ORS 279C.110¹
Selection procedures for consultants to provide services
  • use of pricing proposals
  • compensation
  • protests
  • applicability
  • rules

(1) A contracting agency shall select a consultant to provide architectural, engineering, photogrammetric mapping, transportation planning or land surveying services on the basis of the consultant’s qualifications for the type of professional service required. A contracting agency may solicit or use pricing policies and proposals or other pricing information, including the number of hours proposed for the service required, expenses, hourly rates and overhead, to determine consultant compensation only after the contracting agency has selected a consultant.

(2) Subject to the requirements of subsection (1) of this section, the procedures that a contracting agency creates to screen prospective consultants and make a selection are at the contracting agency’s sole discretion. The contracting agency may adjust the procedures to accommodate the contracting agency’s scope, schedule or objectives for a particular project if the estimated cost of the architectural, engineering, photogrammetric mapping, transportation planning or land surveying services for the project does not exceed $250,000.

(3) A contracting agency’s screening and selection procedures under this section, regardless of the estimated cost of the architectural, engineering, photogrammetric mapping, transportation planning or land surveying services for a project, may include considering each prospective consultant’s:

(a) Specialized experience, capabilities and technical competence, which the prospective consultant may demonstrate with the prospective consultant’s proposed approach and methodology to meet the project requirements;

(b) Resources committed to perform the services and the proportion of the time that the prospective consultant’s staff would spend to perform services for the contracting agency, including time for specialized services, within the applicable time limits;

(c) Record of past performance, including but not limited to price and cost data from previous projects, quality of work, ability to meet schedules, cost control and contract administration;

(d) Ownership status and employment practices regarding disadvantaged business enterprises, minority-owned businesses, woman-owned businesses, businesses that service-disabled veterans own, emerging small businesses or historically underutilized businesses;

(e) Availability to the project locale;

(f) Familiarity with the project locale; and

(g) Proposed project management techniques.

(4) If the screening and selection procedures a contracting agency follows under this section or creates under subsection (2) of this section result in the contracting agency’s determination that two or more prospective consultants are equally qualified, the contracting agency may use any process to select a consultant that is not based on the prospective consultant’s pricing policies, proposals or other pricing information.

(5) Notwithstanding the requirement in subsection (1) of this section that a contracting agency may not solicit or use pricing policies, proposals or other pricing information until after the contracting agency has selected a consultant, a local contracting agency may use pricing policies, proposals or other pricing information as part of the local contracting agency’s screening and selection of prospective consultants if the local contracting agency:

(a) States in solicitation documents for the procurement:

(A) That the local contracting agency will screen and select prospective consultants as provided in this subsection;

(B) How the local contracting agency will rank proposals from prospective consultants, with a specific focus on:

(i) Which factors the local contracting agency will consider in evaluating proposals, including pricing policies, proposals or other pricing information, if the local contracting agency will use pricing policies, proposals or other pricing information in the evaluation; and

(ii) The relative weight the local contracting agency will give each factor, disclosing at a minimum the number of available points for each factor, the percentage each factor comprises in the total evaluation score and any other weighting criteria the local contracting agency intends to use;

(C) An estimate of the cost of professional services the local contracting agency requires for the procurement; and

(D) A scope of work that is sufficiently detailed to enable a prospective consultant to prepare a responsive proposal.

(b) Evaluates each prospective consultant on the basis of the prospective consultant’s qualifications to perform the professional services the local contracting agency requires for the procurement. The local contracting agency may use the criteria set forth in subsection (3) of this section to conduct the evaluation.

(c) Announces the evaluation scores and rank for each prospective consultant after completing the evaluation described in paragraph (b) of this subsection. The local contracting agency may determine that as many as three of the top-ranked prospective consultants are qualified to perform the professional services the local contracting agency requires for the procurement and may request a pricing proposal for the scope of work stated in paragraph (a)(D) of this subsection from each of the top-ranked consultants. The pricing proposal:

(A) Must consist of:

(i) A schedule of hourly rates that the prospective consultant will charge for the work of each individual or each labor classification that will perform the professional services the local contracting agency requires for the procurement, in the form of an offer that is irrevocable for not less than 90 days after the date of the proposal; and

(ii) A reasonable estimate of hours that the prospective consultant will require to perform the professional services the local contracting agency requires for the procurement; and

(B) May include, at the local contracting agency’s request, additional pricing information that is limited to:

(i) A description of each task that the prospective consultant understands as comprising the professional services;

(ii) A list of each individual or labor classification that will perform each task, together with the hourly rate that applies to the individual or labor classification; and

(iii) A list of expenses, including travel expenses, that the prospective consultant expects to incur in connection with providing the professional services.

(d) Permits a prospective consultant identified as qualified under paragraph (c) of this subsection to withdraw from consideration for the procurement if the prospective consultant does not wish to provide a price proposal.

(e) Completes the evaluation and selects a consultant from among the top-ranked prospective consultants that have not withdrawn as provided under paragraph (d) of this subsection, giving not more than 15 percent of the weight in the evaluation to each prospective consultant’s price proposal.

(6) The contracting agency and the consultant that the contracting agency selects shall mutually discuss, refine and finalize the scope of, the rates and number of hours applicable to, and the maximum compensation level for the professional services and shall negotiate conditions including, but not limited to, a performance schedule for the project. The contracting agency may not pay a compensation level that exceeds a level that the contracting agency alone determines is fair and reasonable to the contracting agency. Authority to negotiate a contract under this section does not supersede any provision of ORS 279A.140 (State procurement of goods and services) or 279C.520 (Condition concerning hours of labor).

(7) If the contracting agency and a consultant that the contracting agency selected are unable for any reason to negotiate a contract at a compensation level that is reasonable and fair to the contracting agency, the contracting agency shall, either orally or in writing, formally terminate negotiations with the selected consultant. The contracting agency may then negotiate with the next most qualified prospective consultant. The contracting agency may continue in this manner through successive prospective consultants until an agreement is reached or the contracting agency terminates the selection process.

(8) A prospective consultant has a right to protest the contents of a contracting agency’s solicitation documents and the contracting agency’s selection of a consultant in accordance with:

(a) Protest procedures in model rules the Attorney General adopts under ORS 279A.065 (Model rules generally); or

(b) Protest procedures the contracting agency must set forth in rules that the contracting agency adopts, if the contracting agency adopts rules under ORS 279A.065 (Model rules generally) (6).

(9) A goal of this state is to promote a sustainable economy in the rural areas of this state. In order to monitor progress toward this goal, a state contracting agency shall keep a record of the locations in which architectural, engineering, photogrammetric mapping, transportation planning or land surveying services contracts and related services contracts are performed throughout this state, the locations of the selected consultants and the direct expenses of each contract. This record must include the total number of contracts awarded to each consultant over a 10-year period. The record of direct expenses must include all personnel travel expenses as a separate and identifiable expense of the contract. Upon request, the state contracting agency shall make these records available to the public.

(10) Notwithstanding the provisions of subsection (1) of this section, a contracting agency may directly appoint a consultant if the estimated cost of the architectural, engineering, photogrammetric mapping, transportation planning or land surveying services for the project does not exceed $100,000.

(11) Notwithstanding the provisions of subsections (1) and (10) of this section, a contracting agency may directly appoint a consultant for architectural, engineering, photogrammetric mapping, transportation planning or land surveying services in an emergency. [2003 c.794 §91; 2003 c.794 §92; 2005 c.509 §§1,3; 2011 c.458 §4; 2015 c.565 §15; 2019 c.55 §1]

1 Legislative Counsel Committee, CHAPTER 279C—Public Improvements and Related Contracts, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors279C.­html (2019) (last ac­cessed May 16, 2020).
 
2 OregonLaws.org contains the con­tents of Volume 21 of the ORS, inserted along­side the per­tin­ent statutes. See the preface to the ORS An­no­ta­tions for more information.
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent. Currency Information