Current through Register Vol. 63, No. 9, September 1, 2024
(1)
Purpose. An adversely
affected or aggrieved Offeror must exhaust all avenues of administrative review
and relief before seeking judicial review of the Contracting Agency's
Contractor selection or Contract Award decision.
(2)
Notice of Competitive Range.
Unless otherwise provided in the RFP, when the competitive Proposal process is
authorized under OAR 137-049-0650, the Contracting Agency shall provide Written
notice to all Proposers of the Contracting Agency's determination of the
Proposers included in the Competitive Range. The Contracting Agency's notice of
the Proposers included in the Competitive Range shall not be final until the
later of the following:
(a) 10 Days after the
date of the notice, unless otherwise provided therein; or
(b) Until the Contracting Agency provides a
Written response to all timely-filed protests that denies the protest and
affirms the notice of the Proposers included in the Competitive
Range.
(3)
Notice
of Intent to Award. The Contracting Agency shall provide Written notice
to all Offerors of the Contracting Agency's intent to Award the Contract, as
provided by OAR 137-049-0395.
(4)
Right to Protest Award.
(a) An
adversely affected or aggrieved Offeror may submit to the Contracting Agency a
Written protest of the Contracting Agency's intent to Award within seven Days
after issuance of the notice of intent to Award the Contract, unless a
different protest period is provided under the Solicitation Document.
(b) The Offeror's protest must be in Writing
and must specify the grounds upon which the protest is based.
(c) An Offeror is adversely affected or
aggrieved only if the Offeror is eligible for Award of the Contract as the
Responsible Bidder submitting the lowest Responsive Bid or the Responsible
Proposer submitting the best Responsive Proposal and is next in line for Award,
i.e., the protesting Offeror must claim that all lower Bidders or higher-scored
Proposers are ineligible for Award:
(A)
Because their Offers were nonresponsive; or
(B) The Contracting Agency committed a
substantial violation of a provision in the Solicitation Document or of an
applicable Procurement statute or administrative rule, and the protesting
Offeror was unfairly evaluated and would have, but for such substantial
violation, been the Responsible Bidder offering the lowest Bid or the
Responsible Proposer offering the highest-ranked Proposal.
(d) The Contracting Agency shall not consider
a protest submitted after the time period established in this rule or such
different period as may be provided in the Solicitation Document. A Proposer
may not protest a Contracting Agency's decision not to increase the size of the
Competitive Range above the size of the Competitive Range set forth in the
RFP.
(5)
Right to
Protest Competitive Range.
(a) An
adversely affected or aggrieved Proposer may submit to the Contracting Agency a
Written protest of the Contracting Agency's decision to exclude the Proposer
from the Competitive Range within seven Days after issuance of the notice of
the Competitive Range, unless a different protest period is provided under the
Solicitation Document. (See procedural requirements for the use of RFPs at OAR
137-049-0650.)
(b) The Proposer's
protest shall be in Writing and must specify the grounds upon which the protest
is based.
(c) A Proposer is
adversely affected only if the Proposer is responsible and submitted a
Responsive Proposal and is eligible for inclusion in the Competitive Range,
i.e., the protesting Proposer must claim it is eligible for inclusion in the
Competitive Range if all ineligible higher-scoring Proposers are removed from
consideration, and that those ineligible Proposers are ineligible for inclusion
in the Competitive Range because:
(A) Their
Proposals were not responsive; or
(B) The Contracting Agency committed a
substantial violation of a provision in the RFP or of an applicable Procurement
statute or administrative rule, and the protesting Proposer was unfairly
evaluated and would have, but for such substantial violation, been included in
the Competitive Range.
(d) The Contracting Agency shall not consider
a protest submitted after the time period established in this rule or such
different period as may be provided in the Solicitation Document. A Proposer
may not protest a Contracting Agency's decision not to increase the size of the
Competitive Range above the size of the Competitive Range set forth in the
RFP.
(6)
Authority
to Resolve Protests. The head of the Contracting Agency, or such
Person's designee, may settle or resolve a Written protest submitted in
accordance with the requirements of this rule.
(7)
Decision. If a protest is
not settled, the head of the Contracting Agency, or such Person's designee,
shall promptly issue a Written decision on the protest. Judicial review of this
decision will be available if provided by statute.
(8)
Award. The successful
Offeror shall promptly execute the Contract after the Award is final. The
Contracting Agency shall execute the Contract only after it has obtained all
applicable required documents and approvals.
Stat. Auth.: ORS
279A.065
Stats. Implemented: ORS
279C.375,
279C.380,
279C.385 &
279C.460
