Oregon Bulletin
Rule
Caption: Amendments to the OEBB procurement
and contracting rules.
Adm.
Order No.: OEBB 1-2012(Temp)
Filed with Sec. of
State: 1-13-2012
Certified to be
Effective: 1-13-12 thru 7-10-12
Notice Publication
Date:
Rules Amended: 111-005-0040, 111-005-0042
Subject: The current rule language in 111-005-0040 and
111-005-0042 does not specifically support the most judicious process for
releasing the names of vendors submitting proposals for the OEBB Board’s
consideration. The amendments made in 111-005-0040 and 111-005-0042 reflects
the process OEBB has used since its inception and is consistent with the type
of services the OEBB Board contracts for.
Rules Coordinator: April Kelly—(503) 378-6588
111-005-0040
Extensive Procurement Process
The Board will use the following procedure except as
provided for under OAR 111-005-0046 or 111-005-0048.
(1) Announcement. The Board will post solicitation
notices for benefits via the Oregon Procurement and Information Network
(ORPIN). The Board may also post solicitation notices for benefits in trade
periodicals or newspapers of general or specialized circulation. The
solicitation notice will include a description of the benefits or services
sought, the scope of the services required, evaluation and selection criteria,
and a description of any special requirements. The notice will invite qualified
prospective proposers to submit proposals. The notice will specify when and
where to obtain the RFP, where to return the proposal, the method of
submission, and the closing date.
(2) No remuneration will be offered to prospective
proposers for attendance, travel, document preparation, etc. Unless otherwise
specified in the RFP, the pre-proposal conference will:
(a) Be voluntary; and
(b) Be held in Salem, Oregon.
(3) RFP protest; request for change or request for
clarification.
(a) Protest.
(A) A proposer may deliver a protest to the Board not
less than ten calendar days prior to closing, unless otherwise specified in the
RFP.
(B) Proposer protests must be in writing and must
include:
(i) A detailed statement of the legal and factual
grounds for the protest;
(ii) A description of the resulting prejudice to the
proposer; and
(iii) A statement of the desired changes to the RFP.
(C) The Board will not consider a proposer’s protest
after the submission deadline.
(i) The Board will provide notice to the applicable
entity if it entirely rejects a protest. If the Board agrees with the entity’s
protest, in whole or in part, the Board will issue an addendum reflecting its
determination under OAR 137-030-0055 and 137-047-0430 or cancel the
solicitation under 137-030-0115.
(ii) If the Board receives a written protest from a
proposer according to this rule, the closing may be extended if the Board
determines an extension is necessary to consider the protest and to issue any
addendum to the RFP.
(b) Request for change.
(A) A proposer may request in writing a change to the
RFP specifications, unless otherwise specified in the RFP. If the RFP allows a
proposer to make a request for changes and does not specify otherwise, proposer
must deliver the written request for change to the Board not less than ten
calendar days prior to closing.
(B) A proposer’s written request for change must
include a statement of the requested changes to the RFP specifications,
including the reason for the requested change.
(C) The Board will not consider a proposer’s request
for change after the submission deadline.
(i) The Board will provide notice to the applicable
entity if it entirely rejects a change. If the Board agrees with the entity’s
request for change, in whole or in part, the Board will issue an addendum
reflecting its determination under OAR 137-030-0055 and 137-047-0430 or cancel
the solicitation under 137-030-0115.
(ii) If the Board receives a written request for a
change from a proposer according to this rule, closing may be extended if the
Board determines an extension is necessary to consider the request and to issue
any addendum to the RFP.
(c) Request for clarification.
(A) A proposer may request in writing clarification of
the RFP specifications, unless otherwise specified in the RFP. If the RFP
allows a proposer to make a request for clarification and does not specify
otherwise, a proposer must deliver the written request for clarification to the
Board not less than ten calendar days prior to closing.
(B) A proposer may request that the Board clarify any
provision of the RFP.
(C) The Board will not consider a proposer’s request
for clarification after the submission deadline. The Board’s clarification to a
proposer, whether orally or in writing, does not change the RFP and is not
binding on the Board unless the Board amends the RFP by addendum.
(4) Addenda to an RFP following an appeal or request
for change or clarification.
(a) Issuance; receipt. The Board may change an RFP only
by written addenda. A proposer must provide written acknowledgement of receipt
of all issued addenda with its proposal, unless the Board otherwise specifies
in the addenda.
(b) Notice and distribution. The RFP must specify how
the Board will provide notice of addenda and how the Board will make the
addenda available.
(c) Timelines; extensions. The Board will issue addenda
within a reasonable time to allow prospective proposers to consider the addenda
in preparing their proposals. The Board may extend the closing if the Board
determines prospective proposers need additional time to review and respond to
addenda. The Board will not issue addenda less than 72 hours before the closing
unless an addendum also extends the closing, except to the extent required by
public interest.
(d) Request for change or protest. A proposer may
submit a written request for change or protest to the addendum by the close of
the Board’s next business day after issuance of the addendum, unless a
different deadline is set forth in an addendum.
(5) Submission. All proposals submitted must comply
with the procurement’s specifications.
(a) If portions of the proposal to any solicitation are
deemed unacceptable or non-responsive to the specifications of the
solicitation, the proposal will be deemed non-responsive and will not be given
further evaluation or consideration. If a proposal to any solicitation is
delivered late, it will be deemed non-responsive to the specification of the
solicitation and will be returned to the proposer unopened.
(b) Submission of proposals must be in written hard
copy or electronic format and delivered, as required by the specifications of
the solicitation. OEBB is not responsible for unreadable or incomplete
electronic transmissions of proposals or for electronic transmissions that are
not received by the designated OEBB recipient by the closing date and time
stated in the RFP.
(6) Evaluation. The Selection Committee will evaluate proposals
only in accordance with criteria set forth in the RFP and applicable law. The
Selection Committee and/or Consultants will provide their recommendations to
the Board on the apparent successful proposer(s).
(7) Rejection of proposal. The Board may reject any
proposal for good cause and deem it as non-responsive upon written finding that
it is in the states’, Educational Entities’, or Employees, Early Retirees and
their Dependents ‘ interest to do so or acceptance of the proposal may impair
the integrity of the procurement process. The Board will notify the proposer of
its rejection of the proposal in writing and provide the good cause
justification and finding. OEBB is not liable to any Proposer for any loss or
expense caused by or resulting from any rejection, cancellation, delay or
suspension. Without limiting the generality of the foregoing, the Board may
reject any Proposal upon OEBB’s finding that the Proposal:
(a) Is contingent upon OEBB’s acceptance of terms and
conditions (including Specifications) that differ from the RFP;
(b) Takes exception to terms and conditions set forth
in the RFP;
(c) Attempts to prevent public disclosure of matters in
contravention of the terms and conditions of the RFP or in contravention of
applicable law;
(d) Offers services that fail to meet the
specifications of the RFP;
(e) Is late;
(f) Is not in substantial compliance with the RFP;
(g) Is not in substantial compliance with all
prescribed procurement procedures;
(h) Is from a Proposer that has been debarred as set
forth in ORS 279B.130;
(i) Has failed to provide the certification of
non-discrimination required under ORS 279A.110(4); or
(j) Is from a Proposer found non-responsible as
described in OAR 111-005-0055.
(8) Intent to award, discuss or negotiate. After the
protest period provided in subsection (3)(a) expires, or after the Board has
provided a final response to any protest, whichever date is later, the Board
may engage in discussions and negotiations with proposers in the competitive
range.
(9) Discussions and negotiations. If the Board chooses
to enter into discussions and negotiations with the Proposers in the
competitive range, the Board will proceed as follows:
(a) Initiating discussions. The Board must initiate
oral or written discussions and negotiations with all of the proposers in the
competitive range regarding their proposals.
(b) Conducting discussions. The Board may conduct
discussions and negotiations with each proposer in the competitive range as
necessary to fulfill the purposes of this section, but need not conduct the
same amount of discussions or negotiations with each proposer. The Board may
terminate discussions and negotiations with any proposer in the competitive
range at any time. All proposers in the competitive range will be offered the
opportunity to discuss their proposals with the Board before the Board notifies
proposers of the award decisions. In conducting discussions, the Board and any
designated representatives:
(A) Will treat all proposers fairly and will not favor
any proposer over another.
(B) Will not discuss proposers’ proposals with any
other proposers and will maintain all proposals as confidential documents to
the extent permitted by the Public Records Law.
(C) Will not divulge the name of the proposers or the
content of the proposals until cost negotiations are complete or an apparent
successful proposer has been announced.
(D) Will determine whether other factors, including but
not limited to, Oregon residency of the primary business office and proposer
demonstration of services and products, will be used to determine the apparent
successful proposer, if a tie between proposers occurs.
(c) At any time during the period allowed for
discussions and negotiations, the Board may:
(A) Continue discussions and negotiations with a
particular proposer or proposers; or
(B) Terminate discussions with a particular proposer
and continue discussions with other proposers in the competitive range.
(d) The Board may continue discussions and negotiations
with proposers until determining who will be awarded contracts.
(10) Notice of intent to award. The Board will provide
written notice to all proposers of intent to award the contract, unless
otherwise provided in the RFP. The Board’s award will not be final until the
later of the following:
(a) Seven calendar days after the date of the notice,
unless the RFP provided a different period for protest; or
(b) The Board’s written response to all timely filed
protests that denies the protests and affirms the award.
(11) Right to protest award. An adversely affected or
aggrieved proposer may submit to the Board a written protest of the Board’s
intent to award. The protest must be made within seven calendar days after
issuance of the notice of intent to award the contract, unless otherwise
specified in the RFP.
(a) The proposer’s protest must be in writing and must
specify the grounds upon which the protest is based.
(b) A proposer is adversely affected or aggrieved only
if the Proposer would be eligible to be awarded the contract in the event that
the protest were successful, and the reason for the protest is that:
(A) All higher ranked Proposals are nonresponsive;
(B) OEBB has failed to conduct the evaluation of
Proposals in accordance with the criteria or processes described in the RFP;
(C) OEBB has abused its discretion in rejecting the
protestor’s Proposal as nonresponsive; or
(D) OEBB’s evaluation of Proposals or OEBB’s subsequent
determination of award is otherwise in violation of OEBB’s rules or ORS 243.860
to 243.886.
(c) The Board will not consider a protest submitted
after the time period specified in this section or a different period if
provided in the RFP.
(d) The Board Chair, or designee, has the authority to
settle or resolve a written protest meeting the submission requirements of this
rule.
(e) If a protest is not settled, the Board Chair, or
designee, will promptly issue a written decision on the protest. Judicial
review of this decision will be available if provided by statute.
(12) Award of contracts. The Board will approve the
apparent successful proposer(s) based on the Selection Committee and/or
Consultants recommendation and the evaluation criteria included in OAR
111-002-0005(3) and the RFP including, but not limited to, contractor or
consultant availability; capability; experience; approach; compensation
requirements; previous litigation and remedy applied; customer service history
with the OEBB, members and clients; debarment status; and references.
(13) Confidentiality: Until after the notice of intent
to award and contract is issued, Proposals are not required to be open for
public inspection, and OEBB shall in good faith seek to protect Proposals from
disclosure under ORS 192.502(4) as a confidential submission or under other
applicable exemptions from disclosure. There will be no public opening of
proposals. OEBB will not disclose the content of proposals, the number of
proposals submitted, or the names of the proposers that submitted proposals
until after the notice of intent to award. That information may then be
obtained by means of a “Public Records Request” submitted to OEBB. The Intent
to Award letter sent to each individual proposer will include the name of the
Apparent Successful Proposer and the name and ranking of each proposer that
ranked higher than the individual proposer receiving the Intent to Award
letter. After the notice of intent to award and contract is issued, OEBB may
withhold from disclosure to the public, materials included in a Proposal that
are exempt or conditionally exempt from disclosure under ORS 192.501 or
192.502.
(14) Contract. The successful proposer must promptly
execute the contract after the award is final and all contractual terms and
conditions have been negotiated and agreed upon. The Board Chair, or designee,
will execute the contract only after it has obtained all applicable required
documents and contractor signatures.
Stat. Auth.: Ch. 7 OL 2007
Stats. Implemented: Sec. 19, Ch. 7
OL 2007
Hist.: OEBB 1-2007(Temp), f. &
cert. ef. 7-23-07 thru 1-4-08; OEBB 1-2008, f. & cert. ef. 1-4-08; OEBB
18-2010(Temp), f. & cert. ef. 12-13-10 thru 6-10-11; OEBB 10-2011, f. &
cert. ef. 5-3-11; OEBB 1-2012(Temp), f. & cert. ef. 1-13-12 thru 7-10-12
111-005-0042
Intermediate Procurement Process
For an intermediate procurement, the Board will use the
following procedure except as provided for under OAR 111-005-0046 or
111-005-0048.
(1) Announcement. The Board will post solicitation
notices for benefits via the Oregon Procurement and Information Network
(ORPIN). The Board may also post solicitation notices for benefits in trade
periodicals or newspapers of general or specialized circulation. The notice
will include a description of the benefits or services sought, the scope of the
services required, and a description of any special requirements. The notice
will invite qualified prospective proposers to submit proposals. The notice will
specify when and where to obtain the RFP and return the proposal and the
closing date.
(2) Submission. All submitted proposals must comply
with the RFP’s specifications. If portions of the proposal to any solicitation
are deemed unacceptable or non-responsive to the specifications of the
solicitation, the proposal will be deemed non-responsive and will not be given
further evaluation or consideration. If a proposal to any solicitation is
delivered late, it will be deemed non-responsive to the specification of the
solicitation and will be returned to the proposer unopened.
(a) Submission of proposals must be in written hard
copy or electronic format and delivered as required by the specifications of
the solicitation. OEBB is not responsible for unreadable or incomplete
electronic transmissions of proposals or for electronic transmissions that are
not received by the designated OEBB recipient by the closing date and time
stated in the RFP.
(b) The proposal from the prospective proposer will
describe the proposer’s credentials, performance data and other information
sufficient to establish proposer’s qualifications for providing the benefits
sought and all other information requested in the RFP.
(3) Opening. There will be no public opening of
proposals. OEBB will not disclose the content of proposals, the number of
proposals submitted, or the names of the proposers that submitted proposals
until after the notice of intent to award. That information may then be
obtained by means of a “Public Records Request” submitted to OEBB. The Intent
to Award letter sent to each individual proposer will include the name of the
Apparent Successful Proposer and the name and ranking of each proposer that
ranked higher than the individual proposer receiving the Intent to Award letter.
(4) Evaluation. The Selection Committee will evaluate
proposals only in accordance with criteria set forth in the RFP and applicable
law. The Selection Committee and/or Consultants will provide their
recommendations to the Board on the apparent successful proposer(s).
(5) Discussions and negotiations. If the Board chooses
to enter into discussions and negotiations with the proposers, the Board:
(a) Will treat all proposers fairly and will not favor
any proposer over another.
(b) Will not discuss proposers’ proposals with any
other proposers and will maintain all proposals as confidential documents.
(c) Will not divulge the name of the proposers or the
content of the proposals until cost negotiations are complete. (d) Will
determine whether other factors, including but not limited to, Oregon residency
of the primary business office and proposer demonstration of services and
products, will be used to award the contract.
(6) Notice of intent to award. The Board will provide
written notice to all proposers of intent to award the contract, unless
otherwise provided in the RFP. The Board’s award will not be final until the
later of the following:
(a) Seven calendar days after the date of the notice,
unless the RFP provided a different period for protest; or
(b) The Board’s written response to all timely filed
protests that denies the protests and affirms the award.
(7) Right to protest award. An adversely affected or
aggrieved proposer may submit to the Board a written protest of the Board’s
intent to award. The protest must be made within seven calendar days after
issuance of the notice of intent to award the contract, unless otherwise
specified in the RFP.
(a) The proposer’s protest must be in writing and must
specify the grounds upon which the protest is based.
(b) A proposer is adversely affected or aggrieved only
if:
(A) the proposer is eligible for award of the contract
as a responsible proposer; and
(B) the Board committed a substantial violation of a
provision in the RFP or of an applicable procurement statute or administrative
rule.
(c) The Board will not consider a protest submitted
after the time period specified in this section or a different period if
provided in the RFP.
(d) The Board Chair, or designee, has the authority to
settle or resolve a written protest meeting the submission requirements of this
rule.
(e) If a protest is not settled, the Board Chair, or
designee, will promptly issue a written decision on the protest. Judicial
review of this decision will be available if provided by statute.
(8) Award of contracts. The Board will approve the
apparent successful proposer(s) based on the evaluation the Selection Committee
and/or Consultant recommendation and the criteria included in OAR
111-002-0005(3) and the RFP including, but not limited to, contractor
availability; capability; experience; approach; compensation requirements;
previous litigation and remedy applied; customer service history with the OEBB,
members and clients; debarment status; and references. The Board will place emphasis
on employee choice among high-quality plans, plan performance and information,
a competitive marketplace, employer flexibility in plan design and contracting,
quality customer service, creativity and innovation and the improvement of
employee health.
(9) Confidentiality: Until after the notice of intent
to award and contract is issued, Proposals are not required to be open for
public inspection, and OEBB shall in good faith seek to protect Proposals from
disclosure under ORS 192.502(4) as a confidential submission or under other
applicable exemptions from disclosure. After the notice of intent to award and
contract is issued, OEBB may withhold from disclosure to the public, materials
included in a Proposal that are exempt or conditionally exempt from disclosure
under ORS 192.501 or 192.502.
(10) Contract. The successful proposer must promptly
execute the contract after the award is final. The Board Chair, or designee,
will execute the contract only after it has obtained all applicable required
documents and contractor signatures.
(11) An amendment for additional services shall not
increase the total contract cost to a sum that is greater than twenty-five
percent of the original contract cost.
Stat. Auth.: ORS 243.860 –
243.886
Stats. Implemented: ORS 243.864
Hist.: OEBB 1-2007(Temp), f. &
cert. ef. 7-23-07 thru 1-4-08; OEBB 1-2008, f. & cert. ef. 1-4-08; OEBB
18-2010(Temp), f. & cert. ef. 12-13-10 thru 6-10-11; OEBB 10-2011, f. &
cert. ef. 5-3-11; OEBB 1-2012(Temp), f. & cert. ef. 1-13-12 thru 7-10-12
Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2011.
2.) Copyright 2012 Oregon Secretary of State: Terms and Conditions of Use |