OAR 731-070-0350
Discretionary Order Requiring the Prequalification of Proposers — Detailed Unsolicited or Competing Proposals
(1)
ODOT may, at any time, issue a written order that requires any entity that wishes to submit a Detailed unsolicited or Competing proposal to apply for prequalification to submit a proposal. The order must describe the character or class of the Project or Projects, and the size of the Projects in terms of estimated implementation or construction cost, that are subject to the prequalification requirement. The order also must provide that each proposer must be prequalified by ODOT in order to submit a proposal for the kind or kinds of Project described in the order, and that ODOT will reject proposals received for the kind or kinds of Projects described in the order from proposers who are not prequalified.(2)
The prequalification order also shall contain:(a)
The location at which interested entities may obtain prequalification applications, information about prequalification criteria and other related documents, if any; and(b)
The name, title, and address of the person designated to receive the prequalification applications.(3)
Each prequalification application shall be in writing and must substantially comply with the instructions given by ODOT in a prequalification application questionnaire or prequalification form issued by ODOT.(4)
ODOT may establish the criteria used to evaluate prequalification applications in light of the features and demands of the kind or kinds of Project for which prequalification is required as a condition of an entity’s ability to submit an unsolicited proposal. The criteria may include, but shall not be limited to:(a)
The applicant’s financial resources, including:(A)
Bonding capacity;(B)
Solvency; and(C)
Past payment history with employees, suppliers and subcontractors;(b)
The applicant’s equipment and technology available to perform the Project, including whether the applicant has or reasonably can obtain, either itself, through subcontractors, or otherwise, all licenses and registrations necessary for use and operation of any technology or equipment involved in the Project, and all licenses and permits necessary to the lawful completion of the Project;(c)
The applicant’s key personnel available to work on the Project, including:(A)
The specific capabilities of the applicant and its key personnel, as demonstrated by work on past projects which are comparable in size, nature, and technical and managerial complexity to the Project and to the scope of any construction services that may be required by the Project; and(B)
The identity and experience of the key personnel planned to be assigned to the Project;(d)
The applicant’s performance history on other projects or contracts, including the applicant’s approach to comparable projects and the planning, phasing and scheduling techniques employed by the applicant in those projects in general, and to the extent possible, particularly as applicable to the kind or kinds of Project for which prequalification is required;(e)
The applicant’s safety programs and safety record including, where applicable, evidence of the applicant’s experience modifier issued by the Department of Consumer and Business Services, Workers’ Compensation Division;(f)
The applicant’s experience or ability to provide the services of key persons with experience in design-build projects and similar innovative approaches to project completion;(g)
References from owners, architects and engineers with whom the applicant has worked in the past;(h)
The histories of the applicant and its Major Partners concerning their involvement, within the five years immediately preceding the issuance date of the Department’s prequalification order (or such shorter period as ODOT may specify in the order), in claims and litigation, including mediated or arbitrated construction claims and governmental administrative proceedings, arising out of past projects or under contracts to which they were parties in which the proceedings exceeded $1,000,000 in liability exposure or claim amount;(i)
Information concerning whether the applicant, any Major Partner, and any key person of either has been, within the five years immediately preceding the issuance date of the Department’s prequalification order (or such shorter period as ODOT may specify in the order):(A)
Convicted of any criminal offense as an incident in obtaining or attempting to obtain a public or private contract or subcontract, or in the performance of such contract or subcontract;(B)
Convicted under state or federal statutes of embezzlement, theft, forgery, bribery, falsification or destruction of records, receiving stolen property, or any other offense indicating a lack of business integrity or business honesty that currently, seriously and directly affects the person’s responsibility as a contractor; or(C)
Convicted or determined to be liable under state or federal antitrust statutes.(5)
ODOT will, after receiving a prequalification application submitted in accordance with section (3) of this rule, notify the applicant whether the applicant is qualified to submit an unsolicited proposal for a Project of the kind or kinds described in ODOT’s order issued under section (1) of this rule.(6)
If ODOT determines that the applicant is not qualified, ODOT shall provide the applicant written notice of that determination that contains a statement of the reason or reasons for that determination.(7)
An entity that ODOT determines not to be qualified may, within five (5) business days after its receipt of ODOT’s written notice of that determination, submit to ODOT a written protest of the decision. The protest must state facts and argument to demonstrate that ODOT’s decision was incorrect or constituted an abuse of ODOT’s discretion.(8)
If an entity timely submits a protest that complies with section (7) of this rule, ODOT will issue a written decision that resolves the issues raised in the protest. ODOT’s written decision under this subsection shall constitute a final order under ORS 183.484 (Jurisdiction for review of orders other than contested cases).(9)
Unless otherwise specified in ODOT’s order issued under section (1) of this rule, an ODOT determination that an applicant is prequalified to submit proposals for any particular kind or kinds of Project shall have an effective term of three years from the date of ODOT’s written notice of the determination.(10)
Notwithstanding any specification of a term during which an entity’s prequalification is effective, ODOT may terminate or revise an entity’s prequalified status upon ODOT’s discovery of information that adversely reflects on the applicant’s prequalified status. Prior to any termination or adverse revision of an applicant’s prequalification, ODOT will provide the applicant written notice of that determination that contains a statement of the reason or reasons for that determination and advise that entity that it may protest the proposed action under section (7) of this rule.(11)
On the written request of an entity that previously has been prequalified for a Project or for kinds of Projects similar in size and character to the kind or kinds of Projects described in the order issued under section (1) of this rule (as determined in the discretion of ODOT), or on the written request of a unit of local government, ODOT may waive the requirement that the entity or unit of local government must submit a prequalification application under this rule.
Source:
Rule 731-070-0350 — Discretionary Order Requiring the Prequalification of Proposers — Detailed Unsolicited or Competing Proposals, https://secure.sos.state.or.us/oard/view.action?ruleNumber=731-070-0350.