Current through Register Vol. 63, No. 9, September 1, 2024
(1) General. If
Awarded, the Contracting Agency shall Award the Contract to the Responsible
Bidder submitting the lowest, Responsive Bid or the Responsible Proposer or
Proposers submitting the best, Responsive Proposal or Proposals, provided that
such Person is not listed by the Construction Contractors Board as disqualified
to hold a Public Improvement Contract (ORS
279C.375(3)(a))
or is ineligible for Award as a nonresident education service district (ORS
279C.325). The Contracting
Agency may Award by item, groups of items or the entire Offer provided such
Award is consistent with the Solicitation Document and in the public interest.
Where Award is based on competitive Bids, ORS
279C.375(5)
permits multiple Contract awards when specified in the ITB.
(2) Determination of Responsibility. Offerors
are required to demonstrate their ability to perform satisfactorily under a
Contract. Before Awarding a Contract, the Contracting Agency must have
information that indicates that the Offeror meets the standards of
responsibility set forth in ORS
279C.375(3)(b).
To be a Responsible Offeror, the Contracting Agency must determine that the
Offeror:
(a) Has available the appropriate
financial, material, equipment, facility and personnel resources and expertise,
or ability to obtain the resources and expertise, necessary to meet all
contractual responsibilities;
(b)
Has completed previous contracts of a similar nature with a satisfactory record
of performance. A satisfactory record of performance means that, to the extent
the costs associated with and time available to perform a previous contract
were within the Offeror's control, the Offeror stayed within the time and
budget allotted for the procurement and otherwise performed the contract in a
satisfactory manner. A Contracting Agency should carefully scrutinize an
Offeror's record of contract performance if the Offeror is or recently has been
materially deficient in contract performance. In reviewing the Offeror's
performance, the Contracting Agency should determine whether the Offeror's
deficient performance was expressly excused under the terms of the contract, or
whether the Offeror took appropriate corrective action. The Contracting Agency
may review the Offeror's performance on both private and public contracts in
determining the Offeror's record of contract performance. The Contracting
Agency shall make its basis for determining an Offeror not Responsible under
this paragraph part of the Solicitation file;
(c) Has a satisfactory record of integrity.
An Offeror may lack integrity if a Contracting Agency determines the Offeror
demonstrates a lack of business ethics such as violation of state environmental
laws or false certifications made to a Contracting Agency. A Contracting Agency
may find an Offeror not Responsible based on the lack of integrity of any
Person having influence or control over the Offeror (such as a key employee of
the Offeror that has the authority to significantly influence the Offeror's
performance of the Contract or a parent company, predecessor or successor
Person). The standards for Conduct Disqualification under OAR 137-049-0370 may
be used to determine an Offeror's integrity. A Contracting Agency may find an
Offeror non-responsible based on previous convictions of offenses related to
obtaining or attempting to obtain a contract or subcontract or in connection
with the Offeror's performance of a contract or subcontract. The Contracting
Agency shall make its basis for determining that an Offeror is not Responsible
under this paragraph part of the Solicitation file;
(d) Is legally qualified to contract with the
Contracting Agency;
(e) In State
Contracting Agency procurements, possesses an unexpired certificate, issued by
the Oregon Department of Administrative Services under 2015 Oregon Laws,
chapter 454, section 2, if the Offeror employs 50 or more full-time workers at
the time of the Bid or Proposal Closing and the estimated Contract Price
exceeds $500,000; and
(f) Has
supplied all necessary information in connection with the inquiry concerning
responsibility. If the Offeror fails to promptly supply information requested
by the Contracting Agency concerning responsibility, the Contracting Agency
shall base the determination of responsibility on any available information, or
may find the Offeror not Responsible.
(3) In addition to making the responsibility
determination under ORS
279C.375(3)(b)
and section (2) of this rule, the Contracting Agency may consider, as
authorized by House Bill 2094 (2019 Oregon Laws, chapter 124), as part of the
Contracting Agency's evaluation of an Offer, whether the Offeror owes a
liquidated and delinquent debt to the State of Oregon.
(4) Documenting Agency Determinations.
Contracting Agencies shall document their compliance with ORS
279C.375(3) and
the above sections of this rule on a Responsibility Determination Form
substantially as set forth in 279.375(3)(c), and file that form with the
Construction Contractors Board within 30 days after Contract Award.
(5) Contracting Agency Evaluation. The
Contracting Agency shall evaluate an Offer only as set forth in the
Solicitation Document and in accordance with applicable law. The Contracting
Agency shall not evaluate an Offer using any other requirement or
criterion.
(6) Offeror Submissions.
(a) The Contracting Agency may require an
Offeror to submit Product Samples, Descriptive Literature, technical data, or
other material and may also require any of the following prior to Award:
(A) Demonstration, inspection or testing of a
product prior to Award for characteristics such as compatibility, quality or
workmanship;
(B) Examination of
such elements as appearance or finish; or
(C) Other examinations to determine whether
the product conforms to Specifications.
(b) The Contracting Agency shall evaluate
product acceptability only in accordance with the criteria disclosed in the
Solicitation Document to determine that a product is acceptable. The
Contracting Agency shall reject an Offer providing any product that does not
meet the Solicitation Document requirements. A Contracting Agency's rejection
of an Offer because it offers nonconforming Work or materials is not
Disqualification and is not appealable under ORS
279C.445.
(7) Evaluation of Bids. The Contracting
Agency shall use only objective criteria to evaluate Bids as set forth in the
ITB. The Contracting Agency shall evaluate Bids to determine which Responsible
Offeror offers the lowest Responsive Bid.
(a)
Nonresident Bidders. In determining the lowest Responsive Bid, the Contracting
Agency shall, in accordance with OAR 137-046-0310, add a percentage increase to
the Bid of a nonresident Bidder equal to the percentage, if any, of the
preference given to that Bidder in the state in which the Bidder
resides.
(b) Clarifications. In
evaluating Bids, a Contracting Agency may seek information from a Bidder only
to clarify the Bidder's Bid. Such clarification shall not vary, contradict or
supplement the Bid. A Bidder must submit Written and Signed clarifications and
such clarifications shall become part of the Bidder's Bid.
(c) Negotiation Prohibited. The Contracting
Agency shall not negotiate scope of Work or other terms or conditions under an
Invitation to Bid process prior to Award.
(8) Evaluation of Proposals. See OAR
137-049-0650 regarding rules applicable to Requests for Proposals.
Statutory/Other Authority: ORS
279A.065
Statutes/Other Implemented: ORS
279C.335, ORS
279C.365, ORS
279C.375, ORS
279C.395, OL 2015 & ch 454
(SB 491)
