OAR 731-007-0260
Disclosure and Substitution of First-Tier Subcontractors
(1)
Required Disclosure. Within two working hours of the Bid Closing on an ITB for a Public Improvement having a Bid price exceeding $100,000, a Bidder shall submit to ODOT a disclosure form as described by this rule. The disclosure form shall identify any first-tier subcontractors (those Entities that would be contracting directly with the prime Contractor) that will be furnishing labor or labor and materials on the Contract, if awarded, whose subcontract value would be equal to or greater than:(a)
Five percent of the total Contract Bid, but at least $15,000; or(b)
$350,000 regardless of the percentage of the total Bid.(2)
Disclosure Deadline and Bid Opening. For each Bid Proposal or ITB to which this rule applies, ODOT shall:(a)
Receive bids until the time identified as Closing time and at the location described in the ITB and immediately thereafter publicly open the bids;(b)
Set the Bid Opening at the time and place identified in the ITB; and(c)
Consider for Contract award only those Bids for which the required disclosure has been submitted by the announced deadline on forms prescribed by the Agency.(3)
Bidder Instructions and Disclosure Form. For the purposes of this rule, ODOT in its solicitation shall:(a)
Prescribe the disclosure form that must be utilized; and(b)
Provide instructions in a notice substantially similar to the following:(A)
“Instructions for First-Tier Subcontractor Disclosure. Bidders are required to disclose information about certain first-tier subcontractors (see ORS 279C.370 (First-tier subcontractor disclosure)). Specifically, when the Bid of a first-tier subcontractor is greater than or equal to:(i)
5% of the project Bid, but at least $15,000; or(ii)
$350,000 regardless of the percentage, you must disclose the following information about that subcontract within two (2) working hours of Bid Closing:(aa)
The subcontractor’s name;(bb)
The category of work the subcontractor will be performing; and(cc)
The dollar value of the subcontract.(B)
If you will not be using any subcontractors that are subject to the above disclosure requirements, you are required to indicate “NONE” on the accompanying form.(4)
To determine disclosure requirements, ODOT recommends that you disclose subcontract information for any subcontractor as follows:(a)
Determine the lowest possible Bid. That will be the base Bid amount less all alternate deductive Bid amounts (exclusive of any options that can only be exercised after Bid award).(b)
Provide the required disclosure information for any first-tier subcontractor whose potential Contract services (i.e., subcontractor’s base Bid amount plus all alternate additive Bid amounts, exclusive of any options that can only be exercised after Contract award) are greater than or equal to:(i)
5% of the lowest Bid amount, but at least $15,000; or(ii)
$350,000, regardless of the percentage. Total all possible Work for each subcontractor in making this determination (e.g., if a subcontractor will provide $15,000 worth of services on the base Bid and $40,000 on an additive alternate, then the potential amount of subcontractor’s services is $55,000. Assuming that $55,000 exceeds 5% of the lowest Bid, provide the disclosure for both the $15,000 services and the $40,000 services).(5)
For determination of compliance with the disclosure requirements, ODOT will use the total Bid amount submitted by the contractor as verified by ODOT.”(6)
Submission. A Bidder shall submit the disclosure form required by this rule within two working hours of Bid Closing in the manner specified by the ITB.(7)
Late Submission. Compliance with the disclosure and submittal requirements of ORS 279C.370 (First-tier subcontractor disclosure) and this rule is a matter of Responsiveness. Bids that are submitted by Bid Closing, but for which the separate disclosure submittal has not been made by the specified deadline, are not Responsive and shall not be considered for Contract award.(8)
Substitution. Substitution of affected first-tier subcontractors shall be made only in accordance with ORS 279C.585 (Authority to substitute undisclosed first-tier subcontractor). ODOT does not have a statutory role or duty to review, approve or resolve disputes concerning such substitutions. However, ODOT is not precluded from making related inquiries or investigating complaints in order to enforce Contract provisions that require compliance generally with laws, rules and regulations.
Source:
Rule 731-007-0260 — Disclosure and Substitution of First-Tier Subcontractors, https://secure.sos.state.or.us/oard/view.action?ruleNumber=731-007-0260.