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

 

DIVISION 146

GENERAL PROVISIONS RELATED TO PUBLIC CONTRACTING

731-146-0010

Application

(1) The Oregon Department of Transportation (ODOT) adopts OAR 137-046-0100 through 137-046-0480 (effective January 1, 2012), the Department of Justice Model Rules, General Provisions Related to Public Contracting including the additional provisions provided in these rules.

(2) Unless the context of a specifically applicable definition in the Code or Model Rules requires otherwise, capitalized terms used in ODOT’s public contracting rules (ODOT’s Rules) will have the meaning set forth in the division of ODOT’s Rules in which they appear, and if not defined there, the meaning set forth in Code or Model Rules.

(3) This rule applies retroactively to January 1, 2012.

Stat. Auth.: ORS 279A.065
Stats. Implemented: ORS 279A.030 & 279A.065
Hist.: DOT 3-2005(Temp), f. 2-16-05, cert. ef. 3-1-05 thru 8-27-05; DOT 5-2005, f. & cert. ef. 8-23-05; DOT 5-2006(Temp), f. & cert. ef. 5-25-06 thru 11-20-06; DOT 7-2006, f. & cert. ef. 11-17-06; 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; DOT 4-2011, f. 12-22-11, cert. ef. 1-1-12

731-146-0012

Delegation of Authority

(1)(a) “Designated Procurement Officer” (DPO) means the individual designated and authorized by the Director of the Oregon Department of Transportation (ODOT) to perform certain Procurement functions described in these rules.

(b) “Chief Procurement Officer” (CPO) of the Department of Administrative Services (DAS) means the individual designated and authorized by the Director of DAS to perform certain Procurement functions described in Oregon Administrative Rules chapter 125, divisions 246, 247, 248, and 249.

(2) Pursuant to ORS 279A.050, ODOT has authority to procure or supervise the procurement of all goods, services, public improvements and personal services relating to the operation, maintenance or construction of highways, bridges and other transportation facilities that are subject to the authority of ODOT. ODOT recognizes the benefit of statewide consistency and expertise when certain procurements under ODOT authority are instead procured for ODOT by the Department of Administrative Services. Therefore:

(a) ODOT delegates authority to the Chief Procurement Officer to procure goods and services for ODOT under Statewide Price Agreements, including, but not limited to: 5 and 10 Yard Dump Trucks, Snowplows, Street Sweepers, Glass Beads, Aluminum Sign Blanks, and Sheeting. This delegation also includes the authority to conduct associated Contract Administration. Procurements under this delegation shall be processed in accordance with Oregon Administrative Rules Chapter 125, Divisions 246, 247, 248, and 249.

(b) The ODOT Designated Procurement Officer may act on behalf of ODOT and, by written agreement between ODOT DPO and DAS CPO, delegate to DAS on a case-by-case basis other Procurements which are under ODOT’s authority. If such delegation is accepted, DAS shall process these procurements under Oregon Administrative Rules Chapter 125, Divisions 246, 247, 248, and 249.

(c) For Procurements where there is a question of whether procurement authority is held by ODOT or DAS, ODOT DPO and DAS CPO will make final determination pursuant to procedures set forth in DAS policy. These Procurements include but are not limited to: Information Technology with the exclusion of Intelligent Transportation Systems (supporting and maintaining traffic flow on State Highways, which is under ODOT procurement authority), License Plates, Driver and Motor Vehicle Services, Motor Carrier Transportation Procurements, and Non-Highway related training.

Stat. Auth.: ORS 279A.065(5)(a), 279A.070
Stats. Implemented: ORS 279A.050, 279A.065(5), 279A.070, 279A.140
Hist.: DOT 5-2005, f. & cert. ef. 8-23-05

731-146-0015

Special Approvals for Public Contracts When Required

(1) When Attorney General legal sufficiency review and approval is required under ORS 291.047, the Oregon Department of Transportation must seek legal approval.

(2) When ODOT contracts for services normally provided by another Contracting Agency or for services for which another Contracting Agency has statutory responsibilities, ODOT is required to seek the other Contracting Agency’s approvals. Examples of these special approvals include, but are not limited to:

(a) Oregon Department of Administrative Services (DAS), Risk Management Division for providing tort liability coverage.

(b) DAS, State Services Division, Publishing and Distribution for printing services.

(c) DAS, State Controller’s Division for accounting services.

(d) Office of the Treasurer, Debt Management Division for financial and bond counsel services (bond counsel services also require the approval of the Attorney General).

(e) DAS, Enterprise Information Strategy and Policy Division (EISPD) for approval of information technology procurements above the dollar threshold set forth in DAS Policy number 107-004-130 (Information Technology Investment Review/Approval). ODOT is also encouraged to use the DAS EISPD as a resource in carrying out information system-related projects. This may include:

(A) Assistance to ODOT in developing Statements of Work related to information system projects;

(B) Reviews to assure consistency with State standards and direction; and

(C) A listing of vendors that provide information system-related services.

(f) Attorney or Financial Auditing Services.

(3) The Attorney General has sole authority to contract for attorney services. Exceptions may be granted in Writing on a case-by-case basis only by the Attorney General.

(4) The Secretary of State Audits Division has sole authority to contract for financial auditing services. Exceptions may be granted in Writing on a case-by-case basis only by the Secretary of State Audits Division.

Stat. Auth.: ORS 279A.065(5)(a) & 279A.070
Stats. Implemented: ORS 279A.140(2)
Hist.: DOT 3-2005(Temp), f. 2-16-05, cert. ef. 3-1-05 thru 8-27-05; DOT 5-2005, f. & cert. ef. 8-23-05; DOT 4-2011, f. 12-22-11, cert. ef. 1-1-12

731-146-0020

Reporting Requirements for Personal Services Contracts

(1) Application. For the purposes of Division 146 only, “Personal Services” includes Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services and Related Services.

(2) The Department of Administrative Services (DAS) State Procurement Office maintains an electronic reporting system called the Oregon Procurement Information Network (ORPIN) that maintains a report form for reporting Personal Services Contracts. ODOT must submit this report form to the DAS State Procurement Office for each Contract and subsequent Contract Amendment. The report form must include ODOT’s name, not-to-exceed amount of the Contract, the name of the Contractor, the duration of the Contract, and its basic purpose. Whenever ODOT pays in a calendar year under a Personal Services Contract for services historically performed by its employees more than ODOT would have paid to its employees performing the same Work, ODOT must so report to DAS and include in the report a statement of justification for the greater costs, pursuant to ORS 279A.140(2)(h)(A)(i).

(3) ODOT must keep in the Procurement File all Personal Services Contracts, justification statements, when applicable, documentation of the selection process for each Contract, and report forms the later of six years following the Contract’s expiration or termination, or the period as may be required by applicable law, or until the conclusion of any audit, controversy, or litigation arising out of or related to the particular Contract in the Procurement File. A Procurement File may be destroyed following the conclusion of the applicable retention period.

Stat. Auth.: ORS 279A.065(5)(a) & 279A.070
Stats. Implemented: ORS 279A.140(h)(A)
Hist.: DOT 3-2005(Temp), f. 2-16-05, cert. ef. 3-1-05 thru 8-27-05; DOT 5-2005, f. & cert. ef. 8-23-05; DOT 4-2011, f. 12-22-11, cert. ef. 1-1-12

731-146-0025

Independent Contractor Status For Personal Services Contracts

(1) ODOT must develop a Statement of Work for services that will not result in an employee relationship with the potential Contractor.

(2) An independent contractor certification by Contractors must be included as a contract provision in each contract.

(3) If the nature of the services or project is such that an employee/employer relationship will exist, ODOT must hire the individual through normal personnel procedures.

(4) The Contract must include the Contractor’s legal name and address. The Contractor must provide its federal Employer Identification Number or Social Security Number to ODOT.

(5) The Contract must provide that the Contractor is responsible for federal Social Security, except those categories excluded by law, and for any federal or state taxes applicable to the contract payment.

(6) Failure to comply with subsections (1) through (6) of this section may result in withdrawal of intent to award or termination of the Contract.

Stat. Auth.: ORS 279A.140(2)(h)(A)(i)
Stats. Implemented: ORS 279A.140 & 279A.070
Hist.: DOT 3-2005(Temp), f. 2-16-05, cert. ef. 3-1-05 thru 8-27-05; DOT 5-2005, f. & cert. ef. 8-23-05; DOT 4-2011, f. 12-22-11, cert. ef. 1-1-12

731-146-0030

Procurement Files

(1) Application. This Rule applies to Procurement Files as defined in this section. “Procurement Files” means any of the following files maintained by ODOT: a solicitation, Contract, Price Agreement, Work Order, Amendment or Contract Administration file, separately or collectively.

(2) Procurement File documentation and level of detail should be directly related to the dollar value and risk of the procurement. Each Procurement File must contain:

(a) An executed Contract, if awarded;

(b) The record of the actions used to develop the Contract;

(c) A copy of the Solicitation, if any;

(d) Any required findings or statement of justification for the selection of the Contractor and sourcing method pursuant to ORS 279A.200 through 279A.220 (Cooperative Procurement); 279B.055 through 279B.085 (seven methods for Goods or Services); 279C.100 through 279C.125 (Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying and Related Services); or 279C.300 through 279C.450 (Public Improvements);

(e) A list of prospective Contractors notified of any Solicitation;

(f) The method used to advertise or notify prospective Contractors of any Solicitation;

(g) Copy of each Offer that resulted in the Award of a Contract;

(h) The method of evaluating Offers, the results of the evaluation, and basis of selection;

(i) The record of any Negotiation of the Statement of Work, costs and results;

(j) A record of any material Communications regarding the Solicitation by interested Contractors; and

(k) A copy of the Request for Special Procurement, if any.

(3) ODOT must maintain Procurement Files, including all documentation, for a period not less than six (6) years, except for ten (10) years beyond each Contract’s expiration date for Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services and Related Services or for another period in accordance with another provision of law.

Stat. Auth.: ORS 279A.065(5)(a) & 279A.070
Stats. Implemented: ORS 279A.050, 279A.065(5), 279A.070 & 279A.140
Hist.: DOT 3-2005(Temp), f. 2-16-05, cert. ef. 3-1-05 thru 8-27-05; DOT 5-2005, f. & cert. ef. 8-23-05; DOT 4-2011, f. 12-22-11, cert. ef. 1-1-12

731-146-0040

Contract Administration; General Definitions

(1) "Contract Administration" means all functions related to a given Contract between ODOT and a Contractor from the time the Contract is awarded until the Work is completed, accepted, and all payment has been made, or until the Contract is terminated, payment has been made, and disputes have been resolved.

(2) "Contract terms and conditions" means the entire Contract document including but not limited to:

(a) The Contract;

(b) A Solicitation Document incorporated by reference in the Contract; and

(c) All attachments, exhibits or other requirements specifically referenced in the Contract.

Stat. Auth.: ORS 279A.065(5)(a) & 279A.070
Stats. Implemented: ORS 279A.050, 279A.065(5), 279A.070 & 279A.140
Hist.: DOT 3-2005(Temp), f. 2-16-05, cert. ef. 3-1-05 thru 8-27-05; DOT 5-2005, f. & cert. ef. 8-23-05

731-146-0050

Contract Administration; General Provisions

(1) Authority. ODOT must conduct all Procurements, including Contract Administration, for Goods or Services, including Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services and Related Services, Public Works, and Public Improvements, pursuant to ORS 279A.050 and 279A.075.

(2) Contract Administrator. ODOT must appoint, in Writing, a Contract Administrator as an ODOT representative for each Contract. The Contract Administrator may delegate in Writing a portion of the Contract Administrator’s responsibilities to a technical representative for specific day-to-day administrative activities for each Contract.

(3) Documentation Requirements. Contract Administration documentation and level of detail should be directly related to the dollar value and risk of the procurement. In accordance with OAR 731-046-0030, documentation of Contract Administration is a part of the Procurement File, whether maintained with the Procurement file or at a separate location. Contract Administration documentation must include:

(a) An executed Contract, if maintained separate from the Procurement File;

(b) The record of the actions used to administer the Contract;

(c) Contact information for the Contractor;

(d) The name and contact information for the Contract Administrator and any technical representative delegates, together with a description of duties delegated to any technical representative;

(e) All executed Amendments;

(f) Claims related to the Contract;

(g) Release of claims documents;

(h) Copies of invoices, project status reports, receiving records and Contract close-out documents, as applicable; and

(i) Other documents related to Contract Administration.

Stat. Auth.: ORS 279A.065(5)(a) & 279A.070
Stats. Implemented: ORS 279A.050, 279A.065(5), 279A.070 & 279A.140
Hist.: DOT 3-2005(Temp), f. 2-16-05, cert. ef. 3-1-05 thru 8-27-05; DOT 5-2005, f. & cert. ef. 8-23-05; DOT 4-2011, f. 12-22-11, cert. ef. 1-1-12

731-146-0060

Payment Authorization of Cost Overruns for Goods or Services including Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services and Related Services Contracts

(1) Payments on Contracts that exceed the maximum contract consideration require approval from ODOT’s Designated Procurement Officer and may require approval from the Department of Justice pursuant to OAR 137-045-0010 et seq. Approval may be provided if there is compliance with all of the following:

(a) The Original Contract was duly executed and, if required, approved by the Attorney General.

(b) The Original Contract has not expired or been terminated as of the date Written approval to increase the Contract amount is granted.

(c) The cost overrun is not associated with any change in the Statement of Work set out in the Original Contract.

(d) The cost overrun arose out of extraordinary circumstances or conditions encountered in the course of contract performance that were reasonably not anticipated at the time the Original Contract, or the most recent Amendment, if any, was signed. Such circumstances include, but are not limited to cost overruns that:

(A) Address emergencies arising in the course of the Contract that require prompt action to protect the Work already completed.

(B) Comply with official or judicial commands or directives issued during contract performance.

(C) Ensure that the purpose of the Contract will be realized.

(e) The cost overrun was incurred in good faith, results from the good faith performance by the Contractor, and is no greater than the prescribed hourly rate or the reasonable value of the additional Work or performance rendered.

(f) Except for the cost overrun, the Contract and its objective are within the statutory authority of ODOT and ODOT currently has funds available for payment under the Contract.

(g) An officer or employee of ODOT has presented a Written report to ODOT’s Designated Procurement Officer within 60 days of the discovery of the overrun that states the reasons for the cost overrun and demonstrates to the satisfaction of ODOT’s Designated Procurement Officer that the Original Contract and the circumstances of the overrun satisfy the conditions stated above.

(h) ODOT’s Designated Procurement Officer approves in Writing the payment of the overrun, or such portion of the overrun amount as ODOT’s Designated Procurement Officer determines may be paid consistent with the conditions of this Rule. If ODOT’s Designated Procurement Officer has signed the Contract, or has immediate supervisory responsibility over performance of the Contract, that Person must designate an alternate delegate to grant or deny Written approval of payment.

(2) ODOT must obtain an Attorney General’s approval of the Contract Amendment, if such approval is required by ORS 291.047, before making any overrun payment.

Stat. Auth.: ORS 279A.065(5)(a) & 279A.070
Stats. Implemented: ORS 279A.065(5)(a), 279A.070 & 279A.140
Hist.: DOT 3-2005(Temp), f. 2-16-05, cert. ef. 3-1-05 thru 8-27-05; DOT 5-2005, f. & cert. ef. 8-23-05; DOT 4-2011, f. 12-22-11, cert. ef. 1-1-12

731-146-0070

Ethics in Public Contracting -- Policy

Oregon Public Contracting is a public trust. ODOT and Contractors involved in Public Contracting must safeguard this public trust.

Stat. Auth.: ORS 244.010 - 244.400, 279A.065(5)(a) & 279A.070
Stats. Implemented: ORS 244.010 - 244.400, 279A.065(5)(a), 279A.070 & 279A.140
Hist.: DOT 3-2005(Temp), f. 2-16-05, cert. ef. 3-1-05 thru 8-27-05; DOT 5-2005, f. & cert. ef. 8-23-05

731-146-0080

Ethics in Selection and Award of Public Contracts

ODOT officers, employees or agents involved in the process of the selection and award of Public Contracts must carefully review and comply with the provisions of ORS 244.010 through 244.400.

Stat. Auth.: ORS 244.010 - 244.400, 279A.065(5)(a) & 279A.070
Stats. Implemented: ORS 244.010 - 244.400, 279A.065(5)(a), 279A.070 & 279A.140
Hist.: DOT 3-2005(Temp), f. 2-16-05, cert. ef. 3-1-05 thru 8-27-05; DOT 5-2005, f. & cert. ef. 8-23-05

731-146-0090

Ethics in Appointments to Advisory Committees

ODOT's Designated Procurement Officer or a delegate may appoint procurement advisory committees to assist with Specifications, procurement decisions, and structural change that can take full advantage of evolving procurement methods as they emerge within various industries, while preserving competition pursuant to ORS 279A.015.

Stat. Auth.: ORS 279A.065(5)(a) & 279A.070
Stats. Implemented: ORS 279A.065(5)(a), 279A.070 & 279A.140
Hist.: DOT 3-2005(Temp), f. 2-16-05, cert. ef. 3-1-05 thru 8-27-05; DOT 5-2005, f. & cert. ef. 8-23-05

731-146-0100

Non-retaliation

Retaliation against anyone who complies with the Public Contracting Code and Rules in Division 146 related to ethics is prohibited. Any officer, employee or agent of ODOT or Contractor who engages in retaliation action will be subject to penalties pursuant to ORS 279A.990 and related rules. Also, any Contractor who engages in a retaliation action may be debarred.

Stat. Auth.: ORS 279A.065(5)(a) & 279A.070
Stats. Implemented: ORS 279A.065(5)(a), 279A.070 & 279A.140
Hist.: DOT 3-2005(Temp), f. 2-16-05, cert. ef. 3-1-05 thru 8-27-05; DOT 5-2005, f. & cert. ef. 8-23-05

731-146-0110

Ethics in Specification Development

(1) ODOT and Contractors must not develop Specifications that primarily benefit a Contractor, directly or indirectly, to the detriment of ODOT or the best interest of the State.

(2) ODOT must not develop Specifications that inhibit or tend to discourage Public Contracting with Qualified Rehabilitation Facilities (QRF) under ORS 279.835 through 279.855 and OAR 125-055-0005 through 125-055-0045 where those Specifications inhibit or tend to discourage the acquisition of QRF-produced Goods or Services without reasonably promoting the satisfaction of bona fide, practical procurement needs of ODOT.

(3) ODOT and Contractors must not develop Specifications that inhibit or tend to discourage Public Contracting under other public procurement laws or policies of the Department.

Stat. Auth.: ORS 279A.065(5)(a) & 279A.070
Stats. Implemented: ORS 279A.065(5)(a), 279A.070 & 279A.140
Hist.: DOT 3-2005(Temp), f. 2-16-05, cert. ef. 3-1-05 thru 8-27-05; DOT 5-2005, f. & cert. ef. 8-23-05

731-146-0120

Ethics in Sole Source

ODOT may not select a Sole-Source Procurement pursuant to ORS 279B.075 and avoid a competitive Procurement if the purpose of the selection is to primarily benefit the Contractor, directly or indirectly, to the detriment of ODOT or the best interest of the State.

Stat. Auth.: ORS 279A.065(5)(a) & 279A.070
Stats. Implemented: ORS 279A.065(5)(a), 279A.070, 279B.075 & 279A.140
Hist.: DOT 3-2005(Temp), f. 2-16-05, cert. ef. 3-1-05 thru 8-27-05; DOT 5-2005, f. & cert. ef. 8-23-05

731-146-0130

Fragmentation

A Procurement may not be artificially divided or fragmented so as to constitute a Small Procurement, pursuant to ORS 279B.065, or an Intermediate Procurement, pursuant to ORS 279B.070.

Stat. Auth.: ORS 279A.065(5)(a) & 279A.070
Stats. Implemented: ORS 279A.065(5)(a), 279A.070 & 279B.065
Hist.: DOT 3-2005(Temp), f. 2-16-05, cert. ef. 3-1-05 thru 8-27-05; DOT 5-2005, f. & cert. ef. 8-23-05

731-146-0140

Ethics in ODOT and Contractor Communications

(1) Research Phase. ODOT is encouraged to conduct research with potential Contractors who can meet the State's needs. This research includes but is not limited to:

(a) Meetings with potential Contractors;

(b) Industry presentations; and

(c) Demonstrations by Contractors that, in ODOT's discretion, demonstrate Goods or Services that may be able to meet ODOT's needs.

(2) ODOT must document all items discussed during the research phase of Solicitation development. The research phase ends the day of a Solicitation release or request for a Quote pursuant to an Intermediate Procurement, unless the Solicitation or Intermediate Procurement provides for a different process that permits on-going research.

(3) Solicitation and Contracting Phase. Any communication between ODOT and Contractors regarding a Solicitation, that occurs after the Solicitation release or request for a Quote and before the Award of a Contract, must only be made within the context of the Solicitation Document or Intermediate Procurement requirements.

(4) Communication may allow for discussions, negotiations, Addenda, Contractor questions, and ODOT's answers to Contractor questions about terms and conditions, specifications, Amendments, or related matters. During this phase, telephone conversations and meetings must be documented in the Procurement File. Written inquiries regarding the Solicitation should be responded to by ODOT in Writing.

(5) A record of all communications regarding the Solicitation by interested Contractors must be made a part of the Procurement File pursuant to OAR 731-146-0030.

Stat. Auth.: ORS 279A.065(5)(a) & 279A.070
Stats. Implemented: ORS 279A.065(5)(a), 279A.070 & 279A.140
Hist.: DOT 3-2005(Temp), f. 2-16-05, cert. ef. 3-1-05 thru 8-27-05; DOT 5-2005, f. & cert. ef. 8-23-05

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