justicedao/ipfs_state_laws huggingface dataset:
137-048-0320 Contract Amendments (1) A Contracting Agency may amend any Contract if the Contracting Agency, in its sole discretion, determines that the amendment is within the scope of the Solicitation Document and that the amendment would not materially impact the field of competition for the Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services described in the final form of the original Procurement document. In making this determination, the Contracting Agency shall consider potential alternative methods of procuring the services contemplated under the proposed amendment. An amendment would not materially impact the field of competition for the services described in the Solicitation Document, if the Contracting Agency reasonably believes that the number of Proposers would not significantly increase if the Procurement document were re-issued to include the additional services. (2) The Contracting Agency may amend any Contract if the additional services are required by reason of existing or new laws, rules, regulations or ordinances of federal, state or local agencies, which affect performance of the original Contract. (3) All amendments to Contracts must be in writing, must be signed by an authorized representative of the Consultant and the Contracting Agency and must receive all required approvals before the amendments will be binding on the Contracting Agency. Statutory/Other Authority: ORS 279A.065, OL 2011 & ch 458 Statutes/Other Implemented: ORS 279A.065, 279C.110, OL 2011 & ch 458 History: DOJ 10-2011, f. 11-29-11, cert. ef. 1-1-12 DOJ 15-2009, f. 12-1-09, cert. ef. 1-1-10 DOJ 19-2007, f. 12-28-07, cert. ef. 1-1-08 DOJ 20-2005, f. 12-27-05, cert. ef. 1-1-06 DOJ 11-2004, f. 9-1-04, cert. ef. 3-1-05
137-049-0100 Application (1) These division 49 rules apply to Public Improvement Contracts as well as Public Contracts for ordinary construction Services that are not Public Improvements. Model Rules that apply specifically to Public Improvement Contracts are so identified. These division 49 rules apply to Contracts for Construction Manager/General Contractor Services, whether the initial Contract between the parties includes both pre-construction services and construction services, or only contains pre-construction services, since the underlying procurement for Construction Manager/General Contractor Services authorizes Contracting Agencies to enter into Contracts for both pre-construction and construction services. (2) These division 49 rules address matters covered in ORS Chapter 279C (with the exception of Architectural, Engineering, Land Surveying and Related Services, all of which are addressed in division 48 of the Model Rules). Statutory/Other Authority: ORS 279A.065 Statutes/Other Implemented: ORS 279A.065 History: DOJ 2-2015, f. & cert. ef. 2-3-15 Reverted to DOJ 19-2007, f. 12-28-07, cert. ef. 1-1-08 DOJ 10-2014(Temp), f. & cert. ef. 7-1-14 thru 12-26-14 DOJ 19-2007, f. 12-28-07, cert. ef. 1-1-08 DOJ 20-2005, f. 12-27-05, cert. ef. 1-1-06 DOJ 11-2004, f. 9-1-04, cert. ef. 3-1-05
137-049-0110 Policies In addition to the general Code policies set forth in ORS 279A.015, the 279C.300 policy on competition and the 279C.305 policy on least-cost for Public Improvements apply to these division 49 rules. Statutory/Other Authority: ORS 279A.065 Statutes/Other Implemented: ORS 279C.300 & 279C.305 History: DOJ 11-2004, f. 9-1-04, cert. ef. 3-1-05
137-049-0120 Definitions (1) “Conduct Disqualification” means a Disqualification under ORS 279C.440. (2) “Disqualification” means the preclusion of a Person from contracting with a Contracting Agency for a period of time in accordance with OAR 137-049-0370. (3) “Foreign Contractor” means a Contractor that is not domiciled in or registered to do business in the State of Oregon. See OAR 137-049-0480. (4) “Notice” means any of the alternative forms of public announcement of Procurements, as described in OAR 137-049-0210. (5) “Work” means the furnishing of all services, materials, equipment, labor and incidentals necessary to successfully complete any individual item or the entire Contract and the carrying out and completion of all duties and obligations imposed by the Contract. Statutory/Other Authority: ORS 279A.065 Statutes/Other Implemented: ORS 279A.065, OL 2015 & ch 565 (HB 3303) History: DOJ 2-2022, temporary amend filed 01/03/2022, effective 01/03/2022 through 07/01/2022 DOJ 18-2015, f. 12-31-15, cert. ef. 1-1-16 DOJ 2-2015, f. & cert. ef. 2-3-15 Reverted to DOJ 20-2005, f. 12-27-05, cert. ef. 1-1-06 DOJ 10-2014(Temp), f. & cert. ef. 7-1-14 thru 12-26-14 DOJ 20-2005, f. 12-27-05, cert. ef. 1-1-06 DOJ 11-2004, f. 9-1-04, cert. ef. 3-1-05
137-049-0130 Competitive Bidding Requirement A Contracting Agency shall solicit Bids for Public Improvement Contracts by Invitation to Bid ("ITB"), except as otherwise allowed or required pursuant to ORS 279C.335 on competitive bidding exceptions and exemptions, 279A.030 on federal law overrides or 279A.100 on affirmative action. Also see OAR 137-049-0600 to 137-049-0690 regarding the use of Alternative Contracting Methods, use of Alternative Contracting Methods for projects which are excepted or exempt from the competitive bidding process, use of Alternative Contracting Methods within the competitive bidding process and the process for obtaining an exemption from competitive bidding requirements. Statutory/Other Authority: ORS 279A.065 Statutes/Other Implemented: ORS 279C.335 History: DOJ 2-2015, f. & cert. ef. 2-3-15 Reverted to DOJ 20-2005, f. 12-27-05, cert. ef. 1-1-06 DOJ 10-2014(Temp), f. & cert. ef. 7-1-14 thru 12-26-14 DOJ 20-2005, f. 12-27-05, cert. ef. 1-1-06 DOJ 11-2004, f. 9-1-04, cert. ef. 3-1-05
137-049-0140 Contracts for Construction Other Than Public Improvements (1) Procurement Under ORS Chapter 279B. Pursuant to ORS 279C.320, Public Contracts for construction Services that are not Public Improvement Contracts may be procured and amended as general trade Services under the provisions of ORS Chapter 279B rather than under the provisions of ORS Chapter 279C and these division 49 rules. Emergency Contracts for construction Services are not Public Improvement Contracts and are regulated under ORS 279B.080. (2) Application of ORS Chapter 279C. Non-procurement provisions of ORS Chapter 279C and these division 49 rules may still be applicable to the resulting Contracts. See, for example, particular statutes on Disqualification (279C.440, 445, 450); Legal Actions (279C.460 and 465); Required Contract Conditions (279C.505, 515, 520, 530); Hours of Labor (279C.540, 545); Retainage (279C.550, 555, 560, 565 and 570); Subcontracts (279C.580); Action on Payment Bonds (279C.600, 605, 610, 615, 620, 625); Termination (279C.650, 660, 670); and all of the Prevailing Wage Rates requirements (279C.800 through 870) for Public Works Contracts. Statutory/Other Authority: ORS 279A.065 Statutes/Other Implemented: ORS 279C.320 History: DOJ 12-2019, minor correction filed 11/04/2019, effective 11/04/2019 DOJ 19-2007, f. 12-28-07, cert. ef. 1-1-08 DOJ 20-2005, f. 12-27-05, cert. ef. 1-1-06 DOJ 11-2004, f. 9-1-04, cert. ef. 3-1-05
137-049-0150 Emergency Contracts; Bidding and Bonding Exemptions (1) Emergency Declaration. A Contracting Agency may declare that Emergency circumstances exist that require prompt execution of a Public Contract for Emergency construction or repair Work. The declaration shall be made at an administrative level consistent with the Contracting Agency's internal policies, by a Written declaration that describes the circumstances creating the Emergency and the anticipated harm from failure to enter into an Emergency Contract. The Emergency declaration shall be kept on file as a public record. (2) Competition for Emergency Contracts. Pursuant to ORS 279C.320(1), Emergency Contracts are regulated under ORS 279B.080, which provides that, for an emergency procurement of construction services, the Contracting Agency shall ensure competition that is reasonable and appropriate under the Emergency circumstances, and may include Written requests for Offers, oral requests for Offers or direct appointments without competition in cases of extreme necessity, in whatever solicitation time periods the Contracting Agency considers reasonable in responding to the Emergency. (3) Emergency Contract Scope. Although no dollar limitation applies to Emergency Contracts, the scope of the Contract must be limited to Work that is necessary and appropriate to remedy the conditions creating the Emergency as described in the declaration. (4) Emergency Contract Modification. Emergency Contracts may be modified by change order or amendment to address the conditions described in the original declaration or an amended declaration that further describes additional Work necessary and appropriate for related Emergency circumstances. (5) Excusing Bonds. Pursuant to ORS 279C.380(4) and this rule, the Emergency declaration may also state that the Contracting Agency waives the requirement of furnishing a performance bond and payment bond for the Emergency Contract. After making such an Emergency declaration those bonding requirements are excused for the procurement, but this Emergency declaration does not affect the separate Public Works bond requirement for the benefit of the Bureau of Labor and Industries (BOLI) in enforcing prevailing wage rate and overtime payment requirements. See OAR 137-049-0815 and BOLI rules at OAR 839-025-0015. Statutory/Other Authority: ORS 279A.065 Statutes/Other Implemented: ORS 279B.080, 279C.320 & 279C.380 History: DOJ 15-2009, f. 12-1-09, cert. ef. 1-1-10 DOJ 19-2007, f. 12-28-07, cert. ef. 1-1-08 DOJ 20-2005, f. 12-27-05, cert. ef. 1-1-06 DOJ 11-2004, f. 9-1-04, cert. ef. 3-1-05
137-049-0220 Prequalification of Offerors (1) Prequalification. Pursuant to ORS 279C.430 and this rule, two types of prequalification are authorized: (a) Mandatory Prequalification. A Contracting Agency may, by rule, resolution, ordinance or other law or regulation, require mandatory prequalification of Offerors on forms prescribed by the Contracting Agency's Contract Review Authority. A Contracting Agency must indicate in the Solicitation Document if it will require mandatory prequalification. Mandatory prequalification is when a Contracting Agency conditions a Person's submission of an Offer upon the Person's prequalification. The Contracting Agency shall not consider an Offer from a Person that is not prequalified if the Contracting Agency required prequalification. (b) Permissive Prequalification. A Contracting Agency may prequalify a Person for the Contracting Agency's solicitation list on forms prescribed by the Contracting Agency's Contract Review Authority, but in permissive prequalification the Contracting Agency shall not limit distribution of a solicitation to that list. (2) Prequalification Presumed. If an Offeror is currently prequalified by either the Oregon Department of Transportation or the Oregon Department of Administrative Services to perform Contracts, the Offeror shall be rebuttably presumed qualified to perform similar Work for other Contracting Agencies. (3) Standards for Prequalification. A Person may prequalify by demonstrating to the Contracting Agency's satisfaction: (a) That the Person's financial, material, equipment, facility and personnel resources and expertise, or ability to obtain such resources and expertise, indicate that the Person is capable of meeting all contractual responsibilities; (b) The Person's record of performance; (c) The Person's record of integrity; (d) The Person is qualified to contract with the Contracting Agency. (See, OAR 137-049-0390(2) regarding standards of responsibility.) (4) Notice of Denial. If a Person fails to prequalify for a mandatory prequalification, the Contracting Agency shall notify the Person, specify the reasons under section (3) of this rule and inform the Person of the Person's right to a hearing under ORS 279C.445 and 279C.450. Statutory/Other Authority: ORS 279A.065 Statutes/Other Implemented: ORS 279C.430 & 279C.435 History: DOJ 15-2009, f. 12-1-09, cert. ef. 1-1-10 DOJ 20-2005, f. 12-27-05, cert. ef. 1-1-06 DOJ 11-2004, f. 9-1-04, cert. ef. 3-1-05
137-049-0230 Eligibility to Bid or Propose; Registration or License (1) Construction Contracts. A Contracting Agency shall not consider a Person's Offer to do Work as a contractor, as defined in ORS 701.005(2), unless the Person has a current, valid certificate of registration issued by the Construction Contractors Board at the time the Offer is made. (2) Landscape Contracts. A Contracting Agency shall not consider a Person's Offer to do Work as a landscape contractor as defined in ORS 671.520(2), unless the Person has a current, valid landscape contractors license issued pursuant to 671.560 by the State Landscape Contractors Board at the time the offer is made. (3) Noncomplying Entities. The Contracting Agency shall deem an Offer received from a Person that fails to comply with this rule nonresponsive and shall reject the Offer as stated in ORS 279C.365(1)(k), unless contrary to federal law or subject to different timing requirements set by federal funding agencies. Statutory/Other Authority: ORS 279A.065 Statutes/Other Implemented: ORS 279C.365, 671.530 & 701.055 History: DOJ 11-2004, f. 9-1-04, cert. ef. 3-1-05
137-049-0240 Pre-Offer Conferences (1) Purpose. A Contracting Agency 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. The Contracting Agency may require attendance at the pre-Offer conference as a condition for making an Offer. Unless otherwise specified in the Solicitation Document, a mandatory attendance requirement is considered to have been met if, at any time during the mandatory meeting, a representative of an offering firm is present. (3) Scheduled time. If a Contracting Agency 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 a Contracting Agency's representative at the pre-Offer conference do not change the Solicitation Document unless the Contracting Agency confirms such statements with a Written Addendum to the Solicitation Document. (5) Contracting Agency Announcement. The Contracting Agency must set forth notice of any pre-Offer conference in the Solicitation Document in accordance with OAR 137-049-0200(1)(a)(B). Statutory/Other Authority: ORS 279A.065 Statutes/Other Implemented: ORS 279C.365 & 279C.370 History: DOJ 11-2004, f. 9-1-04, cert. ef. 3-1-05
137-049-0250 Addenda to Solicitation Documents (1) Issuance; Receipt. The Contracting Agency may change a Solicitation Document only by Written Addenda. An Offeror shall provide Written acknowledgement of receipt of all issued Addenda with its Offer, unless the Contracting Agency otherwise specifies in the Addenda or in the Solicitation Document. (2) Notice and Distribution. The Contracting Agency shall notify prospective Offerors of Addenda consistent with the standards of Notice set forth in OAR 137-049-0210(1). The Solicitation Document shall specify how the Contracting Agency will provide notice of Addenda and how the Contracting Agency will make the Addenda available (see, 137-049-0200(1)(a)(N). For example, "Contracting Agency will not mail notice of Addenda, but will publish notice of any Addenda on Contracting Agency's Web site. Addenda may be downloaded off the Contracting Agency's Web site. Offerors should frequently check the Contracting Agency’s Web site until closing, i.e., at least once weekly until the week of Closing and at least once daily the week of the Closing." (3) Timelines; Extensions. The Contracting Agency shall issue Addenda within a reasonable time to allow prospective Offerors to consider the Addenda in preparing their Offers. The Contracting Agency may extend the Closing if the Contracting Agency determines prospective Offerors need additional time to review and respond to Addenda. Except to the extent required by public interest, the Contracting Agency shall not issue Addenda less than 72 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 137-049-0260, by the close of the Contracting Agency's next business day after issuance of the Addendum, or up to the last day allowed to submit a request for change or protest under 137-049-0260, whichever date is later. The Contracting Agency shall consider only an Offeror's request for change or protest to the Addendum; the Contracting Agency shall not consider a request for change or protest to matters not added or modified by the Addendum, unless the Offeror submits the request for change or protest before the deadline for the Contracting Agency’s receipt of request for change or protests as set forth in 137-049-0260(2) and (3). Statutory/Other Authority: ORS 279A.065 Statutes/Other Implemented: ORS 279C.395 & 279A.065 History: DOJ 11-2004, f. 9-1-04, cert. ef. 3-1-05
137-049-0270 Cancellation of Solicitation Document (1) Cancellation in the Public Interest. A Contracting Agency may cancel a solicitation for good cause if the Contracting Agency finds that cancellation is in the public interest. The Contracting Agency's reasons for cancellation shall be made part of the solicitation file. (2) Notice of Cancellation. If the Contracting Agency cancels a solicitation prior to Opening, the Contracting Agency shall provide Notice of cancellation in accordance with OAR 137-049-0210(1). Such notice of cancellation shall: (a) Identify the solicitation; (b) Briefly explain the reason for cancellation; and (c) If appropriate, explain that an opportunity will be given to compete on any resolicitation. (3) Disposition of Offers. (a) Prior to Offer Opening. If the Contracting Agency cancels a solicitation prior to Offer Opening, the Contracting Agency shall return all Offers it received to Offerors unopened, provided the Offeror submitted its Offer in a hard copy format with a clearly visible return address. If there is no return address on the envelope, the Contracting Agency shall open the Offer to determine the source and then return it to the Offeror. (b) After Offer Opening. If the Contracting Agency rejects all Offers, the Contracting Agency shall retain all such Offers as part of the Contracting Agency's solicitation file. Statutory/Other Authority: ORS 279A.065 Statutes/Other Implemented: ORS 279C.395 History: DOJ 15-2009, f. 12-1-09, cert. ef. 1-1-10 DOJ 11-2004, f. 9-1-04, cert. ef. 3-1-05
137-049-0290 Bid or Proposal Security (1) Security Amount. If a Contracting Agency requires Bid or Proposal security, it shall be not more than 10% or less than 5% of the Offeror's Bid or Proposal, consisting of the base Bid or Proposal together with all additive alternates. A Contracting Agency shall not use Bid or Proposal security to discourage competition. The Contracting Agency 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 a Contracting Agency has otherwise exempted a solicitation or class of solicitations from Bid security pursuant to ORS 279C.390, the Contracting Agency 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 the Contracting Agency, of more than $100,000 or, in the case of Contracts for highways, bridges and other transportation projects, more than $50,000. See ORS 279C.365(6). The Contracting Agency may require Bid security even if it has exempted a class of solicitations from Bid security. Contracting Agencies may also require Proposal security in RFPs. See ORS 279C.400(5). (3) Form of Bid or Proposal Security. A Contracting Agency 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; (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. (4) Return of Security. A Contracting Agency 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. The Contracting Agency 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. Statutory/Other Authority: ORS 279A.065 Statutes/Other Implemented: ORS 279C.365, 279C.385 & 279C.390 History: DOJ 15-2009, f. 12-1-09, cert. ef. 1-1-10 DOJ 19-2007, f. 12-28-07, cert. ef. 1-1-08 DOJ 20-2005, f. 12-27-05, cert. ef. 1-1-06 DOJ 11-2004, f. 9-1-04, cert. ef. 3-1-05