Current through Register Vol. 63, No. 3, March 1, 2024
(1)
Generally. A Contracting Agency may procure Goods or Services by competitive
sealed bidding as set forth in ORS
279B.055. An Invitation to Bid
is used to initiate a competitive sealed bidding solicitation and shall contain
the information required by
279B.055(2) and
by section 2 of this rule. The Contracting Agency shall provide public notice
of the competitive sealed bidding solicitation as set forth in OAR
137-047-0300.
(2) Invitation to
Bid. In addition to the provisions required by ORS 279B.055(2), the Invitation
to Bid 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) A provision that provides that
statements made by the Contracting Agency's representatives at the conference
are not binding upon the Contracting Agency unless confirmed by Written
Addendum.
(B) The form
and instructions for submission of Bids and any other special information,
e.g., whether Bids may be submitted by electronic means (See OAR 137-047-0330
for required provisions of electronic Bids);
(C) The time, date and place of
Opening;
(D) The office where the
Solicitation Document may be reviewed;
(E) A statement that each Bidder must
identify whether the Bidder is a "resident Bidder," as defined in ORS
279A.120(1);
(F) Bidder's certification of
nondiscrimination in obtaining required subcontractors in accordance with ORS
279A.110(4).
(See OAR 137-046-0210(2)); and
(G)
How the Contracting Agency will notify Bidders of Addenda and how the
Contracting Agency will make Addenda available (See OAR
137-047-0430).
(b)
Contracting Agency Need to Purchase. The character of the Goods or Services the
Contracting Agency is purchasing including, if applicable, a description of the
acquisition, Specifications, delivery or performance schedule, inspection and
acceptance requirements. As required by ORS
279B.055, the Contracting
Agency's description of its need to purchase must:
(A) Identify the scope of the work to be
performed under the resulting Contract, if the Contracting Agency awards
one;
(B) Outline the anticipated
duties of the Contractor under any resulting Contract;
(C) Establish the expectations for the
Contractor's performance of any resulting Contract; and
(D) Unless the Contracting Agency for Good
Cause specifies otherwise, the scope of work must require the Contractor to
meet the highest standards prevalent in the industry or business most closely
involved in providing the Goods or Services that the Contracting Agency is
purchasing.
(c) Bidding
and Evaluation Process.
(A) The anticipated
solicitation schedule, deadlines, protest process, and evaluation
process;
(B) The Contracting Agency
shall set forth objective evaluation criteria in the Solicitation Document in
accordance with the requirements of ORS
279B.055(6)(a).
Evaluation criteria need not be precise predictors of actual future costs, but
to the extent possible, the evaluation factors shall be reasonable estimates of
actual future costs based on information the Contracting Agency has available
concerning future use; and
(C) If
the Contracting Agency intends to Award Contracts to more than one Bidder
pursuant to OAR 137-047-0600(4)(c), the Contracting Agency shall identify in
the Solicitation Document the manner in which it will determine the number of
Contracts it will Award.
(d) Applicable preferences pursuant to ORS
279B.055(6)(b).
(e) For Contracting Agencies subject to ORS
305.385, Contractor's
certification of compliance with the Oregon tax laws in accordance with ORS
305.385.
(f) All contractual terms and conditions in
the form of Contract provisions the Contracting Agency determines are
applicable to the Procurement. As required by ORS
279B.055, the Contract terms and
conditions must specify the consequences of the Contractor's failure to perform
the scope of work or to meet the performance standards established by the
resulting Contract. Those consequences may include, but are not limited to:
(A) The Contracting Agency's reduction or
withholding of payment under the Contract;
(B) The Contracting Agency's right to require
the Contractor to perform, at the Contractor's expense, any additional work
necessary to perform the statement of work or to meet the performance standards
established by the resulting Contract; and
(C) The Contracting Agency's rights, which
the Contracting Agency may assert individually or in combination, to declare a
default of the resulting Contract, to terminate the resulting Contract, and to
seek damages and other relief available under the resulting Contract or
applicable law.
(3) Good Cause. For the purposes of this
rule, "Good Cause" means a reasonable explanation for not requiring Contractor
to meet the highest standards, and may include an explanation of circumstances
that support a finding that the requirement would unreasonably limit
competition or is not in the best interest of the Contracting Agency. The
Contracting Agency shall document in the Procurement file the basis for the
determination of Good Cause for specification otherwise. A Contracting Agency
will have Good Cause to specify otherwise under the following circumstances:
(a) The use or purpose to which the Goods or
Services will be put does not justify a requirement that the Contractor meet
the highest prevalent standards in performing the Contract;
(b) Imposing express technical, standard,
dimensional or mathematical specifications will better ensure that the Goods or
Services will be compatible with or will operate efficiently or effectively
with components, equipment, parts, Services or information technology including
hardware, Services or software with which the Goods or Services will be used,
integrated, or coordinated;
(c) The
circumstances of the industry or business that provides the Goods or Services
are sufficiently volatile in terms of innovation or evolution of products,
performance techniques, scientific developments, that a reliable highest
prevalent standard does not exist or has not been developed;
(d) Any other circumstances in which
Contracting Agency's interest in achieving economy, efficiency, compatibility
or availability in the Procurement of the Goods or Services reasonably
outweighs the Contracting Agency's practical need for the highest prevalent
standard in the applicable or closest industry or business that supplies the
Goods or Services to be delivered under the resulting Contract