Oregon Administrative Rules
Chapter 137 - DEPARTMENT OF JUSTICE
Division 49 - MODEL RULES GENERAL PROVISIONS RELATED TO PUBLIC CONTRACTS FOR CONSTRUCTION SERVICES
Section 137-049-0650 - Requests for Proposals
Universal Citation: OR Admin Rules 137-049-0650
Current through Register Vol. 63, No. 3, March 1, 2024
(1) Generally. The use of competitive Proposals must be specially authorized for a Public Improvement Contract under the competitive bidding exception and exemption requirements of ORS 279C.335, OAR 137-049-0130 and 137-049-0600 to 137-049-0690. Also see ORS 279C.337 and 279C.400 to 279C.410 for statutory requirements regarding competitive Proposals and OAR 137-049-0640 regarding competitive Proposal procedures.
(2) Solicitation Documents. In addition to the Solicitation Document requirements of OAR 137-049-0200, this rule applies to the requirements for RFPs. RFP Solicitation Documents shall conform to the following standards:
(a) The Contracting
Agency shall set forth selection criteria in the Solicitation Document.
Examples of evaluation criteria include price or cost, quality of a product or
service, past performance, management, capability, personnel qualification,
prior experience, compatibility, reliability, operating efficiency, expansion
potential, experience of key personnel, adequacy of equipment or physical
plant, financial wherewithal, sources of supply, references and warranty
provisions. See OAR 137-049-0640 regarding Proposal evaluation and evaluation
factors. Evaluation factors need not be precise predictors of actual future
costs and performance, but to the extent possible, such factors must be
reasonable estimates based on information available to the Contracting Agency.
Subject to ORS 279C.410(4),
the Solicitation Document may provide for discussions with Proposers to be
conducted for the purpose of Proposal evaluation prior to award or prior to
establishing any Competitive Range;
(b) When the Contracting Agency is willing to
negotiate terms and conditions of the Contract or allow submission of revised
Proposals following discussions, the Contracting Agency shall identify the
specific terms and conditions in or provisions of the Solicitation Document
that are subject to negotiation or discussion and authorize Offerors to propose
certain alternative terms and conditions in lieu of the terms and conditions
the Contracting Agency has identified as authorized for negotiation. The
Contracting Agency shall describe the evaluation, discussion and negotiation
processes, including how the Contracting Agency will establish the Competitive
Range, if any;
(c) The anticipated
size of any Competitive Range must be stated in the Solicitation Document, but
may be decreased if the number of Proposers that submit responsive Proposals is
less that the specified number, or may be increased as provided in OAR
137-049-0650(4)(a)(B);
(d) When the
Contracting Agency intends to Award Contracts to more than one Proposer, the
Contracting Agency shall identify in the Solicitation Document the manner in
which it will determine the number of Contracts it will Award. The Contracting
Agency shall also include the criteria it will use to determine how the
Contracting Agency will endeavor to achieve optimal value, utility and
substantial fairness when selecting a particular Contractor to provide Personal
Services or Work from those Contractors Awarded Contracts.
(3) Evaluation of Proposals.
(a) Evaluation. The Contracting Agency shall
evaluate Proposals only in accordance with criteria set forth in the RFP and
applicable law. The Contracting Agency shall evaluate Proposals to determine
the Responsible Proposer or Proposers submitting the best Responsive Proposal
or Proposals.
(A) Clarifications. In
evaluating Proposals, a Contracting Agency may seek information from a Proposer
to clarify the Proposer's Proposal. A Proposer shall submit Written and Signed
clarifications and such clarifications shall become part of the Proposer's
Proposal.
(B) Limited Negotiation.
If the Contracting Agency did not permit negotiation in its RFP, the
Contracting Agency may, nonetheless, negotiate with the highest-ranked
Proposer, but may then only negotiate the:
(i)
Statement of Work; and
(ii)
Contract Price as it is affected by negotiating the statement of Work. The
process for discussions or negotiations that is outlined and explained in
subsections (5)(b) and (6) of this rule does not apply to this limited
negotiation.
(b) Discussions; Negotiations. If the
Contracting Agency permitted discussions or negotiations in the RFP, the
Contracting Agency shall evaluate Proposals and establish the Competitive
Range, and may then conduct discussions and negotiations in accordance with
this rule.
(A) If the Solicitation Document
provided that discussions or negotiations may occur at Contracting Agency's
discretion, the Contracting Agency may forego discussions and negotiations and
evaluate all Proposals in accordance with this rule.
(B) If the Contracting Agency proceeds with
discussions or negotiations, the Contracting Agency shall establish a
negotiation team tailored for the acquisition. The Contracting Agency's team
may include legal, technical, auditing and negotiating personnel.
(c) Cancellation. Nothing in this
rule shall restrict or prohibit the Contracting Agency from canceling the
solicitation at any time.
(4) Competitive Range; Protest; Award.
(a) Determining Competitive Range.
(A) If the Contracting Agency does not cancel
the solicitation, after the Opening the Contracting Agency will evaluate all
Proposals in accordance with the evaluation criteria set forth in the RFP.
After evaluation of all Proposals in accordance with the criteria set forth in
the RFP, the Contracting Agency will rank the Proposers based on the
Contracting Agency's scoring and determine the Competitive Range.
(B) The Contracting Agency may increase the
number of Proposers in the Competitive Range if the Contracting Agency's
evaluation of Proposals establishes a natural break in the scores of Proposers
indicating a number of Proposers greater than the initial Competitive Range are
closely competitive, or have a reasonable chance of being determined the best
Proposer after the Contracting Agency's evaluation of revised Proposals
submitted in accordance with the process described in this rule.
(b) Protesting Competitive Range.
The Contracting Agency shall provide Written notice to all Proposers
identifying Proposers in the Competitive Range. A Proposer that is not within
the Competitive Range may protest the Contracting Agency's evaluation and
determination of the Competitive Range in accordance with OAR
137-049-0450.
(c) Intent to Award;
Discuss or Negotiate. After the protest period provided in accordance with
these rules expires, or after the Contracting Agency has provided a final
response to any protest, whichever date is later, the Contracting Agency may
either:
(A) Provide Written notice to all
Proposers in the Competitive Range of its intent to Award the Contract to the
highest-ranked Proposer in the Competitive Range.
(i) An unsuccessful Proposer may protest the
Contracting Agency's intent to Award in accordance with OAR
137-049-0450.
(ii) After the
protest period provided in accordance with OAR 137-049-0450 expires, or after
the Contracting Agency has provided a final response to any protest, whichever
date is later, the Contracting Agency shall commence final Contract
negotiations with the highest-ranked Proposer in the Competitive Range;
or
(B) Engage in
discussions with Proposers in the Competitive Range and accept revised
Proposals from them, and, following such discussions and receipt and evaluation
of revised Proposals, conduct negotiations with the Proposers in the
Competitive Range.
(5) Discussions; Revised Proposals. If the Contracting Agency chooses to enter into discussions with and receive revised Proposals from the Proposers in the Competitive Range, the Contracting Agency shall proceed as follows:
(a) Initiating
Discussions. The Contracting Agency shall initiate oral or Written discussions
with all of the Proposers in the Competitive Range regarding their Proposals
with respect to the provisions of the RFP that the Contracting Agency
identified in the RFP as the subject of discussions. The Contracting Agency may
conduct discussions for the following purposes:
(A) Informing Proposers of deficiencies in
their initial Proposals;
(B)
Notifying Proposers of parts of their Proposals for which the Contracting
Agency would like additional information; and
(C) Otherwise allowing Proposers to develop
revised Proposals that will allow the Contracting Agency to obtain the best
Proposal based on the requirements and evaluation criteria set forth in the
RFP.
(b) Conducting
Discussions. The Contracting Agency may conduct discussions with each Proposer
in the Competitive Range necessary to fulfill the purposes of this section, but
need not conduct the same amount of discussions with each Proposer. The
Contracting Agency may terminate discussions with any Proposer in the
Competitive Range at any time. However, the Contracting Agency shall offer all
Proposers in the Competitive Range the opportunity to discuss their Proposals
with Contracting Agency before the Contracting Agency notifies Proposers of the
date and time pursuant to this section that revised Proposals will be due.
(A) In conducting discussions, the
Contracting Agency:
(i) Shall treat all
Proposers fairly and shall not favor any Proposer over another;
(ii) Shall not discuss other Proposers'
Proposals;
(iii) Shall not suggest
specific revisions that a Proposer should make to its Proposal, and shall not
otherwise direct the Proposer to make any specific revisions to its
Proposal.
(B) At any
time during the time allowed for discussions, the Contracting Agency may:
(i) Continue discussions with a particular
Proposer;
(ii) Terminate
discussions with a particular Proposer and continue discussions with other
Proposers in the Competitive Range; or
(iii) Conclude discussions with all remaining
Proposers in the Competitive Range and provide notice to the Proposers in the
Competitive Range to submit revised Proposals.
(c) Revised Proposals. If the Contracting
Agency does not cancel the solicitation at the conclusion of the Contracting
Agency's discussions with all remaining Proposers in the Competitive Range, the
Contracting Agency shall give all remaining Proposers in the Competitive Range
notice of the date and time by which they must submit revised Proposals. This
notice constitutes the Contracting Agency's termination of discussions, and
Proposers must submit revised Proposals by the date and time set forth in the
Contracting Agency's notice.
(A) Upon receipt
of the revised Proposals, the Contracting Agency shall evaluate the revised
Proposals based upon the evaluation criteria set forth in the RFP, and rank the
revised Proposals based on the Contracting Agency's scoring.
(B) The Contracting Agency may conduct
discussions with and accept only one revised Proposal from each Proposer in the
Competitive Range unless otherwise set forth in the RFP.
(d) Intent to Award; Protest. The Contracting
Agency shall provide Written notice to all Proposers in the Competitive Range
of the Contracting Agency's intent to Award the Contract. An unsuccessful
Proposer may protest the Contracting Agency's intent to Award in accordance
with OAR 137-049-0450. After the protest period provided in accordance with
that rule expires, or after the Contracting Agency has provided a final
response to any protest, whichever date is later, the Contracting Agency shall
commence final Contract negotiations.
(6) Negotiations.
(a) Initiating Negotiations. The Contracting
Agency may determine to commence negotiations with the highest-ranked Proposer
in the Competitive Range following the:
(A)
Initial determination of the Competitive Range; or
(B) Conclusion of discussions with all
Proposers in the Competitive Range and evaluation of revised
Proposals.
(b)
Conducting Negotiations. Scope. The Contracting Agency may negotiate:
(A) The statement of Work;
(B) The Contract Price as it is affected by
negotiating the statement of Work; and
(C) Any other terms and conditions reasonably
related to those expressly authorized for negotiation in the RFP. Accordingly,
Proposers shall not submit, and Contracting Agency shall not accept, for
negotiation any alternative terms and conditions that are not reasonably
related to those expressly authorized for negotiation in the RFP.
(c) Continuing Negotiations. If
the Contracting Agency terminates negotiations with a Proposer, the Contracting
Agency may then commence negotiations with the next highest scoring Proposer in
the Competitive Range, and continue the process described in this rule until
the Contracting Agency has:
(A) Determined to
Award the Contract to the Proposer with whom it is currently negotiating;
or
(B) Completed one round of
negotiations with all Proposers in the Competitive Range, unless the
Contracting Agency provided for more than one round of discussions or
negotiations in the RFP, in which case the Contracting Agency may proceed with
any authorized further rounds of discussions or negotiations.
(7) Terminating Discussions or Negotiations. At any time during discussions or negotiations conducted in accordance with this rule, the Contracting Agency may terminate discussions or negotiations with the Proposer with whom it is currently conducting discussions or negotiations if the Contracting Agency reasonably believes that:
(a) The Proposer is not
discussing or negotiating in good faith; or
(b) Further discussions or negotiations with
the Proposer will not result in the parties agreeing to the terms and
conditions of a final Contract in a timely manner.
Statutory/Other Authority: ORS 279A.065
Statutes/Other Implemented: ORS 279C.400 - 279C.410
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