Public Contracting - Public Procurements
ORS
279B.033
Contents of cost analysis
- conditions under which procurement may proceed
- exceptions
(1)
In the cost analysis required under ORS 279B.030 (Demonstration that procurement will cost less than performing service with contracting agency’s own personnel and resources or that performing service is not feasible), a contracting agency shall:(a)
Estimate the contracting agency’s cost of performing the services, including:(A)
Salary or wage and benefit costs for contracting agency employees who are directly involved in performing the services, including employees who inspect, supervise or monitor the performance of the services.(B)
Material costs, including costs for space, energy, transportation, storage, raw and finished materials, equipment and supplies.(C)
Costs incurred in planning for, training for, starting up, implementing, transporting and delivering the services and costs related to stopping and dismantling a project or operation because the contracting agency intends to procure a limited quantity of services or procure the services within a defined or limited period of time.(D)
Miscellaneous costs related to performing the services. The contracting agency may not include in the cost analysis the contracting agency’s indirect overhead costs for existing salaries or wages and benefits for administrators or for rent, equipment, utilities and materials except to the extent that the costs are attributable solely to performing the services and would not exist unless the contracting agency performs the services.(b)
Estimate the cost a potential contractor would incur in performing the services, including:(A)
Average or actual salary or wage and benefit costs for contractors and employees who:(i)
Work in the industry or business most closely involved in performing the services that the contracting agency intends to procure; and(ii)
Would be necessary and directly involved in performing the services or who would inspect, supervise or monitor the performance of the services;(B)
Material costs, including costs for space, energy, transportation, storage, raw and finished materials, equipment and supplies; and(C)
Miscellaneous costs related to performing the services, including but not limited to reasonably foreseeable fluctuations in the costs for the items identified in this subsection over the expected duration of the procurement.(b)
A contracting agency may proceed with a procurement even if the contracting agency determines that the contracting agency would incur less cost in providing the services with the contracting agency’s own personnel and resources if at the time the contracting agency intends to conduct a procurement, the contracting agency lacks personnel and resources that are necessary to perform the services within the time in which the services are required. If the contracting agency conducts a procurement under the conditions described in this paragraph, the contracting agency shall:(A)
Keep a record of the cost analysis and findings that the contracting agency makes for each procurement the contracting agency conducts under this section, along with the basis for the contracting agency’s decision to proceed with the procurement; and(B)
Collect and provide copies of the records described in subparagraph (A) of this paragraph each calendar quarter to the local contract review board, if the contracting agency is a local contracting agency, or to the Emergency Board, if the contracting agency is a state contracting agency.(c)
If the contracting agency is a state contracting agency, in addition to complying with the provisions of paragraph (b) of this subsection the contracting agency shall prepare a request to the Governor for an appropriation and any authority that is necessary for the contracting agency to hire personnel and obtain resources necessary to perform the services that the contracting agency procured under the conditions described in paragraph (b) of this subsection. The request must include a copy of the records that the contracting agency provided to the Emergency Board under paragraph (b)(B) of this subsection.(3)
A cost analysis, record, documentation or determination made under this section is a public record. [2009 c.880 §3]Notes of Decisions
Because school district’s reliance on assumptions relating to wages of public employees in comparison to wages of private contractor was not “estimate” of potential contractor’s personnel costs as required under this section, district’s cost analysis that authorized procurement of contract for performing student transportation services was contrary to law. Hicks v. Central Point School District, 270 Or App 532, 348 P3d 307 (2015), Sup Ct review denied