Current through Register Vol. 63, No. 3, March 1, 2024
(1) Generally. A Contracting Agency may use
one or more, or any combination, of the methods of Contractor selection set
forth in ORS 279B.060(7),
279B.060(8) and
this rule to procure Goods or Services. In addition to the procedures set forth
in OAR 137-047-0300 through 137-047-0490 for methods of Contractor selection, a
Contracting Agency may provide for a multi-tiered or multistep selection
process that permits award to the highest ranked Proposer at any tier or step,
calls for the establishment of a Competitive Range, or permits either serial or
competitive simultaneous discussions or negotiations with one or more
Proposers.
(2) When conducting a
multi-tiered or multistep selection process, a Contracting Agency may use any
combination or series of Proposals, discussions, negotiations, demonstrations,
offers, or other means of soliciting information from Proposers that bears on
the selection of a Contractor or Contractors. In multi-tiered and multistep
competitions, a Contracting Agency may use these means of soliciting
information from prospective Proposers and Proposers in any sequence or order,
and at any stage of the selection process, as determined in the discretion of
the Contracting Agency.
(3) When a
Contracting Agency's Request for Proposals prescribes a multi-tiered or
multistep Contractor selection process, a Contracting Agency nevertheless may,
at the completion of any stage in the competition and on determining the Most
Advantageous Proposer (or, in multiple-award situations, on determining the
awardees of the Public Contracts), award a Contract (or Contracts) and conclude
the Procurement without proceeding to subsequent stages. The Contracting Agency
also may, at any time, cancel the Procurement under ORS
279B.100.
(4) Exclusion Protest. A Contracting Agency
may provide, before the notice of an intent to Award, an opportunity for a
Proposer to protest exclusion from the Competitive Range or from subsequent
phases of multi-tiered or multistep sealed Proposals as set forth in OAR
137-047-0720.
(5) Award Protest. A
Contracting Agency shall provide an opportunity to protest its intent to Award
a Contract pursuant to ORS
279B.410 and OAR 137-047-0740.
An Affected Offeror may protest, for any of the bases set forth in
137-047-0720(2), its exclusion from the Competitive Range or from any phase of
a multi-tiered or multistep sealed Proposal process, or may protest an Addendum
issued following initial Closing, if the Contracting Agency did not previously
provide Proposers the opportunity to protest the exclusion or Addendum. The
failure to protest shall be considered the Proposer's failure to pursue an
administrative remedy made available to the Proposer by the Contracting
Agency.
(6) Competitive Range. When
a Contracting Agency's solicitation process conducted under ORS
279B.060(8)
calls for the Contracting Agency to establish a Competitive Range at any stage
in the Procurement process, the Contracting Agency may do so as follows:
(a) Determining Competitive Range.
(A) The Contracting Agency may establish a
Competitive Range after evaluating all Responsive Proposals in accordance with
the evaluation criteria in the Request for Proposals. After evaluation of all
Proposals in accordance with the criteria in the Request for Proposals, the
Contracting Agency may determine and rank the Proposers in the Competitive
Range. Notwithstanding the foregoing, however, in instances in which the
Contracting Agency determines that a single Proposer has a reasonable chance of
being determined the most Advantageous Proposer, the Contracting Agency need
not determine or rank Proposers in the Competitive Range. In addition,
notwithstanding the foregoing, a Contracting Agency may establish a Competitive
Range of all Proposers to enter into discussions to correct deficiencies in
Proposals.
(B) The Contracting
Agency may establish the number of Proposers in the Competitive Range in light
of whether the Contracting Agency's evaluation of Proposals identifies a number
of Proposers who have a reasonable chance of being determined the most
Advantageous Proposer, or whether the evaluation establishes a natural break in
the scores of Proposers that indicates that a particular number of Proposers
are closely competitive or have a reasonable chance of being determined the
most Advantageous Proposer.
(b) Protesting Competitive Range. The
Contracting Agency must provide Written notice to all Proposers identifying
Proposers in the Competitive Range. A Contracting Agency may provide an
opportunity for Proposers excluded from the Competitive Range to protest the
Contracting Agency's evaluation and determination of the Competitive Range in
accordance with OAR 137-047-0720.
(7) Discussions. The Contracting Agency may
initiate oral or written discussions with all "eligible Proposers" on subject
matter within the general scope of the Request for Proposals. In conducting
discussions, the Contracting Agency:
(a) Shall
treat all eligible Proposers fairly and shall not favor any eligible Proposer
over another;
(b) May disclose
other eligible Proposers' Proposals or discussions only in accordance with ORS
279B.060(8)(b) or
(c);
(c) May adjust the evaluation of a Proposal
as a result of discussions. The conditions, terms, or price of the Proposal may
be changed during the course of the discussions provided the changes are within
the scope of the Request for Proposals.
(d) At any time during the time allowed for
discussions, the Contracting Agency may:
(A)
Continue discussions with a particular eligible Proposer;
(B) Terminate discussions with a particular
eligible Proposer and continue discussions with other eligible Proposers;
or
(C) Conclude discussions with
all remaining eligible Proposers and provide, to the then-eligible Proposers,
notice requesting best and final Offers.
(8) Negotiations. A Contracting Agency may
commence serial negotiations with the highest-ranked eligible Proposer or
commence simultaneous negotiations with all eligible Proposers. A Contracting
Agency may negotiate:
(a) The statement of
work;
(b) The Contract Price as it
is affected by negotiating the statement of work and other terms and conditions
authorized for negotiation in the Request for Proposals or Addenda thereto;
and
(c) Any other terms and
conditions reasonably related to those authorized for negotiation in the
Request for Proposals or Addenda thereto. Proposers shall not submit for
negotiation, and a Contracting Agency shall not accept, alternative terms and
conditions that are not reasonably related to those authorized for negotiation
in the Request for Proposals or any Addendum.
(9) Terminating Negotiations. At any time
during discussions or negotiations a Contracting Agency conducts under this
rule, the Contracting Agency may terminate discussions or negotiations with the
highest-ranked Proposer, or the eligible Proposer with whom it is currently
discussing or negotiating, if the Contracting Agency reasonably believes that:
(a) The eligible Proposer is not discussing
or negotiating in good faith; or
(b) Further discussions or negotiations with
the eligible Proposer will not result in the parties agreeing to the terms and
conditions of a Contract in a timely manner.
(c) Continuing Serial Negotiations. If the
Contracting Agency is conducting serial negotiations and the Contracting Agency
terminates negotiations with an eligible Proposer, the Contracting Agency may
then commence negotiations with the next highest scoring eligible Proposer, and
continue the sequential process until the Contracting Agency has either:
(A) Determined to Award the Contract to the
eligible Proposer with whom it is currently discussing or negotiating;
or
(B) Decided to cancel the
Procurement under ORS
279B.100.
(d) Competitive Simultaneous Negotiations. If
the Contracting Agency chooses to conduct competitive negotiations, the
Contracting Agency may negotiate simultaneously with competing eligible
Proposers. The Contracting Agency:
(A) Shall
treat all eligible Proposers fairly and shall not favor any eligible Proposer
over another;
(B) May disclose
other eligible Proposers' Proposals or the substance of negotiations with other
eligible Proposers only if the Contracting Agency notifies all of the eligible
Proposers with whom the Contracting Agency will engage in negotiations of the
Contracting Agency's intent to disclose before engaging in negotiations with
any eligible Proposer.
(e) Any oral modification of a Proposal
resulting from negotiations must be reduced to Writing.
(10) Best and Final Offers. If a Contracting
Agency requires best and final Offers, a Contracting Agency must establish a
common date and time by which eligible Proposers must submit best and final
Offers. If a Contracting Agency is dissatisfied with the best and final Offers,
the Contracting Agency may make a written determination that it is in the
Contracting Agency's best interest to conduct additional discussions,
negotiations or change the Contracting Agency's requirements and require
another submission of best and final Offers. A Contracting Agency must inform
all eligible Proposers that if they do not submit notice of withdrawal or
another best and final Offer, their immediately previous Offers will be
considered their best and final Offers. The Contracting Agency shall evaluate
Offers as modified by the best and final Offers. The Contracting Agency shall
conduct the evaluations as described in OAR 137-047-0600. The Contracting
Agency may not modify evaluation factors or their relative importance after the
date and time that best and final Offers are due.
(11) Multistep Sealed Proposals. A
Contracting Agency may procure Goods or Services by using multistep competitive
sealed Proposals under ORS
279B.060(8)(b)(g).
Multistep sealed Proposals is a phased Procurement process that seeks necessary
information or unpriced technical Proposals in the first phase and, in the
second phase, invites Proposers who submitted technically qualified Proposals
to submit competitive sealed price Proposals on the technical Proposals. The
Contracting Agency must award the Contract to the Responsible Proposer
submitting the most Advantageous Proposal in accordance with the terms of the
Solicitation Document applicable to the second phase.
(a) Public Notice. When a Contracting Agency
uses multistep sealed Proposals, the Contracting Agency shall give public
notice for the first phase in accordance with OAR 137-047-0300. Public notice
is not required for the second phase. However, a Contracting Agency shall give
notice of the subsequent phases to all Proposers and inform any Proposers
excluded from the second phase of the right, if any, to protest exclusion under
OAR 137-047-0720.
(b) Procedure for
Phase One of Multistep Sealed Proposals. A Contracting Agency may initiate a
multistep sealed Proposals Procurement by issuing a Request for Proposals in
the form and manner required for competitive sealed Proposals except as
provided in this rule. In addition to the requirements required for competitive
sealed Proposals, the multistep Request for Proposals must state:
(A) That unpriced technical Proposals are
requested;
(B) That the
solicitation is a multistep sealed Proposal Procurement and that, in the second
phase, priced Proposals will be accepted only from those Proposers whose
unpriced technical Proposals are found qualified in the first phase;
(C) The criteria for the evaluation of
unpriced technical Proposals; and
(D) That the Goods or Services being procured
shall be furnished generally in accordance with the Proposer's technical
Proposal as found to be finally qualified and shall meet the requirements of
the Request for Proposals.
(c) Addenda to the Request for Proposals.
After receipt of unpriced technical Proposals, Addenda to the Request for
Proposals shall be distributed only to Proposers who submitted unpriced
technical Proposals.
(d) Receipt
and Handling of Unpriced Technical Proposals. Unpriced technical Proposals need
not be opened publicly.
(e)
Evaluation of Unpriced Technical Proposals. Unpriced technical Proposals shall
be evaluated solely in accordance with the criteria set forth in the Request
for Proposals.
(f) Discussion of
Unpriced Technical Proposals. The Contracting Agency may seek clarification of
a technical Proposal of any Proposer who submits a qualified, or potentially
qualified technical Proposal. During the course of such discussions, the
Contracting Agency shall not disclose any information derived from one unpriced
technical Proposal to any other Proposer.
(g) Methods of Contractor Selection for Phase
One. In conducting phase one, a Contracting Agency may employ any combination
of the methods of Contractor selection that call for the establishment of a
Competitive Range or include discussions, negotiations, or best and final
Offers as set forth in this rule.
(h) Procedure for Phase Two. On the
completion of phase one, the Contracting Agency shall invite each qualified
Proposer to submit price Proposals. A Contracting Agency shall conduct phase
two as any other competitive sealed Proposal Procurement except as set forth in
this rule.
(j) No public notice
need be given of the request to submit price Proposals because such notice was
previously given.
Statutory/Other Authority: ORS
279A.065
Statutes/Other Implemented: ORS
279B.060