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The Oregon Administrative Rules contain OARs filed through June 15, 2014
 
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DEPARTMENT OF TRANSPORTATION

 

DIVISION 5

PUBLIC CONTRACT RULES HIGHWAY AND BRIDGE PROJECTS

731-005-0400

Repealed Rules

As required by OR Laws 2003, Chapter 794, Section 334, OARs 731-005-0001 through 731-005-0365 are repealed effective March 1, 2005. The repealed rules will continue to apply to the solicitation of Public Contracts first advertised, but if not advertised then entered into, before March 1, 2005.

Stat. Auth.: ORS 184.616, 184.619, 279A.050 & 279A.065
Stats. Implemented: ORS 279C.300 & Sec. 334 & 336, Ch. 794, OL 2003
Hist.: DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

731-005-0410

Effective Date

OAR 731-005-0400 through 731-005-0790 as amended become effective on January 1, 2010 and apply to Public Improvement Contracts first advertised, but if not advertised then entered into, on or after January 1, 2010.

Stat. Auth.: ORS 184.616, 184.619, 279A.050 & 279A.065
Stats. Implemented: ORS 279A.005 & Sec. 335 & 337, Ch. 794, OL 2003
Hist.: DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05; DOT 5-2009(Temp), f. 12-22-09, cert. ef. 1-1-10 thru 6-30-10; DOT 1-2010, f. & cert. ef. 5-18-10

731-005-0420

Scope

OAR 731-005-0400 through 731-005-0790 apply to all Highway Division Public Improvement Contracts (not exempted by 279C.335) entered into by the Department of Transportation under the authority of ORS 279A.050(3). These rules are adopted in place of the Attorney General Model Rules required under ORS 279A.065(1) and as allowed by ORS 279A.065(5).

Stat. Auth.: ORS 184.616, 184.619, 279A.050 & 279A.065
Stats. Implemented: ORS 279A & 279C
Hist.: DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

731-005-0430

Definitions

All capitalized terms have the meanings set forth below, unless otherwise defined in the chapter 731, division 005 rules.

(1) Addendum or Addenda: An addition or deletion to, a material change in, or general interest explanation of the Solicitation Document. Addenda shall be labeled as such and distributed to all interested entities in accordance with these rules.

(2) Bid: A competitive Offer, binding on the Bidder and submitted in response to an Invitation to Bid:

(a) Lump Sum Bid: A Bid that is the total completed project price;

(b) Unit Price Bid: A Bid that provides unit prices based upon estimated quantities.

(3) Bidder: An Entity that submits a Bid in response to an Invitation to Bid.

(4) Closing: The date and time announced in the Solicitation Document as the deadline for submitting Offers.

(5) Competitive Range: The number of Proposers within a given scoring range ODOT will negotiate with if ODOT intends to negotiate in accordance with OAR 731-005-0650. The Competitive Range must be stated in the Solicitation Document, but will be decreased if the number of Proposers that submit Proposals is less than the specified number, or may be increased by ODOT in accordance with OAR 731-005-0650.

(6) Conduct Disqualification: A Disqualification pursuant to ORS 279C.440.

(7) Contract: The Written agreement, resulting from the Solicitation Document that defines the Work to be completed and sets forth the rights and obligations of the parties.

(8) Contract Amount: Sum of the amounts computed by multiplying the Bid item quantities by the unit price in the schedule of Contract prices of the Contract as awarded.

(9) Contract Price: The total of the awarded Bid or Proposal amount, including any approved alternates, and any fully executed change orders or amendments.

(10) Contract Review Authority: The Director of the Oregon Department of Transportation.

(11) Contractor: The Entity awarded the Contract in response to the Solicitation Document.

(12) DAS: Oregon Department of Administrative Services.

(13) Days: Calendar days unless otherwise specified by these rules.

(14) DBE Disqualification: A Disqualification pursuant to ORS 200.065, 200.075 or 279A.110.

(15) Descriptive Literature: The Offeror's materials submitted to provide information concerning the products and/or services available in response to the Solicitation Document.

(16) Disqualification: The preclusion of an Entity from contracting with ODOT for a period of time. Disqualification may be a Conduct Disqualification as defined above, performance disqualification for failure to meet standards listed in OAR 734-010-0290(4), DBE Disqualification or disqualification for lack of specific demonstrated experience (special prequalification as described in OAR 734-010-0230). ODOT is authorized to disqualify an Entity in accordance with OAR 731-005-0710.

(17) Electronic Advertisement: ODOT's Solicitation Document, or other document inviting participation in ODOT's procurements made available over the Internet via:

(a) The World Wide Web or some other Internet protocol; or

(b) ODOT's Electronic Procurement System.

(18) Electronic Data Interchange Operating Agreement or EDI Operating Agreement: A series of standards that provide computer to computer exchange of business documents between organizations over telephone lines or computer networks. An EDI document is a document that has been transmitted pursuant to an EDI Operating Agreement.

(19) Electronic Offer: A response to ODOT's Solicitation Document submitted to ODOT via:

(a) The World Wide Web or some other Internet protocol; or

(b) ODOT's Electronic Procurement System.

(20) Electronic Procurement System or Electronic Procurement: An information system that persons may access through the Internet using the World Wide Web or some other Internet protocol or that persons may otherwise remotely access using a computer, that enables persons to send Electronic Offers and ODOT to post Electronic Advertisements, receive Electronic Offers, and conduct other activities related to a procurement.

(21) Entity: A natural person capable of being legally bound, sole proprietorship, limited liability company, corporation, partnership, limited liability partnership, limited partnership, profit and nonprofit unincorporated association, business trust, two or more persons having a joint or common economic interest, or any other person with legal capacity to contract, or a government or governmental subdivision.

(22) Facsimile: A document that has been transmitted to and received by ODOT in a format that is capable of being received via a device commonly known as a Facsimile machine (e.g. a Facsimile Bid). A Facsimile machine allows hard copy documents (Written, typed or drawn material) to be sent over telephone lines and printed in another location.

(23) Invitation to Bid or ITB: A notice to Contractors disseminating information pertaining to bidding of Public Improvement projects including availability of Solicitation Documents.

(24) Non-Resident Contractor: A Contractor that is not domiciled in or registered to do business in the State of Oregon. See OAR 731-005-0750.

(25) ODOT: The Oregon Department of Transportation.

(26) Offer: A Bid or Proposal as applicable.

(27) Offeror: A Bidder or Proposer as applicable.

(28) Opening: The date, time and place announced in the Solicitation Document for the public Opening of Written sealed Offers or Electronic Offers.

(29) Product Sample: A representative specimen of the item offered by the Offeror in response to the Solicitation Document. Unless otherwise provided in the Solicitation Document, the Product Sample shall be the exact product or a representative portion of that product offered by the Offeror.

(30) Proposal: A competitive Offer, binding on the Proposer and submitted in response to a Request for Proposals. See Offer.

(31) Proposer: An Entity that submits a Proposal in response to a Request for Proposals. See Offeror.

(32) Public Improvement: Projects relating to maintenance or construction of highways, bridges, parks or other transportation facilities by or for ODOT. "Public improvement" does not include emergency Work, minor alteration, ordinary repair or maintenance necessary in order to preserve a Public Improvement.

(33) Request for Proposals or RFP: A Solicitation Document calling for Proposals.

(34) Responsible Offeror (also, Responsible Bidder or Responsible Proposer, as applicable): Is an Entity that has submitted an Offer and meets the standards set forth in OAR 731-005-0670(1)(c)(H) and that has not been disqualified by ODOT under OAR 731-005-0710.

(35) Responsive Offer (also, Responsive Bid or Responsive Proposal, as applicable): An Offer that substantially complies with applicable solicitation procedures and requirements and the Solicitation Document.

(36) Signed or Signature: Any mark, word or symbol executed or adopted by an Entity evidencing intent to be bound, which may include electronic or digital signature.

(37) Solicitation Document: Documents that define the procurement of a Public Improvement project including but not limited to Bid or Proposal booklet, plans, Specifications, requirements, provisions and includes all documents incorporated by reference.

(38) Specification: Any description of the physical or functional characteristics, or of the nature of a supply, service or construction item, including any requirement for inspecting, testing, or preparing a supply, service, or construction item for delivery and the quantities or qualities of materials to be furnished under the Contract. Specifications generally will state the result to be obtained and may, on occasion, describe the method and manner of doing the Work to be performed.

(39) Tie Offers: Tie Offers shall have the meaning set forth in OAR 731-005-0660.

(40) Work: The furnishing of all materials, equipment, labor, and incidentals necessary to successfully complete any individual item or the entire Contract and the successful completion of all duties and obligations imposed by the Contract.

(41) Written or Writing: Conventional paper documents either manuscript or printed, in contrast to spoken words. It includes electronic transmissions if the Solicitation Document or Contract permits.

Stat. Auth.: ORS 184.616, 184.619, 279A.050 & 279A.065
Stats. Implemented: ORS 279A & 279C
Hist.: DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05; DOT 4-2007, f. & cert. ef. 5-23-07

731-005-0440

Competitive Procurement

(1) Generally. In accordance with ORS 279C.300, ODOT shall procure its Public Improvements by an ITB or RFP except as otherwise allowed or required in ORS 279A.025, 279A.100, 279A.105, 279A.120(2), 279A.125, 279C.335, or 282.210.

(2) Federal Provisions. If federal funds are involved, in accordance with ORS 279A.030, federal laws, rules and regulations shall govern the provisions of these rules in the event of conflict.

Stat. Auth.: ORS 184.616, 184.619, 279A.050 & 279A.065
Stats. Implemented: ORS 279A.065 & 279C.335
Hist.: DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

731-005-0450

Prequalification of Offeror

(1) Prequalification.

(a) Mandatory Prequalification. ODOT requires mandatory general prequalification of Offerors on forms prescribed by ODOT. Annual prequalification with ODOT is required to bid on any Public Improvement project ODOT may advertise. Prequalification applications must be received by ODOT on the ODOT "Contractor's Prequalification Application" form ten Days prior to Bid Opening. The application must be completed in its entirety or a Bidder's Offer will be rejected. See OAR 734-010-0220 through 734-010-0280.

(b) Special Prequalification. ODOT must indicate in the Solicitation Document if it will require a special mandatory prequalification in addition to the general prequalification. Special prequalifications may be used for projects of a particularly complex nature, using products requiring highly specialized skills, or when a mandatory general prequalification is not required. The solicitation documents shall indicate the requirements and time frame for special prequalifications.

(2) Standards for Prequalification. Standards for prequalification are identified in OAR chapter 734 division 10.

(3) Subsection (1)(a) of this rule does not apply to public improvement contracts with a value, estimated by ODOT, of less than $100,000; however, ODOT may require a special contractor prequalification under subsection (1)(b) even when there is no mandatory prequalification.

Stat. Auth.: ORS 184.616, 184.619, 279A.050, 279A.065 & 279C.430
Stats. Implemented: ORS 279C.430 & 279C.435
Hist.: DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05; DOT 1-2007, f. & cert. ef. 1-24-07; DOT 1-2008(Temp), f. & cert. ef. 1-24-08 thru 7-22-08; DOT 2-2008, f. & cert. ef. 5-19-08

731-005-0460

Eligibility to Bid or Propose on Construction or Landscape Contracts

(1) Construction Contracts. ODOT shall not consider an Entity's Offer to do Work as a Contractor, as defined in ORS 701.005(2), unless the Entity has a current, valid certificate of registration issued by the Construction Contractors Board. Registration is not a requirement of bidding on federal funded projects.

(2) Landscape Contracts. ODOT shall not consider an Entity's Offer to do Work as a landscape Contractor as defined in ORS 671.520(2), unless the Entity has a current, valid landscape Contractor's license issued pursuant to ORS 671.560 by the State Landscape Contractors Board. Registration is not a requirement of bidding on federal funded projects.

(3) Noncomplying Entities. ODOT shall deem an Offer received from an Entity that fails to comply with this rule nonresponsive and shall reject the Offer, unless contrary to federal law.

Stat. Auth.: ORS 184.616, 184.619, 279A.050 & 279A.065
Stats. Implemented: ORS 279C.365, 671.530 & 701.055
Hist.: DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

731-005-0470

Solicitation Methods

(1) Policy. It is the policy of the State of Oregon to encourage open and impartial competition in public contracting. ODOT may establish Competition by comparing price, product and service quality, product performance, and an Entity’s ability to perform, technical competence and ability to make timely deliveries. ODOT must make every effort to construct Public Improvements at the least cost to ODOT.

(2) Solicitation Methods. ODOT may encourage meaningful competition through a variety of solicitation methods. ODOT shall choose the solicitation method that is most likely to encourage Offers representing optimal value to ODOT:

(a) ODOT may use an Invitation to Bid if ODOT believes it will receive optimal value by selecting the lowest priced Offer that meets the technical requirements of ODOT’s Specifications;

(b) ODOT may use a Request for Proposal if ODOT believes it will receive optimal value:

(A) By selecting an Offer using both price and non-price related factors; or

(B) By selecting an Offer using both price and non-price related factors and permitting negotiations pursuant to OAR 731-005-0650.

(c) ODOT may permit negotiations under a Request for Proposal pursuant to OAR 731-005-0650 if:

(A) ODOT intends to consider alternative terms and conditions to reduce Agency cost or enhance the value of the product or service requested; or

(B) ODOT finds negotiation is required to effect a successful procurement (e.g. the Specifications are complex and ODOT expects numerous queries as to the proper interpretation of the Specification; the Work requires a high level of technical or managerial competence that cannot be defined adequately in the Specifications; or ODOT believes negotiations are necessary to gauge the Proposer’s understanding of complex Specifications).

(3) Solicitation Documents. The Solicitation Document shall include the following:

(a) General Information:

(A) Notice of any pre-Offer conference as follows:

(i) The time, date and location of any pre-Offer conference;

(ii) Whether attendance at the conference will be mandatory or voluntary; and

(iii) That statements made by ODOT’s representatives at the conference are not binding upon ODOT unless confirmed by Written Addendum.

(B) The deadline for submitting mandatory prequalification applications and the class or classes of Work for which Offerors must be prequalified if prequalification is a requirement;

(C) The name and title of the authorized Agency person designated for receipt of Offers and contact person (if different);

(D) Instructions and information concerning submission requirements including the address of the office to which Offers must be delivered and any other special information, e.g., whether Offers may be submitted by Facsimile, Electronic Data Interchange or Electronic Procurement (See OAR 731-005-0500, 731-005-0505 and 731-005-0510 for required provisions for Facsimile, Electronic Data Interchange or Electronic Procurement);

(E) The time, date and place of Opening;

(F) The time and date of Closing after which ODOT will not accept Offers, which time shall be not less than five Days after the date of the last publication of the advertisement. The interval between the date of issuance of the Solicitation Document and a Closing should not be less than 14 Days for an ITB and not less than 30 Days for an RFP unless ODOT finds a shorter interval is in the public’s interest. If ODOT is issuing an ITB that may result in a Contract for a Public Improvement with a value in excess of $75,000, ODOT shall not designate a time of Closing that falls when ODOT is closed to the public or after 12 noon on Friday (see also, OAR 731-007-0260; for timing issues relating to Addenda see OAR 731-005-0580(3));

(G) The form and submission of Offers and any information required therein, including Bid or Proposal security, if any;

(H) The office where the plans and Specifications for the Work or goods may be reviewed;

(I) A statement that each Offeror to an ITB or RFP must identify whether the Bidder or Proposer is a “resident bidder,” as defined in ORS 279A.120;

(J) If the Contract resulting from a Solicitation will be a Contract for a Public Work subject to ORS 279C.800 to 279C.870 or the Davis-Bacon Act (40 U.S.C. 276a), a statement that no Offer will be received or considered by ODOT unless the Offer contains a statement by the Offeror as a part of its Offer that “Contractor agrees to be bound by and will comply with the provisions of ORS 279C.830 or 40 U.S.C. 276a;”

(K) If the Work so requires, a statement that ODOT will not receive or consider an Offer from an Entity when the Entity is not registered with the Construction Contractors Board or is not licensed by the State Landscape Contractors Board as required by ORS 671.530;

(L) Whether a Contractor or a subcontractor under the Contract must be licensed under ORS 468A.720;

(M) Contractor’s certification of nondiscrimination in obtaining required subcontractors in accordance with ORS 279A.110. (See OAR 731-005-0670(3)); and

(N) How ODOT will notify Offerors of Addenda and how ODOT will make Addenda available. See OAR 731-005-0580.

(b) Agency Need. The character of the Work or goods ODOT is purchasing including, if applicable, a description of the acquisition, Specifications, delivery or performance schedule, inspection and acceptance requirements;

(c) Evaluation process:

(A) A statement that ODOT may reject any Offer not in compliance with all prescribed solicitation bidding procedures and requirements and other applicable laws, including the requirement to demonstrate the Bidder’s responsibility under ORS 279C.375(3)(b), and that ODOT may reject for good cause any or all Offers after finding that doing so is in the public interest;

(B) The anticipated solicitation schedule, deadlines, protest process, and evaluation process, if any;

(C) Evaluation criteria, including the relative value applicable to each criterion, that ODOT will use to determine the Responsible Bidder with the lowest Responsive Bid or the Responsible Proposer with the best Responsive Proposal and the evaluation criteria ODOT will use to determine acceptability of any Work or goods to be purchased:

(i) If Contract award is to be based upon low Bid, ODOT shall set forth objective evaluation criteria in the Solicitation Document. Examples of such criteria that may be used in determining low Bid include, but are not limited to, conversion costs, transportation cost, volume weighing, trade-in allowances, cash discounts, depreciation allowances, cartage penalties, ownership or life-cycle cost formulas, performance history on other private and public Contracts, experience of key personnel, adequacy of equipment and physical plant, financial wherewithal, sources of supply, references and warranty provisions. Evaluation criteria need not be precise predictors of actual future costs. However, to the extent possible, such evaluation factors shall be reasonable estimates based upon information ODOT has available concerning future use;

(ii) If the Solicitation Document is a Request for Proposal, ODOT shall set forth selection criteria in the Solicitation Document. Examples of evaluation criteria include price or cost, quality of a product or service, past performance, management, capability, personnel qualification, prior experience, compatibility, reliability, operating efficiency, expansion potential, experience of key personnel, adequacy of equipment or physical plant, financial wherewithal, sources of supply, references and warranty provisions. Evaluation factors need not be precise predictors of actual future costs and performance, but to the extent possible, such factors shall be reasonable estimates based on information available to ODOT; or

(iii) If the Solicitation Document is a Request For Proposal and ODOT is willing to negotiate terms and conditions of the Contract, ODOT must identify the specific terms and conditions in the Solicitation Document that are subject to negotiation and authorize Offerors to propose certain alternative terms and conditions in lieu of the terms and conditions ODOT has identified as authorized for negotiation. ODOT must describe the evaluation and negotiation process in accordance with OAR 731-005-0650, including the Competitive Range; and

(D) Reference to statutory preference for materials and supplies manufactured from recycled materials under ORS 279A.125.

(d) Terms and conditions. ODOT shall include all Contract terms and conditions, including warranties and bonding requirements, ODOT considers necessary. Without limiting the preceding sentence, ODOT must include all applicable Contract provisions required by ORS 279C.500 through 279C.870 as follows:

(A) Payment of all Entities furnishing labor or material, contributions to Industrial Accident Fund, liens and withholding taxes (ORS 279C.505);

(B) If the Contract is for a Public Improvement, a condition that the Contractor shall demonstrate it has established a drug-testing program for its employees;

(C) If the Contract calls for demolition Work described in ORS 279C.510, a condition requiring the Contractor to salvage or recycle construction and demolition debris, if feasible and cost-effective;

(D) If the Contract calls for lawn or landscape maintenance, a condition requiring the Contractor to compost or mulch yard waste material at an approved site, if feasible and cost effective (ORS 279C.510);

(E) Payment of claims by public officers (ORS 279C.515);

(F) Contractor and first-tier subcontractor liability for late payment on Public Improvement Contracts pursuant to ORS 279C.515;

(G) Entity’s right to file a complaint with the Construction Contractors Board for all Contracts related to a Public Improvement Contract (ORS 279C.515);

(H) Hours of labor in compliance with ORS 279C.520 and 279C.540;

(I) Environmental and natural resources regulations (ORS 279C.525);

(J) Payment for medical care and providing workers’ compensation (ORS 279C.530);

(K) Maximum hours and overtime (ORS 279C.540);

(L) Claims for overtime (ORS 279C.545);

(M) Prevailing wage rates (ORS 279C.800 to 279C.870);

(N) Retainage (ORS 279C.550 through 279C.570);

(O) Prompt payment policy (ORS 279C.570);

(P) Contractor’s relations with subcontractors (ORS 279C.580);

(Q) Notice of claim (ORS 279C.605);

(R) With respect to state Agencies, provisions regarding use of recovered resources and recycled materials and to the extent economically feasible, use of recycled paper and PETE products (ORS 279A.150 and 279A.155);

(S) Contractor’s certification of compliance with the Oregon tax laws in accordance with ORS 305.385;

(T) A Contract provision substantially as follows: “All employers, including Contractor, that employ subject workers who work under this Contract in the State of Oregon shall comply with ORS 656.017 and provide the required Workers’ Compensation coverage, unless such employers are exempt under ORS 656.126. Contractor shall ensure that each of its subcontractors complies with these requirements.” (ORS 279C.530);

(U) Contractor’s certification that all subcontractors performing Work described in ORS 701.005 (i.e., construction Work) will be registered with the Construction Contractors Board or licensed by the State Landscape Contractors Board in accordance with ORS 701.035 to 701.055 before the subcontractors commence Work under the Contract; and

(V) Price escalation and de-escalation Contract Provision relating to steel materials. As used in this paragraph, “steel material” includes any steel products used for and permanently incorporated in the construction, reconstruction or major renovation of a road or highway. “Escalation and de-escalation” relate to and shall be applied to the raw steel in the steel materials listed in the Contract Provision.

(e) If federal funds are involved, the federal laws, rules and regulations applicable to the fund requirements shall govern in the event they conflict with a provision required by ORS 279A.120 to 279A.155;

(f) Unless otherwise provided in the Contract, the Contractor shall not assign, sell, dispose of, or transfer rights, nor delegate duties under the Contract, either in whole or in part, without ODOT’s prior Written consent. Unless otherwise agreed by ODOT in Writing, such consent shall not relieve the Contractor of any obligations under the Contract. Any assignee or transferee shall be considered the agent of the Contractor and be bound to abide by all provisions of the Contract. If ODOT consents in Writing to an assignment, sale, disposal or transfer of the Contractor’s rights or delegation of Contractor’s duties, the Contractor and its surety, if any, shall remain liable to ODOT for complete performance of the Contract as if no such assignment, sale, disposal, transfer or delegation had occurred unless ODOT otherwise agrees in Writing.

Stat. Auth.: ORS 184.616, 184.619, 279A.050 & 279A.065
Stats. Implemented: ORS 279A.030, 279A.120, 279C.300, 279C.345, 279C.365, 279C.375, 279C.390, 279C.500 - 279C.870, 305.385, 701.005 & 701.055
Hist.: DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05; DOT 4-2006, f. & cert. ef. 2-16-06; DOT 4-2007, f. & cert. ef. 5-23-07; DOT 5-2009(Temp), f. 12-22-09, cert. ef. 1-1-10 thru 6-30-10; DOT 1-2010, f. & cert. ef. 5-18-10

731-005-0480

Brand Name Products

(1) Generally. ODOT's Solicitation Document shall not expressly or implicitly require any product by brand name or mark, nor shall it require the product of any particular manufacturer or seller, except pursuant to an exemption granted under ORS 279C.345.

(2) Equivalents. ODOT may identify products by brand names so long as the following language: "approved equal," "or equal," "approved equivalent," "or equivalent" or similar language is included in the Solicitation Document. ODOT shall determine, at its sole discretion, whether an Offeror's alternate product is "equal" or "equivalent."

Stat. Auth.: ORS 184.616, 184.619, 279A.050 & 279A.065
Stats. Implemented: ORS 279C.345
Hist.: DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

731-005-0490

Bids or Proposals Are Offers

(1) Offer and Acceptance. The Bid or Proposal is the Bidder's or Proposer's Offer to enter into a Contract. The Offer is a "Firm Offer," i.e., the Offer shall be held open by the Offeror for ODOT's acceptance for the period specified in OAR 731-005-0630. ODOT's award of the Contract constitutes acceptance of the Offer and binds the Offeror to the Contract.

(2) Responsive Offer. ODOT may award a Contract only to a Responsible Offeror with a Responsive Offer.

(3) Contingent Offers. Except to the extent the Offeror is authorized to propose certain terms and conditions pursuant to OAR 731-005-0470 and 731-005-0650, a Offeror shall not make its Offer contingent upon ODOT's acceptance of any terms or conditions (including Specifications) other than those contained in the Solicitation Document.

(4) Offeror's Acknowledgement. By signing and returning the Offer, the Offeror acknowledges it has read and understands the terms and conditions contained in the Solicitation Document and that it accepts and agrees to be bound by the terms and conditions of the Solicitation Document. If the Request for Proposal permits proposal of alternative terms under OAR 731-005-0470(2), the Offeror's Offer includes the nonnegotiable terms and conditions and any proposed terms and conditions offered for negotiation upon and to the extent accepted by ODOT in Writing.

Stat. Auth.: ORS 184.616, 184.619, 279A.050 & 279A.065
Stats. Implemented: ORS 279C.375, 279C.395 & 279C.440
Hist.: DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

731-005-0500

Facsimile Bids and Proposals

(1) Agency Authorization. ODOT may authorize Offerors to submit Facsimile Offers. If ODOT determines that Bid or Proposal security is or will be required, ODOT should not authorize Facsimile Offers unless ODOT has another method for receipt of such security. Prior to authorization ODOT must determine whether ODOT's equipment and personnel are capable of receiving the size and volume of anticipated Offers within a short period of time and establish administrative procedures and controls:

(a) For receiving, identifying, recording, and safeguarding Facsimile Offers; and

(b) To ensure timely delivery of Offers to the location of Opening and to preserve the "sealed" requirement of competitive procurement.

(2) Provisions to Be Included in Solicitation Document. In addition to all other requirements, if ODOT authorizes a Facsimile Offer, ODOT will include in the Solicitation Document provisions substantially similar to the following:

(a) A Facsimile Offer, as used in this solicitation, means an Offer, modification of an Offer, or withdrawal of an Offer that is transmitted to and received by ODOT via a Facsimile machine.

(b) Offerors may submit Facsimile Offers in response to this solicitation. The entire response must arrive at the place and by the time specified in this Solicitation Document.

(c) Offerors must Sign their Facsimile Offers.

(d) ODOT reserves the right to award the Contract solely on the Facsimile Offer. However, upon ODOT's request the apparently successful Offeror shall promptly submit its complete original Signed Offer.

(e) The telephone number or numbers to which the Facsimile Offers may be submitted.

(f) ODOT is not responsible for any failure attributable to the transmission or receipt of the Facsimile Offer including, but not limited to the following:

(A) Receipt of garbled or incomplete documents.

(B) Availability or condition of the receiving Facsimile machine.

(C) Incompatibility between the sending and receiving Facsimile machine.

(D) Delay in transmission or receipt of documents.

(E) Failure of the Offeror to properly identify the Offer documents.

(F) Illegibility of Offer documents.

(G) Security and confidentiality of data.

Stat. Auth.: ORS 184.616, 184.619, 279A.050 & 279A.065
Stats. Implemented: ORS 279C.365
Hist.: DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

731-005-0505

Electronic Procurement

(1) General. ODOT may utilize Electronic Advertisement of Public Improvement Contracts in accordance with ORS 279C.360, provided that advertisements of such Contracts with an estimated Contract Price in excess of $125,000 are also published in a trade newspaper of general statewide circulation. ODOT may post notices of intent to award electronically as provided by ORS 279C.410.

(2) Alternative Procedures. In the event that ODOT desires to direct or permit the submission and receipt of Offers for a Public Improvement Contract by electronic means, as allowed under ORS 279C.365, it shall first promulgate supporting procedures substantially in conformance with OAR chapter 731 division 5, taking into account ORS Chapter 279C requirements for Written Bids, opening Bids publicly, Bid security, first-tier subcontractor disclosure and inclusion of prevailing wage rates.

(3) Interpretation. Nothing in this rule shall be construed as prohibiting ODOT from making procurement documents for Public Improvement Contracts available in electronic format as well as in hard copy when Bids are to be submitted only in hard copy.

(4) Electronic Procurement Authorized:

(a) ODOT may conduct all phases of a Procurement, including without limitation the posting of Electronic Advertisements and the receipt of Electronic Offers, by electronic methods if and to the extent ODOT specifies in a Solicitation Document, or any other Written instructions on how to participate in the Procurement;

(b) ODOT shall open an Electronic Offer in accordance with electronic security measures in effect at ODOT at the time of its receipt of the Electronic Offer. Unless ODOT provides procedures for the secure receipt of Electronic Offers, the Person submitting the Electronic Offer assumes the risk of premature disclosure due to submission in unsealed form;

(c) ODOT's use of electronic or digital Signatures shall be consistent with applicable statutes and rules. ODOT may limit the use of electronic methods of conducting a procurement as advantageous to the contracting agency;

(d) If ODOT determines that Bid or Proposal security is or will be required, ODOT shall not authorize Electronic Offers unless it has established methods for receipt of such security.

(5) Rules Governing Electronic Procurements. ODOT shall conduct all portions of an Electronic Procurement in accordance with OAR chapter 731 division 5, unless otherwise set forth in this rule.

(6) Preliminary Matters. As a condition of participation in an electronic Procurement ODOT may require potential Contractors to:

(a) Register with ODOT before the date and time on which ODOT will first accept Offers;

(b) Agree to the terms, conditions, or other requirements of a Solicitation Document; or

(c) Agree to terms and conditions governing the procurement, such as procedures that ODOT may use to attribute, authenticate or verify the accuracy of an Electronic Offer, or the actions that constitute an electronic or digital Signature.

(7) Offer Process. ODOT may specify that persons must submit an Electronic Offer by a particular date and time.

(8) Receipt of Electronic Offers:

(a) If ODOT permits Electronic Offers in the Solicitation Document, the Offeror may submit Electronic Offers in accordance with the Solicitation Document. ODOT shall not consider Facsimile or Electronic Offers unless authorized by the Solicitation Document;

(b) When ODOT conducts an electronic procurement that provides that all Electronic Offers must be submitted by a particular date and time, ODOT shall receive the Electronic Offers in accordance with OAR chapter 731 division 5;

(c) A person may withdraw an Electronic Offer at any time prior to the specified date and time in accordance with solicitation documents.

(9) Failure of the Electronic Procurement System. In the event of a failure of ODOT's Electronic Procurement System that interferes with the ability of Persons to submit Electronic Offers, protest or to otherwise participate in the procurement, the contracting agency may cancel the procurement in accordance with OAR 731-005-0730, or may extend the date and time for receipt of Electronic Offers by providing notice of the extension immediately after the Electronic Procurement System becomes available.

Stat. Auth.: ORS 184.616, 184.691, 279A.065
Stats. Implemented: ORS 279A.065 & ORS 279C.365
Hist.: DOT 4-2007, f. & cert. ef. 5-23-07

731-005-0510

Use of Electronic Data Interchange

(1) Agency Authorization. ODOT may authorize Offerors to submit EDI Offers. If ODOT determines that Bid or Proposal security is or will be required, ODOT should not authorize EDI Offers unless ODOT has a method for receipt of such security. Prior to authorizing EDI Offers, ODOT must:

(a) Establish administrative procedures and controls for receiving, identifying, recording, and safeguarding EDI Offers, to ensure timely delivery of the Offers to the Opening location and to preserve the "sealed" requirement of competitive procurement;

(b) Determine whether ODOT's procedures, controls, equipment and personnel are capable of receiving the size and volume of anticipated EDI Offers within a short period of time; and

(c) Make available to interested vendors an EDI "trading partner" or operating agreement ("EDI Operating Agreement").

(2) EDI Operating Agreement. An EDI Operating Agreement must address the basic legal issues required to formalize an EDI relationship. The EDI Operating Agreement shall include the following:

(a) Selection of EDI standards and methods of communication;

(b) Allocation of responsibilities for ensuring that the equipment, software and services are operated and maintained effectively;

(c) Procedures for making system changes that may impair the ability of the parties to communicate;

(d) Required security and authentication procedures and services;

(e) The method for establishing receipt of Offers and for evidencing the Offeror is bound to its Offer;

(f) The need (if any) for maintaining confidentiality;

(g) The allocation of liabilities for failure to meet requirements under the EDI Operating Agreement;

(h) Methods for resolving any disputes under the EDI Operating Agreement; and

(i) Document backup and replacement procedures.

(3) Provisions to Be Included in Solicitation. In addition to all other requirements, if ODOT authorizes an EDI Offer, ODOT will include in the Solicitation Document provisions substantially similar to the following:

(a) An EDI Offer, as used in this solicitation, means an Offer, modification of an Offer, or withdrawal of an Offer that is transmitted to and received by ODOT in accordance with the EDI Operating Agreement between ODOT and Offeror.

(b) An Offeror may submit an EDI Offer in response to this solicitation provided the Offeror has an effective EDI Operating Agreement with ODOT. The EDI Offer must arrive at the place and by the time specified in the Solicitation Document.

(c) An Offeror must Sign its EDI Offer in accordance with the EDI Operating Agreement between ODOT and the Offeror.

(d) ODOT reserves the right to award the Contract based solely on the EDI Offer. Unless otherwise provided under the EDI Operating Agreement, the Offeror shall promptly submit conformed Signed documents upon ODOT's request.

(e) Unless otherwise expressly agreed upon under the EDI Operating Agreement, ODOT is not responsible for any failure attributable to the transmission or receipt of the EDI Offer including, but not limited to the following:

(A) Receipt of garbled or incomplete documents.

(B) Availability or condition of the receiving equipment.

(C) Incompatibility between the sending and receiving equipment.

(D) Delay in transmission or receipt of documents.

(E) Failure of the Offeror to properly identify the Offer documents.

(F) Illegibility of Offer documents.

(G) Security and confidentiality of data.

Stat. Auth.: ORS 184.616, 184.619, 279A.050 & 279A.065
Stats. Implemented: ORS 279A.065 & 279C.365
Hist.: DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

731-005-0520

Notice and Advertising Requirements; Posting

(1) Notice and Distribution Fee. ODOT shall furnish Notice as set forth in subsections (a) through (c) of this section, to a number of entities sufficient for the purpose of fostering and promoting competition. The Notice shall indicate where, when, how, and for how long the Solicitation Document may be obtained and generally describe the Work. The Notice may contain any other appropriate information. ODOT may charge a fee or require a deposit for the Solicitation Document. ODOT may furnish Notice using any method determined to foster and promote competition, including:

(a) Mailing Notice of the availability of Solicitation Documents ("Notice") to Entities that have expressed an interest in ODOT's procurements;

(b) Placing Notice on ODOT's Electronic Procurement System; or

(c) Placing Notice on ODOT's internet web site.

(2) Advertising. Pursuant to ORS 279C.360 and this rule, ODOT shall advertise every Solicitation for competitive Bids or competitive Proposals for a Public Improvement Contract, unless ODOT has exempted the Solicitation from the advertisement requirement as part of a competitive Bidding exemption under ORS 279C.335:

(a) Unless ODOT publishes by Electronic Advertisement as permitted under subsection (b) of this section, ODOT shall publish the advertisement for Offers at least once in at least one newspaper of general circulation in the area where the Contract is to be performed and in as many additional issues and publications as ODOT may determine to be necessary or desirable to foster and promote competition;

(b) ODOT may publish by Electronic Advertisement;

(c) In addition to ODOT's publication required under subsection (a) or (b) of this section, ODOT shall also publish an advertisement for Offers in at least one trade newspaper of general statewide circulation if the Contract is for a Public Improvement with an estimated cost in excess of $125,000;

(d) All advertisements for Offers shall set forth:

(A) The Public Improvement project;

(B) The scheduled Closing, that shall not be less than five Days after the date of the last publication of the advertisement;

(C) The date that Entities must file applications for prequalification if prequalification is a requirement and the class or classes of Work for which Entities must be prequalified;

(D) The nature of the Work to be performed or the goods to be purchased;

(E) The office where the Solicitation Documents may be reviewed;

(F) The name, title and address of ODOT person authorized to receive Offers;

(G) The scheduled Opening; and

(H) If applicable, that the Contract is for a Public Work subject to ORS 279C.800 to 279C.870 or the Davis-Bacon Act (40 U.S.C. 276(a)).

(3) Minority, Women and Emerging Small Business. ODOT shall provide timely notice of all solicitations to the Advocate for Minority, Women and Emerging Small Business if the estimated Contract Price exceeds $5,000.

Stat. Auth.: ORS 184.616, 184.619, 279A.050 & 279A.065
Stats. Implemented: ORS 200.035 & 279C.360
Hist.: DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05; DOT 4-2007, f. & cert. ef. 5-23-07

731-005-0530

Offer Preparation

(1) Instructions. An Offeror shall submit and Sign its Offer in accordance with the Solicitation Document. An Offeror shall initial and submit any correction or erasure to its Offer prior to the Opening in accordance with the requirements for submitting an Offer under the Solicitation Document.

(2) Forms. An Offeror shall submit its Offer on the form(s) provided in the Solicitation Document, unless an Offeror is otherwise instructed in the Solicitation Document.

(3) Documents. An Offeror shall provide ODOT with all documents and Descriptive Literature required under the Solicitation Document.

(4) Facsimile, EDI or Electronic Submissions. If the Solicitation Document permitted Facsimile, EDI or Electronic Offers under OAR 731-005-0470(3)(a)(D), an Offeror may submit its Offer by Facsimile, EDI or Electronic submissions. ODOT shall not consider Facsimile, EDI or Electronic Offers unless authorized by the Solicitation Document.

Stat. Auth.: ORS 184.616, 184.619, 279A.050 & 279A.065
Stats. Implemented: ORS 279C.365
Hist.: DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05; DOT 4-2007, f. & cert. ef. 5-23-07

731-005-0540

Offeror Submissions

(1) Product Samples and Descriptive Literature. ODOT may require Product Samples or Descriptive Literature if it is necessary or desirable to evaluate the quality, features or characteristics of the offered items. ODOT will dispose of Product Samples, or return or make available for return Product Samples to the Offeror in accordance with the Solicitation Document.

(2) Identification of Offers:

(a) To ensure proper identification and handling, Offers shall be submitted in a sealed envelope appropriately marked or in the envelope provided by ODOT, whichever is applicable. If ODOT permits Facsimile or Electronic Offers in the Solicitation Document, the Offeror may submit and identify Facsimile or Electronic Offers in accordance with the Solicitation Document;

(b) ODOT is not responsible for Offers submitted in any manner, format or to any delivery point other than as required in the Solicitation Document.

(3) Receipt of Offers. The Offeror is responsible for ensuring ODOT receives its Offer at the required delivery point prior to the Closing, regardless of the method used to submit or transmit the Offer.

Stat. Auth.: ORS 184.616, 184.619, 279A.050 & 279A.065
Stats. Implemented: ORS 279C.365
Hist.: DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05; DOT 4-2007, f. & cert. ef. 5-23-07

731-005-0550

Bid or Proposal Security

(1) Security Amount. If ODOT requires Bid security, it shall be 10% of the Offeror's Bid. If ODOT requires Proposal security, it shall be in an amount that ODOT determines to be reasonably necessary or prudent to protect the interests of ODOT, and such amount shall be stated in the Solicitation Document. ODOT shall not use Bid or Proposal security to discourage competition. ODOT shall clearly state any Bid or Proposal security requirements in its Solicitation Document. The Offeror shall forfeit Bid or Proposal security after Award if the Offeror fails to execute the Contract and promptly return it with any required performance bond, payment bond and any required proof of insurance. See ORS 279C.365(5) and 279C.385.

(2) Requirement for Bid Security (Optional for Proposals). Unless ODOT has otherwise exempted a solicitation or class of solicitations from Bid security pursuant to ORS 279C.390, ODOT shall require Bid security for its solicitation of Bids for Public Improvements. This requirement applies only to Public Improvement Contracts with a value, estimated by ODOT, of more than $50,000. See ORS 279C.365(6). ODOT may require Bid security even if it has exempted a class of solicitations from Bid security. ODOT may, at its option, require Proposal security that serves the same function with respect to Proposals that Bid security serves with respect to Bids. See ORS 279C.365(5) and 279C.400(5).

(3) Form of Bid or Proposal Security. ODOT may accept only the following forms of Bid or Proposal Security:

(a) A surety bond from a surety company authorized to do business in the State of Oregon. If a surety bond is submitted, ODOT’s standard Bid or Proposal bond form must be used, which is included with the Bid or Proposal booklet. The original bond must be submitted with the surety company’s seal affixed, or in the case of an Electronic Offer, an electronic version of the bid bond may be submitted.

(b) An irrevocable letter of credit issued by an insured institution as defined in ORS 706.008; or

(c) A cashier’s check or Offeror’s certified check made out to the Oregon Department of Transportation.

(4) Return of Security. ODOT shall return or release the Bid or Proposal security of all unsuccessful Offerors after a Contract has been fully executed and all required bonds and insurance have been provided, or after all Offers have been rejected. ODOT may return the Bid or Proposal security of unsuccessful Offerors prior to Award if the return does not prejudice Contract Award and the security of at least the Bidders with the three lowest Bids, or the Proposers with the three highest scoring Proposals, is retained pending execution of a Contract.

Stat. Auth.: ORS 184.616, 184.619, 279A.050 & 279A.065
Stats. Implemented: ORS 279C.365, 279C.380, 279C.385, 279C.390, and 279C.400
Hist.: DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05; DOT 4-2007, f. & cert. ef. 5-23-07; DOT 7-2007(Temp), f. & cert. ef. 12-24-07 thru 6-9-08; DOT 3-2008, f. & cert. ef. 5-19-08

731-005-0560

Pre-Offer Conferences

(1) Purpose. ODOT may hold pre-Offer conferences with prospective Offerors prior to Closing, to explain the procurement requirements, obtain information, or to conduct site inspections.

(2) Required Attendance. ODOT may require attendance at the pre-Offer conference as a condition for making an Offer.

(3) Scheduled Time. If ODOT holds a pre-Offer conference, it shall be held within a reasonable time after the Solicitation Document has been issued, but sufficiently before the Closing to allow Offerors to consider information provided at that conference.

(4) Statements Not Binding. Statements made by ODOT's representative at the pre-Offer conference do not change the Solicitation Document unless ODOT confirms such statements with a Written Addendum to the Solicitation Document.

(5) Agency Announcement. ODOT must set forth notice of any pre-Offer conference in the Solicitation Document in accordance with OAR 731-005-0470(3)(a)(A).

Stat. Auth.: ORS 184.616, 184.619, 279A.050 & 279A.065
Stats. Implemented: ORS 279C.365
Hist.: DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

731-005-0570

Solicitation Protest; Request for Change; Request for Clarification

(1) Protest.

(a) Delivery. An Offeror may protest Specifications or Contract terms and conditions. Unless otherwise specified in the Solicitation Document, an Offeror must deliver a Written protest to ODOT not less than 10 Days prior to Closing.

(b) Content of Protest.

(A) An Offeror's Written protest shall include:

(i) A detailed statement of the legal and factual grounds for the protest;

(ii) A description of the resulting prejudice to the Offeror; and

(iii) A statement of the desired changes to the Contract terms and conditions, including Specifications.

(B) An Offeror shall mark its protest as follows:

(i) Solicitation Specification or Contract Provision Protest; and

(ii) Solicitation Document Number (or Other Identification as specified in the Solicitation Document).

(2) Request for Change.

(a) Delivery. An Offeror may request in Writing a change to the Specifications or Contract terms and conditions. Unless otherwise specified in the Solicitation Document, an Offeror must deliver the Written request for change to ODOT not less than 10 Days prior to Closing;

(b) Content of Request or Change.

(A) An Offeror's Written request for change shall include a statement of the requested changes to the Contract terms and conditions, including Specifications together with the reason for the requested change.

(B) An Offeror shall mark its request for change as follows:

(i) Solicitation Specification or Contract Provision Request for Change; and

(ii) Solicitation Document Number (or Other Identification as specified in the Solicitation Document).

(3) Agency response. ODOT is not required to consider an Offeror's request for change or protest after the deadline established for submitting such request or protest. ODOT shall provide notice to the applicable Entity if it entirely rejects a protest. If ODOT agrees with the Entity's request or protest, in whole or in part, ODOT shall either issue an Addendum reflecting its determination under OAR 731-005-0580 or cancel the Solicitation under OAR 731-005-0720.

(4) Extension of Closing. If ODOT receives a Written request for change or protest from an Offeror in accordance with this rule, ODOT may extend Closing if ODOT determines an extension is necessary to consider the request or protest and to issue an Addendum, if any, to the Solicitation Document.

(5) Clarification. Prior to the deadline for submitting a Written request for change or protest, an Offeror may request that ODOT clarify any provision of the Solicitation Document. ODOT's clarification to an Offeror, whether orally or in Writing, does not change the Solicitation Document and is not binding on ODOT unless ODOT amends the Solicitation Document by Addendum.

Stat. Auth.: ORS 184.616, 184.619, 279A.050 & 279A.065
Stats. Implemented: ORS 279C.305, 279C.345, 279C.365 & 279C.460
Hist.: DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

731-005-0580

Addenda to a Solicitation Document

(1) Issuance; Receipt. ODOT may change a Solicitation Document only by Written Addenda.

(2) Notice and Distribution. ODOT shall notify prospective Offerors of Addenda consistent with the standards of Notice set forth in OAR 731-005-0520(1). The Solicitation Document shall specify how ODOT will provide notice of Addenda and how ODOT will make the Addenda available (see OAR 731-005-0470(3)(a)(N)). For example, "Agency will not mail notice of Addenda, but will publish notice of any Addenda on Agency's WEB site. Addenda may be downloaded off ODOT's WEB site. Offerors should check ODOT's WEB site weekly until the week of Closing and daily the week of the Closing."

(3) Timelines; Extensions. ODOT shall issue Addenda within a reasonable time to allow prospective Offerors to consider the Addenda in preparing their Offers. ODOT should extend the Closing if ODOT determines prospective Offerors need additional time to review and respond to Addenda. Except to the extent required by public interest, ODOT shall not issue Addenda less than 48 hours before the Closing unless the Addendum also extends the Closing.

(4) Request for Change or Protest. Unless a different deadline is set forth in the Addendum, an Offeror may submit a Written request for change or protest to the Addendum as provided in OAR 731-005-0570(2) through (5), within 24 hours following issuance of the Addendum, or up to the last day allowed to submit a request for change or protest under OAR 731-005-0570, whichever date is later. ODOT shall consider only an Offeror's request for change or protest to the Addendum; ODOT shall not consider a request for change or protest to matters not added or modified by the Addendum.

Stat. Auth.: ORS 184.616, 184.619, 279A.050 & 279A.065
Stats. Implemented: ORS 279A.065 & 279C.395
Hist.: DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

731-005-0590

Pre-Opening Modification or Withdrawal of Offers

(1) Electronic Offers: Modifications or Withdrawals of Electronic Offers. Offeror may modify or withdraw an offer prior to closing time as instructed in the Solicitation documents. The most recent Offer will be the final Offer.

(2) Paper Offers:

(a) Modifications: An Offeror may modify its Offer in Writing prior to the Closing. An Offeror shall prepare and submit any modification to its Offer to ODOT in accordance with OAR 731-005-0530 and 731-005-0540, unless otherwise specified in the Solicitation Document. Any modification must include the Offeror's statement that the modification amends and supersedes the prior Offer. The Offeror shall mark the submitted modification as follows:

(A) Bid (or Proposal) Modification; and

(B) Solicitation Number (or Other Identification as specified in the Solicitation Document).

(b) Withdrawals:

(A) An Offeror may withdraw its Offer by Written notice submitted on the Offeror's letterhead, including the Offeror's Bid or Proposal document number if one has been assigned, Signed by an individual who is authorized to sign the Offer, delivered to the location specified in the Solicitation Document (or the place of Closing if no location is specified), and received by ODOT prior to the Closing. Proof of authorization to sign the Offer must accompany the withdrawal request. The Offeror or authorized representative of the Offeror may also withdraw its Offer in person prior to the Closing, upon presentation of appropriate identification and satisfactory evidence of authority;

(B) ODOT may release an unopened Offer, withdrawn under paragraph (A) of this subsection, to the Offeror or its authorized representative, after voiding any date and time stamp mark;

(C) The Offeror shall mark the Written request to withdraw an Offer as follows:

(i) Bid (or Proposal) Withdrawal; and

(ii) Solicitation Number (or Other Identification as specified in the Solicitation Document).

(3) Documentation. ODOT shall include all documents relating to the modification or withdrawal of Offers in the appropriate solicitation file.

Stat. Auth.: ORS 184.616, 184.619, 279A.050 & 279A.065
Stats. Implemented: ORS 279A.065, 279C.360, 279C.365, 279C.375 & 279C.395
Hist.: DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05; DOT 4-2007, f. & cert. ef. 5-23-07

731-005-0600

Receipt, Opening, and Recording of Offers

(1) Receipt. ODOT shall electronically or mechanically time-stamp or hand-mark each Offer and any modification upon receipt. ODOT shall not open the Bid or Proposal Price Offer or modification upon receipt, but shall maintain it as confidential and secure until Opening. If ODOT inadvertently opens a Bid or Proposal Price Offer or a modification prior to the Opening, ODOT shall return the Bid or Proposal Price or modification to its secure and confidential state until Opening. ODOT shall document the resealing for the procurement file (e.g. "Contracting Agency inadvertently opened the Offer due to improper identification of the Offer").

(2) Opening and recording. ODOT shall publicly open Bid or Proposal Price Offers including any modifications made to the Offer pursuant to OAR 731-005-0590. To the extent practicable, ODOT shall read aloud the name of each Bidder or Price Proposer, the total of each Bid or Proposal Price, and such other information as ODOT considers appropriate. In the case of Requests for Proposals, if the Solicitation Document so provides, ODOT will not read Offers aloud.

(3) Availability. After Opening, ODOT shall make Bids available for public inspection. Proposals are not subject to disclosure until after notice of intent to award is issued as specified in ORS 279C.410. In any event, ODOT may withhold from disclosure those portions of an Offer that the Offeror designates as trade secrets or as confidential proprietary data in accordance with applicable law. See ORS 192.501(2); 646.461 to 646.475. To the extent ODOT determines such designation is not in accordance with applicable law, ODOT shall make those portions available for public inspection. The Offeror shall separate information designated as confidential from other non-confidential information at the time of submitting its Offer. Prices, makes, model or catalog numbers of items offered, scheduled delivery dates, and terms of payment are not confidential, and shall be publicly available regardless of an Offeror's designation to the contrary.

Stat. Auth.: ORS 184.616, 184.619, 279A.050 & 279A.065
Stats. Implemented: ORS 279C.365 & 279C.410
Hist.: DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05; DOT 6-2006(Temp), f. 7-31-06, cert. ef. 8-1-06 thru 1-27-07; DOT 2-2007, f. & cert. ef. 1-24-07

731-005-0610

Late Offers, Late Withdrawals and Late Modifications

Any Offer received after Closing is late. An Offeror's request for withdrawal or modification of an Offer received after Closing is late. ODOT shall not consider late Offers, withdrawals or modifications except as permitted in OAR 731-005-0620 or 731-005-0650.

Stat. Auth.: ORS 184.616, 184.619, 279A.050 & 279A.065
Stats. Implemented: ORS 279C.365 & 279C.395
Hist.: DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

731-005-0620

Mistakes

(1) General. To protect the integrity of the competitive solicitation process and to assure fair treatment of Offerors, ODOT shall carefully consider whether to permit waiver, correction or withdrawal for certain mistakes.

(2) Agency Treatment of Mistakes. ODOT shall not allow an Offeror to correct or withdraw an Offer for an error in judgment. If ODOT discovers certain mistakes in an Offer after Opening, but before award of the Contract, ODOT may take the following action:

(a) ODOT may waive, or permit an Offeror to correct, a minor informality. A minor informality is a matter of form rather than substance that is evident on the face of the Offer, or an insignificant mistake that can be waived or corrected without prejudice to other Offerors. Examples of minor informalities include an Offeror's failure to:

(A) Return the correct number of Signed Offers or the correct number of other documents required by the Solicitation Document;

(B) Sign the Offer in the designated block, provided a Signature appears elsewhere in the Offer, evidencing an intent to be bound; and

(b) ODOT may correct a clerical error if the intended Offer and the error are evident on the face of the Offer, or other documents submitted with the Offer, and the Offeror confirms ODOT's correction in Writing. A clerical error is an Offeror's error in transcribing its Offer. Examples include typographical mistakes, errors in extending unit prices, transposition errors, arithmetical errors, instances in which the intended correct unit or amount is evident by simple arithmetic calculations (for example, a missing unit price may be established by dividing the total price for the units by the quantity of units for that item or a missing, or incorrect total price for an item may be established by multiplying the unit price by the quantity when those figures are available in the Offer). In the event of a discrepancy, unit prices shall prevail over extended prices.

(c) ODOT may permit an Offeror to withdraw an Offer based on other errors only if the Offeror shows by clear and convincing evidence to the satisfaction of ODOT:

(A) The nature of the error on the face of the Offer or documents submitted with the Offer, pursuant to the solicitation requirements; and

(B) That the error is not a judgment error, minor informality or clerical error.

(3) Rejection for Mistakes. ODOT shall reject any Offer in which a mistake is evident on the face of the Offer and the intended correct Offer is not evident or cannot be substantiated from documents submitted with the Offer, pursuant to solicitation requirements.

Stat. Auth.: ORS 184.616, 184.619, 279A.050 & 279A.065
Stats. Implemented: ORS 279C.375 & 279C.395
Hist.: DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

731-005-0630

Time for Agency Acceptance

An Offeror's Offer is a Firm Offer, irrevocable, valid and binding on the Offeror for not less than 30 Days from Closing unless otherwise specified in the Solicitation Document.

Stat. Auth.: ORS 184.616, 184.619, 279A.050 & 279A.065
Stats. Implemented: ORS 279C.375
Hist.: DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

731-005-0640

Extension of Time for Acceptance of Offer

ODOT may request, orally or in Writing, that Offerors extend, in Writing, the time during which ODOT may consider their Offer(s). If an Offeror agrees to such extension, the Offer shall continue as a Firm Offer, irrevocable, valid and binding on the Offeror for the agreed-upon extension period.

Stat. Auth.: ORS 184.616, 184.619, 279A.050 & 279A.065
Stats. Implemented: ORS 279C.375
Hist.: DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

731-005-0650

Offer Evaluation and Award

(1) General. If awarded, ODOT shall award the Contract to the Responsible Bidder submitting the lowest, Responsive Bid or the Responsible Proposer submitting the best, Responsive Proposal. ODOT may award by item, groups of items or the entire Offer provided such award is consistent with the Solicitation Document and in the public interest.

(2) Agency Evaluation. ODOT shall evaluate an Offer only as set forth in the Solicitation Document and in accordance with applicable law. ODOT shall not evaluate an Offer using any other requirement or criterion.

(3) Offeror Submissions.

(a) ODOT may require an Offeror to submit product samples, descriptive literature, technical data, or other material and may also require any of the following prior to award:

(A) Demonstration, inspection or testing of a product prior to award for characteristics such as quality or workmanship;

(B) Examination of such elements as appearance, finish, taste, or feel; or

(C) Other examinations to determine whether the product conforms to Specifications.

(b) ODOT shall evaluate product acceptability only in accordance with the criteria disclosed in the Solicitation Document to determine that a product is acceptable. ODOT shall reject an Offer providing any product that does not meet the Solicitation Document requirements. ODOT's rejection of an Offer because it offers nonconforming Work or goods is not Disqualification and is not appealable under ORS 279C.445.

(4) Evaluation of Bids. ODOT shall use only objective criteria to evaluate Bids as set forth in the ITB. ODOT shall evaluate Bids to determine which Responsible Offeror offers the lowest Responsive Bid. In determining the lowest Responsive Bid, ODOT shall add a percentage increase to the Bid of a nonresident Bidder equal to the percentage, if any, of the preference given to that Bidder in the state in which the Bidder resides unless prohibited by federal requirements. ODOT shall not negotiate scope of Work or other terms or conditions under an Invitation to Bid process.

(5) Evaluation of Proposals.

(a) ODOT shall only evaluate Proposals in accordance with criteria set forth in the RFP and applicable law. ODOT shall evaluate Proposals to determine the Responsible Proposer submitting the best Responsive Proposal. ODOT may seek information from a Proposer only to clarify the Proposer's Proposal. Such clarification shall not vary, contradict or supplement the Proposal. ODOT shall not seek clarification of a nonresponsive Proposal. A Proposer must submit Written and Signed clarifications and such clarifications become part of the Proposer's Proposal. Unless ODOT permitted negotiation in accordance with OAR 731-005-0470 in its Request for Proposals, ODOT may only negotiate:

(A) The statement of Work, including schedule, and

(B) The Contract Price as it is affected by negotiating the statement of Work.

(b) If ODOT permitted negotiation in the Request for Proposals in accordance with OAR 731-005-0470, ODOT shall evaluate Proposals and may negotiate as follows:

(A) If the Solicitation Document provided that negotiation may occur at Agency's discretion, ODOT may forego negotiations and evaluate all Proposals in accordance with subsection (a) of this section;

(B) Unless the solicitation is canceled, after the Opening ODOT will evaluate all Proposals in accordance with the evaluation criteria. After evaluation of all Proposals in accordance with the criteria set forth in the Request for Proposals, ODOT will determine the Proposers in the Competitive Range. ODOT may increase the Competitive Range if ODOT's evaluation of Proposals establishes a natural break in the scores of Proposers indicating a number greater than the initial Competitive Range;

(C) ODOT shall establish a negotiation team tailored for the solicitation. ODOT's team may include but is not limited to legal, technical and negotiating personnel;

(D) In addition to the statement of Work, including schedule, and the Contract Price as it is affected by negotiating the statement of Work, ODOT shall only negotiate other terms and conditions expressly authorized for negotiation under the Request for Proposals. A Proposer shall only submit alternative terms and conditions to the terms and conditions ODOT expressly authorized for negotiation under the Request for Proposal;

(E) ODOT shall provide Written notice to all Proposers identifying Proposers in the Competitive Range. A Proposer that is not within the Competitive Range may protest ODOT's evaluation and determination of the Competitive Range in accordance with OAR 731-005-0690. All Proposals are open for public inspection subject to the Oregon Public Records Law;

(F) After the protest period provided in accordance with paragraph (5)(b)(E) of this rule expires, or after ODOT has provided a final response to any protest, whichever date is later, ODOT may begin negotiating with Proposers in the Competitive Range. ODOT's negotiation team shall not favor any particular Proposer. ODOT may negotiate Contract Price, designated terms and conditions and the statement of Work, including schedule. However, ODOT may only negotiate Contract Price to the extent the Proposer would not be excluded from the Competitive Range based on ODOT's evaluation criteria set forth in the Solicitation Document. ODOT may only negotiate an alternative term or condition submitted by a Proposer if the alternative term or condition is reasonably related to the term or condition ODOT authorized as negotiable. ODOT shall not negotiate any other terms or conditions set forth in the Request for Proposals;

(G) ODOT may evaluate Offers negotiated with Proposers in the Competitive Range at any time during the negotiation process to determine if ODOT will:

(i) Continue negotiating with a particular Proposer;

(ii) Terminate negotiations with a particular Proposer and continue negotiating with other Proposers in the Competitive Range; or

(iii) Conclude negotiations with all remaining Proposers in the Competitive Range in accordance with paragraph (5)(b)(H) of this rule.

(H) ODOT may terminate negotiations with a Proposer in the Competitive Range at any time. If ODOT does not cancel the solicitation at the conclusion of ODOT's negotiation with all remaining Proposers in the Competitive Range, ODOT shall score the Proposals in the Competitive Range based upon the evaluation criteria in the Request for Proposals;

(I) ODOT shall provide Written notice of intent to award the Contract to all Proposers in the Competitive Range. An unsuccessful Proposer may protest ODOT's evaluation and determination of the Competitive Range in accordance with OAR 731-005-0690; and

(J) Nothing in section (5) of this rule shall restrict or prohibit ODOT from canceling the solicitation at any time in accordance with OAR 731-005-0720.

Stat. Auth.: ORS 184.616, 184.619, 279A.050 & 279A.065
Stats. Implemented: ORS 279C.300, 279C.335, 279C.365, 279C.375 & 279C.395
Hist.: DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

731-005-0660

Tie Offers

(1) Definition. Tie Offers are low tie Responsive Bids from Responsible Bidders or high tie Responsive Proposals from Responsible Proposers that are identical in price, fitness, availability and quality.

(2) Award. If awarded, ODOT shall award the Contract based on the following order of precedence:

(a) For projects not involving federal funds ODOT shall prefer the Offer of the Offeror whose principal offices or headquarters are located in Oregon;

(b) If a Tie Offer remains after ODOT applies subsection (a) of this section, ODOT shall award the Contract by drawing lots among any tied Oregon Offerors if no federal funds are a part of the project. Such Offerors shall be given notice and an opportunity to be present when the lots are drawn; or

(c) If a Tie Offer remains after ODOT applies subsection (b) of this section and none of the tied Offerors are located in Oregon or the project has federal funding, ODOT shall award the Contract by drawing lots among any tied Offerors. Such Offerors shall be given notice and an opportunity to be present when the lots are drawn.

Stat. Auth.: ORS 184.616, 184.619, 279A.050 & 279A.065
Stats. Implemented: ORS 279A.120 & 279C.375
Hist.: DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

731-005-0670

Rejection of an Offer

(1) Rejection of an Offer.

(a) ODOT may reject any Offer upon finding that to accept the Offer may impair the integrity of the procurement process or that rejecting the Offer is in the public interest.

(b) ODOT shall reject an Offer upon ODOT’s finding that the Offer:

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

(B) Takes exception to terms and conditions (including Specifications);

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

(D) Offers Work or goods that fail to meet the Specifications of the Solicitation Document;

(E) Is late;

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

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

(c) ODOT shall reject an Offer upon ODOT’s finding that the Offeror:

(A) Has not been prequalified under ORS 279C.430 and ODOT required mandatory prequalification;

(B) Has been Disqualified;

(C) Has been declared ineligible under ORS 279C.860 by the Commissioner of Bureau of Labor and Industries has declared and the Contract is for a Public Work;

(D) Is listed as not qualified by the Construction Contractors Board;

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

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

(G) Has failed to provide the certification required under section (3) of this rule; or

(H) Is nonresponsible. Offerors are required to demonstrate their ability to perform satisfactorily under a Contract. ODOT uses a pre- qualification process as described in OAR Chapter 734 Division 10 to determine if a Contractor is responsible. Before awarding a Contract, ODOT must have information that indicates that the Offeror meets the applicable standards of responsibility. To be a Responsible Offeror, ODOT must determine 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 demonstrate the capability of the Offeror 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. ODOT 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, ODOT should determine whether the Offeror’s deficient performance was expressly excused under the terms of Contract, or whether the Offeror took appropriate corrective action. ODOT may review the Offeror’s performance on both private and public Contracts in determining the Offeror’s record of Contract performance. ODOT shall make its basis for determining an Offeror nonresponsible under this paragraph part of the solicitation file;

(iii) Has a satisfactory record of integrity. An Offeror may lack integrity if ODOT determines the Offeror demonstrates a lack of business ethics such as violation of state environmental laws or false certifications made to ODOT. ODOT may find an Offeror nonresponsible based on the lack of integrity of any Entity 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 Entity). ODOT 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 standards for Conduct Disqualification under OAR 731-005-0710 may be used to determine an Offeror’s integrity. ODOT shall make its basis for determining that an Offeror is nonresponsible under this paragraph part of the solicitation file;

(iv) Is legally qualified to Contract with ODOT; and

(v) Has supplied all necessary information in connection with the inquiry concerning responsibility. If the Offeror fails to promptly supply information requested by ODOT concerning responsibility, ODOT shall base the determination of responsibility upon any available information, or may find the Offeror nonresponsible.

(2) Form of Business Entity. For purposes of this rule, ODOT may investigate any Entity submitting an Offer. The investigation may include that Entity’s officers, directors, owners, affiliates, or any other Entity acquiring ownership of the Entity to determine application of this rule or to apply the disqualification provisions of ORS 279C.440 to 279C.450 and OAR 731-005-0710.

(3) Certification of Non-Discrimination. The Offeror shall certify and deliver to ODOT Written certification, as part of the Offer, that the Offeror has not discriminated against minority, women or emerging small business enterprises or against a business enterprise that is owned or controlled by or that employs a disabled veteran as defined in ORS 408.225 in obtaining any required subcontracts.

Stat. Auth.: ORS 184.616, 184.619, 279A.050 & 279A.065
Stats. Implemented: ORS 279A.105, 279A.110, 279C.375 & 279C.395
Hist.: DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05; DOT 5-2009(Temp), f. 12-22-09, cert. ef. 1-1-10 thru 6-30-10; DOT 1-2010, f. & cert. ef. 5-18-10

731-005-0680

Rejection of All Offers

(1) Rejection. ODOT may reject all Offers for good cause upon ODOT's Written finding it is in the public interest to do so. ODOT shall notify all Offerors of the rejection of all Offers, along with the good cause justification and finding.

(2) Criteria. ODOT may reject all Offers upon a Written finding that:

(a) The content of or an error in the Solicitation Document, or the solicitation process unnecessarily restricted competition for the Contract;

(b) The price, quality or performance presented by the Offerors is too costly or of insufficient quality to justify acceptance of the Offer;

(c) Misconduct, error, or ambiguous or misleading provisions in the Solicitation Document threaten the fairness and integrity of the competitive process;

(d) Causes other than legitimate market forces threaten the integrity of the competitive procurement process. These causes include, but are not limited to, those that tend to limit competition such as restrictions on competition, collusion, corruption, unlawful anti-competitive conduct, and inadvertent or intentional errors in the Solicitation Document;

(e) ODOT cancels the solicitation in accordance with OAR 731-005-0720; or

(f) Any other circumstance indicating that awarding the Contract would not be in the public interest.

Stat. Auth.: ORS 184.616, 184.619, 279A.050 & 279A.065
Stats. Implemented: ORS 279C.395
Hist.: DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

731-005-0690

Protest of Contractor Selection, Contract Award

(1) Purpose. An adversely affected Offeror must exhaust all avenues of administrative review and relief before seeking judicial review of ODOT's Contractor selection or Contract award decision.

(2) Notice of Intent to Award. Unless otherwise provided in the Solicitation Document, ODOT shall provide notice of the intent to award on the ODOT web site. ODOT's award shall not be final until the later of the following:

(a) Three working days after the date of the notice, unless the Solicitation Document provided a different period for protest; or

(b) ODOT provides a Written response to all timely-filed protests that denies the protest and affirms the award.

(3) Notice of Competitive Range. Unless otherwise provided in the RFP, ODOT shall provide Written notice to all Proposers of ODOT's determination of the Proposers included in the Competitive Range. ODOT's notice of the Proposers included in the Competitive Range shall not be final until the later of the following:

(a) Ten Days after the date of the notice, unless otherwise provided therein; or

(b) Until ODOT provides a Written response to all timely-filed protests that denies the protest and affirms the notice of the Proposers included in the Competitive Range.

(4) Right to Protest Award.

(a) An adversely affected Offeror may submit to ODOT a Written protest of ODOT's Notice of Intent to Award Bid within three working days after issuance of the Notice of Intent to Award Bid, unless a different protest period is provided under the Solicitation Document.

(b) The Offeror's protest must specify the grounds upon which the protest is based.

(c) An Offeror is adversely affected only if the Offeror is one of the three apparent low Bidders on an Invitation to Bid or three highest scoring Proposers in the case of an RFP.

(d) ODOT shall not consider a protest submitted after the time period established in this rule or such different period as may be provided in the Solicitation Document.

(5) Right to Protest Competitive Range.

(a) An adversely affected Proposer may submit to ODOT a Written protest of ODOT's decision to exclude the Proposer from the Competitive Range within seven Days after issuance of the notice of the Competitive Range, unless a different protest period is provided under the Solicitation Document.

(b) The Proposer's protest shall be in Writing and must specify the grounds upon which the protest is based.

(c) A Proposer is adversely affected only if the Proposer is responsible and submitted a Responsive Proposal and is eligible for inclusion in the Competitive Range i.e., the protesting Proposer must claim it is eligible for inclusion in the Competitive Range if all ineligible higher-scoring Proposers are removed from consideration, and that those ineligible Proposers are ineligible for inclusion in the Competitive Range because:

(A) Their Proposals were not responsive; or

(B) ODOT committed a substantial violation of a provision in the RFP or of an applicable procurement statute or administrative rule, and the protesting Proposer was unfairly evaluated and would have, but for such substantial violation, been included in Competitive Range.

(d) ODOT shall not consider a protest submitted after the time period established in this rule or such different period as may be provided in the Solicitation Document. A Proposer may not protest ODOT's decision to not increase the Competitive Range above the Competitive Range set forth in the RFP.

(6) Authority to Resolve Protests. The ODOT Executive Deputy Director, or designee, has the authority to settle or resolve a Written protest submitted in accordance with the requirements of this rule.

(7) Decision. If a protest is not settled, the ODOT Executive Deputy Director or designee, shall promptly issue a Written decision on the protest. Judicial review of this decision will be available if provided by statute.

(8) Contract Execution. The successful Offeror shall promptly execute the Contract after the award is final. ODOT shall execute the Contract only after it has obtained all applicable required documents and approvals.

Stat. Auth.: ORS 184.616, 184.619, 279A.050 & 279A.065
Stats. Implemented: ORS 279C.375, 279C.385 & 279C.460
Hist.: DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

731-005-0700

Negotiation with Bidders

(1) Bids. ODOT shall not negotiate with any Bidder prior to award of Contract. After award of the Contract, ODOT and Contractor may only modify the Contract as specified in the Contract.

(2) Requests for Proposals. ODOT may only negotiate with Proposers in accordance with OAR 731-005-0470 and 731-005-0650.

Stat. Auth.: ORS 184.616, 184.619, 279A.050 & 279A.065
Stats. Implemented: ORS 279C.300, 279C.305, 279C.335, 279C.365 & 279C.375
Hist.: DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

731-005-0710

Disqualification of an Entity

(1) Authority. ODOT may disqualify an Entity from consideration of award of ODOT's Contracts after providing the Entity with notice and a reasonable opportunity to be heard in accordance with section (3) of this rule.

(a) Standards for Conduct Disqualification. As provided in ORS 279C.440, ODOT may disqualify an Entity for:

(A) Conviction for the commission of a criminal offense as an incident in obtaining or attempting to obtain a public or private Contract or subcontract, or in the performance of such Contract or subcontract;

(B) Conviction under state or federal statutes of embezzlement, theft, forgery, bribery, falsification or destruction of records, receiving stolen property, or any other offense indicating a lack of business integrity or business honesty that currently, seriously and directly affects the Entity's responsibility as a Contractor;

(C) Conviction under state or federal antitrust statutes; or

(D) Violation of a Contract provision that is regarded by ODOT to be so serious as to justify Disqualification under OAR 734-010-0340.

(b) Standards for DBE Disqualification. As provided in ORS 200.065, 200.075 or 279A.110, ODOT may disqualify an Entity's right to submit an Offer or to participate in a Contract (e.g. subcontractors) as follows:

(A) For a DBE Disqualification under ORS 200.065, ODOT may disqualify an Entity upon finding that:

(i) The Entity fraudulently obtained or retained or attempted to obtain or retain or aided another person to fraudulently obtain or retain certification as a disadvantaged, minority, women or emerging small business enterprise;

(ii) The Entity knowingly made a false claim that any person is qualified for certification or is certified under ORS 200.055 for the purpose of gaining a Contract or subcontract or other benefit; or

(iii) The Entity has been disqualified by another Agency pursuant to ORS 200.065.

(B) For a DBE Disqualification under ORS 200.075, ODOT may disqualify an Entity upon finding that:

(i) The Entity has entered into an agreement representing that a disadvantaged, minority, women, or emerging small business enterprise, certified pursuant to ORS 200.055 ("Certified Enterprise"), will perform or supply materials under a Public Improvement Contract without the knowledge and consent of the Certified Enterprise;

(ii) The Entity exercises management and decision-making control over the internal operations, as defined by ORS 200.075(1)(b), of any Certified Enterprise;

(iii) The Entity uses a disadvantaged, minority, women or emerging small business enterprise to perform services under a Contract or to provide supplies under a Public Improvement Contract to meet an established DBE/MBE/WBE/ESB goal, and such enterprise does not perform a commercially useful function, as defined by ORS 200.075(3), in performing its obligations under the Contract; or

(iv) If an Entity is Disqualified for a DBE Disqualification under ORS 200.075, ODOT shall not permit such Entity to participate in ODOT's Contracts.

(C) For a DBE Disqualification under ORS 279A.110, ODOT may disqualify an Entity if ODOT finds that the Entity discriminated against minority, women, or emerging small business enterprises in awarding a subcontract under a prior Contract with ODOT.

(2) Notice of Intent to Disqualify. ODOT shall notify the Entity in Writing of a proposed Disqualification personally or by registered or certified mail, return receipt requested. This notice shall:

(a) State that ODOT intends to disqualify the Entity;

(b) Set forth the reasons for the Disqualification;

(c) Include a statement of the Entity's right to a hearing if requested in Writing within the time stated in the notice and that if ODOT does not receive the Entity's Written request for a hearing within the time stated, the Entity shall have waived its right to a hearing;

(d) Include a statement of the authority and jurisdiction under which the hearing will be held;

(e) Include a reference to the particular sections of the statutes and rules involved;

(f) State the proposed Disqualification period; and

(g) State that the Entity may be represented by legal counsel.

(3) Hearing. ODOT shall schedule a hearing upon ODOT receipt of the Entity's timely request. ODOT shall notify the Entity of the time and place of the hearing and provide information on the procedures, right of representation and other rights related to the conduct of the hearing prior to hearing.

(4) Notice of Disqualification. ODOT will notify the Entity in Writing of its Disqualification, personally or by registered or certified mail, return receipt requested. The notice shall contain:

(a) The effective date and period of Disqualification;

(b) The grounds for Disqualification; and

(c) A statement of the Entity's appeal rights and applicable appeal deadlines. For a Conduct Disqualification or a DBE Disqualification under ORS 279A.110, the Disqualified Entity must notify ODOT in Writing within three business days after receipt of ODOT's notice of Disqualification if the Entity intends to appeal ODOT's decision.

Stat. Auth.: ORS 184.616, 184.619, 279A.050 & 279A.065
Stats. Implemented: ORS 200.065, 200.075, 279A.110, 279C.440, 279C.445 & 279C.450
Hist.: DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

731-005-0720

Cancellation of Solicitation

(1) Cancellation in the Public Interest. ODOT may cancel a Solicitation for good cause if ODOT finds that cancellation is in the public interest. ODOT's reasons for cancellation shall be made part of the solicitation file.

(2) Notice of Cancellation. If ODOT cancels a solicitation prior to Opening, ODOT shall provide notice of cancellation. Such notice of cancellation shall:

(a) Identify the Solicitation; and

(b) If appropriate, explain that an opportunity will be given to compete on any re-solicitation.

Stat. Auth.: ORS 184.616, 184.619, 279A.050 & 279A.065
Stats. Implemented: ORS 279C.395
Hist.: DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

731-005-0730

Disposition of Offers if Solicitation Canceled

(1) Prior to Opening. If ODOT cancels a Solicitation prior to Opening, ODOT will return each Offer it received to the Offeror 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, ODOT will open the Offer to determine the source and then return it to the Offeror.

(2) After Opening. If ODOT rejects all Offers, ODOT will retain all such Offers as part of ODOT's solicitation file.

(3) Cancellation of Award. Without liability to ODOT, ODOT may cancel award of Contract at any time before the Contract agreement is executed by all parties to the Contract, upon finding it is in the public interest to do so.

Stat. Auth.: ORS 184.616, 184.619, 279A.050 & 279A.065
Stats. Implemented: ORS 279C.395
Hist.: DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

731-005-0740

Documentation of Award

(1) Basis of Award. After award, ODOT shall make a record showing the basis for determining the successful Offeror part of ODOT's solicitation file.

(2) Contents of Award Record. ODOT's record shall include:

(a) Bids.

(A) Completed Bid tabulation sheet; and

(B) Written justification for any rejection of lower Bids.

(b) Proposals.

(A) The completed evaluation of the Proposals;

(B) Written justification for any rejection of higher scoring Proposals or for failing to meet mandatory requirements of the Request for Proposal; and

(C) If ODOT permitted negotiations in accordance with OAR 731-005-0470, ODOT's completed evaluation of the initial Proposals and ODOT's completed evaluation of final Proposals.

Stat. Auth.: ORS 184.616, 184.619, 279A.050 & 279A.065
Stats. Implemented: ORS 279C.430
Hist.: DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

731-005-0750

Non-Resident Contractor

If the Contract Amount exceeds $10,000 and the Contractor is a Non-Resident Contractor, the Contractor shall promptly report to the Oregon Department of Revenue on forms provided by the Department of Revenue, the Contract Amount, terms of payment, Contract duration and such other information as the Department of Revenue may require before final payment can be made on the Contract. A copy of the report shall be forwarded to ODOT. ODOT, upon awarding the Contract, shall satisfy itself that the above requirements have been complied with before it issues final payment on the Contract.

Stat. Auth.: ORS 184.616, 184.619, 279A.050 & 279A.065
Stats. Implemented: ORS 279A.120
Hist.: DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

731-005-0760

Availability of Award Decisions

(1) Contract Documents. To the extent required, ODOT shall deliver to the successful Offeror, a Signed purchase order, price agreement, or other Contract document(s), as applicable.

(2) Notification to Unsuccessful Offerors. An Entity may obtain tabulations of awarded Bids or evaluation summaries of Proposals for a nominal charge, in person or by submitting to ODOT a Written request accompanied by payment. Such request shall provide the Solicitation Document number and enclose a self-addressed, stamped envelope. In addition, tabulations of Bids and Proposals awarded are available on-line through the ODOT web page.

(3) Availability of Solicitation Files. ODOT shall make completed solicitation files available for public review at ODOT.

(4) Copies from Solicitation Files. Any Entity may obtain copies of material from solicitation files upon payment of a reasonable copying charge.

Stat. Auth.: ORS 184.616, 184.619, 279A.050 & 279A.065
Stats. Implemented: ORS 279C.365
Hist.: DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

731-005-0770

Performance Security

(1) Public Improvement Contracts. Unless ODOT waives the required performance and payment bonds under ORS 279C.380(4), or DAS exempts a Contract or classes of Contracts from the required performance bond pursuant to ORS 279C.390, the Contractor shall execute and deliver to ODOT a performance bond and a payment bond.

(2) Requirement for Surety Bond. The Contractor shall use ODOT's standard forms, that are bound in the Contract booklet. The amount of each bond shall be equal to the Contract Amount. The surety company's authorized attorney in fact shall sign the performance bond and the payment bond. The surety company's seal shall be affixed to each bond. A power of attorney for the attorney in fact shall be attached to the bonds in the Contract booklet. Include performance/payment bond number. Bonds cannot be canceled by the Contractor or the surety, nor can they be released by ODOT due to possible claims.

(3) Time for Submission. The apparent successful Offeror must furnish the performance/payment security as required by the Solicitation Document. If the Offeror fails to furnish the security as requested, ODOT may reject the Offer and award the Contract to the Responsible Bidder with the next lowest Responsive Bid or the Responsible Proposer with the next highest-scoring Responsive Proposal, and, at ODOT's discretion, the Offeror shall forfeit its Bid or Proposal security.

Stat. Auth.: ORS 184.616, 184.619, 279A.050 & 279A.065
Stats. Implemented: ORS 279C.375 & 279C.390
Hist.: DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

731-005-0780

Records Maintenance; Right to Audit Records

(1) Contractors; all subcontractors at all tiers; all material suppliers at all tiers of aggregates, asphalt cement concrete, Portland cement concrete, and the supply and fabrication of structural steel items; and all Related Entities as defined by this rule, (collectively referred to in this Rule as “Record Keepers”) shall maintain all records, including fiscal records, regardless of when created, relating to their:

(a) Performance of the Contract or a subcontract;

(b) Ability to continue performance of the Contract or a subcontract; and

(c) Claims arising from or relating to performance under the Contract or a subcontract.

(2) Records to be maintained shall include, but are not limited to the following:

(a) Bidding estimates, worksheets, tabulations or similar documents;

(b) Job cost detail reports, including monthly totals;

(c) Payroll records (including without limitation, the ledger or register, and tax forms) and all documents which establish the time periods, individuals involved, the hours for the individuals and the rates for the individuals;

(d) Records that identify the equipment used by the Contractor and subcontractors at all tiers in the performance of Contract or subcontracts, including without limitation, equipment lists, rental contracts, and any records used in setting rental rates;

(e) Invoices from vendors, rental agencies, subcontractors, and lower tier subcontractors;

(f) Material quotes, invoices, purchase orders and requisitions;

(g) Contracts with subcontractors at all tiers and with suppliers;

(h) Contracts or documents of other arrangements with any Related Entity;

(i) General ledger;

(j) Trial Balance;

(k) Any financial statements kept or maintained (e.g., balance sheet, income statement, statement of cash flows and financial statement notes);

(L) Income tax returns;

(m) All worksheets used to prepare bids or claims, or to establish the cost components for the Pay Items, including without limitation, the labor, benefits and insurance, materials, equipment and subcontractors; and

(n) Other records further identified in the Contract.

(3) Such records must be maintained in accordance with generally accepted accounting principles or other accounting principles, that are accepted accounting principles and practices for the subject industry, and that satisfy all applicable state and federal tax law and regulation.

(4) Record Keepers shall maintain the records and keep the records accessible and available at reasonable times and places for a minimum period of three years from the date of final payment under the Contract, or until the conclusion of any audit, controversy, administrative proceeding or litigation arising out of or related to the Contract or a subcontract, whichever date is later, unless a shorter period is otherwise authorized in writing by the ODOT Contract Administration Engineer.

(5) Record Keepers are responsible for maintaining their own records and records relating to their own performance, their own ability to continue performance, and their own claims. Contractors submitting disputes or contract claims to ODOT shall provide ODOT access to records supporting such dispute or claims, or that are otherwise relevant to a dispute or claim, whether maintained by the Contractor, subcontractors, material suppliers or Related Entities.

(6) Except to the extent limited by section (9) of this Rule, ODOT and its authorized representatives shall, at reasonable times and places, have access to and an opportunity to inspect, examine, copy, and audit the Records identified in section (2) of this rule, or shall be provided a copy of such records upon request. Except for Records requested in connection with a dispute or contract claim issue, ODOT shall pay copy costs according to the rates used for public records requests under OAR 731-001-0025. Where such records are stored electronically, ODOT may request, and the Record Keeper shall promptly provide, access to or a copy of the electronically stored records and, if necessary to access or read such records, access to or use of software, as needed to allow ODOT to efficiently audit, inspect or copy the records.

(7) A “Related Entity,” as referred to in this rule, is an entity that furnishes any goods or services in fulfillment of any obligation of the Contractor under the Contract with ODOT, regardless of whether the entity qualifies as a subcontractor or a material supplier otherwise required to maintain records and provide access to said records under this rule, and

(a) Where 10% or more of the stock, partnership interest, beneficial interest or voting rights of the Entity are held by a Contractor; or

(b) Where a separate Entity holds 10% or more of the stock, partnership interest, beneficial interest or voting rights of a Contractor.

(8) Confidentiality of Communications

(a) Nothing in this Rule is intended to operate as a waiver of the confidentiality of any communications privileged under the Oregon Evidence Code. Nothing in this Rule limits records or documents that can be obtained by legal process.

(b) If records, identified in section (2) and provided under this rule, contain any information that may be considered exempt from disclosure as a trade secret under either ORS 192.501(2) or 646.461(4), or under other grounds specified in Oregon Public Records Law, ORS 192.410 through 192.505, the Record Keeper must clearly designate on or with the records those portions that the Record Keeper believes are exempt from disclosure, along with a justification and citation to the authority relied upon. To the extent allowed by the Oregon Public Records Law or some other applicable law related to the disclosure of public records, ODOT will not disclose records or portions of records the Record Keeper has designated as trade secrets to a third party, who is not a representative of ODOT, to the extent the records are exempt from disclosure as trade secrets under the Oregon Public Records Law or other applicable law, except to the extent ODOT is ordered to disclose in accordance with the Oregon Public Records Law or by a court of competent jurisdiction. Application of the Oregon Public Records Law or other applicable law shall determine whether any record or portion thereof is actually exempt from disclosure.

(9) An ODOT Project Manager’s authority to request or require access to the records identified in this rule shall be limited to items under section (2)(a) through (h), and (n) for purposes of reviewing a dispute or claim under the Contract, and performance and contract compliance issues. The ODOT Contract Administration Engineer (CAE), or the CAE’s designee, shall have access to all items under section (2) of this rule for purposes of reviewing a dispute or claim, performance under the Contract or a subcontract, contract compliance, general auditing, checking for collusive bidding, and reviewing qualifications.

Stat. Auth.: ORS 184.616, 184.619, 279A.050 & 279A.065
Stats. Implemented: ORS 279A.030, 279C.375 & 279C.440
Hist.: DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05; DOT 3-2013, f. & cert. ef. 7-18-13

731-005-0790

Termination of Contract

Termination of the Contract shall not relieve the Contractor of responsibility for completed portions of the Work, or the Contractor's surety from the obligations arising from the Work performed. The Solicitation Document shall describe the terms and conditions of termination.

Stat. Auth.: ORS 184.616, 184.619, 279A.050 & 279A.065
Stats. Implemented: ORS 279C.365, 279C.375 & 279C.390
Hist.: DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

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