A procuring agency must request an exemption from competitive
bidding for a public improvement contract if the procurement does not
meet applicable exception or exemption provisions of state law. The
exemption request, submitted to the State Chief Procurement Officer (State CPO), as the delegate of the DAS
Director, must be supported by findings that justify the request. DAS
approval of an exemption is based upon representations made in the findings as well as the accuracy of the findings.
A finding must identify the project and contract with defining
characteristics that include the location, project description,
anticipated time period, anticipated contract value and other
significant factors. Generally, findings must address the following
eight areas at a minimum:
- Operational, budget and financial data
- Public benefits
- Value engineering
- Specialized expertise required
- Public safety
- Market conditions
- Technical complexity
- Funding sources
Statute requires the following items to be described in an exemption request:
- How the exemption will be unlikely to encourage favoritism or
substantially diminish competition. The agency should include specifics
- The solicitation process it will use.
- Plans for formal advertisement of the procurement and the disclosure of the planned alternative contracting method.
- Evaluation criteria and process.
- Ability of a supplier to submit a protest.
- How the exemption will likely result in substantial cost savings and
other substantial benefits. In addition to an analysis or reasonable
forecast of cost savings, the agency should include specifics on:
- How many suppliers are available to bid.
- Construction budget and the projected operating costs.
- Public benefits that may result from granting the exemption.
- Whether value engineering techniques may decrease the overall cost.
- Cost and availability of specialized expertise.
- Any likely increases in public safety.
- Other considerations include whether granting the exemption:
- May reduce risks to the agency or the public that are related to the public improvement.
- Will affect the sources of funding for the public improvement.
- Will strengthen the agency’s ability to control the impact that
market conditions may have on the cost of and time necessary to complete
the public improvement.
- Will strengthen the agency’s ability to address the size and technical complexity of the public improvement.
An agency’s exemption request must specify whether it employs, or
has retained under contract, agency or state personnel with expertise
and experience in alternative contracting methods. Applicable experience
includes providing consulting and legal services in the procurement,
award, negotiation, and administration of the public improvement
If an agency has not used the specific alternative contracting
method and intends to use the project to determine whether using the
alternative contracting method results in cost savings, they may choose
to identify the project as a pilot project in lieu of developing
findings on cost savings and seek an exemption.
A procuring agency must submit draft findings to the State Chief Procurement Officer (State CPO) and to the
Attorney General’s Office for review and comment prior to advertising
the required public hearings.
After comments have been received and
incorporated, and provided the State CPO has granted consent to proceed, the
procuring agency may post the public notice and conduct the required
If a procuring agency receives State CPO consent to proceed, the agency
must provide notice and host a hearing to receive public comment on the
draft findings. The procuring agency must publish notice of the public
hearing in a minimum of one trade newspaper of general statewide
circulation for a minimum of 14 days prior to the hearing. The notice
must state that the public hearing is for the purpose of taking comments
on the draft findings for an exemption from the competitive bidding
requirement. At the time of the notice, copies of the draft findings
must be made available to the public.
If circumstances require prompt action, the hearing notification
may be published simultaneously with the solicitation. However, in this
situation, responses to the solicitation must be due at least five days
after the hearing and approval of findings.
The State CPO must consider testimony received at the public hearing and
incorporated in the findings. The State CPO will issue an exemption order that
contains the findings of fact and conclusion of law.
order will either deny or grant approval, including any applicable
conditions, of the requested exemption from competitive bidding
requirements and the use of an alternative contracting method.
A solicitation document for public improvements includes the RFP
and its attachments, a sample contract, addenda, exhibits and
supplemental information to be posted through ORPIN. An RFP must include
the following information according to Oregon state law and
- A designation for or description of the public improvement project.
- The location of the office where the solicitation document may be reviewed.
- The date that prequalification applications must be filed and the
class or classes of work for which proposers must be prequalified if
prequalification is a requirement.
- Time, date and place of solicitation closing.
- The form and instructions for submitting a proposal including any
other special information, for example, electronic means of submission.
- The name and title of the individual authorized to receive proposals.
- A statement that each proposer must identify whether the proposer is a resident proposer.
- A statement that the procuring agency may cancel the procurement or reject any or all proposals.
- A statement that the procuring agency may not receive or consider a
proposal for a public improvement contract unless the proposer is
licensed by the Construction Contractors Board or the State Landscape
- Whether a contractor or a subcontractor under the contract must be
licensed under ORS 468A.720 regarding asbestos abatement projects.
- Contractor's certification of nondiscrimination in obtaining required subcontractors.
- Contracts that will be for a Public Works project require a
statement that no proposal will be received or considered by the agency
unless the proposal contains a statement by the proposer that it agrees
to be bound by and will comply with the provisions of applicable state
or federal law.
In addition, the procuring agency must include the following details related to its procurement:
- Evaluation processes, including any discussions that may be
required and parameters for establishing a competitive range, if used.
- Evaluation criteria and relative weight of each criteria.
- Negotiation processes, including identifying items that will be considered for negotiation within the solicitation document.
- Description of the award process, including details of how the procuring agency will award to multiple proposers, if applicable.
DAS Procurement Services maintains forms, guidelines, and templates for
agency use when developing public improvement solicitation documents.
Reference these documents and confer with DAS Procurement Services and
the Attorney Generals Office, as applicable, prior to issuing a
solicitation for a public improvement project.
Requests for qualifications
A procuring agency may use a two-step process, issuing a Request
for Qualifications (RFQ) prior to issuing an RFP in an effort to obtain
information to aid in preparing and distributing an RFP. Distributing
the RFP is limited to the proposers identified as most qualified through
the RFQ process.
When using an RFQ as the first step, a procuring agency must
advertise and provide public notice of the RFQ in the same manner as
described below for an RFP. The RFQ document must include:
- A statement that the RFP will only be provided to proposers determined to be qualified in the RFQ process.
- A protest provision that allows a written protest within seven days
after issuing the notice of the competitive range, unless a different
protest period is specified.
No further advertisement or public notice is required when providing
the RFP to qualified proposers in the second step of the two-step
After the procuring agency obtains internal and state-level
approvals, the agency must advertise the opportunity through a public
notice posted on ORPIN. This informs potential respondents of the
procurement opportunity and strengthens competition.
To further promote the procurement opportunity and foster
competition, a procuring agency may supplement the public notice through
additional means. An agency may use mail, newspaper or the agency’s
website for this purpose, however, the information provided must be
limited to directing potential respondents to the official notice on
Public improvement contracts with an estimated cost exceeding
$125,000 also require publication of an advertisement of the procurement
opportunity in at least one trade newspaper of general statewide
circulation in addition to the electronic posting on ORPIN.
All public notices must contain the following information:
- Where, when, how, and for how long the solicitation may be obtained.
- A general description of the products or services to be acquired.
- The date a potential respondent must file an application for
prequalification, if prequalification is a requirement, and the class of
products or services for which suppliers must be prequalified.
- The office where contract terms, conditions and specifications may be reviewed if unable to access the official notice on ORPIN.
- The name, title and address of the individual authorized to receive solicitation responses.
- The time and date by which the solicitation must be received.
- Any other information deemed appropriate.
Official notice of the solicitation must appear on ORPIN for a minimum of seven days prior to the solicitation closing date.
If the procuring agency publishes additional advertisements, the
solicitation closing date must be a minimum of five days after the date
of the last publication of the advertisement.
After posting notice, the procuring agency must manage the
solicitation until proposals have been received. Solicitation management
- Facilitating pre-proposal conferences (if provided through the solicitation).
- Receiving and responding to potential proposers’ written inquiries regarding the solicitation.
- Processing solicitation addenda, as required.
Prior to solicitation closing, the procuring agency may conduct a
pre-proposal conference to explain the procurement requirements, obtain
information or conduct site inspections. A procuring agency must include
a notice of pre-proposal conferences in the solicitation document. Oral
responses to questions and other statements made during the
pre-proposal conference are not binding on the state unless confirmed in
writing through an addendum to the solicitation posted through ORPIN.
After the official public notice of the solicitation and before the
award of a contract, any communication between the procuring agency and
potential proposers must occur within the context of the solicitation
only. This communication can only occur during the scheduled question
and answer time frame allowed by the solicitation as it relates to
supplier inquiries related to terms and conditions, specifications,
addenda or other related matters. During this time frame, telephone
conversations and meetings with potential proposers must be documented
in the procurement file.
If potential proposers submit written questions regarding a
solicitation, the procuring agency should post the questions and answers
on ORPIN. A record of all material communications regarding the
solicitation by potential proposers must be included as part of the
If required, the procuring agency must issue an addendum to the RFP
that describes any changes to the RFP resulting from the inquiries. An
addendum is typically used to communicate material changes to the RFP,
correct minor defects, and provide information or clarification to
The procuring agency must post official notice of an addendum to the
RFP through ORPIN. When considering an addendum to an RFP, the procuring
agency should consider the impact to the potential proposers and
determine if additional time should be given for submission of
proposals. Provided there is no extenuating public interest to retain
the solicitation closing date, the procuring agency should not issue an
addendum less than 72 hours before the solicitation closing unless the
addendum also extends the solicitation closing date.
A procuring agency may cancel a solicitation if it is in the public
interest to do so. However, the agency must provide proper notice of the
cancelation through ORPIN.
The procuring agency must date and time stamp, but not open, any
proposal submitted prior to closing. Proposals must be stored in a
secure place until the closing time and date listed in the RFP.
After the closing date and time for the RFP, the procuring agency
conducts a public opening for all proposals received, and reads aloud
and records the names of all proposers in a proposal register that must
be posted to ORPIN.
All proposals are withheld from public inspection until after award
of the contract. At a public opening, the procuring agency must only
disclose the names of the proposers and must open proposals in a manner
to avoid disclosing contents to competing proposers.
arriving after the official due date and time are considered late and
may be retained by the state, returned to the proposer at its expense,
The procuring agency must conduct a review of all proposals to
determine their responsiveness to the RFP’s mandatory requirements,
including compliance with the RFP’s minimum qualifications and minimum
submission requirements. Following this review, the evaluation team,
comprising representatives selected by the procuring agency, must
independently review the responsive proposals and evaluate each
according to the criteria established in the RFP.
At any time prior to award, the procuring agency must determine
responsibility of the apparent successful proposer and may reject a
proposer found to be not responsible. Refer to Evaluation Strategy for more information on the evaluation
During the evaluation, the evaluation team may seek clarifications
from a proposer. Requests for clarification must be sent formally to the
proposer through the procurement professional. Clarifications must be
submitted in writing and include the proposer’s signature.
Clarifications become part of the proposal submission.
After the evaluation team has completed evaluation of all proposals,
the procurement professional will compile the evaluation scores, rank
the proposers based on the evaluation team’s scoring and determine the
competitive range. The procuring agency must provide written notice to
all proposers of the proposers selected to be in the competitive range
and provide 10 days for any proposer not in the competitive range to
protest the evaluation and determination of the competitive range.
After the protest period has passed and the competitive range has
been established, the procuring agency may either enter into discussions
with proposers in the competitive range (refer to task #9 below "Plan and execute negotiations" for instructions on how to conduct Discussions) or
may issue a notice of intent to award (refer to task #11 below "Issue notice of intent to award and post award") for the highest ranked
The evaluation criteria that may be used in selecting and awarding a
contract is determined by the type of alternative contract method
conducted by a procuring agency. In general, criteria in addition to
price may be considered in the selection process, but only as described
in the solicitation document.
If a procuring agency received an exemption to conduct a procurement
for a basic negotiated construction contract, where the sole reason for
an RFP is to consider factors other than price, those factors may
- 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, past performance.
- Related matters that could affect the cost or quality of the work.
If an agency is procuring a Construction Manager/General Contractor
(CM/GC) contract, the procuring agency may (in addition to the above
criteria) also include in its evaluation criteria consideration of the
contractor’s 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 use the time available to commence and complete the improvement.
For a Design/Build procurement, in addition to any of the above
criteria, the procuring agency may also include in its evaluation
criteria consideration of the contractor’s ability to:
- Design professional qualifications.
- Specialized experience.
- Preliminary design submittals.
- Technical merit.
- Design-builder team experience.
Finally, for ESPC procurements, in addition to any of the above
criteria, the procuring agency may also include in its evaluation
- Sample technical energy audits from similar projects.
- Sample measurement and verification (M&V) reports.
- Financial statements and related information of the Energy Service Company (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 ESPC 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
- The ESCO's supplier and product neutrality related to the development of energy conservation measures.
- The ESCO's project history related to removal from an ESPC project
or the inability or unwillingness of the ESCO to complete an ESPC
- 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 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.
- The ESCO's fee structure for all phases of the ESPC.
Once the competitive range has been established, the procuring
agency may use one or both of the following processes, described
- Conduct discussions with proposers in the competitive range.
- Conduct negotiations with highest ranked proposer.
Prior to more formal negotiations with the highest ranked proposer,
the procuring agency may enter into broader discussions with some or
all of the proposers in the competitive range as may be required to
achieve the best value proposal to the agency. A procuring agency may
stop discussion with any proposer at any time in the process as
Discussion may begin with, and must end with a request for revised
proposals from proposers in the competitive range. If the evaluation
team determines it would benefit from revised proposals, the procuring
agency may seek revised proposals from proposers in the competitive
range to request additional information, to address issues or concerns
they have with a proposal or to clarify aspects of proposals. If the
evaluation team requests revised proposals, it must reevaluate the
revised proposals according to the criteria described in the RFP.
The procuring agency may then conduct discussions with proposers in
the competitive range as needed. In conducting discussions, the
procuring agency must treat all proposers fairly showing no favoritism
to any one proposer, may not discuss or disclose the contents of a
competitor’s proposal with another proposer, and may not suggest or
direct action on specific revisions that a proposer should make to its
After completing discussions with all proposers, the procuring agency
must send a notice to each proposer in the competitive range with a
specified date and time for submission of a revised proposal. No further
discussions may be held once the procuring agency provides the
proposers with a formal request for revised proposals.
Upon receipt of the revised proposals, the evaluation team must
evaluate the revised proposals based upon the evaluation criteria
described in the RFP, and rank the revised proposals based on the
evaluation team scoring. The procuring agency may conduct discussions
with and accept only one revised proposal from each proposer in the
competitive range unless otherwise stated in the RFP.
The procuring agency may negotiate contract terms with the intended
awardee either following the initial evaluation or after performing
discussions, whichever is most advantageous to the agency. Terms and
conditions of the potential contract may be negotiated to the extent
allowed by the RFP provided that the general work scope remains the same
and that the competition is not reduced due to material changes to the
requirements stated in the RFP.
Prior to initiating negotiations, the procuring agency must establish
a negotiating team and should prepare a summary of points to cover in
the negotiations. During the negotiations the team should document the
outcome of negotiations for each point. Verbatim records of the
negotiations are not required.
The procuring agency may terminate negotiations with a proposer and
enter into negotiations with the next highest-ranking proposer. The
procuring agency may take this action after a time period established in
the RFP if it believes the proposer is not negotiating in good faith or
if the procuring agency has determined that further negotiations will
not result in the parties agreeing to the terms and conditions of a
contract in a timely manner.
Terms that may be negotiated consist of details of:
- Contract performance.
- Methods of construction.
- Assignment of risk in specified areas.
- Other matters that could affect the cost or quality of the work.
For the CM/GC (and Design/Build) methods, negotiable terms may also include:
- The specific scope of pre-construction services.
- The general contractor work.
- Any early work and other construction work to be performed by the CM/GC.
In ESPC contracting, negotiable terms may also include:
- The scope of preliminary design of ECMs, which the parties will evaluate 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.
A procuring agency may conduct serial negotiations with the
highest-ranked eligible proposer or may conduct simultaneous
negotiations with all eligible proposers. A procuring agency may
negotiate any element called out as negotiable in the RFP, including:
- Proposed statement of work.
- Proposed price.
- Other terms and conditions authorized for negotiation in the RFP.
A procuring agency must not accept alternative terms and conditions
that are not reasonably related to those authorized for negotiation in
For multiple award contracts, the procuring agency may enter into
contracts with different terms and conditions with each contractor to
the extent those terms and conditions are within the scope of the RFP
and do not materially conflict with the applicable contractual terms and
Once the procuring agency selects the responsible proposer that
submitted the proposal offering the best value to the state, the agency
must document the award determination and file it in the procurement
file. At a minimum, documentation of an award determination for an RFP
- The complete evaluation of the proposals.
- Written justification for any rejection of higher scoring proposals.
- Written documentation of any discussions, clarification, negotiations or BAFO.
- Written documentation of any other procedures used to select the anticipated awardee.
In addition to these required elements, the procuring agency should
also document any other relevant information supporting its award
After documenting the award determination, the procuring agency
should prepare for contract award. Prior to awarding a contract, the
procuring agency must send to all proposers a written notice of the
intent to award and post a notice of intent to award on ORPIN at least
seven days prior to the award of a contract to allow for protests.
After the notice of intent to award, the procurement files must be
made available according to law, except where statute requires the
procuring agency to make information in the procurement files available
before any notice of intent to award (refer to the Public Records Law)
or that the procuring agency may withhold from disclosure to the public
because the materials are deemed exempt or conditionally exempt from
disclosure (refer to ORS 192.501-502).
After the intent to award protest period, and as required by the
RFP, the procuring agency must provide the successful proposer a
contract, signed purchase order, price agreement, or other contract
documents, as applicable.
Unless exempted, public improvement contracts with an estimated
value of more than $100,000 require the successful proposer to execute
and deliver a performance bond and a payment bond. The successful
proposer must promptly execute the provided contract and complete any
actions necessary to complete the contract, including posting
performance security, submitting proof of insurance (when the RFP
requires it) and agreeing to perform the scope of work and meet the
performance standards stated in the RFP.
If the successful proposer fails to promptly and properly execute
the contract, deliver the performance bond, the payment bond or the
proof of insurance (if required), the proposal security must be
forfeited as liquidated damages.
The procuring agency must ensure that all required contract clauses
are included in the final contract. In addition, the type of
alternative contract method executed will determine specific additional
contract provisions that must be included. A procuring agency should
reference administrative rules related to public contracts for
construction services when drafting a contract to ensure it meets the
specific requirements for contracting.
- CM/GC Contracts (refer to OAR 137-049-0690).
- Design-Build Contracts (refer to OAR 137-049-0670).
- ESPC Contracts (refer to OAR 137-049-0680).