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The 3 Sisters. ORS Chapter 279 B. DefinitionsPolicyApplicabilityMaximum Hours of LaborMethods of Source SelectionCancellation, Rejection, DelaysResponsibility of Bidders and Proposers. General Procurement Content. . . Qualified Products list Prequalification Debarment Notice of Intent to Award Price Agreements Specifications Specifications in State Contracts Legal Remedies.

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1. Presented by:

2. three sisters / analogy. Another way to look at it is that Oregon procurement statue just turned into a three car garage w/ 3 cars. 279C is a tried and true version. 279B is a new model with much flexibility.three sisters / analogy. Another way to look at it is that Oregon procurement statue just turned into a three car garage w/ 3 cars. 279C is a tried and true version. 279B is a new model with much flexibility.

3. ORS Chapter 279 B Definitions Policy Applicability Maximum Hours of Labor Methods of Source Selection Cancellation, Rejection, Delays Responsibility of Bidders and Proposers Focus today on the major areas of change: Methods of Source Selection Legal RemediesFocus today on the major areas of change: Methods of Source Selection Legal Remedies

4. Goods and ServicesSection 47 (1) (b) “Goods and services” or “goods or services” means supplies, equipment, materials and services other than personal services designated under section 8 of this 2003 Act 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. Does not include personal servicesDoes not include personal services

5. Section 48 Policy Chapter 279 B Effective outcomes that represent optimal value to the contracting agency and to the extent feasible consistent with market practices. Consistency in procurement practices. Innovative practices, while maintaining quality and integrity. For me as someone trying to use the law to do my daily work, this section – 279B – was the reason I kept attending meetings. Some of the flexibility that was built in, will make my life a lot easier – or at a minimum – less confusing. Optimal value balanced with best practices Some consistency Some flexibility For me as someone trying to use the law to do my daily work, this section – 279B – was the reason I kept attending meetings. Some of the flexibility that was built in, will make my life a lot easier – or at a minimum – less confusing. Optimal value balanced with best practices Some consistency Some flexibility

6. Methods of Source Selection Sec 50 Methods of Source Selection Sec 51 Competitive Sealed Bids Sec 52 Competitive Sealed Proposals. Sec 53 Small Sec 54 Intermediate Sec 55 Sole Source Sec 56 Emergency Sec 57 Special New: Small Intermediate SpecialNew: Small Intermediate Special

7. Section 51Competitive Sealed Bids Multiple awards and multi step bids permitted Describes what must be included in the bid solicitation Public Notice publish at least once in newspaper of general circulation Electronic notice permitted with rule or order Bid must be evaluated based on bid criteria, and may include factors other than cost Award to the lowest responsible bidder whose bid substantially complies with the requirements and criteria in the solicitation Section 51 – Checklist approach Parallels what current 279.027 does for bid docs Allows: Multiple awards and multi step process if it’s impractical to prepare complete specs Info in ad Public notice at least 7 days before closing – newspaper or electronically if rules allow Eval on bid criteria – may include factors others than cost to determine minimum acceptability Testing Quality Suitability Section 51 – Checklist approach Parallels what current 279.027 does for bid docs Allows: Multiple awards and multi step process if it’s impractical to prepare complete specs Info in ad Public notice at least 7 days before closing – newspaper or electronically if rules allow Eval on bid criteria – may include factors others than cost to determine minimum acceptability Testing Quality Suitability

8. Section 52Competitive Sealed Proposals May use for single or multiple awards Description of what the RFP must include Evaluation process and the relative importance of price and other evaluation factors must be described If multiple tier evaluation process -- describe process to be used beyond first tier Section 52 – Same sort of checklist approach Clarifies an area which was unclear befoe COP exemption for proposals Allows Multiple awards Description of what RFP includes criteria Evaluation process Section 52 – Same sort of checklist approach Clarifies an area which was unclear befoe COP exemption for proposals Allows Multiple awards Description of what RFP includes criteria Evaluation process

9. Section 52Competitive Sealed Proposals Proposals may be opened to avoid disclosure Permits a variety of evaluation processes including, but not limited to: Award based on ranking Discussions leading to Best & Final Offers Serial Negotiations Competitive Simultaneous Negotiations Multi-tiered competition to establish a competitive range Multi-step with unpriced technical submissions Any combination as authorized by Model Rules Allows for proposals to be opened in such a way as to meet the public records law but not disclose all information (52.5(1) Allows a variety of eval processes (52.6.b) Allows for proposals to be opened in such a way as to meet the public records law but not disclose all information (52.5(1) Allows a variety of eval processes (52.6.b)

10. Section 52Competitive Sealed Proposals Addendum may be issued after opening to modify: Evaluation criteria Rating process Procedure for tier competition before start of tier competition Public notice and notice of intent to award same as competitive sealed bids. Award to the responsible proposer whose proposal is determined to be most advantageous based on evaluation process and factors Section 16 and 17 contracting preferences apply 52.6.b.H.d Addendum after bid opening to modify Criteria, Rating process or Procedure BEFORE the start of the next tier or step Public notice Award Section 16 – Oregon preference Section 17 – Recycled Materials preference52.6.b.H.d Addendum after bid opening to modify Criteria, Rating process or Procedure BEFORE the start of the next tier or step Public notice Award Section 16 – Oregon preference Section 17 – Recycled Materials preference

11. Section 53 Small Procurements Small may not exceed $5,000 Procedures adopted under agency rule Award in any manner deemed practical or convenient Amend only in accordance with agency rules May not artificially divide or fragment New – previously exempt under 279.015 Now requires rules Adds to consistencyNew – previously exempt under 279.015 Now requires rules Adds to consistency

12. Section 54Intermediate Procurements Over $5,000, but not exceeding $150,000 At least 3 informal competitive price quotes or proposals Keep written records of competition Award to offeror whose quote best serves the interests of the contracting agency taking into account price and other considerations including, but not limited to; experience, expertise, product functionality, suitability, and responsibility New Be aware that some jurisdictions may still have different thresholds due to Charter restrictionsNew Be aware that some jurisdictions may still have different thresholds due to Charter restrictions

13. Section 55Sole Source Proposals Determination by LCRB or DAS Director Efficient utilization of existing goods or services requires compatibility Goods or services required for the exchange of data is available from only one source, Goods or services are for use in a pilot, or Other findings that support the conclusion that goods or services are available from only one source Negotiate to the extent practical Sole Source – eliminates the need for a class exemption Sole Source – eliminates the need for a class exemption

14. Section 56Emergency Procurements Circumstances: Not reasonably foreseen, Substantial risk of loss, damage, interruption of service, or substantial threat to property, public health, welfare or safety, Prompt execution of contract needed Must be authorized to make an emergency procurement Contracting agency shall document the nature of the emergency and method of selecting the contractor Currently 279.015.5 and 6Currently 279.015.5 and 6

15. Section 57Special Procurements Differs from procedures described in CSB, CSP, Small Procurement , and Intermediate Procurement “Class” or “Contract-Specific” Contracting agency must request in writing LCRB or DAS Director may approve Anything else besides what we’ve just looked at. May be class or contract specific e.g. Price regulated items – electricity, postage, Insurance Advertising in papersAnything else besides what we’ve just looked at. May be class or contract specific e.g. Price regulated items – electricity, postage, Insurance Advertising in papers

16. Section 57Special Procurements LCRB or DAS Director Approval Criteria: Unlikely to encourage favoritism and Result in substantial cost savings, or Substantially promote the public interest in a manner that could not practicably be realized by complying with CSB,CSP,Small Procurement, or Intermediate Procurements

17. Sections 58 - 63Administrative Provisions Cancellation of Procurements (Sec. 58) Offeror Responsibility (Sec. 59) Qualified Product List (Sec. 60) Prequalification (Sec. 61 and 62) Debarment (Sec. 63)

18. Section 64Notice of Intent to Award Must issue a notice of intent to award to each bidder or proposer 7 days before award, unless agency determines not practical in accordance with Model Rules Applies only to bids (Sec 51) and proposals (Sec 52)

19. Section 68Price Agreements Constitutes a “firm offer” Allows amendment or termination in case of “non-appropriation” Does not constitute an exclusive dealing commitment

20. Section 72-81Specifications Promote optimal value, suitability for intended purpose and reasonably promote competition Take reasonable measures to prevent material competitive advantage if a person assists in preparation of specifications Distinction between brand name or equal and brand name Required conditions Sec 76a-78 Unique state agency specification requirements

21. Legal Remedies Sec 83 - Protest of Special Procurement Sec 84 - Protest of Solicitations Section 85 - Protest of Contract Award Sec 86 - Judicial Review of Protests of Contract Award Sec 86a - Judicial Review of Other Violations Sec 87 - Review of Prequal and Debarment Decisions

22. Section 83 Protest of Special Procurement Subject to Model Rules Unique protest process and judicial review Procedure for “Class” and “Contract Specific” Differing judicial review for State and Local agencies

23. Special ProcurementJudicial Review

24. Section 84 Protest of Solicitations Limited to solicitation document and solicitation process Grounds – contrary to law, unnecessarily restrictive, legally flawed, or improperly specifies brand name. Subject to Model Rules for filing time Protest goes to Contracting Agency Contracting Agency shall issue a decision no less than 3 business days before bid or proposal due date Subject to judicial review if suit or writ filed before opening Court to give deference to factual decision made by Contracting Agency, but shall review questions de novo

25. Section 85 Protest of Contract Award Protest to Contracting Agency Grounds- other bids or proposals non-responsive, Failed to evaluate in accordance with criteria, Abuse of discretion in rejecting bid, Evaluation or award in violation of Sec 1-46, and 47-87. Standing- must be eligible if protest is sustained Protest must be in writing and specify grounds Subject to Model Rules for time and manner of submission

26. Section 86 Judicial Review of Protests of Contract Award Judicial review must be filed before the contract is executed Contracting agency must stay, unless a written determination is made on grounds set out in statute Court shall consider grounds raised in protest If Court uphold protestor, must be remained back to contracting agency Court may award bid prep costs, but not lost profits If a contract has been executed, the Court shall include whether the party that signed the contract is entitled to reimbursement Court may award costs and attorney fees

27. Section 86a Judicial Review of Other Violations Violations of other provisions of 279 A and B not subject to an appeal procedure Judicial review grounds A public contract is about to be awarded, A public contract has been awarded, A violation occurred that will result in an unlawful award or failure to award The violation prevented a person from competing Standing – The person would be qualified to receive award under Responsibility (Sec 59), Files within 10 days & no more than 10days after contract execution

28. Section 87 Review of Prequalificiation & Debarment Decisions Same procedure for a debarment appeal and rejection of a prequalification application LCRB and DAS Director receive appeals LCRB and DAS Director conduct hearing de novo Duty may be delegated Both may allocate costs Decision may be appealed to circuit court

29. Questions & Answers

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