USA Statutes : oregon
Title : TITLE 24 PUBLIC ORGANIZATIONS FOR COMMUNITY SERVICE
Chapter : Chapter 279B Public Contracting - Public Procurements
(1) As used in this chapter, unless the
context or a specifically applicable definition requires otherwise:
(a) “Goods and services” or “goods or services” means supplies,
equipment, materials and services other than personal services designated
under ORS 279A.055 and any personal property, including any tangible,
intangible and intellectual property and rights and licenses in relation
thereto, that a contracting agency is authorized by law to procure.
“Goods and services” or “goods or services” includes combinations of any
of the items identified in this paragraph.
(b) “Invitation to bid” means all documents, whether attached or
incorporated by reference, used for soliciting bids.
(c) “Procurement description” means the words used in a
solicitation to describe the goods or services to be procured.
“Procurement description” includes specifications attached to or made a
part of the solicitation.
(d) “Public contract for goods or services” includes, for state
contracting agencies with procurement authority under ORS 279A.050,
contracts for personal services as designated by the state contracting
agencies.
(e) “Request for proposals” means all documents, whether attached
or incorporated by reference, used for soliciting proposals.
(f) “Responsible bidder” or “responsible proposer” means a person
who meets the standards of responsibility described in ORS 279B.110.
(g) “Responsive bid” or “responsive proposal” means a bid or
proposal that substantially complies with the invitation to bid or
request for proposals and all prescribed procurement procedures and
requirements.
(2) ORS 279A.010 (1) contains general definitions applicable
throughout this chapter. [2003 c.794 §47; 2005 c.103 §7]In addition to the policy stated in ORS 279A.015,
it is the policy of the State of Oregon that public contracting
activities should:
(1) Provide effective outcomes that represent optimal value to the
contracting agency and, to the greatest extent feasible, be consistent
with market practices;
(2) Seek consistency in procurement practices between contracting
agencies covered under the Public Contracting Code while preserving each
contracting agency’s ability to adopt rules to maximize the contracting
agency’s effectiveness; and
(3) Apply innovative practices while maintaining quality and
integrity. [2003 c.794 §48]Except as provided in ORS 279C.320, public
contracting under this chapter is subject to ORS chapter 279A, but not
ORS chapter 279C. [2003 c.794 §48a; 2005 c.103 §8](1) When labor is employed by a
contracting agency through a contractor, a person may not be required or
permitted to labor more than 10 hours in any one day, or 40 hours in any
one week, except in cases of necessity or emergency or when the public
policy absolutely requires it, in which event, the person so employed for
excessive hours shall receive at least time and a half pay:
(a)(A) For all overtime in excess of eight hours in any one day or
40 hours in any one week when the work week is five consecutive days,
Monday through Friday; or
(B) For all overtime in excess of 10 hours in any one day or 40
hours in any one week when the work week is four consecutive days, Monday
through Friday; and
(b) For all work performed on Saturday and on the following legal
holidays:
(A) Each Sunday.
(B) New Year’s Day on January 1.
(C) Memorial Day on the last Monday in May.
(D) Independence Day on July 4.
(E) Labor Day on the first Monday in September.
(F) Thanksgiving Day on the fourth Thursday in November.
(G) Christmas Day on December 25.
(2) An employer shall give notice in writing to employees who
perform work under subsection (1) of this section, either at the time of
hire or before commencement of work on the contract, or by posting a
notice in a location frequented by employees, of the number of hours per
day and days per week that employees may be required to work.
(3) For the purpose of this section, each time a legal holiday,
other than Sunday, listed in subsection (1) of this section falls on
Sunday, the succeeding Monday shall be recognized as a legal holiday.
Each time a legal holiday listed in subsection (1) of this section falls
on Saturday, the preceding Friday shall be recognized as a legal holiday.
(4) When specifically agreed to under a written labor-management
negotiated labor agreement, an employee may be paid at least time and a
half pay for work performed on any legal holiday specified in ORS 187.010
and 187.020 that is not listed in subsection (1) of this section.
(5) This section does not apply to contracts for personal services
designated under ORS 279A.055, provided that persons employed under such
contracts shall receive at least time and a half pay for work performed
on the legal holidays specified in subsection (1)(b)(B) to (G) of this
section and for all overtime worked in excess of 40 hours in any one
week, except for individuals under personal services contracts who are
excluded under ORS 653.010 to 653.261 or under 29 U.S.C. 201 to 209 from
receiving overtime.
(6) Subsections (1) and (2) of this section do not apply to
contracts for services at a county fair or for other events authorized by
a county fair board if persons employed under the contract receive at
least time and a half for work in excess of 10 hours in any one day or 40
hours in any one week.
(7) Subsections (1) to (3) of this section do not apply to a
contract for services if the contractor is a party to a collective
bargaining agreement in effect with any labor organization.
(8)(a) Subsections (1) and (2) of this section do not apply to
contracts for services. However, persons employed under such contracts
shall receive at least time and a half pay for work performed on the
legal holidays specified in a collective bargaining agreement or in
subsection (1)(b)(B) to (G) of this section and for all time worked in
excess of 10 hours in any one day or in excess of 40 hours in any one
week, whichever is greater.
(b) An employer shall give notice in writing to employees who work
on a contract for services, either at the time of hire or before
commencement of work on the contract, or by posting a notice in a
location frequented by employees, of the number of hours per day and days
per week that the employees may be required to work.
(9) Any contractor or subcontractor or contractor’s or
subcontractor’s surety that violates the provisions of this section is
liable to the affected employees in the amount of their unpaid overtime
wages and in an additional amount equal to the unpaid overtime wages as
liquidated damages. If the violation resulted from willful falsification
of payroll records, the contractor or subcontractor or contractor’s or
subcontractor’s surety is liable to the affected employees in the amount
of their unpaid overtime wages and in an additional amount equal to twice
the unpaid overtime wages as liquidated damages.
(10) An action to enforce liability to employees under subsection
(9) of this section may be brought as an action on the contractor’s
payment bond as provided for in ORS 279C.610.
(11) This section does not apply to:
(a) Financial institutions as defined in ORS 706.008.
(b) Labor performed in the prevention or suppression of fire under
contracts and agreements made pursuant to the authority of the State
Forester or the State Board of Forestry under ORS 477.406.
(c) Public contracts for goods or personal property.
(12) In accordance with ORS chapter 183, the Commissioner of the
Bureau of Labor and Industries may adopt rules to carry out the
provisions of this section. [2003 c.794 §48b; 2005 c.103 §8a]All contracting agencies shall establish procurement practices
that ensure, to the maximum extent economically feasible, the procurement
of goods that may be recycled or reused when discarded. [2003 c.794 §49]SOURCE SELECTION(Methods of Source Selection) (1) Except as provided in
subsection (2) of this section, a contracting agency shall award a public
contract for goods or services by competitive sealed bidding under ORS
279B.055 or competitive sealed proposals under ORS 279B.060.
(2) The requirements of subsection (1) of this section do not apply
to public contracts established as provided in ORS 279B.065, 279B.070,
279B.075, 279B.080 or 279B.085.
(3) Notwithstanding the applicability of ORS 279B.065, 279B.070,
279B.075, 279B.080 or 279B.085 to a public contract, a contracting agency
nevertheless may award the public contract under subsection (1) of this
section.
(4) Notwithstanding that the term “goods and services” as defined
in ORS 279B.005 does not include personal services:
(a) A local contracting agency may elect, by rule, charter,
ordinance or other appropriate legislative action, to award contracts for
personal services, as designated under ORS 279A.055, under the procedures
of ORS 279B.050 to 279B.085.
(b) State contracting agencies shall solicit contracts for personal
services in accordance with ORS 279B.050 to 279B.085. [2003 c.794 §50] (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) A time and date by which the bids must be received and a place
at which the bids must be submitted, and may, in the sole discretion of
the contracting agency, direct or permit the submission and receipt of
bids by electronic means;
(b) The name and title of the person designated for the receipt of
bids and the person designated by the contracting agency as the contact
person for the procurement, if different;
(c) A procurement description;
(d) A time, date and place that prequalification applications, if
any, must be filed and the classes of work, if any, for which bidders
must be prequalified in accordance with ORS 279B.120;
(e) A statement that the contracting agency may cancel the
procurement or reject any or all bids in accordance with ORS 279B.100;
(f) A statement 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 the invitation to bid is
issued by a state contracting agency;
(g) A statement that requires the contractor or subcontractor to
possess an asbestos abatement license, if required under ORS 468A.710; and
(h) All contractual terms and conditions applicable to the
procurement.
(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 a contract in accordance with the invitation to bid,
including the posting of performance security and the submission of proof
of insurance when required by the invitation to bid.
(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.
(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 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 requirement to make bids open to public
inspection after the contracting agency’s issuance of 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 life shall be objectively measurable. The invitation to
bid shall 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 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 the
correction or withdrawal of bids, or to cancel an award or a contract
based on bid mistakes, shall be supported by 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 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 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 a contract in
accordance with the invitation to bid, including the posting of
performance security and the submission of proof of insurance when
required by the invitation to bid.
(12) When the contracting agency considers it impractical to
initially prepare a procurement description to support an award based on
price, the contracting agency may issue a multistep invitation to bid
requesting the submission of unpriced submittals, and then later issue an
invitation to bid limited to the bidders whom the contracting agency
officer has determined to be 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 an invitation to bid. [2003 c.794 §51] (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) A time and date by which sealed proposals must be received, and
a place at which the proposals must be submitted, and may, in the sole
discretion of the contracting agency, direct or permit the submission and
receipt of proposals by electronic means;
(b) The name and title of the person designated for receipt of
proposals and the person designated by the contracting agency as the
contact person for the procurement, if different;
(c) A procurement description;
(d) A time, date and place that prequalification applications, if
any, must be filed and the classes of work, if any, for which proposers
must be prequalified in accordance with ORS 279B.120;
(e) A statement that the contracting agency may cancel the
procurement or reject any or all proposals in accordance with ORS
279B.100;
(f) A statement 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 the request for proposals
is issued by a state contracting agency;
(g) A statement that requires the contractor or subcontractor to
possess an asbestos abatement license, if required under ORS 468A.710; and
(h) All contractual terms and conditions applicable to the
procurement. The request for proposals also may:
(A) Identify those contractual terms or conditions the contracting
agency reserves, in the request for proposals, for negotiation with
proposers;
(B) Request that proposers propose contractual terms and conditions
that relate to subject matter reasonably identified in the request for
proposals;
(C) Contain or incorporate the form and content of the contract
that the contracting agency will accept, or suggested contract terms and
conditions that nevertheless may be the subject of negotiations with
proposers;
(D) Announce the method of contractor selection that may include,
but is not limited to, negotiation with the highest ranked proposer,
competitive negotiations, multiple-tiered competition 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 combination of methods, as authorized or prescribed by rules
adopted under ORS 279A.065; and
(E) Contain a description of the manner in which proposals will be
evaluated, including the relative importance of price and any other
evaluation factors used to rate the proposals in the first tier of
competition, and if more than one tier of competitive evaluation may be
used, a description of the process under which the proposals will be
evaluated in the subsequent tiers.
(3)(a) The contracting agency may require proposal security in any
form deemed prudent by the contracting agency. 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 a contract in accordance with the request for proposals,
including the posting of performance security and the submission of proof
of insurance when required by the request for proposals. 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 proposal security.
(4) Public notice of the request for proposals shall be given in
the same manner as provided for public notice of invitations to bid in
ORS 279B.055 (4).
(5)(a) Notwithstanding ORS 192.410 to 192.505, proposals may be
opened in a manner to avoid disclosure of 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. 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 contents 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 requirement to make proposals open to
public inspection after the contracting agency’s issuance of 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, 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) 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) 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) An award or awards based solely on the ranking of proposals;
(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) Discussions leading to best and final offers, in which the
contracting agency may not disclose information derived from proposals
submitted by competing proposers;
(D) Serial negotiations, beginning with the highest ranked proposer;
(E) Competitive simultaneous negotiations;
(F) Multiple-tiered competition designed to identify, at each
level, a class of proposers that fall within a competitive range or to
otherwise eliminate from consideration a class of lower ranked proposers;
(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) Any combination of methods described in this paragraph, as
authorized or prescribed by rules adopted under ORS 279A.065.
(c) 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) 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 otherwise determined by the contracting agency to be
adequate to allow eligible proposers to prepare for the competition in
accordance with rules adopted under ORS 279A.065.
(7) The cancellation of requests for proposals and the rejection of
proposals must be in accordance with ORS 279B.100.
(8) 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) 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) If 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 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 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.
(11) 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 a request
for proposals. [2003 c.794 §52] (1) Any procurement of goods or
services not exceeding $5,000 may be awarded in any manner deemed
practical or convenient by the contracting agency, including by direct
selection or award. A contract awarded under this section may be amended
to exceed $5,000 only in accordance with rules adopted under ORS 279A.065.
(2) A procurement may not be artificially divided or fragmented so
as to constitute a small procurement under this section. [2003 c.794 §53;
2005 c.64 §1; 2005 c.103 §8b] (1) Any procurement of goods or
services exceeding $5,000 but not exceeding $150,000 may be awarded in
accordance with intermediate procurement procedures. A contract awarded
under this section may be amended to exceed $150,000 only in accordance
with rules adopted under ORS 279A.065.
(2) A procurement may not be artificially divided or fragmented so
as to constitute an intermediate procurement under this section.
(3) When conducting an intermediate procurement, a contracting
agency shall seek at least three informally solicited competitive price
quotes or competitive proposals from prospective contractors. The
contracting agency shall keep a written record of the sources of the
quotes or proposals received. If three quotes or proposals are not
reasonably available, fewer will suffice, but the contracting agency
shall make a written record of the effort made to obtain the quotes or
proposals.
(4) If a contract is awarded, the contracting agency shall award
the contract to the offeror whose quote or proposal will best serve the
interests of the contracting agency, taking into account price as well as
considerations including, but not limited to, experience, expertise,
product functionality, suitability for a particular purpose and
contractor responsibility under ORS 279B.110. [2003 c.794 §54] (1) A contracting agency may
award a contract for goods or services without competition when the
Director of the Oregon Department of Administrative Services, the local
contract review board or a state contracting agency, if it has
procurement authority under ORS 279A.050, or a person designated in
writing by the director, board or state contracting agency with
procurement authority under ORS 279A.050, determines in writing, in
accordance with rules adopted under ORS 279A.065, that the goods or
services, or class of goods or services, are available from only one
source.
(2) The determination of a sole source must be based on written
findings that may include:
(a) That the efficient utilization of existing goods requires the
acquisition of compatible goods or services;
(b) That the goods or services required for the exchange of
software or data with other public or private agencies are available from
only one source;
(c) That the goods or services are for use in a pilot or an
experimental project; or
(d) Other findings that support the conclusion that the goods or
services are available from only one source.
(3) To the extent reasonably practical, the contracting agency
shall negotiate with the sole source to obtain contract terms
advantageous to the contracting agency. [2003 c.794 §55; 2005 c.103 §8c] The head of a contracting agency,
or a person designated under ORS 279A.075, may make or authorize others
to make emergency procurements of goods or services in an emergency. The
contracting agency shall document the nature of the emergency and
describe the method used for the selection of the particular contractor.
[2003 c.794 §56] (1) As used in this section and ORS
279B.400:
(a) “Class special procurement” means a contracting procedure that
differs from the procedures described in ORS 279B.055, 279B.060, 279B.065
and 279B.070 and is for the purpose of entering into a series of
contracts over time for the acquisition of a specified class of goods or
services.
(b) “Contract-specific special procurement” means a contracting
procedure that differs from the procedures described in ORS 279B.055,
279B.060, 279B.065 and 279B.070 and is for the purpose of entering into a
single contract or a number of related contracts for the acquisition of
specified goods or services on a one-time basis or for a single project.
(c) “Special procurement” means, unless the context requires
otherwise, a class special procurement, a contract-specific special
procurement or both.
(2) Except as provided in subsection (3) of this section, to seek
approval of a special procurement, a contracting agency shall submit a
written request to the Director of the Oregon Department of
Administrative Services or the local contract review board, as
applicable, that describes the proposed contracting procedure, the goods
or services or the class of goods or services to be acquired through the
special procurement and the circumstances that justify the use of a
special procurement under the standards set forth in subsection (4) of
this section.
(3) When the contracting agency is the office of the Secretary of
State or the office of the State Treasurer, to seek approval of a special
procurement, the contracting agency shall submit a written request to the
Secretary of State or the State Treasurer, as applicable, that describes
the proposed contracting procedure, the goods or services or the class of
goods or services to be acquired through the special procurement and the
circumstances that justify the use of a special procurement under the
standards set forth in subsection (4) of this section.
(4) The director, a local contract review board, the Secretary of
State or the State Treasurer may approve a special procurement if the
director, board, Secretary of State or State Treasurer finds that a
written request submitted under subsection (2) or (3) of this section
demonstrates that the use of a special procurement as described in the
request, or an alternative procedure prescribed by the director, board,
Secretary of State or State Treasurer, will:
(a) Be unlikely to encourage favoritism in the awarding of public
contracts or to substantially diminish competition for public contracts;
and
(b)(A) Result in substantial cost savings to the contracting agency
or to the public; or
(B) Otherwise substantially promote the public interest in a manner
that could not practicably be realized by complying with requirements
that are applicable under ORS 279B.055, 279B.060, 279B.065 or 279B.070 or
under any rules adopted thereunder.
(5) Public notice of the approval of a proposed special procurement
must be given in the same manner as provided in ORS 279B.055 (4).
(6) If a contract is awarded through a special procurement, the
contracting agency shall award the contract to the offeror whose offer
the contracting agency determines in writing to be the most advantageous
to the contracting agency.
(7) When the director, a local contract review board, the Secretary
of State or the State Treasurer approves a class special procurement
under this section, the contracting agency may award contracts to acquire
goods or services within the class of goods or services in accordance
with the terms of the approval without making a subsequent request for a
special procurement. [2003 c.794 §57; 2005 c.103 §8d](Cancellation, Rejection and Delay of Invitations for Bids or Requests
for Proposals)(1) Any solicitation or procurement described in
a solicitation may be canceled, or any or all bids or proposals may be
rejected in whole or in part, when the cancellation or rejection is in
the best interest of the contracting agency as determined by the
contracting agency. The reasons for the cancellation or rejection must be
made part of the solicitation file. A contracting agency is not liable to
any bidder or proposer for any loss or expense caused by or resulting
from the cancellation or rejection of a solicitation, bid, proposal or
award.
(2) Any solicitation or procurement described in a solicitation may
be delayed or suspended when the delay or suspension is in the best
interest of the contracting agency as determined by the contracting
agency. The contracting agency shall make the reasons for the delay or
suspension part of the solicitation file. A contracting agency is not
liable to any bidder or proposer for any loss or expense caused by or
resulting from the delay or suspension of a solicitation, bid, proposal
or award. [2003 c.794 §58](Qualifications) (1) The
contracting agency shall prepare a written determination of
nonresponsibility of a bidder or proposer if 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) Available the appropriate financial, material, equipment,
facility and personnel resources and expertise, or ability to obtain the
resources and expertise, necessary to indicate the capability of the
bidder or proposer to meet all contractual responsibilities;
(b) A satisfactory record of performance. The contracting agency
shall document the record of performance of a bidder or proposer if the
contracting agency finds the bidder or proposer nonresponsible under this
paragraph;
(c) A satisfactory record of integrity. The contracting agency
shall document the record of integrity of a bidder or proposer if the
contracting agency finds the bidder or proposer nonresponsible under this
paragraph;
(d) 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 requested by the contracting agency
concerning responsibility, the contracting agency shall base the
determination of responsibility upon any available information or may
find the bidder or proposer nonresponsible; and
(f) 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. [2003 c.794 §59] (1) A contracting agency may
develop and maintain a qualified products list in instances in which the
testing or examination of goods before initiating a procurement is
necessary or desirable in order to best satisfy the requirements of the
contracting agency. For purposes of this section, “goods” includes
products that have associated or incidental service components, such as
supplier warranty obligations or maintenance service programs.
(2) In the initial development of any qualified products list, a
contracting agency shall give public notice, in accordance with ORS
279B.055 (4), of the opportunity for potential contractors, sellers or
suppliers to submit goods for testing and examination to determine their
acceptability for inclusion on the list and may solicit in writing
representative groups of potential contractors, sellers or suppliers to
submit goods for the testing and examination. Any potential contractor,
seller or supplier, even though not solicited, may offer its goods for
consideration.
(3) A contracting agency’s inclusion of goods on a qualified
products list shall be based on the results of tests or examinations.
Notwithstanding any provision of ORS 192.410 to 192.505, a contracting
agency may make the test or examination results public in a manner that
protects the identity of the potential contractor, seller or supplier
that offered the goods for testing or examination, including by using
only numerical designations. Notwithstanding any provision of ORS 192.410
to 192.505, a contracting agency may keep confidential trade secrets,
test data and similar information provided by a potential contractor,
seller or supplier if so requested in writing by the potential
contractor, seller or supplier.
(4) The inclusion of goods on a qualified products list does not
constitute and may not be construed as a prequalification under ORS
279B.120 and 279B.125 of any prospective contractor, seller or supplier
of goods on the qualified products list. [2003 c.794 §60] (1)
A contracting agency may prequalify prospective bidders or proposers to
submit bids or proposals for public contracts to provide particular types
of goods or services. The method of submitting prequalification
applications, the information required in order to be prequalified and
the forms to be used for submitting prequalification information shall be
determined by the contracting agency unless otherwise prescribed by rule
adopted by the Director of the Oregon Department of Administrative
Services or the local contract review board.
(2) The contracting agency shall, in response to the receipt of a
prequalification application submitted under subsection (1) of this
section, notify the prospective bidder or proposer whether the
prospective bidder or proposer is qualified based on the standards of
responsibility listed in ORS 279B.110 (2), the type and nature of
contracts that the prospective bidder or proposer is qualified to compete
for and the time period for which the prequalification is valid. If the
contracting agency does not prequalify a prospective bidder or proposer
as to any contracts covered by the prequalification process, the notice
must specify which of the standards of responsibility listed in ORS
279B.110 (2) the prospective bidder or proposer failed to meet. Unless
the reasons are specified, the prospective bidder or proposer shall be
deemed to have been prequalified in accordance with the application.
(3) If a contracting agency subsequently discovers that a
prospective bidder or proposer that prequalified under subsections (1)
and (2) of this section is no longer qualified, the agency may revoke the
prequalification upon reasonable notice to the prospective bidder or
proposer, except that a revocation is invalid as to any contract for
which an advertisement for bids or proposals has already been issued.
[2003 c.794 §61] (1) When a contracting
agency permits or requires prequalification of bidders or proposers, a
prospective bidder or proposer who wishes to prequalify shall submit a
prequalification application to the contracting agency on a form
prescribed under ORS 279B.120 (1). Upon receipt of a prequalification
application, the contracting agency shall investigate the prospective
bidder or proposer as necessary to determine whether the prospective
bidder or proposer is qualified. The determination shall be made in less
than 30 days, if practicable, if the prospective bidder or proposer
requests an early decision to allow the prospective bidder or proposer as
much time as possible to prepare a bid or proposal for a contract that
has been advertised. In making its determination, the contracting agency
shall consider only the applicable standards of responsibility listed in
ORS 279B.110 (2). The contracting agency shall promptly notify the
prospective bidder or proposer whether the prospective bidder or proposer
is qualified.
(2) If the contracting agency finds that a prospective bidder or
proposer is qualified, the notice must state the type and nature of
contracts that the prospective bidder or proposer is qualified to compete
for and the period of time for which the prequalification is valid. If
the agency finds that the prospective bidder or proposer is not qualified
as to any contracts covered by the rule, resolution, ordinance or other
regulation, the notice must specify the reasons given under ORS 279B.120
for not prequalifying the prospective bidder or proposer and inform the
prospective bidder or proposer of the right to a hearing under ORS
279B.425. To be entitled to a hearing under ORS 279B.425, a prospective
bidder or proposer shall, within three business days after receipt of the
notice, notify the contracting agency that the prospective bidder or
proposer demands a hearing under ORS 279B.425.
(3) If a contracting agency has reasonable cause to believe that
there has been a substantial change in the conditions of a prequalified
prospective bidder or proposer and that the prospective bidder or
proposer is no longer qualified or is less qualified, the contracting
agency may revoke or may revise and reissue the prequalification after
reasonable notice to the prequalified prospective bidder or proposer. The
notice must specify the reasons given under ORS 279B.120 for revocation
or revision of the prequalification of the prospective bidder or proposer
and inform the prospective bidder or proposer of the right to a hearing
under ORS 279B.425. To be entitled to a hearing under ORS 279B.425, a
prospective bidder or proposer shall, within three business days after
receipt of the notice, notify the contracting agency that the prospective
bidder or proposer demands a hearing under ORS 279B.425. A revocation or
revision does not apply to any contract for which an advertisement for
bids or proposals was issued before the date the notice of revocation or
revision was received by the prequalified prospective bidder or proposer.
[2003 c.794 §62] (1)(a) A
contracting agency may debar a prospective bidder or proposer from
consideration for award of the contracting agency’s contracts for the
reasons listed in subsection (2) of this section after providing the
prospective bidder or proposer with notice and a reasonable opportunity
to be heard.
(b) A contracting agency may not debar a prospective bidder or
proposer under this section for more than three years.
(2) A prospective bidder or proposer may be debarred from
consideration for award of a contracting agency’s contracts if:
(a) The prospective bidder or proposer has been convicted of a
criminal offense as an incident in obtaining or attempting to obtain a
public or private contract or subcontract or in the performance of such
contract or subcontract.
(b) The prospective bidder or proposer has been convicted under
state or federal statutes of embezzlement, theft, forgery, bribery,
falsification or destruction of records, receiving stolen property or any
other offense indicating a lack of business integrity or business honesty
that currently, seriously and directly affects the prospective bidder’s
or proposer’s responsibility as a contractor.
(c) The prospective bidder or proposer has been convicted under
state or federal antitrust statutes.
(d) The prospective bidder or proposer has committed a violation of
a contract provision and debarment for such a violation was listed in the
contract terms and conditions as a potential penalty. A violation may
include but is not limited to a failure to perform the terms of a
contract or an unsatisfactory performance in accordance with the terms of
the contract. However, a failure to perform or an unsatisfactory
performance caused by acts beyond the control of the contractor may not
be considered to be a basis for debarment.
(e) The prospective bidder or proposer does not carry workers’
compensation or unemployment insurance as required by statute.
(3) A contracting agency shall issue a written decision to debar a
prospective bidder or proposer under this section. The decision must:
(a) State the reasons for the action taken; and
(b) Inform the debarred prospective bidder or proposer of the
appeal rights of the prospective bidder or proposer under ORS 279B.425.
(4) A copy of the decision issued under subsection (3) of this
section must be mailed or otherwise furnished immediately to the debarred
prospective bidder or proposer.
(5) A prospective bidder or proposer that wishes to appeal
debarment shall, within three business days after receipt of notice of
debarment, notify the contracting agency that the prospective bidder or
proposer appeals the debarment as provided in ORS 279B.425. [2003 c.794
§63](Notice of Intent to Award) At least seven days before the
award of a public contract, unless the contracting agency determines that
seven days is impractical under rules adopted under ORS 279A.065, the
contracting agency shall post or provide to each bidder or proposer
notice of the contracting agency’s intent to award a contract. This
section does not apply to a contract awarded as a small procurement under
ORS 279B.065, an intermediate procurement under ORS 279B.070, a
sole-source procurement under ORS 279B.075, an emergency procurement
under ORS 279B.080 or a special procurement under ORS 279B.085. The
notice and its manner of posting or issuance must conform to rules
adopted under ORS 279A.065. [2003 c.794 §64](Price Agreements) (1) A price agreement constitutes a firm
offer by the contractor regardless of whether any order or purchase has
been made or any performance has been tendered under the price agreement.
Unless the price agreement otherwise provides, a price agreement is
enforceable for the period stated in the price agreement and,
notwithstanding ORS 72.2050, obligations thereunder are not revocable by
the contractor.
(2) Under a price agreement, no quantity unreasonably
disproportionate to any stated estimate or, in the absence of a stated
estimate, to any normal or otherwise comparable prior requirements may be
demanded unless otherwise expressly provided in the price agreement.
However, a contracting agency may amend or terminate a price agreement or
an order under a price agreement under any of the following circumstances:
(a) Any failure of the contracting agency to receive funding,
appropriations, limitations, allotments or other expenditure authority,
including the continuation of program operating authority sufficient, as
determined in the discretion of the contracting agency, to sustain
purchases at the levels contemplated at the time of contracting; or
(b) Any change in law or program termination that makes purchases
under the price agreement no longer authorized or appropriate for the
contracting agency’s use.
(3) A price agreement does not constitute an exclusive dealing
commitment on the part of the contracting agency or the contractor unless
the price agreement expressly so provides. [2003 c.794 §68](Determinations) The determinations under ORS
279B.055 (3) and (7), 279B.060 (3) and (10), 279B.075, 279B.080, 279B.085
and 279B.110 (1) are final and conclusive unless they are clearly
erroneous, arbitrary, capricious or contrary to law. [2003 c.794 §71]SPECIFICATIONS(General Provisions) As used in ORS
279B.200 to 279B.240:
(1) “Brand name or equal specification” means a specification that
uses one or more manufacturers’ names, makes, catalog numbers or similar
identifying characteristics to describe the standard of quality,
performance, functionality or other characteristics needed to meet the
contracting agency’s requirements and that authorizes bidders or
proposers to offer goods or services that are equivalent or superior to
those named or described in the specification.
(2) “Brand name specification” means a specification limited to one
or more products, brand names, makes, manufacturer’s names, catalog
numbers or similar identifying characteristics.
(3) “Specification” means any description of the physical or
functional characteristics of, or of the nature of, goods or services to
be procured by a contracting agency. “Specification” may include a
description of any requirement for inspecting, testing or preparing goods
or services for delivery. When a solicitation required or authorized by
ORS 279B.050 (4) to be conducted under ORS 279B.055 or 279B.060 calls in
whole or in part for the performance of personal services as designated
under ORS 279A.055, “specification” also includes any description of the
characteristics or nature of the personal services. [2003 c.794 §72]
Consistent with ORS 279A.015, specifications must seek to promote optimal
value and suitability for the purposes intended and to reasonably
encourage competition in satisfying a contracting agency’s needs. Subject
to ORS 279B.405, the specification content must be determined in the sole
discretion of the contracting agency. [2003 c.794 §74] It is the policy of
the State of Oregon to encourage the development of clear, precise and
accurate specifications in solicitations for public contracts. To that
end, in developing specifications, contracting agencies may consult,
under contract or otherwise, with technical experts, suppliers,
prospective contractors and representatives of the industries with which
the contracting agencies contract. However, a contracting agency shall
take reasonable measures to ensure that no person who prepares or assists
in the preparation of solicitation documents, specifications, plans or
scopes of work, and no business with which the person is associated,
realizes a material competitive advantage in a procurement that arises
from the agency’s use of the solicitation documents, specifications,
plans or scopes of work. The policy against the realization of a material
competitive advantage from the character of the specifications developed
in conjunction with persons outside the contracting agency does not
proscribe advantages that result incidentally from a contracting agency’s
specification of the characteristics of a product or work to meet the
contracting agency’s needs. [2003 c.794 §75](1)(a) A brand name or equal specification may be used
when the use of a brand name or equal specification is advantageous to
the contracting agency, because the brand name describes the standard of
quality, performance, functionality and other characteristics of the
product needed by the contracting agency.
(b) The contracting agency is entitled to determine what
constitutes a product that is equal or superior to the product specified,
and any such determination is final.
(c) Nothing in this subsection may be construed as prohibiting a
contracting agency from specifying one or more comparable products as
examples of the quality, performance, functionality or other
characteristics of the product needed by the contracting agency.
(2) A brand name specification may be prepared and used only if the
contracting agency determines for a solicitation or a class of
solicitations that only the identified brand name specification will meet
the needs of the contracting agency based on one or more of the following
written determinations:
(a) That use of a brand name specification is unlikely to encourage
favoritism in the awarding of public contracts or substantially diminish
competition for public contracts;
(b) That use of a brand name specification would result in
substantial cost savings to the contracting agency;
(c) That there is only one manufacturer or seller of the product of
the quality, performance or functionality required; or
(d) That efficient utilization of existing goods requires the
acquisition of compatible goods or services.
(3) A contracting agency’s use of a brand name specification may be
subject to review only as provided in ORS 279B.405. [2003 c.794 §76; 2005
c.103 §8e]Every public contract shall contain a condition that the
contractor shall:
(1) Make payment promptly, as due, to all persons supplying to the
contractor labor or material for the performance of the work provided for
in the contract.
(2) Pay all contributions or amounts due the Industrial Accident
Fund from the contractor or subcontractor incurred in the performance of
the contract.
(3) Not permit any lien or claim to be filed or prosecuted against
the state or a county, school district, municipality, municipal
corporation or subdivision thereof, on account of any labor or material
furnished.
(4) Pay to the Department of Revenue all sums withheld from
employees under ORS 316.167. [2003 c.794 §76a]Every public contract for lawn and
landscape maintenance shall contain a condition requiring the contractor
to salvage, recycle, compost or mulch yard waste material at an approved
site, if feasible and cost-effective. [2003 c.794 §76b](1) Every public contract shall contain
a condition that the contractor shall promptly, as due, make payment to
any person, copartnership, association or corporation furnishing medical,
surgical and hospital care services or other needed care and attention,
incident to sickness or injury, to the employees of the contractor, of
all sums that the contractor agrees to pay for the services and all
moneys and sums that the contractor collected or deducted from the wages
of employees under any law, contract or agreement for the purpose of
providing or paying for the services.
(2) Every public contract shall contain a clause or condition that
all subject employers working under the contract are either employers
that will comply with ORS 656.017 or employers that are exempt under ORS
656.126. [2003 c.794 §76c] (1) Except as
provided in subsections (3) to (6) of this section, every public contract
subject to this chapter must contain a condition that a person may not be
employed for more than 10 hours in any one day, or 40 hours in any one
week, except in cases of necessity, emergency or when the public policy
absolutely requires it, and in such cases, except in cases of contracts
for personal services designated under ORS 279A.055, the employee shall
be paid at least time and a half pay:
(a)(A) For all overtime in excess of eight hours in any one day or
40 hours in any one week when the work week is five consecutive days,
Monday through Friday; or
(B) For all overtime in excess of 10 hours in any one day or 40
hours in any one week when the work week is four consecutive days, Monday
through Friday; and
(b) For all work performed on Saturday and on any legal holiday
specified in ORS 279B.020.
(2) An employer must give notice in writing to employees who work
on a public contract, either at the time of hire or before commencement
of work on the contract, or by posting a notice in a location frequented
by employees, of the number of hours per day and days per week that the
employees may be required to work.
(3) In the case of contracts for personal services as described in
ORS 279A.055, the contract shall contain a provision that the employee
shall be paid at least time and a half for all overtime worked in excess
of 40 hours in any one week, except for individuals under personal
services contracts who are excluded under ORS 653.010 to 653.261 or under
29 U.S.C. 201 to 209 from receiving overtime.
(4) In the case of a contract for services at a county fair or for
other events authorized by a county fair board, the contract must contain
a provision that employees must be paid at least time and a half for work
in excess of 10 hours in any one day or 40 hours in any one week. An
employer shall give notice in writing to employees who work on such a
contract, either at the time of hire or before commencement of work on
the contract, or by posting a notice in a location frequented by
employees, of the number of hours per day and days per week that
employees may be required to work.
(5)(a) Except as provided in subsection (4) of this section,
contracts for services must contain a provision that requires that
persons employed under the contracts shall receive at least time and a
half pay for work performed on the legal holidays specified in a
collective bargaining agreement or in ORS 279B.020 (1)(b)(B) to (G) and
for all time worked in excess of 10 hours in any one day or in excess of
40 hours in any one week, whichever is greater.
(b) An employer shall give notice in writing to employees who work
on a contract for services, either at the time of hire or before
commencement of work on the contract, or by posting a notice in a
location frequented by employees, of the number of hours per day and days
per week that the employees may be required to work.
(6) This section does not apply to public contracts:
(a) With financial institutions as defined in ORS 706.008.
(b) Made pursuant to the authority of the State Forester or the
State Board of Forestry under ORS 477.406 for labor performed in the
prevention or suppression of fire.
(c) For goods or personal property. [2003 c.794 §77; 2005 c.103 §8f] Every contracting
agency shall revise its procedures and specifications for the procurement
of lubricating oil and industrial oil to eliminate any exclusion of
recycled oils and any requirement that oils be manufactured from virgin
materials. [2003 c.794 §78](Specifications in State Contracts)(1) A state
contracting agency procuring goods, materials, equipment or personal
services shall:
(a) Review the contracting agency’s current procurement
specifications in order to eliminate, wherever economically feasible,
discrimination against the procurement of recovered resources or recycled
materials.
(b) Provide incentives, wherever economically feasible, in all
procurement specifications issued by the contracting agency for the
maximum possible use of recovered resources and recycled materials.
(c) Develop procurement practices that, to the maximum extent
economically feasible, ensure the procurement of materials that are
recycled or that may be recycled or reused when discarded.
(d) Establish management practices that minimize the volume of
solid waste generated by reusing paper, envelopes, containers and all
types of packaging and by limiting the amount of materials consumed and
discarded.
(e) Use, or require persons with whom the contracting agency
contracts to use in the performance of the contract work, to the maximum
extent economically feasible, recycled paper and recycled PETE products
as well as other recycled plastic resin products.
(2) An invitation to bid or a request for proposals issued by a
state contracting agency under this chapter shall include the following
language: “Vendors shall use recyclable products to the maximum extent
economically feasible in the performance of the contract work set forth
in this document.”
(3) Each state contracting agency shall strive to meet a recycled
product procurement level established by rule by the Oregon Department of
Administrative Services. [2003 c.794 §79]The Oregon Department of Administrative Services, in
consultation with the Department of Environmental Quality, shall revise
its procedures and specifications for state procurement of goods
containing recycled PETE, as well as other recycled plastic resins, to
encourage the procurement of such goods, provided similarities in quality
and price exist between recycled PETE products and products not
qualifying as recycled PETE products. [2003 c.794 §80] The
Oregon Department of Administrative Services shall review and work with
state agencies to develop procurement specifications that encourage the
use of recycled products whenever economically feasible, if the quality
of a recycled product is functionally equal to the same product
manufactured with virgin resources, including but not limited to recycled
paper, recycled oil and recycled PETE products. Except for specifications
that have been established to preserve the public health and safety, all
procurement specifications shall be established in a manner that
encourages the procurement of recycled products. [2003 c.794 §81]LEGAL REMEDIES(1) Before seeking judicial review of the approval of a
special procurement, a person must file a protest, in accordance with the
rules adopted under ORS 279A.065, with the Director of the Oregon
Department of Administrative Services or the local contracting agency, as
applicable, and exhaust all available nonjudicial remedies. The rules
adopted under ORS 279A.065 shall provide a reasonable time and manner for
affected persons to protest the approval of a special procurement under
ORS 279B.085.
(2) The approval of a class special procurement by the director
under ORS 279B.085 constitutes rulemaking and not a contested case under
ORS chapter 183. Any affected person, except the state contracting agency
that requested the approval or anyone representing the state contracting
agency, may petition the Court of Appeals in the manner provided in ORS
183.400 to test the validity of a class special procurement approved by
the director. A proceeding under ORS 183.400 does not affect the validity
of a contract executed pursuant to a class special procurement before the
petition is filed. Notwithstanding ORS 183.400 (1), before seeking
judicial review under this subsection, a person must file a protest with
the director as described in subsection (1) of this section.
(3)(a) The approval of a contract-specific special procurement by
the director is reviewable under ORS 183.484, but only if judicial review
is sought before the contract is awarded. Otherwise, a contract awarded
pursuant to the contract-specific special procurement is conclusively
presumed valid and may not, in any future judicial or administrative
proceeding, be challenged on the ground that the contract was awarded
under an invalid special procurement.
(b) Judicial review may be sought from the Circuit Court for Marion
County or the circuit court for the county in which the principal offices
of the state contracting agency that requested the approval are located.
The circuit court shall give priority on its docket and expedited review
to proceedings under this subsection.
(4)(a) The approval of a special procurement by a local contract
review board may be challenged by filing a writ of review under ORS
chapter 34, provided that all available nonjudicial remedies first have
been exhausted, including protests as described in subsection (1) of this
section. Notwithstanding the 60-day filing period prescribed by ORS
34.030, the approval of a special procurement is not subject to a writ of
review proceeding more than 10 days after the board approves the use of
the special procurement.
(b) The writ of review may be filed with and is reviewable by the
circuit court for the county in which the principal offices of the local
contracting agency that requested the approval are located. The circuit
court shall give priority on its docket and expedited review to
proceedings under this subsection.
(5) If timely judicial review is sought regarding the approval of a
special procurement under ORS 279B.085, the contracting agency may not
proceed with contract execution unless the contracting agency determines
that there is a compelling governmental interest in proceeding or that
the goods or services are urgently needed. If the contracting agency
makes such a determination, the contracting agency shall set forth the
reasons for the determination in writing and immediately provide them 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 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 a compelling governmental
interest 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 the stay to post a bond in an amount sufficient to protect the
contracting agency and the public from costs associated with delay in
contract performance.
(6) In its review, the circuit court shall give due deference to
any factual contracting decision made by the contracting agency and may
not substitute its judgment for that of the contracting agency, but 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 party 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 party that sought judicial review, the court shall include in its
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. [2003 c.794 §83; 2005 c.103 §8g] (1) As used
in this section:
(a) “Brand name” means a brand name specification as defined in ORS
279B.200.
(b) “Legally flawed” means that a solicitation document contains
terms or conditions that are contrary to law.
(c) “Unnecessarily restrictive” means that specifications limit
competition arbitrarily, without reasonably promoting the fulfillment of
the procurement needs of a contracting agency.
(2)(a) A prospective bidder, proposer or offeror for a public
contract solicited under ORS 279B.055, 279B.060 or 279B.085 may file a
protest with the contracting agency if the prospective bidder, proposer
or offeror believes that the procurement process is contrary to law or
that a solicitation document is unnecessarily restrictive, is legally
flawed or improperly specifies a brand name. If a prospective bidder,
proposer or offeror fails to timely file such a protest, the prospective
bidder, proposer or offeror may not challenge the contract on grounds
under this subsection in any future legal or administrative proceeding.
(b) Notwithstanding paragraph (a) of this subsection, a
contract-specific special procurement under ORS 279B.085 may not be
protested, challenged or reviewed unless the approval of the special
procurement by the Director of the Oregon Department of Administrative
Services or a local contract review board, as applicable, has been
invalidated by a reviewing circuit court under ORS 279B.400.
(3) The contracting agency, pursuant to rules adopted under ORS
279A.065, shall notify prospective bidders, proposers or offerors of the
time and manner in which a protest under this section may be filed and
considered. Before seeking judicial review, a prospective bidder,
proposer or offeror must file a protest with the contracting agency and
exhaust all available administrative remedies.
(4) The contracting agency shall consider the protest if the
protest is timely filed and contains the following:
(a) Sufficient information to identify the solicitation that is the
subject of the protest;
(b) The grounds that demonstrate how the procurement process is
contrary to law or how the solicitation document is unnecessarily
restrictive, is legally flawed or improperly specifies a brand name;
(c) Evidence or supporting documentation that supports the grounds
on which the protest is based; and
(d) The relief sought.
(5) If the protest meets the requirements of subsection (4) of this
section, the contracting agency shall consider the protest and issue a
decision in writing. Otherwise, the contracting agency shall promptly
notify the prospective bidder, proposer or offeror that the protest is
untimely or that the protest failed to meet the requirements of
subsection (4) of this section and give the reasons for the failure.
(6) The contracting agency shall issue a decision on the protest in
accordance with rules adopted under ORS 279A.065 no less than three
business days before bids, proposals or offers are due, unless a written
determination is made by the agency that circumstances exist that require
a shorter time limit.
(7) A decision of a contracting agency on a protest under this
section, including a protest of a special procurement, is subject to
judicial review only if the suit or writ of review is filed before the
opening of bids, proposals or offers.
(8)(a) A decision of a state contracting agency on a protest under
this section is reviewable 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.
(b) A decision of a local contracting agency on a protest under
this section is reviewable by the circuit court for the county in which
the principal offices of the local contracting agency are located.
(9) If judicial review of a contracting agency’s decision on a
protest under this section is sought, the contracting agency may not
proceed with contract execution unless the contracting agency determines
that there is a compelling governmental interest in proceeding or that
the goods and services are urgently needed. If the contracting agency
makes such a determination, the contracting agency shall set forth the
reasons for the determination in writing and immediately provide them to
the prospective bidder, proposer or offeror that filed the protest.
Thereafter, after joining the contractor as a party to the litigation and
upon motion from the person filing the protest, the court may nonetheless
stay the performance of the contract if the court finds that the
contracting agency’s determination of the existence of a compelling
governmental interest 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 the stay to post a bond in an amount sufficient to
protect the contracting agency and the public from costs associated with
delay in contract performance.
(10) In its review, the court shall give due deference to any
factual decision made by the contracting agency and may not substitute
its judgment for that of the contracting agency, but 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 party that sought judicial review, the court shall remand
the procurement process to the contracting agency for a determination of
whether and how 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, the court shall include in
its 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. [2003 c.794 §84] (1) A bidder or proposer may
protest the award of a public contract or a notice of intent to award a
public contract, whichever occurs first, if:
(a) The bidder or proposer is adversely affected because the bidder
or proposer would be eligible to be awarded the public contract in the
event that the protest were successful; and
(b) The reason for the protest is that:
(A) All lower bids or higher ranked proposals are nonresponsive;
(B) The contracting agency has failed to conduct the evaluation of
proposals in accordance with the criteria or processes described in the
solicitation materials;
(C) The contracting agency has abused its discretion in rejecting
the protestor’s bid or proposal as nonresponsive; or
(D) The contracting agency’s evaluation of bids or proposals or the
contracting agency’s subsequent determination of award is otherwise in
violation of this chapter or ORS chapter 279A.
(2) The bidder or proposer shall submit the protest to the
contracting agency in writing and shall specify the grounds for the
protest to be considered by the contracting agency.
(3) The rules adopted under ORS 279A.065 shall establish a
reasonable time and manner for protests to be submitted. The contracting
agency may not consider late protests.
(4) The contracting agency shall consider and respond in writing to
a protest in a timely manner. After the contracting agency issues the
response, the bidder or proposer may seek judicial review in the manner
provided in ORS 279B.415. [2003 c.794 §85] (1) As used
in this section, “bidder” includes a person who submits a proposal to a
public contracting agency pursuant to a request for proposals.
(2) A decision by a state contracting agency on a protest of a
contract award is reviewable 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. A decision by a local contracting
agency on a protest of a contract award is reviewable by the circuit
court for the county in which the principal offices of the local
contracting agency are located.
(3) To obtain review, a complainant shall file a complaint with the
court before the contract that is the subject of the protest is approved
by the Attorney General, if required by ORS 291.047, and executed by the
contracting agency. In the complaint, the complainant shall state the
nature of the complainant’s interest, the facts showing how the
complainant is adversely affected or aggrieved by the contracting
agency’s decision and the basis upon which the decision should be
reversed or remanded. The complainant shall join as parties all bidders
that would be in line for an award of the contract ahead of the
complainant. If injunctive relief is sought, the court may require the
person seeking a stay to post a bond in an amount sufficient to protect
the contracting agency and the public from costs associated with delay in
execution of the contract.
(4) When judicial review is sought, the contracting agency may not
proceed with contract execution unless the contracting agency determines
that there is a compelling governmental interest in proceeding or that
the goods and services are urgently needed. If the contracting agency
makes such a determination, the contracting agency shall set forth the
reasons for the determination in writing and immediately provide them to
the complainant. Thereafter, upon motion from the complainant, the court
may nonetheless stay the performance of the contract if the court finds
that the contracting agency’s determination of the existence of a
compelling governmental interest 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 the stay to post a bond in an amount sufficient to
protect the contracting agency and the public from costs associated with
delay in contract performance.
(5) The court shall review the matter without a jury and shall
consider only those grounds the complainant raised in the protest to the
contracting agency.
(6) The court shall remand the matter to the contracting agency for
a further decision if:
(a) Substantial evidence does not exist to support the contracting
agency’s decision. Substantial evidence exists to support a finding of
fact when the record, viewed as a whole, would permit a reasonable person
to make that finding;
(b) The contracting agency’s decision was outside the range of
discretion delegated to the contracting agency by law;
(c) The decision was inconsistent with a contracting agency rule,
an officially stated contracting agency position or an officially stated
prior contracting agency practice, if the inconsistency is not explained
by the contracting agency; or
(d) The decision was in violation of a constitutional or statutory
provision.
(7)(a) In addition to remanding the decision to the contracting
agency, the court may order such ancillary relief, such as the cost of
bid preparation, as the court finds necessary to redress the effects of
official action wrongfully taken or withheld. Ancillary relief does not
include the award of a contract to the complainant or the award of lost
profits or other damages.
(b) If a contract has not been executed and the court rules in
favor of the complainant, the court shall remand the matter to the
contracting agency for a determination whether to continue with the
procurement process in light of the court’s decision.
(c) If a contract has been executed, in addition to the relief
provided for in paragraph (a) of this subsection, the court shall include
in its 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.
(d) The court may award costs and attorney fees to the prevailing
party. [2003 c.794 §86] (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.
(3) Judicial review is available under this section only if:
(a) A public contract is about to be awarded or has been awarded;
(b) An alleged violation of this chapter or ORS chapter 279A,
except ORS 279B.270, 279B.275, 279B.280 and 279B.400 to 279B.425,
occurred in the procurement process for the public contract and that
violation resulted in or will result in the unlawful award of a contract
or the 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 person of the
opportunity to compete for the award of the contract;
(d) The person seeking judicial review would have been qualified to
receive the award of the contract under ORS 279B.110;
(e) The person seeking judicial review gave written notice
describing the alleged violation to the contracting agency no later than
10 days after the date on which the alleged violation occurred and in no
event more 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; 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.
(4) An alleged violation committed by a state contracting agency 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.
(5) An alleged violation committed by a local contracting agency 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.
(6) If the notice required under subsection (3)(e) of this section
is given and timely judicial review is sought under this section, the
contracting agency may not proceed with contract execution unless the
contracting agency determines that there is a compelling governmental
interest in proceeding or that the goods and services are urgently
needed. If the contracting agency makes such a determination, the
contracting agency shall set forth in writing the reasons for the
determination and immediately provide them 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 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 a compelling governmental interest 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 the stay to post a bond in
an amount sufficient to protect the contracting agency and the public
from costs associated with delay in contract performance.
(7) In its review, the circuit court shall give due deference to
any factual contracting decision made by the contracting agency and may
not substitute its judgment for that of the contracting agency, but 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
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. [2003 c.794 §86a] (1)
The procedure for appeal from the denial, revocation or revision of a
prequalification under ORS 279B.125, or from a debarment under ORS
279B.130, shall be in accordance with this section and is not subject to
ORS chapter 183 except when specifically provided by this section.
(2) Upon receipt of a notice from a contracting agency of a
prequalification decision under ORS 279B.125 or of a decision to debar
under ORS 279B.130, a prospective bidder or proposer that wishes to
appeal the decision shall, within three business days after receipt of
the notice, notify the contracting agency that the prospective bidder or
proposer appeals the decision as provided in this section.
(3) Immediately upon receipt of the prospective bidder’s or
proposer’s notice of appeal, the contracting agency shall:
(a) If the contracting agency is a state contracting agency, notify
the Director of the Oregon Department of Administrative Services.
(b) If the contracting agency is a local contracting agency, notify
the appropriate local contract review board.
(4) Upon the receipt of notice from the contracting agency under
subsection (3) of this section, the director or board shall promptly
notify the person appealing and the contracting agency of the time and
place of the hearing. The director or board shall conduct the hearing and
decide the appeal within 30 days after receiving the notice from the
contracting agency. The director or board shall set forth in writing the
reasons for the hearing decision.
(5) At the hearing the director or board shall consider de novo the
notice of denial, revocation or revision of a prequalification or the
notice of debarment, the standards of responsibility listed in ORS
279B.110 (2) on which the contracting agency based the denial, revocation
or revision of the prequalification or the reasons listed in ORS 279B.130
(2) on which the contracting agency based the debarment, and any evidence
provided by the parties. In all other respects, a hearing before the
director shall be conducted in the same manner as a contested case under
ORS 183.415 (3) to (6) and (9), 183.425, 183.440, 183.450 and 183.452.
Hearings before a board shall be conducted under rules of procedure
adopted by the board.
(6) The director or board may allocate the director’s or board’s
costs for the hearing between the person appealing and the contracting
agency whose prequalification or debarment decision is being appealed.
The allocation shall be based upon facts found by the director or board
and stated in the final order that, in the director’s or board’s opinion,
warrant such allocation of costs. If the final order does not allocate
the costs for the hearing, the costs shall be paid as follows:
(a) If the decision to deny, revoke or revise a prequalification of
a person as a bidder or the decision to debar a person is upheld, the
costs shall be paid by the person appealing the decision.
(b) If the decision to deny, revoke or revise a prequalification of
a person as a bidder or the decision to debar a person is reversed, the
costs shall be paid by the contracting agency whose prequalification or
debarment decision is the subject of the appeal.
(7) A decision of the director or board may be reviewed only upon a
petition, filed within 15 days after the date of the decision, in the
circuit court of the county in which the director or board has its
principal office. The circuit court shall reverse or modify the decision
only if it finds:
(a) The decision was obtained through corruption, fraud or undue
means;
(b) There was evident partiality or corruption that operated to the
substantial prejudice of the petitioner on the part of the director or
board or any of the board’s members; or
(c) There was an evident material miscalculation of figures or an
evident material mistake in the description of any person, thing or
property referred to in the decision, and the miscalculation or mistake
operated to the substantial prejudice of the petitioner.
(8) The procedure provided in this section is the exclusive means
of judicial review of the decision of the director or board. The judicial
review provisions of ORS 183.480 and writs of review and mandamus as
provided in ORS chapter 34, and other legal, declaratory and injunctive
remedies, are not available.
(9) The circuit court may stay the letting of the contract that is
the subject of the petition in the same manner as a suit in equity. When
the court determines that there has been an improper debarment or denial,
revocation or revision of a prequalification and the contract has been
let, the court may proceed to take evidence to determine the damages, if
any, suffered by the petitioner and may award such damages as the court
may find as a judgment against the director or board. The court may award
costs and attorney fees to the prevailing party. [2003 c.794 §87]
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