PREQUALIFICATION FOR BIDDING
HIGHWAY AND BRIDGE CONSTRUCTION
734-010-0200
Repealed Rules
As required by OR Laws 2003, Chapter 794, Section 334, OAR 731-010-0010 through 731-010-0170 are repealed effective March 1, 2005. The repealed rules will continue to apply to the solicitation of Public Contracts first advertised, but if not advertised then entered into, before March 1, 2005.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 &
279C.430
Stats. Implemented: ORS 279C.300, sec. 334 & 336, ch. 794, OL
2003
Hist.: HWD 1-2005, f. 2-16-05, cert. ef. 3-1-05
734-010-0210
Effective Date
OAR 734-010-0200 through 734-010-0380 become effective on March 1, 2005 and apply to Public Contracts first advertised, but if not advertised then entered into, on or after March 1, 2005.
Stat. Auth.: ORS 184.616, 184.619, 279A.050, 279A.065 &
279C.430
Stats. Implemented: ORS 279C.300, sec. 334 & 336, ch. 794, OL
2003
Hist.: HWD 1-2005, f. 2-16-05, cert. ef. 3-1-05
734-010-0220
Definitions
The following definitions apply to terms used in Division 10 rules:
(1) "AM" means Area Manager or the equivalent position.
(2) "Applicant" means any individual or legal entity submitting a Contractor's Prequalification Application to ODOT.
(3) "Authorized contractor representative" means the person authorized by the contractor to sign the prime contractor performance evaluation.
(4) "Bidder" means any individual or legal entity submitting a proposal to an advertisement for a contract.
(5) "Bid opening" means the day on which the bids for a highway project will be opened and read.
(6) "CCM" means ODOT's Construction Contracts Manager.
(7) "Commission" means the Oregon Transportation Commission.
(8) "Contract" means public improvement contracts, as defined in ORS 279A.010(1)(bb), awarded by the Oregon Department of Transportation under authority of ORS 279A.050 and 366.205.
(9) "Contractor" means the individual or legal entity that has entered into a contract with ODOT.
(10) "DAS" means Oregon Department of Administrative Services.
(11) "Date of Second Notification" means the date on which required construction work, including change order work and extra work, has been satisfactorily completed, except for minor corrective work, and the recording of daily time charges cease.
(12) "Disqualification" means an action taken by ODOT to prohibit an applicant from becoming prequalified or from bidding on ODOT contracts.
(13) "Deputy Director" means ODOT's Deputy Director for Highways or authorized representative.
(14) "Engineer" means ODOT's Chief Engineer or authorized representative.
(15) "Deputy Director's or Engineer's final decision" means the decision of ODOT's Deputy Director for Highways or Chief Engineer acting through authorized representatives.
(16) "Notice to Contractors" means the public announcement inviting bids for work to be performed or materials to be furnished.
(17) "Notice to Proceed" means written notice from ODOT authorizing the contractor to begin the work.
(18) "ODOT" means the Oregon Department of Transportation.
(19) "PM" means the Project Manager representing ODOT on the project, including, but not limited to, an ODOT employee, local government representative, or consultant employed by ODOT or a local government. The PM is the Deputy Director's or Engineer's representative who directly manages and/or performs the engineering and administration of a contract.
(20) "Revocation" means an action taken by ODOT terminating a contractor's prequalification and ability to bid on ODOT contracts.
(21) "SCME" means ODOT's State Construction and Materials Engineer.
(22) "Suspension" means action taken by ODOT to temporarily suspend a contractor's prequalification for a specified period of time.
Stat. Auth.: ORS 184.616, 184.619, 279A.050, 279A.065 &
279C.430
Stats. Implemented: ORS 279C.430
Hist.: HWD 1-2005, f. 2-16-05, cert. ef. 3-1-05
734-010-0230
Prequalification for Bidding
(1) Pursuant to ORS 279C.430(1), the Commission requires that all bidders be prequalified within the appropriate class(es) of work contained in the current Contractor's Prequalification Application adopted by ODOT.
(2) Special contractor prequalifications may be required in addition to the mandatory prequalification in subsection (1) when the elements of a particular public improvement project require specialized knowledge and/or expertise, or when a mandatory general prequalification is not required. When special prequalification is required, notice of the Request for Special Contractor Prequalification will be through ODOT’s Electronic Procurement System, and in the Daily Journal of Commerce for projects with an estimated cost over $125,000.
(3) Subsection (1) 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 (2) even where there is no mandatory prequalification
Stat. Auth.:
ORS 184.616, 184.619, 279A.050, 279A.065 & 279C.430
Stats. Implemented:
ORS 279C.430
Hist.: HWD
1-2005, f. 2-16-05, cert. ef. 3-1-05; HWD 1-2007, f. & cert. ef. 1-24-07; HWD
1-2008(Temp), f. & cert. ef. 1-24-08 thru 7-22-08; HWD 4-2008, f. & cert.
ef. 5-19-08
734-010-0240
Conditions of Prequalification
(1) Applicants must be prequalified in the class(es) of work designated in the special provisions for the specific project in which the applicant desires to bid on ODOT contracts.
(2) Prequalification applications must be received at ODOT's address shown in the prequalification application at least 10 calendar days before the bid opening in which the applicant wishes to participate.
(3) If an applicant fails to complete the application as required or fails to submit the filing fee, ODOT will return the material submitted. Any changes or additional information required by ODOT must be submitted and signed by the same person that signed the original application. The changes and additional information must be attested to by a sworn affidavit. The applicant may send a new application that includes the changes or additional information required by ODOT.
(4) The date on which all required information has been received by ODOT's Procurement Office -- Construction will be considered the receipt date of the prequalification application.
(5) Each member of a Joint Venture must be prequalified, with at least one of the Joint Venture members prequalified in each of the project's designated class(es) of work as defined in section (1) of this rule. A Joint Venture may be required to submit a joint venture agreement prior to award of the contract.
(6) Subcontractors are not required to be prequalified.
(7) All applicants desiring to prequalify shall:
(a) Complete and submit the Contractor's Prequalification Application, in accordance with the directions contained therein, setting forth their qualifications to satisfactorily carry out the work to be performed. The prequalification application is available on the ODOT Procurement Office, Construction website at http://www.oregon.gov/ODOT/CS/OPO/construction/prequalification.shtml or from the ODOT Procurement Office -- Construction, 455 Airport Road SE, Building K, Salem, Oregon 97301-5348; and
(b) Submit a filing fee of $100. In accordance with ORS 200.055(7), ODOT may collect a filing fee from applicants to cover the costs of the Department of Consumer and Business Services in administering ORS 200.005 to 200.075 and 279A.105. The $100 fee must be submitted with the completed prequalification application to ODOT's address shown in the prequalification application.
(8) ODOT shall notify an applicant of acceptance or denial of prequalification within 30 days after receiving applicant's complete prequalification application and filing fee.
(9) Effective March 1, 2007, Prequalification is valid from March 1, 2007, or date of prequalification approval if later, through the last day of August, 2008. Thereafter, Prequalification is valid September 1 of the current calendar year, or date of prequalification approval if later, through the last day of August of the following calendar year. Applicants must renew their prequalifications with the $100 filing fee annually.
(10) Applicants shall update their prequalification application with ODOT when information changes. Any change to an applicant's prequalification application must be received at ODOT's address shown in the prequalification application at least 10 days prior to bid opening if that information affects the bid submitted. Any changes requested by the applicant must be submitted and signed by the same person that signed the original application or by a person holding the same position as the person that signed the original application. The changes must be attested to by sworn affidavit. There is no charge to update an existing prequalification for minor changes such as changing an address, company name, or adding or deleting class(es) of work. Major changes must be submitted by a new prequalification application.
(11) Sections (2) through (10) of this rule also apply to applicants who use ODOT's prequalification system to prequalify for local agency projects.
Stat. Auth.: ORS 184.616, 184.619, 279A.050,
279A.065 & 279C.430
Stats. Implemented: ORS 279C.430
Hist.: HWD 1-2005, f. 2-16-05, cert. ef. 3-1-05; HWD 1-2007, f. &
cert. ef. 1-24-07
734-010-0250
Effect of Prequalification on Bidding
(1) Applicants shall be considered prequalified upon receipt of written notification from ODOT.
(2) Bidders will be considered non-responsive and bids will be rejected under any of the following conditions:
(a) The bidder's prequalification application is not received at ODOT's address shown in the prequalification application at least 10 days prior to bid opening;
(b) The bidder is not prequalified in the class(es) of work designated in the special provisions; or
(c) The bidder's prequalification is not approved by ODOT.
Stat. Auth.: ORS 184.616, 184.619, 279A.050, 279A.065 &
279C.430
Stats. Implemented: ORS 279C.430
Hist.: HWD 1-2005, f. 2-16-05, cert. ef. 3-1-05
734-010-0260
Waiving Prequalification Requirements
Prequalification requirements for contracts may be waived by the Deputy Director or Chief Engineer under the following circumstances:
(1) In the case of an emergency;
(2) If finding that special circumstances exist so that prequalification is not necessary.
Stat. Auth.:
ORS 184.616, 184.619, 279A.050, 279A.065 & 279C.430
Stats. Implemented:
ORS 279C.430
Hist.: HWD
1-2005, f. 2-16-05, cert. ef. 3-1-05; HWD 1-2008(Temp), f. & cert. ef.
1-24-08 thru 7-22-08; HWD 4-2008, f. & cert. ef. 5-19-08
734-010-0270
Disqualification, Revocation or Suspension
(1) Applicants must sign a sworn affidavit that the information they provide in the prequalification application is true. Any applicant for prequalification who willfully makes, or causes to be made, any false, deceptive or fraudulent statements in any questionnaire or statement required to be submitted under this rule, shall be denied prequalification or the applicant's current prequalification shall be revoked.
(2) If ODOT disqualifies an applicant or revokes a prequalification, the applicant or prospective bidder shall receive a written notice identifying the reasons for the disqualification or revocation as found in ORS 279C.440.
Stat. Auth.: ORS 184.616, 184.619, 279A.050, 279A.065 &
279C.430
Stats. Implemented: ORS 279C.430
Hist.: HWD 1-2005, f. 2-16-05, cert. ef. 3-1-05
734-010-0280
Appeals Covering Prequalification Application
(1) If ODOT denies an applicant's prequalification or revokes an existing prequalification, the applicant may appeal the denial or revocation by requesting a hearing with DAS in accordance with ORS 279C.445 and 279C.450. If the applicant wishes to appeal disqualification to DAS, the applicant must, within three business days after receipt of notice of disqualification, notify the CCM in writing.
(2) Upon receipt of such notice of appeal, the CCM will immediately notify the Director of DAS.
Stat. Auth.: ORS 184.616, 184.619, 279A.050, 279A.065 &
279C.430
Stats. Implemented: ORS 279C.430
Hist.: HWD 1-2005, f. 2-16-05, cert. ef. 3-1-05
734-010-0290
Contractor Performance Evaluations
(1) This rule applies to contractors who must be prequalified to bid on ODOT contracts.
(2) Contractors who enter into contracts with ODOT after this administrative rule becomes effective, shall have their performance evaluated on each contract. The evaluation will be scored on the basis of a percentage score.
(3) The PM shall complete the evaluation using the current version of ODOT Form 734-2469A, Prime Contractor Performance Evaluation.
(4) The performance criteria being evaluated include supervision, progress schedule, quality of materials and workmanship, payment, affirmative action, safety, traffic control, compliance with regulations, and major breaches.
(5) The evaluation shall be conducted as follows:
(a) If the duration of a contract is 12 months or less, the PM shall complete one evaluation within 60 days of date of Second Notification for the contract; or
(b) If the duration of a contract is over 12 months, the PM shall complete an evaluation at the anniversary date of the Notice to Proceed. In addition to annual evaluations, the PM shall complete an evaluation within 60 days of the date of Second Notification for the contract.
Stat. Auth.: ORS 184.616, 184.619, 279A.050, 279A.065 &
279C.430
Stats. Implemented: ORS 279C.430
Hist.: HWD 1-2005, f. 2-16-05, cert. ef. 3-1-05
734-010-0300
Scoring Contractor Performance Evaluation
(1) Each evaluation will result in a percentage score, which is calculated by dividing the total score assigned by the total possible score times 100.
(2) After the percentage score has been calculated, the PM shall review the evaluation with an authorized contractor representative.
(3) Both the PM and authorized contractor representative shall sign and date the evaluation form. The signed and dated evaluation form will be forwarded to the SCME. The PM shall give a signed copy to the authorized contractor representative and shall transmit a copy by facsimile within 24 hours to the contractor's home office and to the appropriate AM. Overnight mail service shall be used if facsimile is not available.
(a) If an authorized contractor representative is unavailable or refuses to sign the evaluation form, the PM will sign and date the evaluation, and shall transmit a copy by facsimile to the contractor's address of record shown in the contract.
(b) If the contractor does not request review of the percentage score within 10 calendar days of receipt of the evaluation, pursuant to OAR 734-010-0370, the score is final.
Stat. Auth.: ORS 184.616, 184.619, 279A.050, 279A.065 &
279C.430
Stats. Implemented: ORS 279C.430
Hist.: HWD 1-2005, f. 2-16-05, cert. ef. 3-1-05
734-010-0310
12-Month Rolling Average Score
(1) The individual contract percentage scores from evaluations for the preceding 12 months will be averaged for each contractor on a monthly basis to develop a rolling average. The rolling average score will be the average of all individual percentage scores received within the previous 11 months plus the current month. Contract evaluation scores that are more than 12 months old will not be included in the rolling average score.
(2) The rolling average score received will determine what corrective action ODOT shall take with a contractor whose performance falls within or below certain percentage ranges.
(3) This rule does not preclude ODOT from taking immediate and appropriate corrective action with contractors for serious breaches, as allowed for by the contract, by other rules, or by Oregon Revised Statutes.
Stat. Auth.: ORS 184.616, 184.619, 279A.050, 279A.065 &
279C.430
Stats. Implemented: ORS 279C.430
Hist.: HWD 1-2005, f. 2-16-05, cert. ef. 3-1-05
734-010-0320
Scoring Ranges and Corrective Actions
(1) The scoring ranges and corrective actions are as follows, unless otherwise specified in section (2) or (3) of this rule. When a corrective action plan is required, see OAR 734-010-0330 for further information. Score - Action:
(a) 100-80 - No Action Required.
(b) < 80 > = 70 - A mandatory meeting with the SCME is required. A corrective action plan that is acceptable to ODOT is required.
(c) < 70 > = 60 - A mandatory three-month suspension of the Contractor's prequalification shall be imposed. A mandatory meeting with the SCME is required. A corrective action plan that is acceptable to ODOT is required.
(d) < 60 - A mandatory six-month suspension of the Contractor's prequalification shall be imposed. A mandatory meeting with the SCME is required. A corrective action plan that is acceptable to ODOT is required.
(2) Second Suspension. If a contractor receives a second suspension of its prequalification under this rule within a five-year period, the suspension period shall be double that of the first suspension period specified in section (1) of this rule, as follows:
(a) < 70 > = 60 - A mandatory six-month suspension of the contractor's prequalification shall be imposed. A mandatory meeting with the SCME is required. A corrective action plan that is acceptable to ODOT is required.
(b) <60 - A mandatory 12-month suspension of the contractor's prequalification shall be imposed. A mandatory meeting with the SCME is required. A corrective action plan that is acceptable to ODOT is required.
(3) Three or More Suspensions. If a contractor receives three or more suspensions of its prequalification under this rule within a five-year period, the suspension periods will be quadruple that of the initial suspension periods specified in section (1) of this rule, as follows:
(a) < 70 > = 60 - A mandatory 12-month suspension of the contractor's prequalification shall be imposed. A mandatory meeting with the SCME is required. A corrective action plan that is acceptable to ODOT is required.
(b) < 60 - A mandatory 24-month suspension of the contractor's prequalification shall be imposed. A mandatory meeting with the SCME is required. A corrective action plan that is acceptable to ODOT is required.
(4) The following apply to future rolling averages:
(a) After any suspension, the percentage scores received prior to the beginning of the suspension will not be used in future rolling averages;
(b) If a project is more than 75% complete in dollars of the original contract amount at the beginning of the suspension, then its percentage score will not be part of the subsequent rolling average score; and
(c) If a project is 75% or less complete in dollars of the original contract amount at the beginning of the suspension period, an evaluation of only the work completed after the start of suspension will be used in the subsequent rolling average score.
Stat. Auth.: ORS 184.616, 184.619, 279A.050, 279A.065 &
279C.430
Stats. Implemented: ORS 279C.430
Hist.: HWD 1-2005, f. 2-16-05, cert. ef. 3-1-05
734-010-0330
Corrective Action Plan
The purpose of the corrective action plan and the meeting with the SCME is to help the contractor improve processes and avoid low ratings in the future.
(1) If a contractor's rolling average score is < 80 > = 70, the contractor shall meet with and present a written corrective action plan to the SCME within 21 days after receiving notice that the contractor has received a score in the <80>=70 range. The contractor will be allowed to bid during the 21 days and receive award for any proposal submitted during this period. After the 21 days, if a corrective action plan has not been presented to and approved by the SCME, the contractor will not be allowed to bid or receive award again until the corrective action plan has been submitted and approved by the SCME.
(2) If the rolling average score falls below 70 and the contractor's prequalification is suspended, a written corrective action plan must be submitted and approved by the SCME at least 30 days prior to the end of the suspension. If the corrective action plan is not submitted and approved by the SCME at least 30 days prior the end of suspension, the contractor will serve an additional 30 day suspension from the time the corrective action plan is approved by the SCME.
(3) When the SCME has approved the corrective action plan, the SCME shall notify the contractor and the CCM via facsimile (or mail if facsimile is not available). The SCME will also notify the CCM if the contractor does not have an approved corrective action plan as required under sections (1) and (2) of this rule.
(4) The CCM will notify the contractor via facsimile (or mail when facsimile is not available) once the contractor is eligible to bid again.
Stat. Auth.: ORS 184.616, 184.619, 279A.050, 279A.065 &
279C.430
Stats. Implemented: ORS 279C.430
Hist.: HWD 1-2005, f. 2-16-05, cert. ef. 3-1-05
734-010-0340
Notification of Suspension from Bidding
(1) The SCME will notify ODOT's CCM when a contractor's score falls below 80.
(2) The CCM will notify the contractor via facsimile that its score has fallen below an acceptable level and that its prequalification has been suspended.
(3) The contractor may appeal a suspension through DAS by requesting a DAS appeal within three days of receipt of the suspension notice, as specified in OAR 734-010-0380.
(4) In all cases, any notification of suspension and reinstatement shall be made in writing and sent to the contractor by the CCM. The SCME will also be notified.
(5) The effective date of a suspension will be:
(a) Ten days after the date of the Deputy Director's or Engineer's final decision; or
(b) Ten days after the date any appeal becomes final.
Stat. Auth.: ORS 184.616, 184.619, 279A.050, 279A.065 &
279C.430
Stats. Implemented: ORS 279C.430
Hist.: HWD 1-2005, f. 2-16-05, cert. ef. 3-1-05
734-010-0350
Suspension Record Retention
For purposes of use in these prequalification rules, contractor records of suspension shall be maintained for a five-year period from the date of suspension. A record of a contractor's suspension that is older than five years may not be used in calculating further suspensions.
Stat. Auth.: ORS 184.616, 184.619, 279A.050, 279A.065 &
279C.430
Stats. Implemented: ORS 279C.430
Hist.: HWD 1-2005, f. 2-16-05, cert. ef. 3-1-05
734-010-0360
Effect of Suspension on Business
(1) Any disqualification, suspension or revocation from bidding or of a prequalification shall be binding upon the following:
(a) Any contractor so disqualified, suspended or revoked;
(b) Any business with which such contractor's owners, officers, directors or managing agents are associated;
(c) Any subsidiaries, affiliates, parent corporations, joint ventures, successors, assigns of the contractor; and
(d) Any entity in which the contractor, its owners, officers, directors and managing agents are owners, majority shareholders or such persons own in the aggregate a majority of shares, partners, directors, officers or agents, other than in a capacity solely as an employee of that other entity or business.
(2) Such disqualifications, suspensions or revocations of these other entities and businesses shall apply continuously during the contractor's period of disqualification, suspension or revocation.
Stat. Auth.: ORS 184.616, 184.619, 279A.050, 279A.065 &
279C.430
Stats. Implemented: ORS 279C.430
Hist.: HWD 1-2005, f. 2-16-05, cert. ef. 3-1-05
734-010-0370
ODOT's Review Process on Individual Contractor Performance Evaluation
(1) If a contractor disagrees with the PM's evaluation rating on a contract, the contractor shall meet with the PM to try to resolve differences. The request for a meeting must be made within 10 calendar days after receiving the evaluation rating. If the request is not made within 10 calendar days, the percentage score shall be considered the final score.
(2) The PM shall meet with the contractor to try to resolve differences within 10 calendar days after receiving the request. After this meeting is held, the PM shall notify the contractor within 10 calendar days of PM's final decision via facsimile (or overnight mail if facsimile is not available), and a copy shall be sent to the AM.
(3) If the contractor does not agree with the PM's findings, the authorized contractor representative may request a meeting of review with the AM. The request for a meeting shall be made in writing and sent to the PM. The written request must be received by the PM within 10 calendar days from the date that the contractor received the PM's final decision.
(4) If the authorized contractor representative does not request a meeting with the AM within 10 calendar days from the date of receipt of the PM's final decision, the percentage score shall be considered the final score.
(5) The AM shall notify the contractor of the review meeting date within 10 calendar days of receipt of contractor's request.
(6) The AM's decision shall be made within 10 calendar days of the meeting. The findings of the AM shall be the Deputy Director's or Engineer's final decision. The AM shall notify the contractor of the decision via facsimile (or overnight mail if facsimile is not available). A copy of the written decision shall be sent to the SCME.
(7) In all cases, when calculating calendar days, the first day will begin:
(a) On the date facsimiles are sent by ODOT; or
(b) The day following overnight mail.
Stat. Auth.: ORS 184.616, 184.619, 279A.050, 279A.065 &
279C.430
Stats. Implemented: ORS 279C.430
Hist.: HWD 1-2005, f. 2-16-05, cert. ef. 3-1-05
734-010-0380
DAS Appeal Process Covering Contractor Evaluations
(1) In the event that a contractor's prequalification is suspended or revoked by ODOT, the contractor may appeal the suspension or revocation to DAS in accordance with ORS 279C.445 and ORS 279C.450. If the contractor wishes to appeal disqualification as a bidder to DAS, the contractor must, within three business days after receipt of notice of disqualification, notify the CCM in writing.
(2) Upon receipt of such notice of appeal, the CCM will immediately notify the Director of DAS and the SCME.
(3) The Director of DAS will notify the appealing party and ODOT of the time and date of the hearing. The hearings appeal and final decision will take place in accordance with the statutory requirements and applicable DAS rules.
(4) If the suspension is upheld, the CCM will notify the contractor and the SCME when the suspension of the contractor's prequalification will begin.
Stat. Auth.: ORS 184.616, 184.619, 279A.050, 279A.065 &
279C.430
Stats. Implemented: ORS 279C.430
Hist.: HWD 1-2005, f. 2-16-05, cert. ef. 3-1-05
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