bid or Proposal security, if any;(H)
The office where the plans and Specifications for the Work or goods may be reviewed;(I)
A statement that each Offeror to an ITB or RFP must identify whether the Bidder or Proposer is a “resident bidder,” as defined in ORS 279A.120 (Preference for Oregon goods and services);(J)
If the Contract resulting from a Solicitation will be a Contract for a Public Work subject to ORS 279C.800 (Definitions for ORS 279C.800 to 279C.870) to 279C.870 (Civil action to enforce payment of prevailing rates of wage) or the Davis-Bacon Act (40 U.S.C. 276a), a statement that no Offer will be received or considered by ODOT unless the Offer contains a statement by the Offeror as a part of its Offer that “Contractor agrees to be bound by and will comply with the provisions of ORS 279C.830 (Provisions concerning prevailing rate of wage in specifications, contracts and subcontracts) or 40 U.S.C. 276a;”(K)
If the Work so requires, a statement that ODOT will not receive or consider an Offer from an Entity when the Entity is not registered with the Construction Contractors Board or is not licensed by the State Landscape Contractors Board as required by ORS 671.530 (Licensing requirements);(L)
Whether a Contractor or a subcontractor under the Contract must be licensed under ORS 468A.720 (Qualifications for license);(M)
Contractor’s certification of nondiscrimination in obtaining required subcontractors in accordance with ORS 279A.110 (Discrimination in subcontracting prohibited). (See OAR 731-005-0670 (Rejection of an Offer)(3)); and(N)
How ODOT will notify Offerors of Addenda and how ODOT will make Addenda available. See OAR 731-005-0580 (Addenda to a Solicitation Document).(b)
Agency Need. The character of the Work or goods ODOT is purchasing including, if applicable, a description of the acquisition, Specifications, delivery or performance schedule, inspection and acceptance requirements;(c)
Evaluation process:(A)
A statement that ODOT may reject any Offer not in compliance with all prescribed solicitation bidding procedures and requirements and other applicable laws, including the requirement to demonstrate the Bidder’s responsibility under ORS 279C.375 (Award and execution of contract)(3)(b), and that ODOT may reject for good cause any or all Offers after finding that doing so is in the public interest;(B)
The anticipated solicitation schedule, deadlines, protest process, and evaluation process, if any;(C)
Evaluation criteria, including the relative value applicable to each criterion, that ODOT will use to determine the Responsible Bidder with the lowest Responsive Bid or the Responsible Proposer with the best Responsive Proposal and the evaluation criteria ODOT will use to determine acceptability of any Work or goods to be purchased:(i)
If Contract award is to be based upon low Bid, ODOT shall set forth objective evaluation criteria in the Solicitation Document. Examples of such criteria that may be used in determining low Bid include, but are not limited to, conversion costs, transportation cost, volume weighing, trade-in allowances, cash discounts, depreciation allowances, cartage penalties, ownership or life-cycle cost formulas, performance history on other private and public Contracts, experience of key personnel, adequacy of equipment and physical plant, financial wherewithal, sources of supply, references and warranty provisions. Evaluation criteria need not be precise predictors of actual future costs. However, to the extent possible, such evaluation factors shall be reasonable estimates based upon information ODOT has available concerning future use;(ii)
If the Solicitation Document is a Request for Proposal, ODOT 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. Evaluation factors need not be precise predictors of actual future costs and performance, but to the extent possible, such factors shall be reasonable estimates based on information available to ODOT; or(iii)
If the Solicitation Document is a Request For Proposal and ODOT is willing to negotiate terms and conditions of the Contract, ODOT must identify the specific terms and conditions in the Solicitation Document that are subject to negotiation and authorize Offerors to propose certain alternative terms and conditions in lieu of the terms and conditions ODOT has identified as authorized for negotiation. ODOT must describe the evaluation and negotiation process in accordance with OAR 731-005-0650 (Offer Evaluation and Award), including the Competitive Range; and(D)
Reference to statutory preference for materials and supplies manufactured from recycled materials under ORS 279A.125 (Preference for recycled materials).(d)
Terms and conditions. ODOT shall include all Contract terms and conditions, including warranties and bonding requirements, ODOT considers necessary. Without limiting the preceding sentence, ODOT must include all applicable Contract provisions required by ORS 279C.500 (“Person” defined) through 279C.870 (Civil action to enforce payment of prevailing rates of wage) as follows:(A)
Payment of all Entities furnishing labor or material, contributions to Industrial Accident Fund, liens and withholding taxes (ORS 279C.505 (Conditions concerning payment, contributions, liens, withholding, drug testing));(B)
If the Contract is for a Public Improvement, a condition that the Contractor shall demonstrate it has established a drug-testing program for its employees;(C)
If the Contract calls for demolition Work described in ORS 279C.510 (Demolition contracts to require material salvage), a condition requiring the Contractor to salvage or recycle construction and demolition debris, if feasible and cost-effective;(D)
If the Contract calls for lawn or landscape maintenance, a condition requiring the Contractor to compost or mulch yard waste material at an approved site, if feasible and cost effective (ORS 279C.510 (Demolition contracts to require material salvage));(E)
Payment of claims by public officers (ORS 279C.515 (Conditions concerning payment of claims by public officers, payment to persons furnishing labor or materials and complaints));(F)
Contractor and first-tier subcontractor liability for late payment on Public Improvement Contracts pursuant to ORS 279C.515 (Conditions concerning payment of claims by public officers, payment to persons furnishing labor or materials and complaints);(G)
Entity’s right to file a complaint with the Construction Contractors Board for all Contracts related to a Public Improvement Contract (ORS 279C.515 (Conditions concerning payment of claims by public officers, payment to persons furnishing labor or materials and complaints));(H)
Hours of labor in compliance with ORS 279C.520 (Condition concerning hours of labor) and 279C.540 (Maximum hours of labor on public contracts);(I)
Environmental and natural resources regulations (ORS 279C.525 (Provisions concerning environmental and natural resources laws));(J)
Payment for medical care and providing workers’ compensation (ORS 279C.530 (Condition concerning payment for medical care and providing workers’ compensation));(K)
Maximum hours and overtime (ORS 279C.540 (Maximum hours of labor on public contracts));(L)
Claims for overtime (ORS 279C.545 (Time limitation on claim for overtime));(M)
Prevailing wage rates (ORS 279C.800 (Definitions for ORS 279C.800 to 279C.870) to 279C.870 (Civil action to enforce payment of prevailing rates of wage));(N)
Retainage (ORS 279C.550 (“Retainage” defined) through 279C.570 (Prompt payment policy));(O)
Prompt payment policy (ORS 279C.570 (Prompt payment policy));(P)
Contractor’s relations with subcontractors (ORS 279C.580 (Contractor’s relations with subcontractors));(Q)
Notice of claim (ORS 279C.605 (Notice of claim));(R)
With respect to state Agencies, provisions regarding use of recovered resources and recycled materials and to the extent economically feasible, use of recycled paper and PETE products (ORS 279A.150 (Procurement of goods containing recycled polyethylene material) and 279A.155 (State procurement of paper));(S)
Contractor’s certification of compliance with the Oregon tax laws in accordance with ORS 305.385 (Agencies to supply licensee and contractor lists);(T)
A Contract provision substantially as follows: “All employers, including Contractor, that employ subject workers who work under this Contract in the State of Oregon shall comply with ORS 656.017 (Employer required to pay compensation and perform other duties) and provide the required Workers’ Compensation coverage, unless such employers are exempt under ORS 656.126 (Coverage while temporarily in or out of state). Contractor shall ensure that each of its subcontractors complies with these requirements.” (ORS 279C.530 (Condition concerning payment for medical care and providing workers’ compensation));(U)
Contractor’s certification that all subcontractors performing Work described in ORS 701.005 (Definitions) (i.e., construction Work) will be registered with the Construction Contractors Board or licensed by the State Landscape Contractors Board in accordance with ORS 701.035 (Applicant required to be independent contractor to be eligible for license) to 701.055 before the subcontractors commence Work under the Contract; and(V)
Price escalation and de-escalation Contract Provision relating to steel materials. As used in this paragraph, “steel material” includes any steel products used for and permanently incorporated in the construction, reconstruction or major renovation of a road or highway. “Escalation and de-escalation” relate to and shall be applied to the raw steel in the steel materials listed in the Contract Provision.(e)
If federal funds are involved, the federal laws, rules and regulations applicable to the fund requirements shall govern in the event they conflict with a provision required by ORS 279A.120 (Preference for Oregon goods and services) to 279A.155 (State procurement of paper);(f)
Unless otherwise provided in the Contract, the Contractor shall not assign, sell, dispose of, transfer rights, or delegate duties under the Contract, either in whole or in part, without ODOT’s prior Written consent. Unless otherwise agreed by ODOT in Writing, such consent shall not relieve the Contractor of any obligations under the Contract. Any assignee or transferee shall be considered the agent of the Contractor and be bound to abide by all provisions of the Contract. If ODOT consents in Writing to an assignment, sale, disposal or transfer of the Contractor’s rights or delegation of Contractor’s duties, the Contractor and its surety, if any, shall remain liable to ODOT for complete performance of the Contract as if no such assignment, sale, disposal, transfer or delegation had occurred unless ODOT otherwise agrees in Writing.
Source:
Rule 731-005-0470 — Solicitation Methods, https://secure.sos.state.or.us/oard/view.action?ruleNumber=731-005-0470.