75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
Enrolled
House Bill 2867
Sponsored by COMMITTEE ON BUSINESS AND LABOR
CHAPTER ................
AN ACT
Relating to public contracting; creating new provisions; amending
ORS 279B.055, 279B.060, 279B.110, 279B.145, 279B.420 and
279C.375 and section 3, chapter 368, Oregon Laws 2009 (Enrolled
House Bill 2953); repealing section 2, chapter 368, Oregon Laws
2009 (Enrolled House Bill 2953); and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Sections 2, 3 and 4 of this 2009 Act are added
to and made a part of ORS chapter 279B. + }
SECTION 2. { + (1) Except as provided in section 4 of this
2009 Act, before conducting a procurement for services with an
estimated contract price that exceeds $250,000, a contracting
agency shall:
(a) Demonstrate, by means of a written cost analysis in
accordance with section 3 of this 2009 Act, that the contracting
agency would incur less cost in conducting the procurement than
in performing the services with the contracting agency's own
personnel and resources; or
(b) Demonstrate, in accordance with section 4 of this 2009 Act,
that performing the services with the contracting agency's own
personnel and resources is not feasible.
(2) If a local contracting agency authorizes a department,
bureau, office or other subdivision of the local contracting
agency to conduct a procurement on behalf of another department,
bureau, office or subdivision of the local contracting agency,
the department, bureau, office or subdivision on whose behalf the
procurement is conducted shall comply with the requirement set
forth in subsection (1) of this section.
(3) Subsection (1) of this section does not apply to:
(a) A local contracting agency or a local contract review board
for a city that has a population of not more than 15,000 or a
county that has a population of not more than 30,000;
(b) A community college that enrolls not more than 1,000
full-time equivalent students, as defined in ORS 341.005;
(c) A special district, as defined in ORS 198.010, a diking
district formed under ORS chapter 551 and a soil and water
conservation district organized under ORS 568.210 to 568.808;
(d) The Port of Portland; or
(e) Procurements for client services, as defined in OAR
125-246-0110. + }
SECTION 3. { + (1) In the cost analysis required under section
2 of this 2009 Act, a contracting agency shall:
Enrolled House Bill 2867 (HB 2867-C) Page 1
(a) Estimate the contracting agency's cost of performing the
services, including:
(A) Salary or wage and benefit costs for contracting agency
employees who are directly involved in performing the services,
including employees who inspect, supervise or monitor the
performance of the services.
(B) Material costs, including costs for space, energy,
transportation, storage, raw and finished materials, equipment
and supplies.
(C) Costs incurred in planning for, training for, starting up,
implementing, transporting and delivering the services and costs
related to stopping and dismantling a project or operation
because the contracting agency intends to procure a limited
quantity of services or procure the services within a defined or
limited period of time.
(D) Miscellaneous costs related to performing the services.
The contracting agency may not include in the cost analysis the
contracting agency's indirect overhead costs for existing
salaries or wages and benefits for administrators or for rent,
equipment, utilities and materials except to the extent that the
costs are attributable solely to performing the services and
would not exist unless the contracting agency performs the
services.
(b) Estimate the cost a potential contractor would incur in
performing the services, including:
(A) Average or actual salary or wage and benefit costs for
contractors and employees who:
(i) Work in the industry or business most closely involved in
performing the services that the contracting agency intends to
procure; and
(ii) Would be necessary and directly involved in performing the
services or who would inspect, supervise or monitor the
performance of the services;
(B) Material costs, including costs for space, energy,
transportation, storage, raw and finished materials, equipment
and supplies; and
(C) Miscellaneous costs related to performing the services,
including but not limited to reasonably foreseeable fluctuations
in the costs for the items identified in this subsection over the
expected duration of the procurement.
(2)(a) After comparing the difference between the costs
estimated as provided in subsection (1)(a) of this section with
the costs estimated as provided in subsection (1)(b) of this
section, except as provided in paragraph (b) of this subsection,
the contracting agency may proceed with the procurement only if
the contracting agency would incur more cost in performing the
services with the contracting agency's own personnel and
resources than the contracting agency would incur in procuring
the services from a contractor. The contracting agency may not
proceed with the procurement if the sole reason that the costs
estimated in subsection (1)(b) of this section are lower than the
costs estimated in subsection (1)(a) of this section is because
the costs estimated in subsection (1)(b)(A) of this section are
lower than the costs estimated in subsection (1)(a)(A) of this
section.
(b) A contracting agency may proceed with a procurement even if
the contracting agency determines that the contracting agency
would incur less cost in providing the services with the
contracting agency's own personnel and resources if at the time
the contracting agency intends to conduct a procurement, the
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contracting agency lacks personnel and resources that are
necessary to perform the services within the time in which the
services are required. If the contracting agency conducts a
procurement under the conditions described in this paragraph, the
contracting agency shall:
(A) Keep a record of the cost analysis and findings that the
contracting agency makes for each procurement the contracting
agency conducts under this section, along with the basis for the
contracting agency's decision to proceed with the procurement;
and
(B) Collect and provide copies of the records described in
subparagraph (A) of this paragraph each calendar quarter to the
local contract review board, if the contracting agency is a local
contracting agency, or to the Emergency Board, if the contracting
agency is a state contracting agency.
(c) If the contracting agency is a state contracting agency, in
addition to complying with the provisions of paragraph (b) of
this subsection the contracting agency shall prepare a request to
the Governor for an appropriation and any authority that is
necessary for the contracting agency to hire personnel and obtain
resources necessary to perform the services that the contracting
agency procured under the conditions described in paragraph (b)
of this subsection. The request must include a copy of the
records that the contracting agency provided to the Emergency
Board under paragraph (b)(B) of this subsection.
(3) A cost analysis, record, documentation or determination
made under this section is a public record. + }
SECTION 4. { + (1) Notwithstanding the provisions of section 3
(2)(a) of this 2009 Act, a contracting agency may proceed with a
procurement if the contracting agency reasonably determines in
writing that using the contracting agency's own personnel or
resources to perform the services that the contracting agency
intends to procure is not feasible. The contracting agency may
make the determination described in this subsection without
conducting a cost analysis under section 3 of this 2009 Act if
the contracting agency finds that:
(a) The contracting agency lacks the specialized capabilities,
experience or technical or other expertise necessary to perform
the services. In making the finding, the contracting agency shall
compare the contracting agency's capability, experience or
expertise in the field most closely involved in performing the
services with a potential contractor's capability, experience or
expertise in the same or a similar field.
(b) Special circumstances require the contracting agency to
procure the services by contract. Special circumstances may
include, but are not limited to, circumstances in which:
(A) The terms under which the contracting agency receives a
grant or other funds for use in a procurement require the
contracting agency to obtain services through an independent
contractor;
(B) Other state or federal law requires the contracting agency
to procure services through an independent contractor;
(C) The procurement is for services that are incidental to a
contract for purchasing or leasing real or personal property,
including service and maintenance agreements for equipment that
is leased or rented;
(D) The contracting agency cannot accomplish policy,
administrative or legal goals, including but not limited to
avoiding conflicts of interest or ensuring independent or
unbiased findings in cases when using the contracting agency's
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existing personnel or persons the contracting agency could hire
through a regular or ordinary process would not be suitable;
(E) The procurement is for services to which the provisions of
ORS 279B.080 apply;
(F) The procurement is for services, the need for which is so
urgent, temporary or occasional that attempting to perform the
services with the contracting agency's own personnel or resources
would cause a delay that would frustrate the purpose for
obtaining the services; or
(G) The services that the contracting agency intends to procure
will be completed within six months after the date on which the
contract for the services is executed.
(2) A finding or determination and supporting documentation for
a finding or determination made under this section is a public
record. + }
SECTION 4a. { + (1) The Oregon Department of Administrative
Services, in consultation with contracting agencies and
representatives of employees of contracting agencies that are
subject to sections 2, 3 and 4 of this 2009 Act, shall evaluate
the extent to which the provisions of sections 2, 3 and 4 of this
2009 Act aided the contracting agency in making a determination
as to whether to procure services or to perform services with the
contracting agency's own personnel and resources.
(2) The department shall report the results of the consultation
and evaluation to the Legislative Assembly on January 10,
2011. + }
SECTION 5. ORS 279B.055 is amended to read:
279B.055. (1) A contracting agency may solicit and award a
public contract for goods or services, or may award multiple
public contracts for goods or services when specified in the
invitation to bid, by competitive sealed bidding.
(2) The contracting agency shall issue an invitation to bid,
which must { - include - } :
(a) { + Specify + } a time and date by which the bids must be
received and a place at which the bids must be submitted { - ,
and may, - } { + . The contracting agency, + } in the { +
contracting agency's + } sole discretion { - of the contracting
agency - } , { + may receive bids by electronic means or
+ }direct or permit { - the submission - } { + a bidder to
submit + } { - and receipt of - } bids by electronic means
{ - ; - } { + . + }
(b) { + Specify + }the name and title of the person
designated { - for the receipt of - } { + to receive + } bids
and the person { + the contracting agency designates + }
{ - designated by the contracting agency - } as the contact
person for the procurement, if different { - ; - } { + . + }
(c) { - A - } { + Describe the + } procurement
{ - description; - } { + . In the description, the contracting
agency shall identify the scope of work included within the
procurement, outline the contractor's anticipated duties and set
expectations for the contractor's performance. Unless the
contracting agency for good cause specifies otherwise, the scope
of work shall require the contractor to meet the highest
standards prevalent in the industry or business most closely
involved in providing the appropriate goods or services. + }
(d) { + Specify + }a time, date and place { - that - }
{ + for + } prequalification applications, if any,
{ - must - } { + to + } be filed and the classes of work, if
any, for which bidders must be prequalified in accordance with
ORS 279B.120 { - ; - } { + . + }
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(e) { - A statement - } { + State + } that the contracting
agency may cancel the procurement or reject any or all bids in
accordance with ORS 279B.100 { - ; - } { + . + }
(f) { - A statement - } { + State + } that 'Contractors
shall use recyclable products to the maximum extent economically
feasible in the performance of the contract work set forth in
this document. ' if { + a state contracting agency issues + }
the invitation to bid { + . + } { - is issued by a state
contracting agency; - }
(g) { - A statement that requires - } { + Require + } the
contractor or subcontractor to possess an asbestos abatement
license, if required under ORS 468A.710 { - ; and - } { + . + }
(h) { + Include + } all contractual terms and conditions
applicable to the procurement. { + The contract terms and
conditions shall specify clear consequences for a contractor's
failure to perform the scope of work identified in the invitation
to bid or the contractor's failure to meet established
performance standards. The consequences may include, but are not
limited to:
(A) Reducing or withholding payment;
(B) Requiring the contractor to perform, at the contractor's
expense, additional work necessary to perform the identified
scope of work or meet the established performance standards; or
(C) Declaring a default, terminating the public contract and
seeking damages and other relief available under the terms of the
public contract or other applicable law. + }
(3)(a) The contracting agency may require bid security if the
contracting agency determines that bid security is reasonably
necessary or prudent to protect the interests of the contracting
agency.
(b) The contracting agency shall return the bid security to all
bidders upon the execution of the contract.
(c) The contracting agency shall retain the bid security if a
bidder who is awarded a contract fails to promptly and properly
execute the contract. For purposes of this paragraph, prompt and
proper execution of the contract includes all action by a bidder
that is necessary to { - the formation of - } { + form + } a
contract in accordance with the invitation to bid, including
{ - the - } posting
{ - of - } performance security and { - the submission
of - } { + submitting + } proof of insurance when
{ - required by - } the invitation to bid { + requires the
submission + }.
(4)(a) The contracting agency shall give public notice of an
invitation to bid issued under this section. Public notice is
intended to foster competition among prospective bidders. The
contracting agency shall make invitations to bid available to
prospective bidders.
(b) A public notice must be published at least once in at least
one newspaper of general circulation in the area where the
contract is to be performed and in as many additional issues and
publications as the contracting agency may determine.
(c) The Director of the Oregon Department of Administrative
Services or a local contract review board may, by rule or order,
authorize public notice of bids or proposals to be published
electronically instead of in a newspaper of general circulation
if the director or board determines that electronically providing
public notice of bids or proposals is likely to be
cost-effective.
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(d) In addition to the modes of publication authorized by
paragraphs (b) and (c) of this subsection, the contracting agency
may use any other medium reasonably calculated to reach
prospective bidders or proposers.
(e) Rules adopted under ORS 279A.065 must prescribe the
requirements for providing public notice of solicitations.
(f) Unless otherwise specified in rules adopted under ORS
279A.065, the contracting agency shall give public notice at
least seven days before the solicitation closing date.
(5)(a) The contracting agency shall open bids publicly at the
time, date and place designated in the invitation to bid. When
authorized by, and in accordance with, rules adopted under ORS
279A.065, bids may be submitted, received and opened through
electronic means.
(b) The { + contracting agency shall record the + } amount of
a bid, the name of the bidder and other relevant information
{ - as may be - } specified by rule adopted under ORS 279A.065
{ - shall be recorded by the contracting agency - } . The record
shall be open to public inspection.
(c) Notwithstanding { - any - } { + a + } requirement to
make bids open to public inspection after the contracting
{ - agency's issuance of - } { + agency issues + } notice of
intent to award a contract, a contracting agency may withhold
from disclosure to the public trade secrets, as defined in ORS
192.501, and information submitted to a public body in
confidence, as described in ORS 192.502, that are contained in a
bid.
(6)(a) The contracting agency shall evaluate all bids that are
received before the time and date indicated for bid opening in
the invitation to bid. The contracting agency shall evaluate the
bids based on the requirements set forth in the invitation to
bid. The requirements may include, in addition to the
information described in subsection (2) of this section, criteria
to determine minimum acceptability, such as inspection, testing,
quality and suitability for intended use or purpose. Criteria
that will affect the bid price and will be considered in
evaluation for award including, but not limited to, discounts,
transportation costs and total costs of ownership or operation of
a product over { - its - } { + the + } life { + of the
product must + } { - shall - } be objectively measurable. The
invitation to bid { - shall - } { + must + } set forth the
evaluation criteria to be used. No criteria may be used in a bid
evaluation that are not set forth in the invitation to bid or in
a qualified products list maintained under ORS 279B.115. The
contracting agency may not consider for award bids received after
the time and date indicated for bid opening in the invitation to
bid. The contracting agency may retain bids or copies of bids
received after the bid time and date indicated in the invitation
to bid.
(b) The contracting agency shall, for the purpose of evaluating
bids, apply any applicable preference described in ORS 279A.120,
279A.125 or 282.210.
(7) Rules adopted under ORS 279A.065 { - shall - } { +
must + } provide for and regulate the correction and withdrawal
of bids before and after bid opening and the cancellation of
awards or contracts based on bid mistakes. After bid opening,
changes in bids prejudicial to the interests of the public or
fair competition are not permitted. { - All decisions to
permit - } { + A contracting agency that permits a bidder to
correct or withdraw a bid or that cancels + } { - the
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correction or withdrawal of bids, or to cancel - } an award or a
contract based on bid mistakes, shall { - be supported by - }
{ + support the decision with + } a written determination
{ - by the contracting agency - } that states the reasons for
the action taken.
(8) The cancellation of invitations to bid and the rejection of
bids must be in accordance with ORS 279B.100.
(9) The contracting agency shall, in accordance with ORS
279B.135, issue to each bidder or shall post, electronically or
otherwise, a notice of intent to award.
(10) If { + a contracting agency awards + } a contract
{ - is awarded - } , the contracting agency shall award the
contract:
(a) To the lowest responsible bidder whose bid substantially
complies with the requirements and criteria set forth in the
invitation to bid and with all prescribed public procurement
procedures and requirements; or
(b) { - When - } { + If + } the invitation to bid specifies
or authorizes the award of multiple contracts, to the responsible
bidders:
(A) Whose bids substantially comply with the requirements and
criteria set forth in the invitation to bid and with all
prescribed public procurement procedures and requirements; and
(B) Who qualify for the award of a public contract under the
terms of the invitation to bid.
(11) The successful bidder shall promptly execute a contract.
The successful bidder's duty to promptly execute a contract
includes the duty to take all action that is necessary to
{ - the formation of - } { + form + } a contract in accordance
with the invitation to bid, including { - the - } posting
{ - of - } performance security { + , + } { - and the
submission of - } { + submitting + } proof of insurance when
{ - required by - } the invitation to bid { + requires the
submission and agreeing to perform the scope of work and meet the
performance standards set forth in the invitation to bid + }.
(12) { - When the - } { + If a + } contracting agency
{ - considers it impractical to initially prepare - } { +
determines that preparing + } a procurement description to
support an award based on price { + is impractical + }, the
contracting agency may issue a multistep invitation to bid
{ - requesting the submission of - } { + that requests bidders
to submit + } unpriced submittals, and then later issue an
invitation to bid limited to the bidders { - whom - } { +
that + } the contracting agency officer has determined { - to
be - } { + are + } eligible to submit a priced bid under the
criteria set forth in the initial solicitation of unpriced
submittals.
(13) The contracting agency may issue a request for
information, a request for interest or other preliminary
documents to obtain information useful in { - the preparation
of - } { + preparing + } an invitation to bid.
SECTION 6. ORS 279B.060 is amended to read:
279B.060. (1) A contracting agency may solicit and award a
public contract for goods or services, or may award multiple
public contracts for goods or services when specified in the
request for proposals, by requesting and evaluating competitive
sealed proposals.
(2) The request for proposals must { - include - } :
(a) { + Specify + }a time and date by which sealed proposals
must be received, and a place at which the proposals must be
Enrolled House Bill 2867 (HB 2867-C) Page 7
submitted { - , and may, - } { + . The contracting agency, + }
in the { + contracting agency's + } sole discretion { + , + }
{ - of the contracting agency, - } { + may receive proposals
by electronic means or may + } direct or permit { - the
submission and receipt of - } { + proposers to submit + }
proposals by electronic means { - ; - } { + . + }
(b) { + Specify + } the name and title of the person
designated { - for receipt of - } { + to receive + }
proposals and the person { - designated by - } the contracting
agency { + designates + } as the contact person for the
procurement, if different { - ; - } { + . + }
{ - (c) A procurement description; - }
{ + (c) Describe the procurement. In the description, the
contracting agency shall identify the scope of work included
within the procurement, outline the contractor's anticipated
duties and set expectations for the contractor's performance.
Unless the contractor is providing architectural, engineering and
land surveying services or related services, both as defined in
ORS 279C.100, or unless the contracting agency for good cause
specifies otherwise, the scope of work shall require the
contractor to meet the highest standards prevalent in the
industry or business most closely involved in providing the
appropriate goods or services. + }
(d) { + Specify + } a time, date and place { - that - }
{ + for + } prequalification applications, if any,
{ - must - } { + to + } be filed and the classes of work, if
any, for which proposers must be prequalified in accordance with
ORS 279B.120 { - ; - } { + . + }
(e) { - A statement - } { + State + } that the contracting
agency may cancel the procurement or reject any or all proposals
in accordance with ORS 279B.100 { - ; - } { + . + }
(f) { - A statement - } { + State + } that 'Contractors
shall use recyclable products to the maximum extent economically
feasible in the performance of the contract work set forth in
this document. ' if { + a state contracting agency issues + }
the request for proposals { + . + }
{ - is issued by a state contracting agency; - }
(g) { - A statement that requires - } { + Require + } the
contractor or subcontractor to possess an asbestos abatement
license, if required under ORS 468A.710 { - ; and - } { + . + }
(h) { + Include + } all contractual terms and conditions
applicable to the procurement. { + The contract terms and
conditions shall specify clear consequences for a contractor's
failure to perform the scope of work identified in the request
for proposals or the contractor's failure to meet established
performance standards. The consequences may include, but are not
limited to:
(A) Reducing or withholding payment;
(B) Requiring the contractor to perform, at the contractor's
expense, additional work necessary to perform the identified
scope of work or meet the established performance standards; or
(C) Declaring a default, terminating the public contract and
seeking damages and other relief available under the terms of the
public contract or other applicable law.
(3) + } The request for proposals also may:
{ - (A) - } { + (a) + } Identify { - those - }
contractual terms or conditions { + that + } the contracting
agency reserves, in the request for proposals, for negotiation
with proposers;
Enrolled House Bill 2867 (HB 2867-C) Page 8
{ - (B) - } { + (b) + } Request that proposers propose
contractual terms and conditions that relate to subject matter
reasonably identified in the request for proposals;
{ - (C) - } { + (c) + } Contain or incorporate the form and
content of the contract that the contracting agency will accept,
or { - suggested - } { + suggest + } contract terms and
conditions that nevertheless may be the subject of negotiations
with proposers;
{ - (D) - } { + (d) + } Announce the method { - of
contractor selection - } { + the contracting agency will use to
select the contractor, which + } { - that - } may include, but
is not limited to, { - negotiation - } { + negotiating + }
with the highest ranked proposer, competitive negotiations, { +
a + } multiple-tiered competition { + that is + } designed to
identify a class of proposers that fall within a competitive
range or to otherwise eliminate from consideration a class of
lower ranked proposers { - , - } or { - any - } { + a + }
combination of methods, as authorized or prescribed by rules
adopted under ORS 279A.065; and
{ - (E) - } { + (e) + } { - Contain a description of - }
{ + Describe + } the manner in which { + the contracting
agency will evaluate + } proposals { + , + } { - will be
evaluated, including - } { + identifying + } the relative
importance of price and { - any - } other { - evaluation - }
factors { + the contracting agency will use + } { - used - }
to { + evaluate and + } rate the proposals in the first tier of
competition { - , and - } { + . + } If { + the contracting
agency uses + } more than one tier of competitive evaluation
{ - may be used - } , { + the request for proposals must
describe + } { - a description of - } the process { + the
contracting agency will use to evaluate proposals + } { - under
which the proposals will be evaluated - } in the subsequent
tiers.
{ - (3)(a) - } { + (4)(a) + } The contracting agency may
require proposal security in any form { - deemed prudent by - }
the contracting agency { + deems prudent + }. Proposal security
shall serve the same function with respect to requests for
proposals as bid security serves with respect to invitations to
bid under ORS 279B.055.
(b) The contracting agency shall return the proposal security
to all proposers upon the execution of the contract.
(c) The contracting agency shall retain the proposal security
if a proposer who is awarded a contract fails to promptly and
properly execute the contract. For purposes of this paragraph,
prompt and proper execution of the contract includes all action
by a proposer that is necessary to { - the formation of - }
{ + form + } a contract in accordance with the request for
proposals, including { - the - } posting { - of - }
performance security and { - the submission of - } { +
submitting + } proof of insurance when { - required by - } the
request for proposals { + requires the submission + }. If
contract negotiations or competitive negotiations are conducted,
the failure, prior to award, of a contracting agency and a
proposer to reach agreement does not constitute grounds for
{ - the retention of - } { + retaining + } proposal security.
{ - (4) - } { + (5) + } Public notice of the request for
proposals { - shall - } { + must + } be given in the same
manner as provided for public notice of invitations to bid in ORS
279B.055 (4).
Enrolled House Bill 2867 (HB 2867-C) Page 9
{ - (5)(a) - } { + (6)(a) + } Notwithstanding ORS 192.410
to 192.505, proposals may be opened in a manner to avoid
{ - disclosure of - } { + disclosing + } contents to competing
proposers during, when applicable, the process of negotiation,
but the contracting agency shall record and make available the
identity of all proposers as part of the contracting agency's
public records { - from and - } after
{ - the opening of - } the proposals { + are opened + }.
Notwithstanding ORS 192.410 to 192.505, proposals are not
required to be open for public inspection until after the notice
of intent to award a contract is issued. The fact that proposals
are opened at a meeting, as defined in ORS 192.610, does not make
{ - their - } { + the + } contents { + of the proposals + }
subject to disclosure, regardless of whether the public body
opening the proposals fails to give notice of or provide for an
executive session for the purpose of opening proposals.
(b) Notwithstanding { - any - } { + a + } requirement to
make proposals open to public inspection after the contracting
{ - agency's issuance of - } { + agency issues + } notice of
intent to award a contract, a contracting agency may withhold
from disclosure to the public materials included in a proposal
that are exempt or conditionally exempt from disclosure under ORS
192.501 or 192.502.
(c) If a request for proposals is canceled under ORS 279B.100
after proposals are received { + or if a proposal is
rejected + }, the contracting agency may return a proposal to the
proposer that made the proposal. The contracting agency shall
keep a list of returned proposals in the file for the
solicitation.
{ - (6)(a) - } { + (7) + } As provided in the request for
proposals or in written addenda issued thereunder, the
contracting agency may conduct site tours, demonstrations,
individual or group discussions and other informational
activities with proposers before or after the opening of
proposals for the purpose of clarification to ensure full
understanding of, and responsiveness to, the solicitation
requirements or to consider and respond to requests for
modifications of the proposal requirements. The contracting
agency shall use procedures designed to accord proposers fair and
equal treatment with respect to any opportunity for discussion
and revision of proposals.
{ - (b) - } { + (8) + } For purposes of evaluation, when
provided for in the request for proposals, the contracting agency
may employ methods of contractor selection that include, but are
not limited to:
{ - (A) - } { + (a) + } An award or awards based solely on
the ranking of proposals;
{ - (B) - } { + (b) + } Discussions leading to best and
final offers, in which the contracting agency may not disclose
private discussions leading to best and final offers;
{ - (C) - } { + (c) + } Discussions leading to best and
final offers, in which the contracting agency may not disclose
information derived from proposals submitted by competing
proposers;
{ - (D) - } { + (d) + } Serial negotiations, beginning with
the highest ranked proposer;
{ - (E) - } { + (e) + } Competitive simultaneous
negotiations;
{ - (F) - } { + (f) + } Multiple-tiered competition
designed to identify, at each level, a class of proposers that
Enrolled House Bill 2867 (HB 2867-C) Page 10
fall within a competitive range or to otherwise eliminate from
consideration a class of lower ranked proposers;
{ - (G) - } { + (g) + } A multistep request for proposals
requesting the submission of unpriced technical submittals, and
then later issuing a request for proposals limited to the
proposers whose technical submittals the contracting agency had
determined to be qualified under the criteria set forth in the
initial request for proposals; or
{ - (H) - } { + (h) + } { - Any - } { + A + }
combination of methods described in this
{ - paragraph - } { + subsection + }, as authorized or
prescribed by rules adopted under ORS 279A.065.
{ - (c) - } { + (9) + } Revisions of proposals may be
permitted after the submission of proposals and before award for
the purpose of obtaining best offers or best and final offers.
{ - (d) - } { + (10) + } After the opening of proposals, a
contracting agency may issue or electronically post an addendum
to the request for proposals that modifies the criteria, rating
process and procedure for any tier of competition before the
start of the tier to which the addendum applies. The contracting
agency shall send an addendum that is issued by a method other
than electronic posting to all proposers who are eligible to
compete under the addendum. The contracting agency shall issue or
post the addendum at least five days before the start of the
subject tier of competition or as { + the contracting agency + }
otherwise { - determined by the contracting agency to be - }
{ + determines is + } adequate to allow eligible proposers to
prepare for the competition in accordance with rules adopted
under ORS 279A.065.
{ - (7) - } { + (11) + } The cancellation of requests for
proposals and the rejection of proposals must be in accordance
with ORS 279B.100.
{ - (8) - } { + (12) + } In the request for proposals, the
contracting agency shall describe the methods by which the agency
will make the results of each tier of competitive evaluation
available to the proposers who competed in the tier. The
contracting agency shall include a description of the manner in
which the proposers who are eliminated from further competition
may protest or otherwise object to the contracting agency's
decision.
{ - (9) - } { + (13) + } The contracting agency shall issue
or electronically post the notice of intent to award described in
ORS 279B.135 to each proposer who was evaluated in the final
competitive tier.
{ - (10) - } { + (14) + } If { + the contracting agency
awards + } a contract { - is awarded - } , the contracting
agency shall award the contract to the responsible proposer whose
proposal the contracting agency determines in writing { - to
be - } { + is + } the most advantageous to the contracting
agency based on the evaluation process and evaluation factors
described in the request for proposals, { - any - } applicable
preferences described in ORS 279A.120 and 279A.125 and, when
applicable, the outcome of any negotiations authorized by the
request for proposals. Other factors may not be used in the
evaluation. When the request for proposals specifies or
authorizes
{ - the award of - } { + awarding + } multiple public
contracts, the contracting agency shall award public contracts to
the responsible proposers who qualify for the award of a contract
under the terms of the request for proposals.
Enrolled House Bill 2867 (HB 2867-C) Page 11
{ - (11) - } { + (15) + } The contracting agency may issue
a request for information, a request for interest, a request for
qualifications or other preliminary documents to obtain
information useful in
{ - the preparation of - } { + preparing + } a request for
proposals.
{ + (16) Before executing a contract solicited under this
section, a contracting agency shall obtain the proposer's
agreement to perform the scope of work and meet the performance
standards set forth in the final negotiated scope of work. + }
SECTION 7. ORS 279B.110 is amended to read:
279B.110. (1) { - The - } { + A + } contracting agency
shall prepare a written determination of nonresponsibility
{ - of - } { + for + } a bidder or proposer if the { +
contracting agency determines that the + } bidder or proposer
does not meet the standards of responsibility.
(2) In determining whether a bidder or proposer has met the
standards of responsibility, the contracting agency shall
consider whether a bidder or proposer { - has - } :
(a) { + Has + } available the appropriate financial, material,
equipment, facility and personnel resources and expertise, or
{ + has the + } ability to obtain the resources and expertise,
necessary to
{ - indicate the capability of the bidder or proposer to - }
meet all contractual responsibilities { - ; - } { + . + }
(b) { + Completed previous contracts of a similar nature
with + } a satisfactory record of performance. { + For purposes
of this paragraph, a satisfactory record of performance means
that to the extent that the costs associated with and time
available to perform a previous contract remained within the
bidder's or proposer's control, the bidder or proposer stayed
within the time and budget allotted for the procurement and
otherwise performed the contract in a satisfactory manner. + }
The contracting agency shall document the { + bidder's or
proposer's + } record of performance
{ - of a bidder or proposer - } if the contracting agency
finds { + under this paragraph that + } the bidder or proposer
{ - nonresponsible under this paragraph; - } { + is not
responsible. + }
(c) { + Has + }a satisfactory record of integrity. { + The
contracting agency in evaluating the bidder's or proposer's
record of integrity may consider, among other things, whether the
bidder or proposer has previous criminal convictions for offenses
related to obtaining or attempting to obtain a contract or
subcontract or in connection with the bidder's or proposer's
performance of a contract or subcontract. + } The contracting
agency shall document the { + bidder's or proposer's + } record
of integrity { - of a bidder or proposer - } if the
contracting agency finds { + under this paragraph that + } the
bidder or proposer { - nonresponsible under this paragraph; - }
{ + is not responsible. + }
(d) { + Is legally + }qualified { - legally - } to
contract with the contracting agency { - ; - } { + . + }
(e) Supplied all necessary information in connection with the
inquiry concerning responsibility. If a bidder or proposer fails
to promptly supply information { + concerning responsibility
that + }
{ - requested by - } the contracting agency { + requests, + }
{ - concerning responsibility, - } the contracting agency
Enrolled House Bill 2867 (HB 2867-C) Page 12
shall { + determine the bidder's or proposer's + } { - base
the determination of - } responsibility
{ - upon any - } { + based on + } available information or
may find { + that + } the bidder or proposer
{ - nonresponsible - } { + is not responsible. + } { - ;
and - }
(f) { + Was + }not { - been - } debarred by the
contracting agency under ORS 279B.130.
(3) A contracting agency may refuse to disclose outside of the
contracting agency confidential information furnished by a bidder
or proposer under this section when the bidder or proposer has
clearly identified in writing the information the bidder or
proposer seeks to have treated as confidential and the
contracting agency has authority under ORS 192.410 to 192.505 to
withhold the identified information from disclosure.
SECTION 8. ORS 279B.145 is amended to read:
279B.145. The determinations under ORS 279B.055 (3) and (7),
279B.060 { - (3) and (10) - } { + (4) and (14) + }, 279B.075,
279B.080, 279B.085 and 279B.110 { - (1) - } { + and sections
2, 3 and 4 of this 2009 Act + } are final and conclusive unless
they are clearly erroneous, arbitrary, capricious or contrary to
law.
SECTION 8a. ORS 279B.420 is amended to read:
279B.420. { - (1) Any violation of ORS chapter 279A by a
contracting agency for which no judicial remedy is otherwise
provided by ORS chapter 279A, 279B or 279C is subject to judicial
review only as provided in this section. - }
{ - (2) Any violation of this chapter, except ORS 279B.270,
279B.275, 279B.280 and 279B.400 to 279B.425, by a contracting
agency for which no judicial remedy is otherwise provided by this
chapter or ORS chapter 279A is subject to judicial review only as
provided in this section. - }
{ + (1) If a contracting agency allegedly violates a
provision of ORS chapter 279A and a judicial remedy is not
otherwise available under ORS chapter 279A, 279B or 279C, the
alleged violation is subject to judicial review only as provided
in this section.
(2) If a contracting agency allegedly violates a provision of
this chapter, except a provision of ORS 279B.270, 279B.275,
279B.280, 279B.400 to 279B.425 or section 2, 3 or 4 of this 2009
Act, and a judicial remedy is not otherwise provided in this
chapter or ORS chapter 279A, the alleged violation is subject to
judicial review only as provided in this section. + }
(3) { + A person may seek + }judicial review { - is
available - } under this section { + for a violation described
in subsection (1) or (2) of this section + } only if:
(a) A public contract is about to be awarded or has been
awarded;
(b) { - An - } { + The + } alleged violation of { + a
provision of + } this chapter or ORS chapter 279A, except { + a
provision of + } ORS 279B.270, 279B.275, 279B.280 and 279B.400 to
279B.425 { + or section 2, 3 or 4 of this 2009 Act + }, occurred
in the procurement process for the public contract and
{ - that - } { + the alleged + }violation resulted in or will
result in { - the - } { + an + } unlawful award of a contract
or { - the - } { + an + } unlawful failure to award the
contract;
(c) The alleged violation deprived the person { - seeking
judicial review - } of the award of the contract or deprived the
Enrolled House Bill 2867 (HB 2867-C) Page 13
person of the opportunity to compete for the award of the
contract;
(d) The person { - seeking judicial review would have
been - } { + was + } qualified to receive the award of the
contract under ORS 279B.110;
(e) The person { - seeking judicial review - } gave written
notice
{ - describing - } { + that described + } the alleged
violation to the contracting agency { - no - } { + not + }
later than 10 days after the date on which the alleged violation
occurred and { + , + } { - in no event more - } { +
regardless of when the alleged violation occurred, not later + }
than 10 days after the date of execution of the contract;
(f) The person { - seeking judicial review - } has exhausted
all administrative remedies { - provided by - } the
contracting agency { + provides + }; and
{ - (g)(A) In the case of an alleged violation of ORS chapter
279A, the alleged violation is one for which no judicial review
is provided by any other section of ORS chapter 279A, 279B or
279C; or - }
{ - (B) In the case of an alleged violation of this chapter,
except ORS 279B.270, 279B.275, 279B.280 and 279B.400 to 279B.425,
the alleged violation is one for which no judicial review is
provided by any other section of this chapter or ORS chapter
279A. - }
{ + (g)(A) The alleged violation is a violation of a
provision of ORS chapter 279A and no other section of ORS chapter
279A, 279B or 279C provides judicial review; or
(B) The alleged violation is a violation of a provision of this
chapter, except a provision of ORS 279B.270, 279B.275, 279B.280,
279B.400 to 279B.425 or section 2, 3 or 4 of this 2009 Act, and
no other section of this chapter or ORS chapter 279A provides
judicial review. + }
(4) { - An alleged violation committed by - } { + If + } a
state contracting agency { + allegedly commits a violation, + }
{ - is reviewable under ORS 183.484 by - } the Circuit Court
for Marion County or the circuit court for the county in which
the principal offices of the state contracting agency are
located { + may review the alleged violation under ORS
183.484 + }.
(5) { - An alleged violation committed by - } { + If + } a
local contracting agency { + allegedly commits a violation, + }
{ - is reviewable through a writ of review under ORS chapter 34
by - } the circuit court for the county in which the principal
offices of the local contracting agency are located { + may
review the alleged violation by means of a writ of review under
ORS chapter 34 + }.
(6) If { + a person gives + } the notice required under
subsection (3)(e) of this section { - is given - } and
timely { + seeks + } judicial review
{ - is sought - } under this section, the contracting agency
may not
{ - proceed with contract execution - } { + execute the
contract + } unless the contracting agency determines that
{ - there is - } a compelling governmental interest { +
exists + } in proceeding or that the goods and services are
urgently needed. { - If the - } { + A + } contracting
agency { + that + } makes such a determination { - , the
contracting agency - } shall set forth in writing the reasons
for the determination and immediately provide { - them - }
Enrolled House Bill 2867 (HB 2867-C) Page 14
{ + the reasons + } to the person who filed the challenge.
Thereafter, after joining the prospective contractor as a party
to the litigation and upon motion by the person { - filing - }
{ + who filed + } the challenge, the court may nonetheless stay
the performance of the contract if the court finds that the
contracting agency's determination { - of the existence of - }
{ + that + } a compelling governmental interest { + exists + }
in proceeding with contract execution, or the contracting
agency's determination that the goods or services were urgently
needed, was not supported by substantial evidence or constituted
a manifest abuse of discretion. In granting a stay, the court may
require the person { - seeking - } { + who sought + } the
stay to post a bond in an amount sufficient to protect the
contracting agency and the public from costs associated with { +
a + } delay in contract performance.
(7) In { - its - } { + a + } review, the circuit court
shall give due deference to any factual contracting decision
{ - made by - } the contracting agency { + made + } and may
not substitute { - its - } { + the court's + } judgment for
{ - that of - } the contracting { - agency - } { + agency's
judgment. + } { - , but - } { + The court + } shall review all
questions of law de novo. Thereafter:
(a) If a contract has not been executed and the court rules in
favor of the person that sought judicial review, and if the
violation could have affected the award of the contract, the
court shall remand the procurement to the contracting agency for
a determination whether to continue with the procurement process
in light of the court's decision.
(b) In addition to the relief provided for in paragraph (a) of
this subsection, if a contract has been executed and the court
rules in favor of the person that sought judicial review, the
court shall include in { - its - } { + the court's + } order
a determination whether the party that signed the contract with
the contracting agency is entitled to reimbursement under the
conditions of, and calculated in the same manner as provided in,
ORS 279C.470. Notwithstanding that ORS 279C.470 otherwise
applies only to public improvement contracts, under this
paragraph the court shall apply ORS 279C.470 to both public
improvement contracts and other public contracts of contracting
agencies.
(c) The court may award costs and attorney fees to the
prevailing party.
SECTION 9. ORS 279C.375 is amended to read:
279C.375. (1) After { + a contracting agency has opened + }
bids { - are opened and a determination is made that - } { +
and determined that the contracting agency will award + }a
public improvement contract { - is to be awarded - } , the
contracting agency shall award the contract to the lowest
responsible bidder.
(2) At least seven days before { - the award of - } { +
awarding + } a public improvement contract, unless the
contracting agency determines that seven days is impractical
under rules adopted under ORS 279A.065, the contracting agency
shall issue to each bidder or post, electronically or otherwise,
a notice of the contracting agency's intent to award a contract.
This subsection does not apply to a contract { - excepted or
exempted from - } { + to which + } competitive bidding { +
does not apply + } under ORS 279C.335 (1)(c) or (d). The notice
and { - its - } { + the + } manner { - of posting or
Enrolled House Bill 2867 (HB 2867-C) Page 15
issuance - } { + in which the notice is posted or issued + }
must conform to rules adopted under ORS 279A.065.
(3) In determining the lowest responsible bidder, a contracting
agency shall do all of the following:
(a) Check the list created by the Construction Contractors
Board under ORS 701.227 for bidders who are not qualified to hold
a public improvement contract.
(b) Determine whether the bidder has met the standards of
responsibility. In making the determination, the contracting
agency shall consider whether a bidder { - has - } :
(A) { + Has + } available the appropriate financial, material,
equipment, facility and personnel resources and expertise, or the
ability to obtain the resources and expertise, necessary to meet
all contractual responsibilities.
(B) { + Completed previous contracts of a similar nature with
+ }a satisfactory record of performance. { + For purposes of
this subparagraph, a satisfactory record of performance means
that to the extent that the costs associated with and time
available to perform a previous contract remained within the
bidder's control, the bidder stayed within the time and budget
allotted for the procurement and otherwise performed the contract
in a satisfactory manner. + } The contracting agency shall
document the { + bidder's + } record of performance { - of a
bidder - } if the contracting agency finds { + under this
subparagraph that + } the bidder { + is + } not { - to be - }
responsible
{ - under this subparagraph - } .
(C) { + Has + } a satisfactory record of integrity. { + The
contracting agency in evaluating the bidder's record of integrity
may consider, among other things, whether the bidder has previous
criminal convictions for offenses related to obtaining or
attempting to obtain a contract or subcontract or in connection
with the bidder's performance of a contract or subcontract. + }
The contracting agency shall document the { + bidder's + }
record of integrity
{ - of a bidder - } if the contracting agency finds { + under
this subparagraph that + } the bidder { + is + } not { - to
be - } responsible { - under this subparagraph - } .
(D) { + Is legally + } qualified { - legally - } to
contract with the contracting agency.
(E) Supplied all necessary information in connection with the
inquiry concerning responsibility. If a bidder fails to promptly
supply information { + concerning responsibility that + }
{ - requested by - } the contracting agency { - concerning
responsibility - } { + requests + }, the contracting agency
shall { - base the determination of - } { + determine the
bidder's + } responsibility { - upon any - } { + based on + }
available information, or may find { + that + } the bidder { +
is + } not { - to be - } responsible.
(c) Document the contracting agency's compliance with the
requirements of paragraphs (a) and (b) of this subsection in
substantially the following form:
_________________________________________________________________
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
Enrolled House Bill 2867 (HB 2867-C) Page 16
RESPONSIBILITY DETERMINATION FORM
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
Project Name: ________
Bid Number: ________
Business Entity Name: ________
CCB License Number: ________
Form Submitted By (Contracting Agency): ________
Form Submitted By (Contracting Agency Representative's Name): ________
Title: ________
Date: ________
(The contracting agency must submit this form with attachments, if any, to the
Construction Contractors Board within 30 days after the date of contract award.)
The contracting agency has (check all of the following):
? Checked the list created by the
Construction Contractors Board
under ORS 701.227 for bidders who
are not qualified to hold a public
improvement contract.
? Determined whether the bidder has
met the standards of responsibility.
In so doing, the contracting agency
has considered whether the bidder:
? Has available the appropriate
financial, material, equipment,
facility and personnel resources
and expertise, or the ability to
obtain the resources and
expertise, necessary to meet
all contractual responsibilities.
? Has a satisfactory record of
performance.
? Has a satisfactory record of
integrity.
? Is qualified legally to contract
with the contracting agency.
? Has supplied all necessary
information in connection with
the inquiry concerning
responsibility.
? Determined the bidder to be
(check one of the following):
? Responsible under ORS 279C.375
(3)(a) and (b).
? Not responsible under
ORS 279C.375 (3)(a) and (b).
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
(Attach documentation if the contracting agency finds the
bidder not to be responsible.)
_________________________________________________________________
(d) Submit the form described in paragraph (c) of this
subsection, with any attachments, to the Construction Contractors
Enrolled House Bill 2867 (HB 2867-C) Page 17
Board within 30 days after the date the contracting agency awards
the contract.
(4) The successful bidder shall:
(a) Promptly execute a formal contract; and
(b) Execute and deliver to the contracting agency a performance
bond and a payment bond when required under ORS 279C.380.
(5) Based on competitive bids, a contracting agency may award a
public improvement contract or may award multiple public
improvement contracts when specified in the invitation to bid.
(6) A contracting agency may not exclude a commercial
contractor from competing for a public contract on the basis that
the license issued by the Construction Contractors Board is
endorsed as a level 1 or level 2 license. As used in this
section, ' commercial contractor' has the meaning given that term
in ORS 701.005.
SECTION 9a. { + If House Bill 2953 becomes law, section 2,
chapter 368, Oregon Laws 2009 (Enrolled House Bill 2953)
(amending ORS 279C.375), is repealed and ORS 279C.375, as amended
by section 9 of this 2009 Act, is amended to read: + }
279C.375. (1) After a contracting agency has opened bids and
determined that the contracting agency will award a public
improvement contract, the contracting agency shall award the
contract to the lowest responsible bidder.
(2) At least seven days before awarding a public improvement
contract, unless the contracting agency determines that seven
days is impractical under rules adopted under ORS 279A.065, the
contracting agency shall issue to each bidder or post,
electronically or otherwise, a notice of the contracting agency's
intent to award a contract. This subsection does not apply to a
contract to which competitive bidding does not apply under ORS
279C.335 (1)(c) or (d). The notice and the manner in which the
notice is posted or issued must conform to rules adopted under
ORS 279A.065.
(3) In determining the lowest responsible bidder, a contracting
agency shall do all of the following:
(a) Check the list created by the Construction Contractors
Board under ORS 701.227 for bidders who are not qualified to hold
a public improvement contract.
(b) Determine whether the bidder { + is responsible. A
responsible bidder must demonstrate to the contracting agency
that the bidder: + } { - has met the standards of
responsibility. In making the determination, the contracting
agency shall consider whether a bidder: - }
(A) Has available the appropriate financial, material,
equipment, facility and personnel resources and expertise,
or { + has + } the ability to obtain the resources and
expertise, necessary to meet all contractual responsibilities.
{ + (B) Holds current licenses that businesses or service
professionals operating in this state must hold in order to
undertake or perform the work specified in the contract.
(C) Is covered by liability insurance and other insurance in
amounts the contracting agency requires in the solicitation
documents.
(D) Qualifies as a carrier-insured employer or a self-insured
employer under ORS 656.407 or has elected coverage under ORS
656.128.
(E) Has made the disclosure required under ORS 279C.370. + }
{ - (B) - } { + (F) + } Completed previous contracts of a
similar nature with a satisfactory record of performance. For
purposes of this subparagraph, a satisfactory record of
Enrolled House Bill 2867 (HB 2867-C) Page 18
performance means that to the extent that the costs associated
with and time available to perform a previous contract remained
within the bidder's control, the bidder stayed within the time
and budget allotted for the procurement and otherwise performed
the contract in a satisfactory manner. The contracting agency
shall document the bidder's record of performance if the
contracting agency finds under this subparagraph that the bidder
is not responsible.
{ - (C) - } { + (G) + } Has a satisfactory record of
integrity. The contracting agency in evaluating the bidder's
record of integrity may consider, among other things, whether the
bidder has previous criminal convictions for offenses related to
obtaining or attempting to obtain a contract or subcontract or in
connection with the bidder's performance of a contract or
subcontract. The contracting agency shall document the bidder's
record of integrity if the contracting agency finds under this
subparagraph that the bidder is not responsible.
{ - (D) - } { + (H) + } Is legally qualified to contract
with the contracting agency.
{ - (E) - } { + (I) + } Supplied all necessary information
in connection with the inquiry concerning responsibility. If a
bidder fails to promptly supply information concerning
responsibility that the contracting agency requests, the
contracting agency shall determine the bidder's responsibility
based on available information, or may find that the bidder is
not responsible.
(c) Document the contracting agency's compliance with the
requirements of paragraphs (a) and (b) of this subsection in
substantially the following form:
_________________________________________________________________
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
RESPONSIBILITY DETERMINATION FORM
Project Name: ________
Bid Number: ________
Business Entity Name: ________
CCB License Number: ________
Form Submitted By (Contracting Agency): ________
Form Submitted By (Contracting Agency Representative's Name):
________
Title: ________
Date: ________
(The contracting agency must submit this form with
attachments, if any, to the Construction Contractors Board within
30 days after the date of contract award.)
The contracting agency has (check all of the following):
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
? Checked the list created by the
Construction Contractors Board
Enrolled House Bill 2867 (HB 2867-C) Page 19
under ORS 701.227 for bidders who
are not qualified to hold a public
improvement contract.
? Determined whether the bidder has
met the standards of responsibility.
In so doing, the contracting agency
has { -
considered whether - }
{ +
found that + }
the bidder
{ +
demonstrated that the bidder + }
:
? Has available the appropriate
financial, material, equipment,
facility and personnel resources
and expertise, or the ability to
obtain the resources and
expertise, necessary to meet
all contractual responsibilities.
{ +
? Holds current licenses that
businesses or service professionals
operating in this state must hold
in order to undertake or perform
the work specified in the contract.
? Is covered by liability insurance
and other insurance in amounts
required in the solicitation documents.
? Qualifies as a carrier-
insured employer or a self-insured
employer under ORS 656.407 or has
elected coverage under ORS 656.128.
? Has disclosed the bidder's first-
tier subcontractors in accordance
with ORS 279C.370. + }
? Has a satisfactory record of
performance.
? Has a satisfactory record of
integrity.
? Is { +
legally + }
qualified { -
legally - }
to contract
with the contracting agency.
? Has supplied all necessary
information in connection with
the inquiry concerning
responsibility.
? Determined the bidder to be
(check one of the following):
? Responsible under ORS 279C.375
(3)(a) and (b).
? Not responsible under
ORS 279C.375 (3)(a) and (b).
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
Enrolled House Bill 2867 (HB 2867-C) Page 20
____________________________________________________________
(Attach documentation if the contracting agency finds the
bidder not to be responsible.)
_________________________________________________________________
(d) Submit the form described in paragraph (c) of this
subsection, with any attachments, to the Construction Contractors
Board within 30 days after the date the contracting agency awards
the contract.
(4) The successful bidder shall:
(a) Promptly execute a formal contract; and
(b) Execute and deliver to the contracting agency a performance
bond and a payment bond when required under ORS 279C.380.
(5) Based on competitive bids, a contracting agency may award a
public improvement contract or may award multiple public
improvement contracts when specified in the invitation to bid.
(6) A contracting agency may not exclude a commercial
contractor from competing for a public contract on the basis that
the license issued by the Construction Contractors Board is
endorsed as a level 1 or level 2 license. As used in this
section, ' commercial contractor' has the meaning given that term
in ORS 701.005.
SECTION 9b. If House Bill 2953 becomes law, section 3, chapter
368, Oregon Laws 2009 (Enrolled House Bill 2953), is amended to
read:
{ + Sec. 3. + } The amendments to ORS 279C.365 and 279C.375
{ - by sections 1 and 2 of this 2009 Act - } { + by section 1,
chapter 368, Oregon Laws 2009 (Enrolled House Bill 2953), and
section 9a of this 2009 Act + } apply to public improvement
contracts first advertised or otherwise solicited on or after the
effective date of { + chapter 368, Oregon Laws 2009 (Enrolled
House Bill 2953) + } { - this 2009 Act - } .
SECTION 10. { + Section 11 of this 2009 Act is added to and
made a part of ORS chapter 279C. + }
SECTION 11. { + (1) Except as provided in subsection (2) of
this section, a contracting agency that procures personal
services for the purpose of administering, managing, monitoring,
inspecting, evaluating compliance with or otherwise overseeing a
public contract that is subject to this chapter may not:
(a) Procure the personal services from a contractor or an
affiliate of a contractor who is a party to the public contract
that is subject to administration, management, monitoring,
inspection, evaluation or oversight by means of the personal
services; or
(b) Procure the personal services through the public contract
that is subject to administration, management, monitoring,
inspection, evaluation or oversight by means of the personal
services.
(2) Subsection (1) of this section does not apply to a
procurement that qualifies as a construction manager/general
contractor procurement or a design-build procurement, both as
defined in OAR 125-249-0610 or 137-049-0610.
(3) As used in this section, 'affiliate' means a person that,
directly or indirectly through one or more intermediaries,
controls, is controlled by or is under common control with the
contractor described in subsection (1)(a) of this section. + }
SECTION 12. { + Sections 2, 3, 4, 4a and 11 of this 2009 Act
and the amendments to ORS 279B.055, 279B.060, 279B.110, 279B.145,
279B.420 and 279C.375 by sections 5, 6, 7, 8, 8a and 9 of this
2009 Act apply to:
Enrolled House Bill 2867 (HB 2867-C) Page 21
(1) Procurements first advertised or otherwise solicited on or
after January 1, 2010; and
(2) Public contracts entered into on or after January 1,
2010. + }
SECTION 13. { + (1) Sections 2, 3, 4, 4a and 11 of this 2009
Act and the amendments to ORS 279B.055, 279B.060, 279B.110,
279B.145, 279B.420 and 279C.375 by sections 5, 6, 7, 8, 8a and 9
of this 2009 Act become operative on January 1, 2010.
(2) The Secretary of State, the Attorney General, the Director
of the Oregon Department of Administrative Services and a
contracting agency that has adopted rules under ORS 279A.065 may
adopt rules and take related actions before January 1, 2010, that
are necessary to enable the secretary, the Attorney General, the
director and the contracting agency to exercise, on and after
January 1, 2010, all the duties, functions and powers conferred
on the secretary, Attorney General, director and contracting
agency by sections 2, 3, 4, 4a and 11 of this 2009 Act and the
amendments to ORS 279B.055, 279B.060, 279B.110, 279B.145,
279B.420 and 279C.375 by sections 5, 6, 7, 8, 8a and 9 of this
2009 Act. + }
SECTION 14. { + This 2009 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2009 Act takes effect on
its passage. + }
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Passed by House June 25, 2009
Repassed by House June 29, 2009
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate June 29, 2009
...........................................................
President of Senate
Enrolled House Bill 2867 (HB 2867-C) Page 22
Received by Governor:
......M.,............., 2009
Approved:
......M.,............., 2009
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2009
...........................................................
Secretary of State
Enrolled House Bill 2867 (HB 2867-C) Page 23
DSMW32708E TEXT EXCEEDS RIGHT PAGE BOUNDARY ON PAGE 17.