OAR 137-049-0640
Competitive Proposals; Procedure


Contracting Agencies may utilize the following RFP process for Public Improvement Contracts, allowing flexibility in both Proposal evaluation and Contract negotiation, only in accordance with ORS 279C.330 (“Findings” defined) to 279C.337 (Procurement of construction manager/general contractor services), 279C.400 (Competitive proposals) to 279C.410 (Receipt of proposals) and OAR 137-049-0600 (Purpose) to 137-049-0690 (Construction Manager/General Contractor Services (“CM/GC Services”)), unless other applicable statutes control a Contracting Agency’s use of competitive Proposals for Public Improvement Contracts. Also see the subdivision of rules in this division 49 entitled “Formal Procurement Rules,” 137-049-0200 (Solicitation Documents; Required Provisions; Assignment or Transfer) to 137-049-0480, and RFP related rules under the Alternative Contracting Methods subdivision at 137-049-0640 (Competitive Proposals; Procedure) to 137-049-0660 (RFP Pricing Mechanisms). For ESPCs, the following RFP process as further specified in 137-049-0645 (Requests for Qualifications (RFQ)), 137-049-0650 (Requests for Proposals (“RFP”)), 137-049-0660 (RFP Pricing Mechanisms) and 137-049-0680 (Energy Savings Performance Contracts (ESPC)) shall be utilized, if a Contracting Agency desires the Procurement process to be exempt from the competitive bidding requirements of ORS 279C.335 (Competitive bidding). The RFP process for the Alternative Contracting Methods identified in OAR 137-049-0600 (Purpose) to 137-049-0690 (Construction Manager/General Contractor Services (“CM/GC Services”)) includes the following steps:

(1)

Proposal Evaluation. Factors in addition to price may be considered in the selection process, but only as set forth in the RFP. Proposal evaluation shall be as objective as possible. Evaluation factors need not be precise predictors of future costs and performance, but to the extent possible such evaluation factors shall:

(a)

Be reasonable estimates based on information available to the Contracting Agency;

(b)

Treat all Proposals equitably; and

(c)

Recognize that public policy requires that Public Improvements be constructed at the least overall cost to the Contracting Agency. See ORS 279C.305 (Least-cost policy for public improvements). For ESPC Proposal evaluations, the Contracting Agency may provide in the RFP that qualifications-based evaluation factors will outweigh the Contracting Agency’s consideration of price-related factors, due to the fact that prices for the major components of the Work to be performed during the ESPC process contemplated by the RFP will likely not be determinable at the time of Proposal evaluation. For CM/GC Services Proposal evaluations, the Contracting Agency must comply with ORS 279C.337 (Procurement of construction manager/general contractor services).

(2)

Evaluation Factors.

(a)

In basic negotiated construction contracting, where the only reason for an RFP is to consider factors other than price, those factors may consist of firm and personnel experience on similar projects, adequacy of equipment and physical plant, sources of supply, availability of key personnel, financial capacity, past performance, safety records, project understanding, proposed methods of construction, proposed milestone dates, references, service, and related matters that could affect the cost or quality of the Work.

(b)

In CM/GC contracting, in addition to (a) above, those factors may also include the ability to respond to the technical complexity or unique character of the project, analyze and propose solutions or approaches to complex project problems, analyze and propose value engineering options, analyze and propose energy efficiency measures or alternative energy options, coordinate multiple disciplines on the project, effectively utilize the time available to commence and complete the improvement, and related matters that could affect the cost or quality of the Work.

(c)

In Design-Build contracting, in addition to (a) and (b) above, those factors may also include design professional qualifications, specialized experience, preliminary design submittals, technical merit, design-builder team experience and related matters that could affect the cost or quality of the Work.

(d)

In ESPC contracting, in addition to the factors set forth in subsections (a), (b) and (c) above, those factors may also include sample Technical Energy Audits from similar projects, sample M & V reports, financial statements and related information of the ESCO for a time period established in the RFP, financial statements and related information of joint venturers comprising the ESCO, the ESCO’s capabilities and experience in performing energy baseline studies for facilities (independently or in cooperation with an independent third-party energy baseline consultant), past performance of the ESCO in meeting energy guarantee Contract levels, the specific Person that will provide the Energy Savings Guarantee to be offered by the ESCO, the ESCO’s management plan for the project, information on the specific methods, techniques and equipment that the ESCO will use in the performance of the Work under the ESPC, the ESCO’s team members and consultants to be assigned to the project, the ESCO’s experience in the Energy Savings Performance Contracting field, the ESCO’s experience acting as the prime contractor on previous ESPC projects (as opposed to a sub-contractor or consultant to a prime ESCO), the ESCO’s vendor and product neutrality related to the development of ECMs, the ESCO’s project history related to removal from an ESPC project or the inability or unwillingness of the ESCO to complete an ESPC project, the ESCO’s M & V capabilities and experience (independently or in cooperation with an independent third-party M & V consultant), the ESCO’s ability to explain the unique risks associated with ESPC projects and the assignment of risk in the particular project between the Contracting Agency and the ESCO, the ESCO’s equipment performance guarantee policies and procedures, the ESCO’s energy savings and cost savings guarantee policies and procedures, the ESCO’s project cost guarantee policies and procedures, the ESCO’s pricing methodologies, the price that the ESCO will charge for the Technical Energy Audit phase of the Work and the ESCO’s fee structure for all phases of the ESPC.

(3)

Contract Negotiations. Contract terms may be negotiated to the extent allowed by the RFP and OAR 137-049-0600 (Purpose) to 137-049-0690 (Construction Manager/General Contractor Services (“CM/GC Services”)), provided that the general Work scope remains the same and that the field of competition does not change as a result of material changes to the requirements stated in the Solicitation Document. See 137-049-0650 (Requests for Proposals (“RFP”)). Terms that may be negotiated consist of details of Contract performance, methods of construction, timing, assignment of risk in specified areas, fee, and other matters that could affect the cost or quality of the Work. For the CM/GC Method, terms that may be negotiated also include the specific scope of pre-construction services, the GC Work, any Early Work and other construction Work to be performed by the CM/GC, and any other terms that the Contracting Agency has identified as being subject to negotiation, consistent with the requirements of OAR 137-049-0690 (Construction Manager/General Contractor Services (“CM/GC Services”)). In ESPC contracting, terms that may be negotiated also include the scope of preliminary design of ECMs to be evaluated by the parties during the Technical Energy Audit phase of the Work, the scope of Personal Services and Work to be performed by the ESCO during the Project Development Plan phase of the Work, the detailed provisions of the Energy Savings Guarantee to be provided by the ESCO and scope of Work, methodologies and compensation terms and conditions during the design and construction phase and M & V phase of the Work, consistent with the requirements of OAR 137-049-0680 (Energy Savings Performance Contracts (ESPC)).

Source: Rule 137-049-0640 — Competitive Proposals; Procedure, https://secure.­sos.­state.­or.­us/oard/view.­action?ruleNumber=137-049-0640.

137‑049‑0100
Application
137‑049‑0110
Policies
137‑049‑0120
Definitions
137‑049‑0130
Competitive Bidding Requirement
137‑049‑0140
Contracts for Construction Other Than Public Improvements
137‑049‑0150
Emergency Contracts
137‑049‑0160
Intermediate Procurements
137‑049‑0200
Solicitation Documents
137‑049‑0210
Notice and Advertising Requirements
137‑049‑0220
Prequalification of Offerors
137‑049‑0230
Eligibility to Bid or Propose
137‑049‑0240
Pre-Offer Conferences
137‑049‑0250
Addenda to Solicitation Documents
137‑049‑0260
Request for Clarification or Change
137‑049‑0270
Cancellation of Solicitation Document
137‑049‑0280
Offer Submissions
137‑049‑0290
Bid or Proposal Security
137‑049‑0300
Facsimile Bids and Proposals
137‑049‑0310
Electronic Procurement
137‑049‑0320
Pre-Closing Modification or Withdrawal of Offers
137‑049‑0330
Receipt, Opening and Recording of Offers
137‑049‑0340
Late Bids, Late Withdrawals and Late Modifications
137‑049‑0350
Mistakes
137‑049‑0360
First-Tier Subcontractors
137‑049‑0370
Disqualification of Persons
137‑049‑0380
Bid or Proposal Evaluation Criteria
137‑049‑0390
Offer Evaluation and Award
137‑049‑0395
Notice of Intent to Award
137‑049‑0400
Documentation of Award
137‑049‑0410
Time for Contracting Agency Acceptance
137‑049‑0420
Negotiation With Bidders Prohibited
137‑049‑0430
Negotiation When Bids Exceed Cost Estimate
137‑049‑0440
Rejection of Offers
137‑049‑0450
Protest of Contractor Selection, Contract Award
137‑049‑0460
Performance and Payment Security
137‑049‑0470
Substitute Contractor
137‑049‑0490
Foreign Contractor
137‑049‑0600
Purpose
137‑049‑0610
Definitions for Alternative Contracting Methods
137‑049‑0620
Use of Alternative Contracting Methods
137‑049‑0630
Findings, Notice and Hearing
137‑049‑0640
Competitive Proposals
137‑049‑0645
Requests for Qualifications (RFQ)
137‑049‑0650
Requests for Proposals (“RFP”)
137‑049‑0660
RFP Pricing Mechanisms
137‑049‑0670
Design-Build Contracts
137‑049‑0680
Energy Savings Performance Contracts (ESPC)
137‑049‑0690
Construction Manager/General Contractor Services (“CM/GC Services”)
137‑049‑0800
Required Contract Clauses
137‑049‑0810
Waiver of Delay Damages Against Public Policy
137‑049‑0815
BOLI Public Works Bond
137‑049‑0820
Retainage
137‑049‑0830
Contractor Progress Payments
137‑049‑0840
Interest
137‑049‑0850
Final Inspection
137‑049‑0860
Public Works Contracts
137‑049‑0870
Specifications
137‑049‑0880
Records Maintenance
137‑049‑0890
Contracting Agency Payment for Unpaid Labor or Supplies
137‑049‑0900
Contract Suspension
137‑049‑0910
Changes to the Work and Contract Amendments
Last Updated

Jun. 24, 2021

Rule 137-049-0640’s source at or​.us