Public Contracting - Public Improvements and Related Contracts
Award and execution of contract
- determination of responsibility of bidder
- impermissible exclusions
(1)After a contracting agency has opened bids and determined that the contracting agency will award a public improvement contract, the contracting agency shall award the contract to the lowest responsible bidder.
(2)At least seven days before awarding a public improvement contract, unless the contracting agency determines that seven days is impractical under rules adopted under ORS 279A.065 (Model rules generally), the contracting agency shall issue to each bidder or post, electronically or otherwise, a notice of the contracting agency’s intent to award a contract. This subsection does not apply to a contract to which competitive bidding does not apply under ORS 279C.335 (Competitive bidding) (1)(c) or (d). The notice and the manner in which the notice is posted or issued must conform to rules adopted under ORS 279A.065 (Model rules generally).
(3)In determining the lowest responsible bidder, a contracting agency shall do all of the following:
(a)Check the list created by the Construction Contractors Board under ORS 701.227 (Disqualification from eligibility for certain public contracts) for bidders who are not qualified to hold a public improvement contract.
(b)Determine whether the bidder is responsible. A responsible bidder must demonstrate to the contracting agency that the bidder:
(A)Has available the appropriate financial, material, equipment, facility and personnel resources and expertise, or has the ability to obtain the resources and expertise, necessary to meet all contractual responsibilities.
(B)Holds current licenses that businesses or service professionals operating in this state must hold in order to undertake or perform the work specified in the contract.
(C)Is covered by liability insurance and other insurance in amounts the contracting agency requires in the solicitation documents.
(D)Qualifies as a carrier-insured employer or a self-insured employer under ORS 656.407 (Qualifications of insured employers) or has elected coverage under ORS 656.128 (Sole proprietors, limited liability company members, partners, independent contractors may elect coverage by insurer).
(E)Has made the disclosure required under ORS 279C.370 (First-tier subcontractor disclosure).
(F)Completed previous contracts of a similar nature with a satisfactory record of performance. For purposes of this subparagraph, a satisfactory record of performance means that to the extent that the costs associated with and time available to perform a previous contract remained within the bidder’s control, the bidder stayed within the time and budget allotted for the procurement and otherwise performed the contract in a satisfactory manner. The contracting agency shall document the bidder’s record of performance if the contracting agency finds under this subparagraph that the bidder is not responsible.
(G)Has a satisfactory record of integrity. The contracting agency in evaluating the bidder’s record of integrity may consider, among other things, whether the bidder has previous criminal convictions for offenses related to obtaining or attempting to obtain a contract or subcontract or in connection with the bidder’s performance of a contract or subcontract. The contracting agency shall document the bidder’s record of integrity if the contracting agency finds under this subparagraph that the bidder is not responsible.
(H)Is legally qualified to contract with the contracting agency.
(I)Possesses an unexpired certificate that the Oregon Department of Administrative Services issued under ORS 279A.167 (Certification program for training in pay equity provisions of state law), if the bidder employs 50 or more full-time workers and submitted a bid for a procurement with an estimated contract price that exceeds $500,000 in response to an advertisement or solicitation from a state contracting agency.
(J)Supplied all necessary information in connection with the inquiry concerning responsibility. If a bidder fails to promptly supply information concerning responsibility that the contracting agency requests, the contracting agency shall determine the bidder’s responsibility based on available information, or may find that the bidder is not responsible.
(c)Document the contracting agency’s compliance with the requirements of paragraphs (a) and (b) of this subsection in substantially the following form:
(3)(a) and (b).
(d)Submit the form described in paragraph (c) of this subsection, with any attachments, to the Construction Contractors Board within 30 days after the date the contracting agency awards the contract.
(4)The successful bidder shall:
(a)Promptly execute a formal contract; and
(b)Execute and deliver to the contracting agency a performance bond and a payment bond when required under ORS 279C.380 (Performance bond).
(5)Based on competitive bids, a contracting agency may award a public improvement contract or may award multiple public improvement contracts when specified in the invitation to bid.
(6)A contracting agency may not exclude a commercial contractor from competing for a public contract on the basis that the license issued by the Construction Contractors Board is endorsed as a level 1 or level 2 license. As used in this section, “commercial contractor” has the meaning given that term in ORS 701.005 (Definitions). [2003 c.794 §117; 2005 c.103 §§17,18; 2005 c.376 §1; 2007 c.764 §§26,27; 2007 c.836 §§42,43; 2009 c.880 §§9,9a; 2015 c.454 §5]
Notes of Decisions
Under Former Similar Statute (Ors 279.029)
Lowest-bidder provision does not apply to award of concession contract by public agency. Double Eagle Golf, Inc. v. City of Portland, 322 Or 604, 910 P2d 1104 (1996)
Atty. Gen. Opinions
Under Former Similar Statute (Ors 279.029)
Amendment or cancellation of public contracts, (1974) Vol 36, p 1127