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Oregon Bulletin

August 1, 2012

Department of Justice, Chapter 137

Rule Caption: Fees for Public Records.

Adm. Order No.: DOJ 7-2012

Filed with Sec. of State: 6-27-2012

Certified to be Effective: 7-1-12

Notice Publication Date: 5-1-2012

Rules Amended: 137-008-0010

Subject: Amends fees chargeable by the Department of Justice for responding to public records requests to reflect the current billing rates underlying the department’s budget. Those rates are described in LFO Analysis of 2011-13 Legislatively Adopted Budget, available at http://www.leg.state.or.us/comm/lfo/2011-13/2011-13_lab_publicsafety.pdf or from the Legislative Fiscal Office.

Rules Coordinator: Carol Riches—(503) 947-4700

137-008-0010

Fees for Public Records and Publications

(1)(a) The Department of Justice may charge a fee reasonably calculated to reimburse the department for costs of providing and conveying copies of public records. The department shall charge 25¢ per page for the first 20 pages and 15¢ per page thereafter for black and white copies and 70¢ per page for the first 20 pages and 60¢ per page thereafter for color copies to recover the costs of photocopying and normal and reasonable staff time to locate, separate, photocopy and return document(s) to file and to prepare/mail public record(s) to requestors. If, for operational or other reasons, the Department uses the services of an outside facility or contractor to photocopy requested records, the department shall charge the actual costs incurred.

(b) “Page” refers to the number of copies produced, either 8 1/2 x 11 or 8 1/2 x 14. Staff will not reduce the copy size or otherwise manipulate records in order to fit additional records on a page, unless staff concludes that it would be the most effective use of their time. Consistent with ORS 192.240, all copies will be double-sided. A double-sided copy consists of two pages. Because of the increased staff time involved in double-sided copying, there is no reduction in the per page fee.

(c) “Normal and reasonable” staff time is 10 minutes or less per request.

(2) Additional charges for staff time may be made when responding to record requests that require more than the “normal and reasonable” time for responding to routine record requests. Staff time shall be charged at the department’s hourly billing rate, by position, as follows:

(a) Assistant Attorney General: $143/hr;

(b) Alternative Dispute Resolution Coordinator: $93/hr;

(c) Investigator: $108/hr;

(d) Paralegal or Information Technology Staff: $79/hr;

(e) Law Clerk: $39/hr;

(f) General Clerical: $47/hr;

(g) These charges are for staff time in excess of 10 minutes spent locating, compiling, sorting and reviewing records to prepare them for inspection, as well as all time required to segregate or redact exempt information or to supervise inspection of documents. The Department shall not charge for time spent by Assistant Attorneys General in determining the application of the provisions of ORS 192.410 to 192.505.

(3) The Department shall notify a requestor of the estimated costs of making records available for inspection or providing copies of records to the requestor. If the estimated costs exceed $25, the Department shall provide written notice and shall not act further to respond to the request unless and until the requestor confirms that the requestor wants the Department to proceed with making the public records available. All estimated fees and charges must be paid before public records will be made available for inspection or copies provided.

(4) The Department may charge a fee reasonably calculated to reimburse the department for costs of department publications, Oregon District Attorneys Association publications prepared by the Department and other Department materials intended for distribution. A listing of such available publications and materials shall be maintained by the Department librarian. The Department shall charge the following for its regular publications:

(a) Attorney General’s Public Law Conference Papers: $65;

(b) Attorney General’s Administrative Law Manual and Uniform and Model Rules of Procedure Under the APA: $65;

(c) Attorney General’s Public Contracts Manual: $65;

(d) Attorney General’s Public Records and Meetings Manual: $25;

(e) Attorney General Opinions:

(A) Bound Volumes; Volume 20 (1940-42) through Volume 49 (1997-2001) including 2-volume index: $921;

(B) Future Bound Volumes: $70;

(C) Slip Opinion Service (yearly): $60;

(D) Letters of Advice Index, 1969–83: $20;

(E) Letters of Advice Index, 1983–88: $40;

(F) Letters of Advice Index, 1988–93: $40;

(G) Future Letters of Advice Indices: $40.

(f) Core Mediation Training Manual: $95.

Stat. Auth.: ORS 192.430(2) & 192.440(4)
Stats. Implemented: ORS 192.440(4)
Hist.: JD 1-1982, f. & ef. 1-7-82; JD 1-1983(Temp), f. & ef. 5-3-83; JD 7-1983, f. & ef. 11-2-83; JD 4-1984(Temp), f. & ef. 11-7-84; JD 1-1985, f. & ef. 1-23-85; JD 3-1986, f. & ef. 1-27-86; JD 2-1990, f. & cert. ef. 2-14-90; JD 6-1994, f. 10-31-94, cert. ef. 11-1-94; JD 1-1998, f. & cert. ef. 2-4-98; DOJ 9-1999, f. & cert. ef. 12-8-99; DOJ 11-2001, f. & cert. ef. 12-10-01; DOJ 16-2003, f. & cert. ef. 12-9-03; DOJ 18-2003(Temp), f. & cert. ef. 12-10-03 thru 6-1-04; DOJ 13-2004(Temp), f. & cert. ef. 11-1-04 thru 1-31-05; DOJ 1-2005, f. & cert. ef. 1-13-05; DOJ 2-2005, f. & cert. ef. 2-1-05; DOJ 15-2005(Temp), f. & cert. ef. 11-2-05 thru 4-29-06; DOJ 21-2005, f. 12-27-05, cert. ef. 1-1-06; DOJ 8-2008, f. 4-29-08, cert. ef. 5-1-08; DOJ 11-2009, f. & cert. ef. 9-8-09; DOJ 7-2012, f. 6-27-12, cert. ef. 7-1-12


 

Rule Caption: Amends Attorney General’s Model Public Contract Rules, Divisions 46, 47, and 48.

Adm. Order No.: DOJ 8-2012

Filed with Sec. of State: 7-2-2012

Certified to be Effective: 8-1-12

Notice Publication Date: 6-1-2012

Rules Adopted: 137-046-0252, 137-046-0330, 137-047-0560

Rules Amended: 137-046-0300, 137-047-0640, 137-047-0670, 137-047-0800, 137-048-0130, 137-048-0220

Subject: Changes to the Attorney General’s model public contract rules applicable to state and local contracting agencies respond to 2012 legislation and clarify, improve and correct the rules. The changes implement Senate Bill 1518 by authorizing state contracting agencies to solicit and consider bidders’ and proposers’ personnel employment disclosures, and to grant preferences in favor of the bid or proposal that states that the bidder or proposer will employ more workers within this state in contracts for goods and services. The changes also implement Senate Bill 1518 by describing circumstances under which a personal services contractor who assisted a state contracting agency in developing a solicitation document or specifications for a contract for goods or services, or the contractor’s affiliate, should be disqualified from bidding or proposing on that contract. The changes implement Senate Bill 1556 by authorizing state and local contracting agencies to apply a preference in favor of a bidder or proposer whose bid or proposal for a Federal Transit Administration transit project contract exceeds federal Buy America requirements. The changes provide that for purposes of determining if an amendment to a state or local contracting agency’s contract or price agreement for goods or services is within the scope of the procurement, the scope is described in the solicitation documents, sole source notice, or the approved special procurement, not in the contract. With respect to selection procedures for consultants providing architectural, engineering and land surveying services and related services, the changes: i) except from qualifications-based selection procedures selections of consultants providing services not exceeding $100,000 and in emergencies), ii) clarify the information that a contracting agency may consider in directly appointing a consultant, iii) remove the requirement to comply with consultant selection procedures for services associated with legal claims due to a conflict with ORS 279A.025(2)(e), and iv) update language pertaining to energy technology requirements in response to Senate Bill 1533. The changes also make other non-substantive corrections.

Rules Coordinator: Carol Riches—(503) 947-4700

137-046-0252

Personnel Employment Disclosure and Preference — State Agency Contracts for Goods or Services

(1) As authorized by subsection 6(2) of Oregon Laws 2012, chapter 53 (Senate Bill 1518), a state contracting agency may state, in its Solicitation Documents for a procurement of goods or services, that the state contracting agency will consider, and award a preference based on, personnel deployment disclosures submitted by bidders or proposers in response to the solicitation.

(2) A state contracting agency may not reject a bidder or proposer on the ground that it submitted a non-responsive bid or proposal solely due to the bidder’s or proposer’s failure to submit a personnel employment disclosure. However, the state contracting agency may not apply the preference authorized by subsection 6(2) of Oregon Laws 2012, chapter 53 (Senate Bill 1518) in favor of a bidder or proposer that fails to submit a complete and accurate personnel disclosure form with its bid or proposal on or before the date and time bids or proposals are due.

(3) To qualify for the application of the preference under subsection 6(2) of Oregon Laws 2012, chapter 53 (Senate Bill 1518), a bidder’s or proposer’s personnel deployment disclosure form must state:

(a) The number of workers the bidder or proposer and the bidder’s or proposer’s subcontractors will, if awarded a contract, deploy to perform the overall contract work described in the Solicitation Documents.

(b) The number of workers the bidder or proposer and the bidder’s or proposer’s first-tier subcontractors will, if awarded a contract, employ in this state to perform contract work described in the Solicitation Documents.

(c) The number of jobs to be held by workers employed by the bidder or proposer and by the bidder’s or proposer’s subcontractors to perform the contract work described in the Solicitation Documents that will be newly created jobs that result from the award of the contract.

(d) The duration of the work of any workers (stated in number of work days) who will be employed in this state to perform contract work described in the Solicitation Documents for all workers (including workers of first-tier subcontractors) for whom the work duration will not be as long as the initial term of the contract.

(e) The rates of pay of all reported workers (including workers of first-tier subcontractors), described either individually, by position, or by job classification, who will be employed in this state to perform contract work described in the Solicitation Documents.

(4) To qualify for the application of the preference under subsection 6(2) of Oregon Laws 2012, chapter 53 (Senate Bill 1518), a bidder or proposer must make a promise in its bid or proposal to ensure that the deployment of workers will comply, in terms of worker positions, duration of the work, and the location of the employment of workers, with the personnel deployment disclosure submitted with its bid or proposal. If awarded a contract, a bidder or proposer must commit, in the contract, to ensure that the deployment of workers will comply, in terms of worker positions, duration of the work, and the location of the employment of workers, with the personnel deployment disclosure submitted with its bid or proposal. In the contract, the contractor must agree to pass this obligation to all first-tier subcontractors.

(5) A state contracting agency may require a contractor under a contract awarded with the application of the preference under subsection 6(2) of Oregon Laws 2012, chapter 53 (Senate Bill 1518) to submit, on a monthly or other periodic basis, the contractor’s certification of its employment of workers and its first-tier subcontractors’ workers) within this state in accordance with the contractor’s personnel deployment disclosure.

(6) A state contracting agency may give a preference of not more than ten percent to a bid or proposal that states that the bidder or proposer (and its first-tier subcontractors) will employ more workers within this state than competing bidders or proposers. In determining the bidder or proposer who will employ more workers within this state, the state contracting agency may take the rates of pay and the duration of the work into account by averaging the rates of pay for all disclosed in-state work positions and averaging the duration of the in-state work positions among all disclosed in-state work positions. Before granting the preference to a bid or proposal, the agency must determine that the competing proposals otherwise suit the state agency’s specifications for the procurement equally well.

(7) In applying the preference, a state contracting agency must achieve fairness by assigning a standard work-deployment period for each solicitation that does not exceed the duration of the initial term of any contract awarded with the application of the preference, or in project completion-based contracts, does not exceed the probable duration of the project work exclusive of a contractor’s performance of warranty work and maintenance.

(8) Where a state contracting agency determines that a personnel deployment disclosure unreasonably or unrealistically overstates the number of workers a bidder or proposer (and first-tier subcontractors) will employ within this state, the state contracting agency may reject the bid or proposal on grounds of bidder or proposer non-responsibility, or in a proposal situation, may deduct proposal evaluation points.

Stat. Auth.: ORS 279A.065
Stats. Implemented: 2012 OL, ch 53
Hist.: DOJ 8-2012, f. 7-2-12, cert. ef. 8-1-12

137-046-0300

Preference for Oregon Goods and Services

(1) Tiebreaker Preference and Award When Offers Are Identical. Under ORS 279A.120, when a Contracting Agency receives Offers identical in price, fitness, availability and quality, and chooses to Award a Contract, the Contracting Agency shall Award the Contract based on the following order of precedence:

(a) The Contracting Agency shall Award the Contract to the Offeror among those submitting identical Offers who is offering Goods or Services, or both, or Personal Services, that are manufactured, produced or to be performed in Oregon.

(b) If two or more Offerors submit identical Offers, and they all offer Goods or Services, or both, or Personal Services, that are manufactured, produced or to be performed in Oregon, the Contracting Agency shall Award the Contract by drawing lots among the identical Offers. The Contracting Agency shall provide the Offerors who submitted the identical Offers notice of the date, time and location of the drawing of lots and an opportunity for these Offerors to be present when the lots are drawn.

(c) If the Contracting Agency receives identical Offers, and none of the identical Offers offer Goods or Services, or both, or Personal Services, that are manufactured, produced or to be performed in Oregon, then the Contracting Agency shall award the Contract by drawing lots among the identical Offers. The Contracting Agency shall provide to the Offerors who submitted the identical Offers notice of the date, time and location of the drawing of lots and an opportunity for these Offerors to be present when the lots are drawn.

(2) Determining if Offers are Identical. A Contracting Agency shall consider Offers identical in price, fitness, availability and quality as follows:

(a) Bids received in response to an Invitation to Bid are identical in price, fitness, availability and quality if the Bids are Responsive, and offer the Goods or Services, or both, or Personal Services, described in the Invitation to Bid at the same price.

(b) Proposals received in response to a Request for Proposals are identical in price, fitness, availability and quality if they are Responsive and achieve equal scores when scored in accordance with the evaluation criteria set forth in the Request for Proposals.

(c) Offers received in response to a Special Procurement conducted under ORS 279B.085 are identical in price, fitness, availability and quality if, after completing the contracting procedure approved by the Contract Review Authority, the Contracting Agency determines, in Writing, that two or more Offers are equally advantageous to the Contracting Agency.

(d) Offers received in response to an intermediate Procurement conducted pursuant to ORS 279B.070 are identical if the Offers equally best serve the interests of the Contracting Agency in accordance with 279B.070(4).

(3) Determining if Goods or Services or Personal Services are Manufactured or Produced in Oregon. In applying Section 1 of this rule, Contracting Agencies shall determine whether a Contract is predominantly for Goods, Services or Personal Services and then use the predominant purpose to determine if the Goods, Services or Personal Services are manufactured, produced, or performed in Oregon. Contracting Agencies may request, either in a Solicitation Document, following Closing, or at any other time the Contracting Agency determines is appropriate, any information the Contracting Agency may need to determine if the Goods, Services or Personal Services are manufactured or produced in Oregon. A Contracting Agency may use any reasonable criteria to determine if Goods, Services or Personal Services are manufactured, produced, or performed in Oregon, provided that the criteria reasonably relate to that determination, and provided that the Contracting Agency applies those criteria equally to each Offer.

(4) Procedure for Drawing Lots. When this rule calls for the drawing of lots, the Contracting Agency shall draw lots by a procedure that affords each Offeror subject to the drawing a substantially equal probability of selection and that does not allow the person making the selection the opportunity to manipulate the drawing of lots to increase the probability of selecting one Offeror over another.

(5) Discretionary Preference and Award. Under ORS 279A.128, a Contracting Agency may provide, in a Solicitation Document for Goods, Services or Personal Services, a specified percentage preference of not more than ten percent for Goods fabricated or processed entirely in Oregon or Services or Personal Services performed entirely in Oregon. When the Contracting Agency provides for a preference under this Section, and more than one Offeror qualifies for the preference, the Contracting Agency may give a further preference to a qualifying Offeror that resides in or is headquartered in Oregon. A Contracting Agency may establish a preference percentage higher than ten percent by written order that finds good cause to establish the higher percentage and which explains the Contracting Agency’s reasons and evidence for finding good cause to establish a higher percentage. A Contracting Agency may not apply the preferences described in this Section in a Procurement for emergency work, minor alterations, ordinary repairs or maintenance of public improvements, or construction work that is described in ORS 297C.320.

Stat. Auth.: ORS 279A.065; OL 2011, ch 237
Stats. Implemented: ORS 279A.065; 279A.120 & 279A.128; OL 2011, ch 237
Hist.: DOJ 11-2004, f. 9-1-04, cert. ef. 3-1-05; DOJ 20-2005, f. 12-27-05, cert. ef. 1-1-06; DOJ 10-2011, f. 11-29-11, cert. ef. 1-1-12; DOJ 8-2012, f. 7-2-12, cert. ef. 8-1-12

137-046-0330

Federally Funded Transit Projects — Preference for Exceeding Federal Buy America Requirements

(1) A contracting agency, in its Solicitation Documents to award a contract for a transit project that will be funded in whole or in part with funds from the federal government or a federal government agency, may provide for the application of a preference in favor of an Offeror whose bid or proposal exceeds the applicable federal Buy America requirements.

(a) A contracting agency has discretion to adjust the amount or character of the preference to account for variations in the nature of the contract or project, and the degree to which each Offeror’s bid or proposal exceeds the federal Buy America requirements.

(b) For example, in an invitation to bid procurement the contracting agency may authorize a range of preference price percentages to account for the various degrees to which the bidders might exceed the federal Buy America requirements. In no event, however, may the percentage preference given to a bidder exceed ten percent of the total bid price.

(c) Similarly, under a request for proposals, the contracting agency may allocate and award evaluation points to reflect the degrees to which the proposers might exceed the applicable federal Buy America requirements. In no event, however, may those percentage points exceed ten percent of the total number of points available for award under the request for proposals.

Stat. Auth.: ORS 279A.065
Stats. Implemented: 2012 OL, ch 58
Hist.: DOJ 8-2012, f. 7-2-12, cert. ef. 8-1-12

137-047-0560

Personal Services Contract to Provide Specifications — State Agency Disqualification as Bidder or Proposer

(1) For the purposes of subsection 2(1) of Oregon Laws 2012, chapter 53 (Senate Bill 1518), a reasonable person would believe that a person who assisted a state contracting agency, under a personal services contract, in the development of a solicitation for goods or services (or that person’s affiliate), would have an advantage in obtaining the public contract that is the subject of the solicitation if:

(a) The specifications recommended by the personal service contractor for the sequence of services, incorporation of special service or fabrication techniques, or design of any goods or components or elements of goods that the state contracting agency published in its solicitation documents call for, expressly or implicitly, requirements that only the personal services contractor (or the contractor’s affiliate), or a limited class of individuals in the contractor’s area of specialty, have the ability to perform or produce or have the rights to perform or produce.

(b) The rendering of solicitation document development assistance under the personal services contract gives the contractor knowledge of the state contracting agency’s special needs or procedures, not generally known to the public, that give the contractor (or the contractor’s affiliate) a material competitive advantage in competing for the contract for goods or services.

(c) The rendering of solicitation document development assistance under the personal services contract gives the contractor, significantly in advance of other prospective bidders or proposers, knowledge of the solicitation document requirements that would allow the personal services contractor (or the contractor’s affiliate) a materially longer period in which to craft or refine a proposal in response to the solicitation documents.

(2) For the purposes of subsection 2(1) of Oregon Laws 2012, chapter 53 (Senate Bill 1518), a reasonable person would believe that a person who assisted a state contracting agency, under a personal services contract, in the development of a solicitation for goods or services (or that person’s affiliate) would appear to have an advantage in obtaining the public contract that is the subject of the solicitation if:

(a) Taking into account the personal services contractor’s announced areas of specialization, expertise or experience, the personal service contractor (or the contractor’s affiliate), or only a limited class of individuals in the contractor’s area of specialty, appear to have the capability to conform closely with the solicitation document requirements.

(b) Taking into account the personal services contractor’s announced areas of specialization, expertise or experience, the personal service contractor (or the contractor’s affiliate), or only a severely limited class of individuals in the contractor’s area of specialty, appear to have the qualifications, training, experience or capacity to satisfy any minimum requirements that may be stated in the solicitation documents.

(c) The solicitation documents for a contract for goods or services contain restrictions, deadlines or requirements that do not, when viewed objectively, reasonably promote rational procurement objectives of the state contracting agency.

(3) If a state contracting agency engages a personal services contractor to advise or assist in the development of solicitation documents for a public contract for goods or services and the personal services contractor is engaged in the business of providing goods or services described in the solicitation documents, and the agency wishes to accept a bid or proposal from the personal services contractor under conditions described in section (2) or section (3) of this rule, the agency must apply to the Director of the Department of Administrative Services, as permitted by subsection 2(2) of Oregon Laws 2012, chapter 53 (Senate Bill 1518), for an exemption from the disqualification from the ability to submit a bid or proposal.

Stat. Auth.: ORS 279A.065
Stats. Implemented: 2012 OL, ch 53
Hist.: DOJ 8-2012, f. 7-2-12, cert. ef. 8-1-12

137-047-0640

Rejection of an Offer

(1) Rejection of an Offer.

(a) A Contracting Agency may reject any Offer as set forth in ORS 279B.100.

(b) The Contracting Agency shall reject an Offer upon the Contracting Agency’s finding that the Offer:

(A) Is contingent upon the Contracting Agency’s acceptance of terms and conditions (including Specifications) that differ from the Solicitation Document;

(B) Takes exception to terms and conditions (including Specifications) set forth in the Solicitation Document;

(C) Attempts to prevent public disclosure of matters in contravention of the terms and conditions of the Solicitation Document or in contravention of applicable law;

(D) Offers Goods or Services that fail to meet the Specifications of the Solicitation Document;

(E) Is late;

(F) Is not in substantial compliance with the Solicitation Document; or

(G) Is not in substantial compliance with all prescribed public Procurement procedures.

(c) The Contracting Agency shall reject an Offer upon the Contracting Agency’s finding that the Offeror:

(A) Has not been prequalified under ORS 279B.120 and the Contracting Agency required mandatory prequalification;

(B) Has been Debarred as set forth in ORS 279B.130 or has been disqualified pursuant to OAR 137-046-0210(3) (DBE Disqualification);

(C) Has not met the requirements of ORS 279A.105, if required by the Solicitation Document;

(D) Has not submitted properly executed Bid or Proposal security as required by the Solicitation Document;

(E) Has failed to provide the certification of non-discrimination required under ORS 279A.110(4); or

(F) Is non-Responsible. Offerors are required to demonstrate their ability to perform satisfactorily under a Contract. Before Awarding a Contract, the Contracting Agency must have information that indicates that the Offeror meets the applicable standards of Responsibility. To be a Responsible Offeror, the Contracting Agency must determine pursuant to ORS 279B.110 that the Offeror:

(i) Has available the appropriate financial, material, equipment, facility and personnel resources and expertise, or ability to obtain the resources and expertise, necessary to meet all contractual responsibilities;

(ii) Has completed previous contracts of a similar nature with a satisfactory record of performance. A satisfactory record of performance means that to the extent the costs associated with and time available to perform a previous contract were within the Offeror’s control, the Offeror stayed within the time and budget allotted for the Procurement and otherwise performed the contract in a satisfactory manner. A Contracting Agency should carefully scrutinize an Offeror’s record of contract performance if the Offeror is or recently has been materially deficient in contract performance. In reviewing the Offeror’s performance, the Contracting Agency should determine whether the Offeror’s deficient performance was expressly excused under the terms of the contract, or whether the Offeror took appropriate corrective action. The Contracting Agency may review the Offeror’s performance on both private and public contracts in determining the Offeror’s record of contract performance. The Contracting Agency shall make its basis for determining an Offeror non-Responsible under this subparagraph part of the Procurement file pursuant to ORS 279B.110(2)(b);

(iii) Has a satisfactory record of integrity. An Offeror may lack integrity if a Contracting Agency determines the Offeror demonstrates a lack of business ethics such as violation of state environmental laws or false certifications made to a Contracting Agency. A Contracting Agency may find an Offeror non-Responsible based on the lack of integrity of any Person having influence or control over the Offeror (such as a key employee of the Offeror that has the authority to significantly influence the Offeror’s performance of the Contract or a parent company, predecessor or successor Person). The standards for Debarment under ORS 279B.130 may be used to determine an Offeror’s integrity. A Contracting Agency may find an Offeror non-responsible based on previous convictions of offenses related to obtaining or attempting to obtain a contract or subcontract or in connection with the Offeror’s performance of a contract or subcontract. The Contracting Agency shall make its basis for determining that an Offeror is non-Responsible under this subparagraph part of the Procurement file pursuant to 279B.110(2)(c);

(iv) Is legally qualified to contract with the Contracting Agency; and

(v) Has supplied all necessary information in connection with the inquiry concerning Responsibility. If the Offeror fails to promptly supply information requested by the Contracting Agency concerning Responsibility, the Contracting Agency shall base the determination of Responsibility upon any available information, or may find the Offeror non-Responsible.

(2) Form of Business Entity. For purposes of this rule, the Contracting Agency may investigate any Person submitting an Offer. The investigation may include that Person’s officers, directors, owners, affiliates, or any other Person acquiring ownership of the Person to determine application of this rule or to apply the Debarment provisions of ORS 279B.130.

Stat. Auth.: ORS 279A.065
Stats. Implemented: ORS 279B.100 & 279B.110
Hist.: DOJ 11-2004, f. 9-1-04, cert. ef. 3-1-05; DOJ 15-2009, f. 12-1-09, cert. ef. 1-1-10; DOJ 8-2012, f. 7-2-12, cert. ef. 8-1-12

137-047-0670

Disposition of Offers if Procurement or Solicitation Canceled

(1) Prior to Opening. If the Contracting Agency cancels a Procurement or solicitation prior to Opening, the Contracting Agency shall return all Offers it received to Offerors unopened, provided the Offeror submitted its Offer in a hard copy format with a clearly visible return address. If there is no return address on the envelope, the Contracting Agency shall open the Offer to determine the source and then return it to the Offeror. For Electronic Offers, the Contracting Agency shall delete the Offers from the Contracting Agency’s Electronic Procurement System or information technology system.

(2) After Opening. If the Contracting Agency cancels a Procurement or solicitation after Opening, the Contracting Agency:

(a) May return Proposals in accordance with ORS 279B.060(56)(c); and

(b) Shall keep Bids in the Procurement file.

(3) Rejection of All Offers. If the Contracting Agency rejects all Offers, the Contracting Agency shall keep all Proposals and Bids in the Procurement file.

Stat. Auth.: ORS 279A.065
Stats. Implemented: ORS 279B.100
Hist.: DOJ 11-2004, f. 9-1-04, cert. ef. 3-1-05; DOJ 8-2012, f. 7-2-12, cert. ef. 8-1-12

137-047-0800

Amendments to Contracts and Price Agreements

(1) Generally. A Contracting Agency may amend a Contract without additional competition in any of the following circumstances:

(a) The amendment is within the scope of the Procurement as described in the Solicitation Documents, if any, or if no Solicitation Documents, as described in the sole source notice or the approved Special Procurement, if any. An amendment is not within the scope of the Procurement if the Agency determines that if it had described in the Procurement the changes to be made by the amendment, it would likely have increased competition or affected award of the Contract.

(b) These Model Rules otherwise permit the Contracting Agency to Award a Contract without competition for the goods or services to be procured under the Amendment.

(c) The amendment is necessary to comply with a change in law that affects performance of the Contract.

(d) The amendment results from renegotiation of the terms and conditions, including the Contract Price, of a Contract and the amendment is Advantageous to the Contracting Agency, subject to all of the following conditions:

(A) The Goods or Services to be provided under the amended Contract are the same as the Goods or Services to be provided under the unamended Contract.

(B) The Contracting Agency determines that, with all things considered, the amended Contract is at least as favorable to the Contracting Agency as the unamended Contract.

(C) The amended Contract does not have a total term greater than allowed in the Solicitation Documents, if any, or if no Solicitation Documents, as described in the sole source notice or the approved Special Procurement, if any, after combining the initial and extended terms. For example, a one-year Contract described as renewable each year for up to four additional years, may be renegotiated as a two to five-year Contract, but not beyond a total of five years.

(2) Small or Intermediate Contract. A Contracting Agency may amend a Contract Awarded as a small or intermediate Procurement pursuant to section (1) of this rule, provided that the total increase in Contract price does not exceed the amount set forth in OAR 137-047-0265 for small Procurements or 137-047-0270 for intermediate Procurements.

(3) Price Agreements. A Contracting Agency may amend a Price Agreement as follows:

(a) As permitted by the Price Agreement;

(b) If the circumstances set forth in ORS 279B.140(2) exist; or

(c) As permitted by applicable law.

Stat. Auth.: ORS 279A.065
Stats. Implemented: ORS 279A.065
Hist.: DOJ 11-2004, f. 9-1-04, cert. ef. 3-1-05; DOJ 20-2005, f. 12-27-05, cert. ef. 1-1-06; DOJ 15-2009, f. 12-1-09, cert. ef. 1-1-10; DOJ 10-2011, f. 11-29-11, cert. ef. 1-1-12; DOJ 8-2012, f. 7-2-12, cert. ef. 8-1-12

137-048-0130

Applicable Selection Procedures; Pricing Information; Disclosure of Proposals; Conflicts of Interest

(1) When selecting the most qualified Consultant to perform Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services, Contracting Agencies shall follow the applicable selection procedure under either OAR 137-048-0200 (Direct Appointment Procedure), 137-048-0210 (Informal Selection Procedure) or 137-048-0220 (Formal Selection Procedure). Contracting Agencies selecting a Consultant under this section (1) may solicit or use pricing policies and pricing proposals, or other pricing information, including the number of hours proposed for the services required, expenses, hourly rates and overhead, to determine a Consultant’s compensation only after the Contracting Agency has selected the most qualified Consultant in accordance with the applicable selection procedure; provided, however, this restriction on a Contracting Agency’s solicitation or use of pricing policies, pricing proposals or other pricing information does not apply to selection procedures used by the Contracting Agency to select a Consultant when the Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services for the Project do not exceed $100,000 or in an Emergency, pursuant to ORS 279C.0110(8) and (9). In following the Direct Appointment Procedure under OAR 137-048-0200, a Contracting Agency may base its selection of a Consultant on any information available to the Agency prior to beginning the Direct Appointment Procedure for the Project involved.

(2) Contracting Agencies selecting Consultants to perform Related Services shall follow one of the following selection procedures:

(a) When selecting a Consultant on the basis of qualifications alone, Contracting Agencies shall follow the applicable selection procedure under either OAR 137-048-0200 (Direct Appointment Procedure), 137-048-0210 (Informal Selection Procedure) or 137-048-0220 (Formal Selection Procedure);

(b) When selecting a Consultant on the basis of price competition alone, Contracting Agencies shall follow either the provisions under OAR chapter 137, division 47 for obtaining and evaluating Bids, or 137-048-0200 (Direct Appointment Procedure) if the requirements of 137-048-0200(1) apply; and

(c) When selecting a Consultant on the basis of price and qualifications, Contracting Agencies shall follow either the provisions under OAR chapter 137, division 47 for obtaining and evaluating Proposals, or 137-048-0200 (Direct Appointment Procedure) if the requirements of 137-048-0200(1) apply. Contracting Agencies subject to this section (2) may request and consider a Proposer’s pricing policies and pricing proposals or other pricing information, including the number of hours proposed for the services required, expenses, hourly rates and overhead, submitted with a Proposal.

(3) A Contracting Agency is not required to follow the procedures in Section (1) or Section (2) of this rule, when the Contracting Agency has established Price Agreements with more than one Consultant and is selecting a single Consultant to perform Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services under an individual work order or task order. Provided, however, the criteria and procedures the Contracting Agency uses to select a single Consultant, when the Contracting Agency has established Price Agreements with more than one Consultant, must meet the requirements of OAR 137-048-0270 (Price Agreements).

(4) Contracting Agencies may use electronic methods to screen and select a Consultant in accordance with the procedures described in sections (1) and (2) of this rule. If a Contracting Agency uses electronic methods to screen and select a Consultant, the Contracting Agency shall first promulgate rules for conducting the screening and selection procedure by electronic means, substantially in conformance with OAR 137-047-0330 (Electronic Procurement).

(5) For purposes of these division 48 rules, a “mixed” Contract is one requiring the Consultant to perform Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services, and also provide Related Services, other Services or other related Goods under the Contract. A Contracting Agency’s classification of a procurement that will involve a “mixed” Contract will be determined by the predominant purpose of the Contract. A Contracting Agency will determine the predominant purpose of the Contract by determining which of the Services involves the majority of the total Estimated Fee to be paid under the Contract. If the majority of the total Estimated Fee to be paid under the Contract is for Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services, the Contracting Agency shall comply with the requirements of ORS 279C.110 and section (1) of this rule. If majority of the total Estimated Fee to be paid under the Contract is for Related Services, the Contracting Agency shall comply with the requirements of ORS 279C.120 and section (2) of this rule. If the majority of the total Estimated Fee to be paid under the Contract is for some other Services or Goods under the Public Contracting Code, the Contracting Agency shall comply with the applicable provisions of the Public Contracting Code and divisions 46, 47 and 49 of the Model Rules that match the predominant purpose of the Contract.

(6) In applying these rules, State Contracting Agencies shall support the state’s goal of promoting a sustainable economy in the rural areas of the state.

(7) Consistent with the requirements of ORS 279C.107 and the remaining requirements of ORS 279C.100, 279C.105 and 279C.110 through 279C.125, the following provisions apply to proposals received by a Contracting Agency for Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services:

(a) The term “competitive proposal,” for purposes of ORS 279C.107, includes proposals under OAR 137-048-0200 (Direct Appointment Procedure), 137-048-0210 (Informal Selection Procedure), 137-048-0220 (Formal Selection Procedure) or 137-048-0130(2)(c) (selection based on price and qualifications) and any proposals submitted in response to a selection process for a work order or task order under 137-048-0270 (Price Agreements).

(b) For purposes of proposals received by a Contracting Agency under OAR 137-048-0200 (Direct Appointment Procedure), a formal notice of intent to award is not required. As a result, while a Contracting Agency may make proposals under 137-048-0200 (Direct Appointment Procedure) open for public inspection following the Contracting Agency’s decision to begin Contract negotiations with the selected Consultant, 137-048-0200 proposals are not required to be open for public inspection until after the Contracting Agency has executed a Contract with the selected Consultant.

(c) In the limited circumstances permitted by ORS 279C.110, 279C.115 and 279C.120, where the Contracting Agency is conducting discussions or negotiations with proposers who submit proposals that the Contracting Agency has determined to be closely competitive or to have a reasonable chance of being selected for award, the Contracting Agency may open proposals so as to avoid disclosure of proposal contents to competing Proposers, consistent with the requirements of ORS 279C.107. Otherwise, Contracting Agencies may open proposals in such a way as to avoid disclosure of the contents until after the Contracting Agency executes a Contract with the selected Consultant. If the Contracting Agency determines that it is in the best interest of the Contracting Agency to do so, the Contracting Agencies may make proposals available for public inspection following the Contracting Agency’s issuance of a notice of intent to award a Contract to a Consultant; and

(d) Disclosure of proposals and proposal information is otherwise governed by ORS 279C.107.

(8) As required by ORS 279C.307, pertaining to requirements to ensure the objectivity and independence of providers of certain Personal Services which are procured under ORS chapter 279C, Contracting Agencies may not:

(a) Procure the Personal Services identified in ORS 279C.307 from a Contractor or an affiliate of a Contractor who is a party to the Public Contract that is subject to administration, management, monitoring, inspection, evaluation or oversight by means of the Personal Services; or

(b) Procure the Personal Services identified in ORS 279C.307 through the Public Contract that is subject to administration, management, monitoring, inspection, evaluation or oversight by means of the Personal Services.

(9) The requirements of ORS 279C.307 and section (8) of this rule apply in the following circumstances, except as provided in section (10) of this rule:

(a) A Contracting Agency requires the Procurement of Personal Services for the purpose of administering, managing, monitoring, inspecting, evaluating compliance with or otherwise overseeing a Public Contract or performance under a Public Contract that is subject to ORS chapter 279C. A Public Contract that is “subject to ORS chapter 279C” includes a Public Contract for Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services, a Public Contract for Related Services or a Public Contract for construction services under ORS chapter 279C.

(b) The Procurements of Personal Services subject to the restrictions of ORS 279C.307 include, but are not limited to, the following:

(A) Procurements for Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services, which involve overseeing or monitoring the performance of a construction Contractor under a Public Contract for construction services subject to ORS chapter 279C;

(B) Procurements for commissioning services, which involve monitoring, inspecting, evaluating or otherwise overseeing the performance of a Contractor providing Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or the performance of a construction Contractor under a Public Contract for construction services subject to ORS chapter 279C;

(C) Procurements for project management services, which involve administration, management, monitoring, inspecting, evaluating compliance with or otherwise overseeing the performance of a Contractor providing Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services, construction services subject to ORS chapter 279C, commissioning services or other Related Services for a Project;

(D) Procurements for special inspections and testing services, which involve inspecting, testing or otherwise overseeing the performance of a construction Contractor under a Public Contract for construction services subject to ORS chapter 279C; and

(E) Procurements for other Related Services or Personal Services, which involve administering, managing, monitoring, inspecting, evaluating compliance with or otherwise overseeing the Public Contracts described in Section (9)(a) of this rule.

(10) The restrictions of ORS 279C.307 do not apply in the following circumstances, except as further specified below:

(a) To a Contracting Agency’s Procurement of both design services and construction services through a single “Design-Build” Procurement, as that term is defined in OAR 137-049-0610. Such a Design-Build Procurement includes a Procurement under an Energy Savings Performance Contract, as defined in ORS 279A.010. Provided, however, the restrictions of ORS 279C.307 do apply to a Contracting Agency’s Procurement of Personal Services for the purpose of administering, managing, monitoring, inspecting, evaluating compliance with or otherwise overseeing a Design-Build Contract or performance under such a Contract resulting from a Design-Build Procurement; and

(b) To a Contracting Agency’s Procurement of both pre-construction services and construction services through a single “Construction Manager/General Contractor” Procurement, as defined in OAR 137-049-0610. Provided, however, the restrictions of ORS 279C.307 do apply to a Contracting Agency’s Procurement of Personal Services for the purpose of administering, managing, monitoring, inspecting, evaluating compliance with or otherwise overseeing a Construction Manager/General Contractor Contract or performance under such a Contract resulting from a Construction Manager/General Contractor Procurement.

Stat. Auth.: ORS 279A.065, OL 2011, ch 458
Stats. Implemented: ORS 279A.065, 279C.100-279C.125, OL 2009, ch. 880, sec. 11, OL 2011, ch 458
Hist.: DOJ 11-2004, f. 9-1-04, cert. ef. 3-1-05; DOJ 20-2005, f. 12-27-05, cert. ef. 1-1-06; DOJ 19-2007, f. 12-28-07, cert. ef. 1-1-08; DOJ 15-2009, f. 12-1-09, cert. ef. 1-1-10; DOJ 10-2011, f. 11-29-11, cert. ef. 1-1-12; DOJ 8-2012, f. 7-2-12, cert. ef. 8-1-12

137-048-0220

Formal Selection Procedure

(1) Subject to OAR 137-048-0130 (Applicable Selection Procedures; Pricing Information; Disclosure of Proposals), Contracting Agencies shall use the formal selection procedure described in this rule to select Consultants if the Consultants cannot be selected under either 137-048-0200 (Direct Appointment Procedure) or under 137-048-0210 (Informal Selection Procedure). The formal selection procedure described in this rule may otherwise be used at Contracting Agencies’ discretion.

(2) Contracting Agencies using the formal selection procedure shall obtain Contracts through public advertisement of Requests for Proposals, or Requests for Qualifications followed by Requests for Proposals.

(a) Except as provided in subsection (b) of this section, a Contracting Agency shall advertise each RFP and RFQ at least once in at least one newspaper of general circulation in the area where the Project is located and in as many other issues and publications as may be necessary or desirable to achieve adequate competition. Other issues and publications may include, but are not limited to, local newspapers, trade journals, and publications targeted to reach the minority, women and emerging small business enterprise audiences.

(A) A Contracting Agency shall publish the advertisement within a reasonable time before the deadline for the Proposal submission or response to the RFQ or RFP, but in any event no fewer than fourteen (14) calendar days before the closing date set forth in the RFQ or RFP.

(B) A Contracting Agency shall include a brief description of the following items in the advertisement:

(i) The Project;

(ii) A description of the Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services the Contracting Agency seeks;

(iii) How and where Consultants may obtain a copy of the RFQ or RFP; and

(iv) The deadline for submitting a Proposal or response to the RFQ or RFP.

(b) In the alternative to advertising in a newspaper as described in subsection (2)(a) of this rule, the Contracting Agency shall publish each RFP and RFQ by one or more of the electronic methods identified in OAR 137-046-0110(14). The Contracting Agency shall comply with subsections (2)(a)(A) and (2)(a)(B) of this rule when publishing advertisements by electronic methods.

(c) A Contracting Agency may send notice of the RFP or RFQ directly to all Consultants on the Contracting Agency’s list of Consultants that is created and maintained under OAR 137-048-0120 (List of Interested Consultants; Performance Record).

(3) Request for Qualifications Procedure. Contracting Agencies may use the RFQ procedure to evaluate potential Consultants and establish a short list of qualified Consultants to whom the Contracting Agency may issue an RFP for some or all of the Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services described in the RFQ.

(a) A Contracting Agency shall include the following, at a minimum, in each RFQ:

(A) A brief description of the Project for which the Contracting Agency is seeking Consultants;

(B) A description of the Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services the Contracting Agency seeks for the Project;

(C) Conditions or limitations, if any, that may constrain or prohibit the selected Consultant’s ability to provide additional services related to the Project, including but not limited to construction services;

(D) The deadline for submitting a response to the RFQ;

(E) A description of required Consultant qualifications for the Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services the Contracting Agency seeks;

(F) The RFQ evaluation criteria, including weights, points or other classifications applicable to each criterion;

(G) A statement whether or not the Contracting Agency will hold a pre-qualification meeting for all interested Consultants to discuss the Project and the Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services described in the RFQ and if a pre-qualification meeting will be held, the location of the meeting and whether or not attendance is mandatory; and

(H) A Statement that Consultants responding to the RFQ do so solely at their expense, and that the Contracting Agency is not responsible for any Consultant expenses associated with the RFQ.

(b) A Contracting Agency may include a request for any or all of the following in each RFQ:

(A) A statement describing Consultants’ general qualifications and related performance information;

(B) A description of Consultants’ specific qualifications to perform the Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services described in the RFQ including Consultants’ committed resources and recent, current and projected workloads;

(C) A list of similar Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services and references concerning past performance, including but not limited to price and cost data from previous projects, quality of work, ability to meet schedules, cost control and contract administration;

(D) A copy of all records, if any, of Consultants’ performance under Contracts with any other Contracting Agency;

(E) The number of Consultants’ experienced staff committed to perform the Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services described in the RFQ, including such personnel’s specific qualifications and experience and an estimate of the proportion of time that such personnel would spend on those services;

(F) Consultants’ approaches to Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services described in the RFQ and design philosophy, if applicable;

(G) Consultants’ geographic proximity to and familiarity with the physical location of the Project;

(H) Consultants’ Ownership status and employment practices regarding women, minorities and emerging small businesses or historically underutilized businesses;

(I) If the Contracting Agency is selecting a Consultant to provide Related Services, Consultants’ pricing policies and pricing proposals or other pricing information, including the number of hours proposed for the services required, expenses, hourly rates and overhead;

(J) Consultants’ ability to assist a State Contracting Agency in complying with art acquisition requirements, pursuant to ORS 276.073 through 276.090;

(K) Consultants’ ability to assist a State Contracting Agency in complying with State of Oregon energy efficient design requirements, pursuant to ORS 276.900 through 276.915;

(L) Consultants’ ability to assist a Contracting Agency in complying with the energy technology requirements of ORS 279C.527 and 279C.528; and

(M) Any other information the Contracting Agency deems reasonably necessary to evaluate Consultants’ qualifications.

(c) RFQ Evaluation Committee. The Contracting Agency shall establish an RFQ evaluation committee of at least two (2) individuals to review, score and rank the responding Consultants according to the evaluation criteria. The Contracting Agency may appoint to the evaluation committee Contracting Agency employees or employees of other public agencies with experience in Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services, Related Services, construction services or Public Contracting. If the Contracting Agency procedure permits, the Contracting Agency may include on the evaluation committee private practitioners of architecture, engineering, photogrammetry, transportation planning, land surveying or related professions. The Contracting Agency shall designate one member of the evaluation committee as the evaluation committee chairperson.

(d) A Contracting Agency may use any reasonable screening or evaluation method to establish a short list of qualified Consultants, including but not limited to, the following:

(A) Requiring Consultants responding to an RFQ to achieve a threshold score before qualifying for placement on the short list;

(B) Placing a pre-determined number of the highest scoring Consultants on a short list;

(C) Placing on a short list only those Consultants with certain essential qualifications or experience, whose practice is limited to a particular subject area, or who practice in a particular geographic locale or region, provided that such factors are material, would not unduly restrict competition, and were announced as dispositive in the RFQ.

(e) After the evaluation committee reviews, scores and ranks the responding Consultants, the Contracting Agency shall establish a short list of at least three qualified Consultants, if feasible; provided however, if four or fewer Consultants responded to the RFQ or if fewer than three Consultants fail to meet the Contracting Agency’s minimum requirements, then:

(A) The Contracting Agency may establish a short list of fewer than three qualified Consultants; or

(B) The Contracting Agency may cancel the RFQ and issue an RFP.

(f) No Consultant will be eligible for placement on a Contracting Agency’s short list established under subsection (3)(d) of this rule if Consultant or any of Consultant’s principals, partners or associates are members of the Contracting Agency’s RFQ evaluation committee.

(g) Except when the RFQ is cancelled, a Contracting Agency shall provide a copy of the subsequent RFP to each Consultant on the short list.

(4) Formal Selection of Consultants Through Request for Proposals. Contracting Agencies shall use the procedure described in section (4) of this rule when issuing an RFP for a Contract described in section (1) of this rule.

(a) RFP Required Contents. Contracting Agencies using the formal selection procedure shall include at least the following in each Request for Proposals, whether or not the RFP is preceded by an RFQ:

(A) General background information, including a description of the Project and the specific Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services sought for the Project, the estimated Project cost, the estimated time period during which the Project is to be completed, and the estimated time period in which the specific Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services sought will be performed.

(B) The RFP evaluation process and the criteria which will be used to select the most qualified Proposer, including the weights, points or other classifications applicable to each criterion. If the Contracting Agency does not indicate the applicable number of points, weights or other classifications, then each criterion is of equal value. Evaluation criteria may include, but are not limited to, the following:

(i) Proposers’ availability and capability to perform the Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services described in the RFP;

(ii) Experience of Proposers’ key staff persons in providing similar Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services, or Related Services on comparable projects;

(iii) The amount and type of resources, and number of experienced staff persons Proposers have committed to perform the Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services described in the RFP;

(iv) The recent, current and projected workloads of the staff and resources referenced in section (4)(a)(B)(iii), above;

(v) The proportion of time Proposers estimate that the staff referenced in section (4)(a)(B)(iii), above, would spend on the Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services described in the RFP;

(vi) Proposers’ demonstrated ability to complete successfully similar Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services on time and within budget, including whether or not there is a record of satisfactory performance under OAR 137-048-0120 (List of Interested Consultants; Performance Record);

(vii) References and recommendations from past clients;

(viii) Proposers’ performance history in meeting deadlines, submitting accurate estimates, producing high quality work, meeting financial obligations, price and cost data from previous projects, cost controls and contract administration;

(ix) Status and quality of any required license or certification;

(x) Proposers’ knowledge and understanding of the Project and Architectural, Engineering and Land Surveying Services or Related Services described in the RFP as shown in Proposers’ approaches to staffing and scheduling needs for the Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services and proposed solutions to any perceived design and constructability issues;

(xi) Results from interviews, if conducted;

(xii) Design philosophy, if applicable, and approach to the Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services described in the RFP;

(xiii) If the Contracting Agency is selecting a Consultant to provide Related Services, pricing policies and pricing proposals or other pricing information, including the number of hours proposed for the services required, expenses, hourly rates and overhead; and

(xiv) Any other criteria that the Contracting Agency deems relevant to the Project and the Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services described in the RFP, including, where the nature and budget of the Project so warrant, a design competition between competing Proposers. Provided, however, these additional criteria cannot include pricing policies, pricing proposals or other pricing information, including the number of hours proposed for the services required, expenses, hourly rates and overhead, when the sole purpose or predominant purpose of the RFP is to obtain Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services.

(C) Conditions or limitations, if any, that may constrain or prohibit the selected Consultant’s ability to provide additional services related to the Project, including but not limited to construction services;

(D) Whether interviews are possible and if so, the weight, points or other classifications applicable to the potential interview;

(E) The date and time Proposals are due, and the delivery location for Proposals;

(F) Reservation of the right to seek clarifications of each Proposal;

(G) Reservation of the right to negotiate a final Contract that is in the best interest of the Contracting Agency;

(H) Reservation of the right to reject any or all Proposals and reservation of the right to cancel the RFP at anytime if doing either would be in the public interest as determined by the Contracting Agency;

(I) A Statement that Proposers responding to the RFP do so solely at their expense, and Contracting Agency is not responsible for any Proposer expenses associated with the RFP;

(J) A statement directing Proposers to the protest procedures set forth in these division 48 rules;

(K) Special Contract requirements, including but not limited to disadvantaged business enterprise (“DBE”), minority business enterprise (“MBE”), women business enterprise (“WBE”) and emerging small business enterprise (“ESB”) participation goals or good faith efforts with respect to DBE, MBE, WBE and ESB participation, and federal requirements when federal funds are involved;

(L) A statement whether or not the Contracting Agency will hold a pre-Proposal meeting for all interested Consultants to discuss the Project and the Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services described in the RFP and if a pre-Proposal meeting will be held, the location of the meeting and whether or not attendance is mandatory;

(M) A request for any information the Contracting Agency deems reasonably necessary to permit the Contracting Agency to evaluate, rank and select the most qualified Proposer to perform the Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services described in the RFP; and

(N) A sample form of the Contract.

(b) RFP Evaluation Committee. The Contracting Agency shall establish a committee of at least three individuals to review, score and rank Proposals according to the evaluation criteria set forth in the RFP. If the RFP has followed an RFQ, the Contracting Agency may include the same members who served on the RFQ evaluation committee. The Contracting Agency may appoint to the evaluation committee Contracting Agency employees or employees of other public agencies with experience in Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying, Related Services, construction services or Public Contracting. At least one member of the evaluation committee must be a Contracting Agency employee. If the Contracting Agency procedure permits, the Contracting Agency may include on the evaluation committee private practitioners of architecture, engineering, land surveying or related professions. The Contracting Agency shall designate one of its employees who also is a member of the evaluation committee as the evaluation committee chairperson.

(A) No Proposer will be eligible for award of the Contract under the RFP if Proposer or any of Proposer’s principals, partners or associates are members of the Contracting Agency’s RFP evaluation committee for the Contract;

(B) If the RFP provides for the possibility of Proposer interviews, the evaluation committee may elect to interview Proposers if the evaluation committee considers it necessary or desirable. If the evaluation committee conducts interviews, it shall award weights, points or other classifications indicated in the RFP for the anticipated interview; and

(C) The evaluation committee shall provide to the Contracting Agency the results of the scoring and ranking for each Proposer.

(c) If the Contracting Agency does not cancel the RFP after it receives the results of the scoring and ranking for each Proposer, the Contracting Agency will begin negotiating a Contract with the highest ranked Proposer. The Contracting Agency shall direct negotiations toward obtaining written agreement on:

(A) The Consultant’s performance obligations and performance schedule;

(B) Payment methodology and a maximum amount payable to the Consultant for the Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services required under the Contract that is fair and reasonable to the Contracting Agency as determined solely by the Contracting Agency, taking into account the value, scope, complexity and nature of the Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services; and

(C) Any other provisions the Contracting Agency believes to be in the Contracting Agency’s best interest to negotiate.

(d) The Contracting Agency shall, either orally or in writing, formally terminate negotiations with the highest ranked Proposer if the Contracting Agency and Proposer are unable for any reason to reach agreement on a Contract within a reasonable amount of time. The Contracting Agency may thereafter negotiate with the second ranked Proposer, and if necessary, with the third ranked Proposer, and so on, in accordance with section (4)(c) of this rule, until negotiations result in a Contract. If negotiations with any Proposer do not result in a Contract within a reasonable amount of time, the Contracting Agency may end the particular formal solicitation. Nothing in this rule precludes a Contracting Agency from proceeding with a new formal solicitation for the same Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services described in the RFP that failed to result in a Contract.

Stat. Auth.: ORS 279A.065, OL 2011, ch 458
Stats. Implemented: ORS 279C.110, 279C.527, OL 2011, ch 458
Hist.: DOJ 11-2004, f. 9-1-04, cert. ef. 3-1-05; DOJ 20-2005, f. 12-27-05, cert. ef. 1-1-06; DOJ 19-2007, f. 12-28-07, cert. ef. 1-1-08; DOJ 15-2009, f. 12-1-09, cert. ef. 1-1-10; DOJ 10-2011, f. 11-29-11, cert. ef. 1-1-12; DOJ 8-2012, f. 7-2-12, cert. ef. 8-1-12


 

Rule Caption: Child support guidelines self-support reserve amount.

Adm. Order No.: DOJ 9-2012

Filed with Sec. of State: 7-2-2012

Certified to be Effective: 7-2-12

Notice Publication Date: 5-1-2012

Rules Amended: 137-050-0745

Subject: OAR 137-050-0745 is amended to update the self-support reserve amount.

Rules Coordinator: Lori Woltring—(503) 947-4367

137-050-0745

Self-Support Reserve

(1) A support calculation must ensure that a parent being ordered to pay support is left with enough income to meet his or her own basic needs. This is known as the Self Support Reserve and is determined as follows:

(a) Determine the parent’s adjusted income as provided in OAR 137-050-0715;

(b) Calculate the parent’s income available for support by subtracting a self-support reserve of $1086 from the parent’s adjusted income;

(c) Compare the amount of income available for support to the amount of support that was calculated under OAR 137-050-0710(8). The lesser of the two amounts is presumed to be the correct support amount.

(2) Any available income remaining after application of the self-support reserve in step (1)(c) is the income available for medical support.

(3) This rule does not apply to an incarcerated obligor as defined in OAR 137-055-3300.

(4) The amount of the self-support reserve (SSR) is based on the federal poverty guideline (FPG), and is adjusted to account for estimated taxes using a 1.167 multiplier (SSR = FPG x 1.167). The self-support reserve amount will be reviewed and updated annually.

Stat. Auth.: ORS 25.275, 25.280 & 180.345
Stats. Implemented: ORS 25.275 & 25.280
Hist.: DOJ 16-2009, f. 12-1-09, cert. ef. 1-4-10; DOJ 1-2011(Temp), f. & cert. ef. 1-26-11 thru 7-24-11; DOJ 5-2011, f. & cert. ef. 7-1-11; DOJ 9-2012, f. & cert. ef. 7-2-12


 

Rule Caption: Adopts Rules Required by 2012 Legislation to Implement Foreclosure Avoidance Mediation Program.

Adm. Order No.: DOJ 10-2012(Temp)

Filed with Sec. of State: 7-6-2012

Certified to be Effective: 7-11-12 thru 1-6-13

Notice Publication Date:

Rules Adopted: 137-110-0001, 137-110-0005, 137-110-0010, 137-110-0020, 137-110-0110, 137-110-0200, 137-110-0210, 137-110-0410, 137-110-0420, 137-110-0430, 137-110-0500, 137-110-0510, 137-110-0520, 137-110-0600, 137-110-0610, 137-110-0620, 137-110-0630, 137-110-0640, 137-110-0650, 137-110-0660, 137-110-0670

Subject: These rules implement the Foreclosure Avoidance Mediation Program established by Oregon Laws 2012, chapter 112. These rules provide:

 - The accepted methods for providing statutorily-required notice to the Attorney General;

 - The minimum training, qualifications and experience required of program mediators;

 - The fees that must be paid by the parties, the timing of fee payments, and the requirements for obtaining a waiver by low-income grantors;

 - The form for, and contents of, the notice of mediation that must be created by certain beneficiaries seeking non-judicial foreclosure;

 - The form for, and contents of, the mediation scheduling notice issued by the program’s mediation service provider;

 - The form for, and contents of, an affidavit exempting a grantor from the requirement to see a housing counselor within a certain timeframe;

 - The mediation guidelines that provide for the role of program mediators; documents required of both parties and the schedule for providing those documents; procedures for rescheduling or adjourning mediation sessions; confidentiality provisions; role of interpreters; means of executing agreements; and the procedure for providing a certificate of compliance to the beneficiary and the contents of that certificate.

Rules Coordinator: Carol Riches—(503) 947-4700

137-110-0001

Purpose

These division 110 rules govern the foreclosure avoidance mediation program created by Oregon Laws 2012, chapter 112.

Stat. Auth.: 2012 OL Ch. 112, Sec. 2(2), 2(5), 2(7), 2a(3), 3 & 4a(4)
Stats. Implemented: 2012 OL Ch. 112
Hist.: DOJ 10-2012(Temp), f. 7-6-12, cert. ef. 7-11-12 thru 1-6-13

137-110-0005

Application

These division 110 rules apply to any mediation resulting from the issuance of a notice of mediation by a beneficiary seeking to foreclose a residential trust deed pursuant to ORS 86.735 and to an at-risk grantor’s request to enter into foreclosure avoidance mediation with respect to a residential trust deed.

Stat. Auth.: 2012 OL Ch. 112, Sec. 2(5) & 2(7)
Stats. Implemented: 2012 OL Ch. 112
Hist.: DOJ 10-2012(Temp), f. 7-6-12, cert. ef. 7-11-12 thru 1-6-13

137-110-0010

Definitions

As used in these division 110 rules, unless a specific rule provides otherwise for purposes of that rule:

(1) “Date of mediation” means the date of the mediation session with the beneficiary or the beneficiary’s agent and a mediator and grantor present.

(2) “Foreclosure Avoidance Mediation Program” means the mediation program established under Oregon Laws 2012, chapter 112.

(3) “Foreclosure avoidance mediation roster” means the roster of qualified mediators maintained by the mediation service provider.

(4) “Housing counselor” means an individual or entity offering guidance on home buying, renting, reverse mortgages and default and foreclosure prevention

(5) “Mediation” means a process undertaken under the Foreclosure Avoidance Mediation Program in which a mediator assists and facilitates the grantor and beneficiary in attempting to reach a mutually acceptable resolution of a controversy involving a residential trust deed loan and includes all contacts between a mediator and any party or agent of a party, until such time as a resolution is agreed to by the parties. Mediation begins with the first contact between a grantor or beneficiary and the mediation service provider and concludes when an agreement is reached between the grantor and the beneficiary or, in the event an agreement is not reached, with the issuance of a certificate of compliance by the mediation service provider or the closure of the case by the mediation service provider without the issuance of a certificate of compliance.

(6) “Mediation agreement” means an agreement arising out of a mediation, including any term or condition of the agreement.

(7) “Mediation communications” means:

(a) All communications that are made in the course of or in connection with a mediation, to a mediator, a mediation program or a party to, or any other person present at, the mediation proceedings; and

(b) All memoranda, work products, documents and other materials, including any draft mediation agreement, that are prepared for or submitted in the course of or in connection with a mediation or submitted by a mediator, the mediation service provider or a party to, or any other person present at, a mediation session.

(8) “Mediation program” means a community dispute resolution program, mediator organization or the mediation service provider through which mediation is made available under the Foreclosure Avoidance Mediation Program and includes the director, agents and employees of the Foreclosure Avoidance Mediation Program.

(9) “Mediation service provider” means the entity appointed by the Attorney General pursuant to Oregon Laws 2012, chapter 112, section 2.

(10) “Mediation session” means a meeting involving the mediator, the grantor and the beneficiary or its representatives.

(11) “Mediator” means a third party who performs mediation within the Foreclosure Avoidance Mediation Program.

(12) “Party” means the grantor, the beneficiary and the beneficiary’s agent if the beneficiary authorizes the agent to appear on the beneficiary’s behalf at mediation.

Stat. Auth.: OL 2012, ch 112, sec 2(2), 2(5), 2(7), 2a(3), 3, and 4a(4)
Stats. Implemented: OL 2012, ch 112

Stat. Auth.: 2012 OL Ch. 112, Sec. 2(5) & 2(7)
Stats. Implemented: 2012 OL Ch. 112
Hist.: DOJ 10-2012(Temp), f. 7-6-12, cert. ef. 7-11-12 thru 1-6-13

137-110-0020

Notice to Attorney General

For the purposes of these division 110 rules and the Foreclosure Avoidance Mediation Program, any requirement or option to mail a copy of a notice to or otherwise notify the Attorney General may be met through either one of the following means:

(1) By U.S. mail addressed to Attorney General of Oregon, Foreclosure Avoidance Mediation Program,1162 Court St. NE, Salem, OR 97301-4096; or

(2) By electronic mail addressed to DOJ@foreclosuremediationOR.org. Electronic mail notifications may be accomplished using the web-based computer program provided by the mediation service provider to the extent that such functionality is available for a particular notice or form.

Stat. Auth.: 2012 OL Ch. 112, Sec. 4a(4)
Stats. Implemented: 2012 OL Ch. 112, Sec. 4a(2), (3) & (4)
Hist.: DOJ 10-2012(Temp), f. 7-6-12, cert. ef. 7-11-12 thru 1-6-13

137-110-0110

Mediator Qualifications, Training and Experience

(1) For purposes of this rule only:

(a) “Mediation” means a process in which a mediator assists and facilitates two or more parties to any controversy in attempting to reach a mutually acceptable resolution of the controversy and includes all contacts between a mediator and any party or agent of a party, until such time as a resolution is agreed to by the parties or the mediation process is terminated; and

(b) “Mediator” means a third party who performs mediation.

(2) A mediator conducting a mediation under the Foreclosure Avoidance Mediation Program shall:

(a) Have conducted at least 20 mediations of any type or subject matter as a mediator. Work performed as an assistant or apprentice mediator under the supervision of a lead mediator may also be counted toward the 20 mediation requirement;

(b) Provide evidence of at least 100 hours of mediation experience as a mediator or as an assistant or apprentice mediator. Work that a mediator performs to prepare for and schedule the mediation or to prepare the parties for a mediation session, may be counted towards this 100 hour requirement;

(c) Disclose to the mediation service provider the professional standards to which the mediator subscribes;

(d) Have successfully participated in at least 30 hours of training that is consistent with the curriculum found in Section 3.2 of the Oregon Judicial Department Court Connected Mediator Qualification Rules effective August 1, 2005;

(e) Demonstrate that the mediator is familiar with ORS 36.110 to 36.238;

(f) Provide evidence of successful participation in at least 16 hours of training on the substantive law and legal processes regarding foreclosures in Oregon including ORS Chapter 86; and

(g) Provide evidence of successful participation in at least 8 hours of training on the procedures, practices and policies of the Foreclosure Avoidance Mediation Program. This training shall include some interactive instruction, such as role-playing.

(3) The mediation service provider may grant a waiver from the training requirements in subsections 2(d) and (f) of this rule upon a showing by the mediator of significant and related education or experience.

(4) The mediation service provider shall decide whether or not an individual:

(a) Meets the minimum qualifications as a mediator under these rules;

(b) Is included on the foreclosure avoidance mediation roster; or

(c) Is assigned to a mediation.

(5) An individual who meets the minimum qualifications as a mediator under these rules or who is added to the foreclosure avoidance mediation roster may not represent that fact as license or certification of their competency for anything other than their role in the Foreclosure Avoidance Mediation Program.

Stat. Auth.: 2012 OL Ch. 112, Sec. 2(2)(b)(B)
Stats. Implemented: 2012 OL Ch. 112, Sec. 2(2)(b)(B)
Hist.: DOJ 10-2012(Temp), f. 7-6-12, cert. ef. 7-11-12 thru 1-6-13

137-110-0200

Fees Paid by the Grantor, Fee Waiver

(1) In mediations initiated in connection with a notice of default, the grantor shall pay a fee of $200 to the mediation service provider at the time the grantor confirms his or her participation in the mediation as required by Oregon Laws 2012, chapter 112, Section 2(3)(c). If there are joint or multiple grantors, only one grantor needs to pay this fee.

(2) In mediations initiated at the request of an at-risk grantor, the grantor shall pay a fee of $200 to the mediation service provider at the time the grantor confirms his or her participation in the mediation as required by Oregon Laws 2012, chapter 112, Section 2(3)(c). If there are joint or multiple grantors, only one grantor must pay this fee.

(3) The grantor may apply for a waiver of $150 of the fees described in sections (1) and (2) of this rule at the time the grantor confirms his or her participation in the mediation as required by Oregon Laws 2012, chapter 112, Section 2(3)(c). The grantor shall pay a $50 fee at the time of requesting a fee waiver.

(4) A grantor’s application for a fee waiver under section (3) of this rule shall be granted if the grantor is able to provide satisfactory evidence to the mediation service provider that the grantor’s annual household income is less than:

(a) $ 22,340 for a household of one;

(b) $ 30,260 for a household of two;

(c) $ 38,180 for a household of three;

(d) $ 46,100 for a household of four;

(e) $ 54,020 for a household of five;

(f) $ 61,940 for a household of six;

(g) $ 69,860 for a household of seven;

(h) $ 77,780 for a household of eight;

(i) $ 85,700 for a household of nine; or

(j) $ 93,620 for a household of ten or more.

(5) If the mediation service provider denies a grantor’s application for a fee waiver made under section (3) of this rule, the grantor shall pay the remaining $150 within 15 days of receiving the mediation service provider’s determination not to grant a fee waiver but never later than the date of the scheduled mediation session.

(6) A grantor who fails to timely pay fees will be considered to have declined mediation. Failure by a grantor to timely pay fees will result in cancellation of the mediation session.

Stat. Auth.: 2012 OL Ch. 112, Sec. 2(2)(b)(C) & 2(2)(c)
Stats. Implemented: 2012 OL Ch. 112, Sec. 2(2)(b)(C) & 2(2)(c)
Hist.: DOJ 10-2012(Temp), f. 7-6-12, cert. ef. 7-11-12 thru 1-6-13

137-110-0210

Fees Paid by Beneficiary

(1) In mediations initiated in connection with a notice of default, the beneficiary or the beneficiary’s agent shall pay a total mediation fee of $425 to the mediation service provider. The beneficiary shall pay $200 of that fee at the time of serving or mailing the notice of mediation. The beneficiary shall pay the remaining $225 prior to the scheduled mediation session.

(2) In mediations initiated at the request of an at-risk grantor, the beneficiary or the beneficiary’s agent shall pay a total mediation fee of $500 to the mediation service provider. The beneficiary shall pay $200 of that fee at the time the beneficiary notifies the mediation service provider of the grantor’s request for mediation pursuant to Oregon Laws 2012, chapter 112, Section 2(7). The beneficiary shall pay the remaining $300 prior to the scheduled mediation session.

(3) A junior lienholder that participates in a mediation shall pay the fee stated in section (1) of this rule.

(4) A beneficiary that is otherwise exempt from mediation pursuant to Oregon Laws 2012, chapter 112, section 2(2)(d) may participate in mediation by paying the fees described in section (1) of this rule and by following the mediation guidelines set forth in OAR 137-110-0600 to 137-110-0670.

(5) Failure by a beneficiary to timely pay fees will result in cancellation of the mediation session.

Stat. Auth.: 2012 OL Ch. 112, Sec. 2(2)(b)(C)
Stats. Implemented: 2012 OL Ch. 112, Sec. 2(2)(b)(C)
Hist.: DOJ 10-2012(Temp), f. 7-6-12, cert. ef. 7-11-12 thru 1-6-13

137-110-0410

Beneficiary Requirements

(1) Unless exempt under Oregon Laws 2012, chapter 112, Section (2)(2)(d), a beneficiary filing a notice of default pursuant to ORS 86.735 on a residential trust deed shall:

(a) Provide a notice of mediation to the grantor and the mediation service provider at least 60 days before serving or mailing the notice of sale described in ORS 86.740(1)(a).

(b) Include the following contents in the notice of mediation:

(A) List the last known name, address, telephone number and other contact information for the grantor or other person named in the residential trust deed;

(B) Specify the account number or other means by which the beneficiary or trustee or an agent of the beneficiary or trustee identifies the obligation that is secured by the residential trust deed;

(C) Provide the address, telephone number and other contact information for:

(i) The beneficiary or an agent of the beneficiary that the beneficiary authorizes to negotiate on the beneficiary’s behalf;

(ii) The Oregon State Bar’s Lawyer Referral Service;

(iii) Service agencies or other providers that offer free or low-cost legal services from a list of agencies or providers that the Attorney General adopts by rule; and

(iv) A list of not-for-profit housing counselors approved by the United States Department of Housing and Urban Development or an agency of this state compiled by the Oregon Housing and Community Services agency;

(D) State that the grantor must consult with a housing counselor approved by the United States Department of Housing and Urban Development. State that the grantor may choose to have an attorney or United States Department of Housing and Urban Development-approved housing counselor represent the grantor at the mediation;

(E) State that the beneficiary is required to enter into mediation with the grantor for the purpose of negotiating a foreclosure avoidance measure;

(F) Contain a brief, plain language description of the foreclosure avoidance measures offered by the beneficiary or the beneficiary’s agent or a description of the foreclosure avoidance measures described in section 2(1) of Oregon Laws 2012, chapter 112;

(G) List the documents the grantor is required to bring pursuant to OAR 137-110-0620;

(H) State the fees associated with mediation and specify the maximum cost for which the grantor will be responsible;

(I) State that the mediation and mediation communications, as defined in ORS 36.110, are confidential in accordance with and to the extent provided in ORS 36.220 to 36.238;

(J) State that within 30 days after the date of the notice a mediation service provider will send another notice to the grantor with a date, time and location for the mediation and other requirements of Oregon law.

(2) The notice required by section (1) of this rule:

(a) Shall be served on the mediation service provider in the manner prescribed by ORS 86.740. However, the mediation service provider shall accept service if the notice is submitted using a web-based computer program provided by the mediation service provider and the provider acknowledges its actual receipt of the notice by electronic mail or confirmation generated within the provider’s web-based computer program.

(b) Shall substantially comply with the model form provided in Appendix A to these Division 110 rules and available as “Form 410” at http://www.doj.state.or.us/consumer/foreclosure_mediation.shtml.

(3) The beneficiary shall comply with the mediation guidelines set out in OAR 137-110-600 to 137-110-670.

Stat. Auth.: 2012 OL Ch. 112, Sec. 3
Stats. Implemented: 2012 OL Ch. 112, Sec. 3
Hist.: DOJ 10-2012(Temp), f. 7-6-12, cert. ef. 7-11-12 thru 1-6-13

137-110-0420

Mediation Service Provider Requirements

(1) Within 30 days after the date on which the beneficiary caused a notice of mediation to be served or mailed as provided in ORS 86.740, the mediation service provider shall send a mediation scheduling notice to the grantor and beneficiary. The mediation scheduling notice must:

(a) State the date, time and location of the scheduled mediation session;

(b) Identify and provide contact information for the mediation services provider;

(c) Provide a date at least 30 days before the scheduled mediation by which the grantor shall contact the mediation service provider to confirm that the grantor will enter into mediation and pay fees. The notice shall conspicuously state that failure to confirm participation and pay applicable fees by the specified date will be deemed refusal to participate by the grantor;

(d) State the fees associated with mediation;

(e) Provide the address, telephone number and other contact information for a list of not-for-profit housing counselors approved by the United States Department of Housing and Urban Development and other housing counselors compiled by the Oregon Housing and Community Services Department;

(f) State that the grantor must consult with a housing counselor approved by the United States Department of Housing and Urban Development;

(g) List the documents each party shall bring to mediation; and

(h) Provide contact information for low cost legal service providers and the Oregon State Bar.

(2) The notice required by section (1) of this rule shall substantially comply with the model form provided in Appendix B to these Division 110 rules and available as “Form 420” at http://www.doj.state.or.us/consumer/foreclosure_mediation.shtml

Stat. Auth.: 2012 OL Ch. 112, Sec. 2(2)(3)
Stats. Implemented: 2012 OL Ch. 112, Sec. 2(3)
Hist.: DOJ 10-2012(Temp), f. 7-6-12, cert. ef. 7-11-12 thru 1-6-13

137-110-0430

Grantor Requirements

If the grantor wishes to participate in mediation, the following requirements apply:

(1) On or before the date specified by the mediation service provider in its mediation scheduling notice, the grantor shall confirm with the mediation service provider that the grantor wishes to enter into mediation.

(2) The grantor shall attend housing counseling with a United States Department of Housing and Urban Development approved housing counselor prior to the mediation session.

(3) The requirement in section (2) of this rule does not apply if the grantor notifies the mediation service provider that the grantor has been unable to obtain an appointment to consult with a qualified housing counselor within 30 days after receiving the notice of mediation and executes an affidavit including:

(a) The name of the grantor;

(b) The name of the beneficiary;

(c) The address of the property; and

(d) A statement that the grantor of the named property has been unable to obtain an appointment to consult with a qualified housing counselor within 30 days after receiving the notice of mediation.

(4) The affidavit described in section (3) shall substantially comply with the model form provided in Appendix C to these Division 110 rules and available as “Form 430” at http://www.doj.state.or.us/consumer/foreclosure_mediation.shtml.

(5) The grantor shall comply with the mediation guidelines set out in OAR 137-110-600 to 137-110-670.

Stat. Auth.: 2012 OL Ch. 112, Sec. 2(3) & 2a(3)
Stats. Implemented: 2012 OL Ch. 112, Sec. 2(3) & 2a
Hist.: DOJ 10-2012(Temp), f. 7-6-12, cert. ef. 7-11-12 thru 1-6-13

137-110-0500

Grantor Requirements

(1) A grantor who is at risk of default may request mediation with the beneficiary using the paper or web-based computer form available for this purpose from the mediation service provider. The grantor must deliver this request to the beneficiary or trustee or the beneficiary’s agent or trustee’s agent.

(2) A grantor that requests mediation under section (1) of this rule may notify the mediation service provider and the Attorney General of the request. A request for mediation made using the web-based computer form available from the mediation service provider shall be considered sufficient notice to the mediation service provider and the Attorney General.

(3) A grantor shall attend housing counseling with a United States Department of Housing and Urban Development-approved housing counselor prior to the mediation session.

(4) The grantor shall comply with the mediation guidelines set out in OAR 137-110-600 to 137-110-670.

Stat. Auth.: 2012 OL Ch. 112, Sec. 2(5)
Stats. Implemented: 2012 OL Ch. 112, Sec. 2(5) & 2(7)
Hist.: DOJ 10-2012(Temp), f. 7-6-12, cert. ef. 7-11-12 thru 1-6-13

137-110-0510

Beneficiary or Trustee Requirements

(1) Within 15 days of receiving a request for mediation from an at-risk grantor, the beneficiary or trustee or the beneficiary’s or trustee’s agent shall respond to the grantor’s request, and this response shall include contact information for the Attorney General and the mediation service provider.

(2) Within 15 days of receiving a request for mediation from an at-risk grantor, the beneficiary or trustee or the beneficiary’s or trustee’s agent shall notify the Attorney General and the mediation service provider of the grantor’s request and the beneficiary’s response by:

(a) Mailing notice to the mediation services provider; or

(b) By electronic means using the web-based computer program provided by the mediation service provider.

(3) At the time of providing the notice required by section (2) of this rule, the beneficiary shall pay the fee required by OAR 137-110-0210(2).

(4) The beneficiary shall comply with the mediation guidelines set out in OAR 137-110-600 to 137-110-670.

Stat. Auth.: 2012 OL Ch. 112, Sec. 2(5)
Stats. Implemented: 2012 OL Ch. 112, Sec. 2(5) & 2(7)
Hist.: DOJ 10-2012(Temp), f. 7-6-12, cert. ef. 7-11-12 thru 1-6-13

137-110-0520

Mediation Service Provider Requirements

Within 10 days after receiving a beneficiary’s notification of a request for mediation by an at-risk grantor, the mediation service provider shall send a mediation scheduling notice to the grantor and the beneficiary that, with the exception of the deadline by which such notice must be sent out, complies with the requirements of OAR 137-110-420.

Stat. Auth.: 2012 OL Ch. 112, Sec. 2(3) & 2(7)
Stats. Implemented: 2012 OL Ch. 112, Sec. 2(3) & 2(2)(7)
Hist.: DOJ 10-2012(Temp), f. 7-6-12, cert. ef. 7-11-12 thru 1-6-13

137-110-0600

Mediator Authority and Role

(1) The mediator has no authority to impose a settlement on the grantor or the beneficiary or to render any decisions on any substantive issue or make any legal determinations.

(2) The mediator may rely on assertions made in the documents provided by the parties and need not make an independent inquiry into the proper chain of title or any other matter.

(3) The mediator shall:

(a) Act as an impartial intermediary and not as an advocate for the beneficiary or the grantor;

(b) Make appropriate disclosures to the parties about the mediator’s skills and the specific mediation approaches the mediator uses;

(c) Support the ability of the parties to make informed decisions regarding the mediation process and outcomes by ensuring that parties are provided with information regarding the mediation process and by ensuring that relevant documents are available to the parties;

(d) Conduct mediations fairly, diligently, even-handedly, and with no personal stake in the outcome;

(e) Avoid actual, potential, or perceived conflicts of interest that can arise from a mediator’s relationships or experiences that reasonably raise a question about the mediator’s impartiality;

(f) Affirmatively disclose to the mediation service provider and the parties any actual, potential or perceived conflicts of interest that could raise a question about the mediator’s impartiality;

(g) Where a party, the mediator or the mediation service provider questions the mediator’s ability to act impartially, and the issue cannot be resolved to the satisfaction of the questioner, the mediator shall decline to serve or withdraw if already serving as the mediator in a particular mediation. Having questioned a mediator’s impartiality, and that mediator having declined to serve, the ability of a party to exclude any subsequent mediator shall be at the discretion of the mediation service provider;

(h) Not engage in any other services, other than mediation, for any of the parties involving the same or significantly related issues, unless the parties agree in writing; and

(i) Preserve the grantor’s and the beneficiary’s desired levels of confidentiality consistent with OAR 137-110-0640.

Stat. Auth.: 2012 OL Ch. 112, Sec. 2(5)
Stats. Implemented: 2012 OL Ch. 112, Sec. 2(5)
Hist.: DOJ 10-2012(Temp), f. 7-6-12, cert. ef. 7-11-12 thru 1-6-13

137-110-0610

Documents Required of the Grantor

(1) The grantor shall provide the following documents to the mediation service provider for provision to the beneficiary at least 15 days prior to the first scheduled mediation session:

(a) A completed “Universal Intake Form” provided in Appendix D and available by selecting “Form 610” at http://www.doj.state.or.us/consumer/foreclosure_mediation.shtml;

(b) Pay stubs that confirm the grantor’s income for the two full months immediately preceding the month during which the grantor submits the pay stubs;

(c) A profit and loss statement, if available, if the grantor is self-employed;

(d) Bank statements for the two full months immediately preceding the month during which the grantor submits the bank statements;

(e) A benefits statement or letter from the benefit provider showing the amount, frequency and duration of the benefit, if relying on social security, disability, unemployment or other non-wage benefit income;

(f) A divorce decree or judgment or separation agreement, if the grantor is relying on child support, alimony or maintenance payments;

(g) The grantor’s most recent electric, heat, gas, or other utility bill;

(h) Most recent property tax statement or appraisal; and

(i) The grantor’s tax returns from the two most recent years.

(2) If a grantor fails to timely provide documents as required by section (1) of this rule the grantor and the beneficiary shall nevertheless appear at the first scheduled mediation session. A grantor who does not timely provide a document required by this rule is at increased risk of the mediation concluding without the beneficiary being able to agree to a foreclosure avoidance measure.

Stat. Auth.: 2012 OL Ch. 112, Sec. 2(5) & 3
Stats. Implemented: 2012 OL Ch. 112, Sec. 2(5) & 3
Hist.: DOJ 10-2012(Temp), f. 7-6-12, cert. ef. 7-11-12 thru 1-6-13

137-110-0620

Documents Required of the Beneficiary

(1) The beneficiary shall provide the following documents to the mediation service provider for provision to the grantor at least 15 days prior to the first scheduled mediation session:

(a) The grantor’s complete payment history for the obligation that is secured by the residential trust deed that the beneficiary seeks to foreclose;

(b) Evidence that the beneficiary is the real party in interest with respect to the obligation, including:

(A) A true copy of the original debt instrument that is the basis for the right the beneficiary seeks to foreclose; and

(B) Documents showing chain of title for the property at issue, including recorded and unrecorded conveyances, endorsements and assignments of the trust deed, the note and the security instrument;

(c) A copy of the authorization from the beneficiary to the beneficiary’s agent, if the beneficiary’s agent appears at mediation;

(d) A copy of any of the following documents that apply to the note or obligation that is secured by the trust deed:

(A) A servicing agreement the beneficiary entered into with another person; or

(B) An agreement by means of which the beneficiary pledged as collateral for a security the beneficiary issued or sold all or a part of the ownership interest in the note or other obligation;

(2) To the extent that the grantor has timely provided their documents as required by OAR 137-110-0610, the beneficiary or the beneficiary’s agent shall provide the following documents to the mediation service provider or mediator for presentation to the grantor at or before the first scheduled mediation session:

(a) The beneficiary’s or the beneficiary’s agent’s most recent broker price opinion or appraisal;

(b) A document that identifies each net present value model used by the beneficiary or the beneficiary’s agent to assess the grantor for a foreclosure avoidance measure and the input values used by the beneficiary or the beneficiary’s agent, and the output values produced by the net present value model;

(c) A document that lists the total amount that a grantor must submit to the trustee to discontinue foreclosure proceedings, along with an itemized description of all costs and expenses incurred by the beneficiary or beneficiary’s agent in connection with the foreclosure, including trustee and attorney fees; and

(d) Any other document the beneficiary believes limits the scope of the agent’s authority to agree to a particular foreclosure avoidance measure.

(3) Nothing in section (2) of this rule requires a beneficiary or the beneficiary’s agent to disclose the algorithmic formula of the net present value model used by the beneficiary or the beneficiary’s agent.

(4) If a beneficiary fails to timely provide documents as required by section (1) of this rule, the grantor and the beneficiary shall nevertheless appear at the first scheduled mediation session. A beneficiary who fails to provide a document required by this rule is at risk of the mediation concluding without the beneficiary receiving a certificate of compliance.

Stat. Auth.: 2012 OL Ch. 112, Sec. 2(4)(a)(A) & 2(5)
Stats. Implemented: 2012 OL Ch. 112, Sec. 2(4)(a)(A) & 2(5)
Hist.: DOJ 10-2012(Temp), f. 7-6-12, cert. ef. 7-11-12 thru 1-6-13

137-110-0630

Rescheduling or Adjourning the Mediation Session

(1) All parties shall attend the scheduled mediation session unless the mediation is rescheduled in accordance with the provisions of this rule.

(2) Within 10 days of the mediation scheduling notice, either party may request that the mediation service provider reschedule the date for the mediation session to a date or location that is more convenient. The rescheduled mediation session must be no earlier than 45 days and not later than 90 days after the date on which the notice of mediation was served or mailed as provided in ORS 86.740.

(3) Except as provided in section (2) of this rule, no request from a party for rescheduling of the mediation session may be granted except upon a showing of good cause or upon a written agreement of the parties and the mediator. Notice of such written agreement shall be provided by facsimile, electronic mail, regular mail or by use of a web-based computer program provided by the mediation service provider.

(4) A request to reschedule the mediation session for good cause shall be in writing and delivered to the mediation service provider and the other party. The request shall set forth the circumstances demonstrating good case with particularity.

(5) If the mediation service provider grants rescheduling, the mediation service provider shall issue a notice that provides the new date, time, and location of mediation within 10 days of the request for rescheduling.

(6) With the consent of the parties, a mediation session may be adjourned and a second mediation session scheduled.

Stat. Auth.: 2012 OL Ch. 112, Sec. 2(5)
Stats. Implemented: 2012 OL Ch. 112, Sec. 2(5)
Hist.: DOJ 10-2012(Temp), f. 7-6-12, cert. ef. 7-11-12 thru 1-6-13

137-110-0640

Confidentiality

(1) Except as otherwise provided in this rule or by the terms of any agreement to mediate executed by the parties prior to a mediation session, the foreclosure avoidance mediation process is confidential and mediation communications are inadmissible as provided in ORS 36.110 to ORS 36.238.

(2) The mediation service provider is a mediation program for the purposes of ORS 36.100 to 36.238.

(3) No videotaping, transcription or other recording of mediation sessions is permitted except by written agreement of the parties and the mediator.

(4) Before participating in a mediation session, the grantor and beneficiary may execute an “agreement to mediate” specifying the confidentiality provisions of the mediation, consistent with these rules and ORS 36.110 to 36.238.

(5) Mediations in which a state agency is a party are subject to ORS 36.224.

(6) An agreement to mediate executed by the parties prior to mediation is not confidential.

(7) Nothing in this rule prevents a mediator from disclosing the outcome of the mediation to the mediation service provider or from completing a report of the mediation outcomes on forms approved by the Attorney General. Such disclosures and reports are not confidential and may be disclosed or admitted as evidence in a subsequent proceeding.

(8) Nothing in this rule limits the ability of the mediation service provider or the Attorney General to compile and disclose general statistical information concerning matters that have gone to mediation if the information does not identify specific cases.

(9) Nothing in this rule limits the ability of the mediation service provider or the Attorney General to disclose confidential mediation communications, the disposition of matters referred for mediation and the terms of mediation agreements to another person for use in research, training or educational purposes, subject to the following:

(a) A mediator or mediation program may only use or disclose confidential mediation communications if the communications are used or disclosed in a manner that does not identify individual mediations or parties.

(b) A mediator or mediation program may use or disclose confidential mediation communications that identify individual mediations or parties only if and to the extent allowed by a written agreement with, or written waiver of confidentiality by, the parties.

Stat. Auth.: 2012 OL Ch. 112, Sec. 2(5)
Stats. Implemented: 2012 OL Ch. 112, Sec. 2(5)
Hist.: DOJ 10-2012(Temp), f. 7-6-12, cert. ef. 7-11-12 thru 1-6-13

137-110-0650

Participation in the Mediation Session

(1) Any party wishing to participate in mediation, including otherwise exempt beneficiaries or junior lienholders, shall do so in accordance with all other provisions of OAR 137-110-0001 to 137-110-0670.

(2) If a trust deed includes joint or multiple grantors, and fewer than all grantors confirm participation in the mediation session, the mediation may nevertheless occur with the consent of the beneficiary.

(3) The mediation service provider may assist the parties in obtaining an interpreter. However, if the mediation service provider is unable to provide an interpreter, the party needing an interpreter is responsible for securing and paying for the interpreter. The manner of participation of a language interpreter during a mediation session will be determined by the mediator.

Stat. Auth.: 2012 OL Ch. 112, Sec. 2(5)
Stats. Implemented: 2012 OL Ch. 112, Sec. 2(5)
Hist.: DOJ 10-2012(Temp), f. 7-6-12, cert. ef. 7-11-12 thru 1-6-13

137-110-0660

Agreements

(1) In the event the foreclosure issues are resolved before the scheduled mediation session, the parties shall advise the mediation service provider of their settlement using paper or web-based forms provided by the mediation service provider.

(2) Any agreement reached as a result of mediation shall be reduced to writing.

Stat. Auth.: 2012 OL Ch. 112, Sec. 2(5)
Stats. Implemented: 2012 OL Ch. 112, Sec. 2(5)
Hist.: DOJ 10-2012(Temp), f. 7-6-12, cert. ef. 7-11-12 thru 1-6-13

137-110-0670

Certificate of Compliance

(1) The mediation service provider shall issue a certificate of compliance upon notification by the mediator that the mediation has concluded and the beneficiary has complied with the requirements of these rules. The certificate of compliance shall be issued to the beneficiary or the beneficiary’s agent no later than five days following the conclusion of the mediation.

(2) The mediation service provider shall issue a certificate of compliance if a grantor fails to confirm by the date provided by Oregon Laws 2012, chapter 112, section 2 (3)(c) that the grantor intends to enter into mediation.

(3) The certificate of compliance shall include:

(a) The name of the grantor;

(b) The name of the beneficiary;

(c) The address of the property at issue;

(d) Reference to the recording information of the trust deed at issue;

(e) A certification that either:

(A) The beneficiary or its agent appeared at mediation and complied with the requirements of Or Laws 2012, ch 112, Sections 4 and 5;

(B) The grantor elected to enter into mediation but failed to appear at the time and place scheduled for mediation; or

(C) The grantor declined to enter into mediation with the beneficiary, or did not confirm intent to participate by the required date.

(4) The certificate of compliance described in this rule shall substantially comply with the model form provided in Appendix E to these division 110 rules and available as “Form 670” at http://www.doj.state.or.us/consumer/foreclosure_mediation.shtml.

(5) The certificate of compliance described in this rule shall be submitted via hard copy to the grantor(s) and beneficiary(ies) by facsimile machine, by U.S. mail, or in person. In addition, the mediation service provider may make the certificate of compliance available to the grantor and the beneficiary via a web-based computer program.

Stat. Auth.: 2012 OL Ch. 112, Sec. 2(6)
Stats. Implemented: 2012 OL Ch. 112, Sec. 2(6)
Hist.: DOJ 10-2012(Temp), f. 7-6-12, cert. ef. 7-11-12 thru 1-6-13


 

Rule Caption: Adopts Rules Required by 2012 Legislation to Implement Foreclosure Avoidance Measure Notices.

Adm. Order No.: DOJ 11-2012(Temp)

Filed with Sec. of State: 7-6-2012

Certified to be Effective: 7-11-12 thru 1-6-13

Notice Publication Date:

Rules Adopted: 137-120-0010, 137-120-0020

Subject: These rules implement Or Laws 2012, ch 112 ¦ 4a (SB 1552). They specify the form and content of the notice issued by a beneficiary when the beneficiary determines that a grantor is not eligible for any foreclosure avoidance measure or that the grantor has not complied with the terms of a foreclosure avoidance measure to which the grantor has agreed. They also provide the address to which a copy of the notice must be sent to the Attorney General.

Rules Coordinator: Carol Riches—(503) 947-4700

137-120-0010

Application

These division 120 rules apply to any beneficiary seeking to foreclose a residential trust deed pursuant to ORS 86.705 to 86.795.

Stat. Auth.: 2012 OL Ch. 112, Sec. 4a
Stats. Implemented: 2012 OL Ch. 112, Sec. 4a
Hist.: DOJ 11-2012(Temp), f. 7-6-12, cert. ef. 7-11-12 thru 1-6-13

137-120-0020

Determination of Grantor Ineligibility for or Noncompliance With Foreclosure Avoidance Measure

(1) If a beneficiary determines that a grantor is not eligible for any foreclosure avoidance measure or that the grantor has not complied with the terms of a foreclosure avoidance measure to which the grantor has agreed, the beneficiary or the beneficiary’s agent shall serve a notice of that determination to the grantor as provided in ORS 86.740(1) that includes:

(a) The name of the grantor;

(b) The name of the beneficiary;

(c) The address of the property at issue;

(d) A statement that the beneficiary has either:

(A) Determined that the grantor is not eligible for any of the following: a forbearance agreement, a temporary or permanent loan modification, a short sale, a deed-in-lieu of foreclosure, or any other foreclosure avoidance measure. The basis for the beneficiary’s determination must be described with specificity in plain language; or

(B) Determined that the grantor is not in compliance with the terms of an agreement for forbearance, a temporary or permanent loan modification, a short sale, a deed-in-lieu of foreclosure, or another foreclosure avoidance measure. The basis for the beneficiary’s determination must be described with specificity in plain language;

(e) Stating each foreclosure avoidance measure considered;

(f) Stating whether the beneficiary has been able to make contact with the grantor or receive adequate response from the grantor. If the grantor is ineligible for a foreclosure avoidance measure because the beneficiary has been unable to make contact with the grantor or receive adequate response from the grantor, stating what efforts were made to contact the grantor and the inadequacy of the response;

(g) Stating the date specified for the property’s trustee sale; and

(h) Provide contact information for low-cost legal service providers and the Oregon State Bar.

(2) The notice described in section (1) of this rule shall substantially comply with the model form provided in the Appendix to these division 120 rules and available as “Form 20” at http://www.doj.state.or.us/consumer/foreclosure_mediation.shtml.

(3) A copy of the notice described in section (1) of this rule shall be submitted to the Attorney General of Oregon at 1162 Court St. NE, Salem OR, 97301 or foreclosureavoidance@doj.state.or.us.

Stat. Auth.: 2012 OL Ch. 112, Sec. 4a(4)
Stats. Implemented: 2012 OL Ch. 112, Sec. 4a(4)
Hist.: DOJ 11-2012(Temp), f. 7-6-12, cert. ef. 7-11-12 thru 1-6-13

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

Oregon Secretary of State • 136 State Capitol • Salem, OR 97310-0722
Phone: (503) 986-1523 • Fax: (503) 986-1616 • oregon.sos@state.or.us

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