An ITB document for public improvements includes the ITB and its
attachments, a sample contract, addenda, exhibits and supplemental
information. An ITB must include the following information according to
Oregon statutes and administrative rules:
- 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 are due and the class or
classes of work for which bidders must be prequalified if
prequalification is a requirement.
- Time, date and place of bid opening.
- The form and instructions for bid submission including any other
special information, for example, electronic means of submission.
- The name and title of the person receiving bids.
- A statement that each bidder must identify whether the bidder is a resident bidder (refer to ORS 279A.120).
- A statement that the procuring agency may cancel the procurement or reject any or all bids.
- Requirement that a contractor or subcontractor must be licensed under ORS 468A.720.
- A statement that the procuring agency may not receive or consider a
bid for a public improvement contract unless the bidder is licensed by
the Construction Contractors Board or the State Landscape Contractors
- Whether a contractor or a subcontractor under the contract must be
licensed under ORS 468A.720 (applies to asbestos abatement projects).
- Contractor's certification of nondiscrimination in obtaining
required subcontractors according to ORS 279A.110(4). (Refer to OAR
- Contracts for public works subject to ORS 279C.800 to 279C.870 or
the Davis-Bacon Act (40 U.S.C. 3141 to 3148) require a statement that no
bid will be received or considered by the agency unless the bid
contains a statement by the bidder that the contractor agrees to be
bound by and will comply with the provisions of 279C.838, 279C.840 or 40
U.S.C. 3141 to 3148.
Resource: DAS Procurement Services maintains forms, guidelines, and templates for use in developing
solicitation documents for public improvement. A procuring agency should
reference these documents and confer with DAS/PS and the Attorney
General’s Office, as applicable, prior to issuing an ITB for a public
The procuring agency must post the ITB, including all addenda and
most attachments, through ORPIN. The procuring agency should provide the
following information in the Solicitation/Opportunity Summary:
- ITB purpose
- Notice of any pre-bid conferences, including:
- Time, date and location
- Whether attendance is mandatory
- Provision that statements made by the procuring agency or DAS
representatives at the conference are not binding unless confirmed by
written addendum posted through ORPIN
- Site access: Time and date the site will be available for bidders to view the site conditions
- Project estimate: Range of estimate cost of the project for bonding purposes
- Project completion dates: Number of calendar days from issuance of Notice to Proceed
- Project start date
- Substantial completion
- Final completion
- Liquidated damages: If applicable, the amount of liquidated damages applied to the contract resulting from the ITB
In addition to provisions of statute and rule that specify the elements
of a Public Improvement ITB, a procuring agency must address the
following considerations in its public improvement solicitation.
First tier subcontractor disclosure
A first-tier subcontractor is any entity providing labor or labor
and materials on the contract that will be contracting directly with the
prime contractor. If an ITB may result in a public improvement contract
exceeding $100,000, the agency must designate a time of closing
consistent with the first-tier subcontractor disclosure requirements
(refer to ORS 279C.370(1)(b) and OAR 137-049-0360). Disclosure is
required only for first-tier subcontractors whose subcontract value is
equal to or greater than five percent of the estimated contract value
but at least $15,000, or is valued at $350,000 or greater.
The ITB must provide instructions for bidders to submit
subcontractor disclosures in the form and format required by statute,
including the subcontractor's name, dollar value and the category of
work that the subcontractor would be performing (refer to ORS 279C.370).
A procuring agency may waive bid security and performance and
payment requirements if the amount of the contract for the public
improvement is less than $100,000 (refer OAR 125-249-0460). Additionally
a procuring agency may exempt certain contracts or classes of contracts
from all or a portion of the requirement for bid security, as well as
bonds for the performance of the contract and payment of obligations
(refer to ORS 279C.390).
Unless a procuring agency has otherwise exempted a procurement from
bid security the procuring agency must require in the ITB document that
bid security be submitted with the bid. Even if the procurement is
exempted from bid security, the procuring agency may still require bid
security from bidders. The requirement for bid security applies only to
public improvement procurements with an estimated contract value of more
If a procuring agency requires bid security, the amount of the bid
security must not be more than 10 percent or less than five percent of
the submitted bid, consisting of the base bid and any additive
alternates. The amount of bid security required should be considered
carefully, and must be clearly stated in the ITB document. Bid security
should not be used to discourage competition.
A procuring agency may accept the following forms of bid security:
- A surety bond from a surety company authorized to do business in the state.
- An irrevocable letter of credit issued by an insured institution (refer to ORS 706.008).
- A cashier's check.
- Certified check from the bidder.
A Public Improvement ITB must include considerations for:
- Notifying bidders of addenda and making addenda available.
- Disclosing joint venture/partnerships.
A procuring agency must ensure that a Public Improvement ITB covers all
contractual terms and conditions applicable to the procurement, and must
clearly specify the consequences for a contractor’s failure to perform
the ITB’s scope of work or a contractor’s failure to meet established
The procuring agency must follow its internal and state-level
procedures for review and approval of the ITB document prior to posting
the public notice. State-level procedures, at a minimum, require the
agency to submit the ITB, with a sample contract, to the Attorney
General for the required legal sufficiency review. Additional
state-level reviews may be required depending on the type of public
improvement project being procured.
A procuring agency may seek to prequalify bidders prior to issuing a
solicitation for a public improvement project through either a
mandatory or permissive prequalification process:
- Mandatory prequalification requires that a bidder be
prequalified to receive the solicitation document and to provide a bid
to that solicitation document. The procuring agency will not accept or
consider bids from suppliers that are not prequalified.
- Permissive prequalification allows the procuring agency to
prequalify suppliers, but does not limit distribution of a solicitation
to prequalified persons. Suppliers who are not prequalified by the
procuring agency may submit bids.
If a supplier is currently prequalified by either the Oregon Department
of Transportation or the Oregon Department of Administrative Services,
the supplier must be considered qualified to perform similar work for
other procuring agencies.
A procuring agency may disqualify a supplier from award
consideration (remove them from its prequalification list) at any time,
provided the supplier is given adequate notice and an opportunity to be
After the procuring agency obtains internal and state-level
approvals, the agency must advertise the opportunity to potential
bidders through a public notice posted on ORPIN. This informs potential
bidders of the procurement opportunity and strengthens competition.
To 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 may only direct potential bidders
to the official notice on ORPIN.
Public improvement contracts with an estimated cost in excess of
$125,000 also require publication of an advertisement for bids 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 ITB may be obtained.
- A general description of the products or services to be acquired.
- The date that suppliers must file applications 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 ORPIN official notice.
- The name, title and address of the individual authorized to receive bids.
- The scheduled bid opening.
- Any other information deemed appropriate.
Official notice of the ITB must appear on ORPIN for a minimum of seven days prior to the bid opening date.
If the procuring agency publishes additional advertisements, the
bid opening 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 bids have been received. Solicitation management
- Facilitating pre-bid conferences (if provided through the solicitation).
- Receiving and responding to potential bidders’ written inquiries regarding the solicitation.
- Processing solicitation addenda, as required.
Prior to bid opening, the procuring agency may conduct a pre-bid
conference to explain the procurement requirements, enable bidders to
obtain information or to conduct site inspections. The procuring agency
must provide notice of pre-bid conferences in the solicitation
document. Any statements made at a pre-bid conference do not change the
solicitation document unless the procuring agency confirms such
statements with a written addendum to the solicitation document.
After the official public notice of the solicitation and before the
award of a contract, any communication between the procuring agency and
potential bidders 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 ITB 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 bidders must be documented in the
If potential bidders 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 bidders must be included as part of the
If required, the procuring agency must issue an addendum to the ITB
that describes any changes to the ITB resulting from the inquiries. An
addendum is typically used to communicate material changes to the ITB,
correct minor defects, and provide information or clarification to
potential bidders. If the procuring agency must amend the ITB, the
agency should consider the impact to the potential bidders and determine
if additional time should be given for submission of bids.
The procuring agency must post official notice of an addendum to
the ITB through ORPIN. When considering an addendum to an ITB, the
procuring agency should consider the impact to the potential bidders and
determine if additional time should be given for submission of bids.
Provided there is no extenuating public interest to retain the bid
opening date, the procuring agency should not issue an addendum less
than 72 hours before the bid opening unless the addendum also extends
the bid opening date.
The 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.
The procuring agency must date and time stamp, but not open, any
bid or modification submitted prior to bid opening. Bids must be stored
in a secure place until the time and date set for bid opening.
At the time, date and place designated in the ITB for bid opening,
the procuring agency must publicly open all bids and modifications
received. The names of the bidders, the amounts of their bids and such
other information as may be appropriate must be read aloud. Preliminary
information should be recorded at the time of opening, for example,
through a bid tabulation or bid abstract, and should be posted in ORPIN.
The procuring agency must inspect each bid to ensure that it is
signed by the bidder and verify and secure any required bid security.
All other documents must be available for public inspection after the
Public improvement bid opening dates should occur on Tuesday,
Wednesday or Thursday between 2 and 5 p.m. to facilitate the submission
of first-tier subcontracting disclosures, if required. In setting dates
and times, the procuring agency should be careful to ensure that the
disclosure deadline does not fall on a state holiday.
For procurements with an estimated contract value of more than
$100,000, bidders must submit a disclosure form identifying first-tier
subcontractors within two working hours of bid opening. A first-tier
subcontractor is any entity providing labor or labor and materials on
the contract that will be contracting directly with the prime
The procuring agency must reject a bid if the bidder fails to
submit the disclosure form with the required information by the
deadline. A bidder may submit the disclosure form with its original bid.
The procuring agency must compile and make available for public
inspection the disclosure forms received and must submit copies of the
disclosure forms to the Bureau of Labor and Industries.
A procuring agency must make its bid award to the lowest
responsible and responsive bidder whose bid meets the ITB requirements
After the opening, the procuring agency must evaluate the lowest
bid to determine whether it complies with all ITB requirements,
specifications and ability of the bidder to perform the contract. If it
is determined to be non-responsive, the procuring agency moves to the
next lowest bid.
A Public improvement ITB may solicit lump-sum bids, unit price
bids, or a combination of the two. The procuring agency should evaluate
the bids according to the following criteria:
|Lump sum bid without additive or deductive alternates
||Compare bids based on lump-sum prices for the base bid considering no additive or deductive alternates.|
|Lump sum bid with consideration of additive or deductive alternates
||Compare bids based on total bid
price calculated by adding to or deducting from the base bid those
alternates selected by the procuring agency.|
||Compare bids based on total bid
price calculated by multiplying estimated quantities by unit prices
submitted by the bidder and adjust for any additive or deductive
alternates selected by the procuring agency.|
The procuring agency may award the contract by item, groups of items or
the entire bid according to the award approach outlined in the ITB
After conducting an evaluation of the bids, the procuring agency
must send non-responsiveness letters to unsuccessful bidders. Returning
or releasing the bid security of all unsuccessful bidders occurs after a
contract has been fully executed and all required bonds and insurance
have been provided, or after all bids have been rejected.
Following the opening of bids, the integrity of the
competitive procurement process and fair treatment of bidders is a
concern, and the procuring agency must carefully consider allowing
waivers, corrections or withdrawals of bids for certain mistakes. A bid
cannot be corrected or withdrawn due to an error in judgment.
If mistakes are found in a bid after the bid opening, but
before award of the contract, the procuring agency may take the
- Waive, or permit a bidder to correct, a
minor informality (a matter of form rather than substance that is
evident on the face of the bid, or an insignificant mistake that can be
waived or corrected without prejudice to other bidders)
- Correct clerical errors evident on the face of the bid or other documents submitted with the bid
- Permit a bidder to withdraw a bid based on one or more clerical
errors in the bid only if the bidder shows with objective proof and by
clear and convincing evidence:
- The nature of the error.
- That the error is not a minor informality or an error in judgment.
- That the error cannot be corrected or waived.
- That the bidder acted in good faith in submitting a bid and in communicating that the alleged error in the bid exists.
- That the bidder acted without gross negligence in submitting a bid that contained the claimed error.
- That the bidder will suffer substantial detriment if they are not granted the permission to withdraw the bid.
- That the state will not face substantial hardship from withdrawal of the bid.
- That the bidder promptly gave notice of the claimed error
Mistakes in bids may be corrected after bid opening using the criteria
listed above. Following award, a bidder is bound by its bid, and may
withdraw its bid or rescind a contract only as allowed by law.
Responsive and responsible
As part of an evaluation process, the procuring agency must determine whether the bidder is responsive and responsible.
A responsive bid unequivocally commits to the requirements of
the ITB. A responsive bidder is one whose bid substantially complies
with the ITB and all prescribed procurement procedures and requirements
and contains no material defects.
A material defect is one that affects price, quality, quantity,
or delivery terms. Material deficiencies affecting responsiveness may
not be corrected. Some examples of non-responsiveness are:
- The bid does not meet the minimum specifications or requirements for the products, services or construction.
- The bid document makes exception to terms and conditions in the solicitation.
- The bid is submitted without pricing or with conditional pricing.
A responsible bidder has the capability and capacity to carry out all contractual responsibilities, and has:
financial, material, equipment, facility, and personnel resources and
expertise, or has the ability to obtain the resources and expertise,
necessary to meet all contractual responsibilities.
- All required licenses.
- No listing by the Construction Contractors Board as unqualified to hold a public improvement contract.
- Completed previous contracts of a similar nature with a satisfactory record of performance.
- A satisfactory record of integrity.
- The legal qualifications to contract with the agency.
- An unexpired certificate issued by DAS if the bidder employs 50 or
more full-time workers at the time of the bid opening and the estimated
contract value exceeds $500,000.
- Supplied all necessary information related to the determination of responsibility.
A procuring agency must document its findings in its procurement file,
and file it with the Construction Contractors Board within 30 days of
When all responsive bids from responsible
bidders exceed the cost estimate for the contract, the procuring agency
may negotiate with the lowest responsive and responsible bidder.
However, the scope and the terms and conditions of the project may not
differ significantly from the original bid. All other negotiations with
bidders are prohibited when using this procurement method.
procuring agency determines the lowest responsive and responsible
bidder, the agency must document the award determination and file it in
the procurement file. At a minimum, documentation of an award
determination for an ITB must include:
- All submitted bids.
- Completed bid tabulation sheet.
- Written justification for rejection of lower bids.
- A completed Responsibility Determination Form for any bidder deemed not responsible.
In addition to these required elements, the procuring agency should also
document any other relevant information used in its award decision.
Examples may include any bids rejected, discussions held with a bidder,
or clarification received from bidders.
documenting the award determination, the procuring agency should
prepare for contract award. Prior to awarding a contract, the procuring
agency must send to all bidders a written notice of the intent to award
and post a notice of intent to award on ORPIN at least seven days before
the award of a contract.
If unusual time constraints exist, the procuring agency is not
required to post notice of intent to award or may shorten the notice
period. The procuring agency must document the specific reasons for
altering the notice period in the procurement file.
After the notice of intent to award, the procurement file must
be made available according to law, except where statute requires the
procuring agency to make information in the procurement file available
before any notice of intent to award (refer to the Public Records Law).
the intent to award notice period, and as required by the ITB, the
procuring agency must provide the successful bidder a contract, signed
purchase order, price agreement, or other contract documents, as
Unless exempted, public improvement contracts with an estimated
value of more than $100,000 require the successful bidder to execute
and deliver a performance bond and a payment bond. The successful bidder
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 invitation to bid
requires the submission, and agreeing to perform the scope of work and
meet the performance standards descibed in the ITB.
If the successful bidder fails to promptly and properly execute
the contract, deliver the performance bond, the payment bond or the
proof of insurance, if required, the bid security must be forfeited as