Current through Register Vol. 63, No. 9, September 1, 2024
Contracting Agencies may utilize the following RFP process for
Public Improvement Contracts, allowing flexibility in both Proposal evaluation
and Contract negotiation, only in accordance with ORS
279C.330 to
279C.337,
279C.400 to
279C.410 and OAR 137-049-0600 to
137-049-0690, unless other applicable statutes control a Contracting Agency's
use of competitive Proposals for Public Improvement Contracts. Also see the
subdivision of rules in this division 49 entitled "Formal Procurement Rules,"137-049-0200 to 137-049-0480, and RFP related rules under the Alternative
Contracting Methods subdivision at 137-049-0640 to 137-049-0660. For ESPCs, the
following RFP process as further specified in 137-049-0645, 137-049-0650,
137-049-0660 and 137-049-0680 shall be utilized, if a Contracting Agency
desires the Procurement process to be exempt from the competitive bidding
requirements of ORS 279C.335. The RFP process for
the Alternative Contracting Methods identified in OAR 137-049-0600 to
137-049-0690 includes the following steps:
(1) Proposal Evaluation. Factors in addition
to price may be considered in the selection process, but only as set forth in
the RFP. Proposal evaluation shall be as objective as possible. Evaluation
factors need not be precise predictors of future costs and performance, but to
the extent possible such evaluation factors shall:
(a) Be reasonable estimates based on
information available to the Contracting Agency;
(b) Treat all Proposals equitably; and
(c) Recognize that public policy
requires that Public Improvements be constructed at the least overall cost to
the Contracting Agency. See ORS
279C.305. For ESPC Proposal
evaluations, the Contracting Agency may provide in the RFP that
qualifications-based evaluation factors will outweigh the Contracting Agency's
consideration of price-related factors, due to the fact that prices for the
major components of the Work to be performed during the ESPC process
contemplated by the RFP will likely not be determinable at the time of Proposal
evaluation. For CM/GC Services Proposal evaluations, the Contracting Agency
must comply with ORS 279C.337.
(2) Evaluation Factors.
(a) In basic negotiated construction
contracting, where the only reason for an RFP is to consider factors other than
price, those factors may consist of firm and personnel experience on similar
projects, adequacy of equipment and physical plant, sources of supply,
availability of key personnel, financial capacity, past performance, safety
records, project understanding, proposed methods of construction, proposed
milestone dates, references, service, and related matters that could affect the
cost or quality of the Work.
(b)
In CM/GC contracting, in addition to (a) above, those factors may also include
the ability to respond to the technical complexity or unique character of the
project, analyze and propose solutions or approaches to complex project
problems, analyze and propose value engineering options, analyze and propose
energy efficiency measures or alternative energy options, coordinate multiple
disciplines on the project, effectively utilize the time available to commence
and complete the improvement, and related matters that could affect the cost or
quality of the Work.
(c) In
Design-Build contracting, in addition to (a) and (b) above, those factors may
also include design professional qualifications, specialized experience,
preliminary design submittals, technical merit, design-builder team experience
and related matters that could affect the cost or quality of the Work.
(d) In ESPC contracting, in
addition to the factors set forth in subsections (a), (b) and (c) above, those
factors may also include sample Technical Energy Audits from similar projects,
sample M & V reports, financial statements and related information of the
ESCO for a time period established in the RFP, financial statements and related
information of joint venturers comprising the ESCO, the ESCO's capabilities and
experience in performing energy baseline studies for facilities (independently
or in cooperation with an independent third-party energy baseline consultant),
past performance of the ESCO in meeting energy guarantee Contract levels, the
specific Person that will provide the Energy Savings Guarantee to be offered by
the ESCO, the ESCO's management plan for the project, information on the
specific methods, techniques and equipment that the ESCO will use in the
performance of the Work under the ESPC, the ESCO's team members and consultants
to be assigned to the project, the ESCO's experience in the Energy Savings
Performance Contracting field, the ESCO's experience acting as the prime
contractor on previous ESPC projects (as opposed to a sub-contractor or
consultant to a prime ESCO), the ESCO's vendor and product neutrality related
to the development of ECMs, the ESCO's project history related to removal from
an ESPC project or the inability or unwillingness of the ESCO to complete an
ESPC project, the ESCO's M & V capabilities and experience (independently
or in cooperation with an independent third-party M & V consultant), the
ESCO's ability to explain the unique risks associated with ESPC projects and
the assignment of risk in the particular project between the Contracting Agency
and the ESCO, the ESCO's equipment performance guarantee policies and
procedures, the ESCO's energy savings and cost savings guarantee policies and
procedures, the ESCO's project cost guarantee policies and procedures, the
ESCO's pricing methodologies, the price that the ESCO will charge for the
Technical Energy Audit phase of the Work and the ESCO's fee structure for all
phases of the ESPC.
(3)
Contract Negotiations. Contract terms may be negotiated to the extent allowed
by the RFP and OAR 137-049-0600 to 137-049-0690, provided that the general Work
scope remains the same and that the field of competition does not change as a
result of material changes to the requirements stated in the Solicitation
Document. See 137-049-0650. Terms that may be negotiated consist of details of
Contract performance, methods of construction, timing, assignment of risk in
specified areas, fee, and other matters that could affect the cost or quality
of the Work. For the CM/GC Method, terms that may be negotiated also include
the specific scope of pre-construction services, the GC Work, any Early Work
and other construction Work to be performed by the CM/GC, and any other terms
that the Contracting Agency has identified as being subject to negotiation,
consistent with the requirements of OAR 137-049-0690. In ESPC contracting,
terms that may be negotiated also include the scope of preliminary design of
ECMs to be evaluated by the parties during the Technical Energy Audit phase of
the Work, the scope of Personal Services and Work to be performed by the ESCO
during the Project Development Plan phase of the Work, the detailed provisions
of the Energy Savings Guarantee to be provided by the ESCO and scope of Work,
methodologies and compensation terms and conditions during the design and
construction phase and M & V phase of the Work, consistent with the
requirements of OAR 137-049-0680.
Stat. Auth.: ORS
279C.335 &
279A.065
Stats. Implemented: ORS
279C.335,
279A.065&
351.086
