Oregon Administrative Rules › Chapter 137 - DEPARTMENT OF JUSTICE › Division 47 - MODEL RULES PUBLIC PROCUREMENTS FOR GOODS OR SERVICES › Section 137-047-0250 - Source Selection

Current through Register Vol. 63, No. 7, July 1, 2024
(1) Except as
			 permitted by ORS 279B.065 through
			 279B.085 and
			 279A.200 through
			 279A.225, a Contracting Agency
			 shall Award a Contract for Goods or Services, or both based on Offers received
			 in response to either competitive sealed Bids pursuant to 279B.055 or
			 competitive sealed Proposals pursuant to 279B.060.
(2) Written Cost Analysis for Contracts for
			 Services. Before conducting the Procurement of a Contract for Services that is
			 subject to ORS 279B.030,
			 279B.033, and ORS
			 279B.036, a Contracting Agency
			 must, in the absence of a determination under section 34 of that enactment that
			 performing the services with the Contracting Agency's own personnel and
			 resources is not feasible, conduct a Written cost analysis.
(3) Feasibility Determination for Contracts
			 for Services. A Contracting Agency may proceed with the procurement of a
			 Contract for Services without conducting a cost analysis under ORS
			 279B.033 if the Contracting
			 Agency makes Written findings that one or more of the special circumstances
			 described in ORS 279B.036, make the Contracting
			 Agency's use of its own personnel and resources to provide the Services not
			 feasible.
(4) Special
			 Circumstances. The special circumstances identified in ORS
			 279B.036 that require a
			 Contracting Agency to procure the Services by Contract include any
			 circumstances, conditions or occurrences that would make the Services, if
			 performed by the Contracting Agency's employees, incapable of being managed,
			 utilized or dealt with successfully in terms of the quality, timeliness of
			 completion, success in obtaining desired results, or other reasonable needs of
			 the Contracting Agency.
(5) Written
			 Cost Analysis under ORS
			 279B.036.
(a) Basic Comparison. The Written cost
			 analysis must compare an estimate of the Contracting Agency's cost of
			 performing the Services with an estimate of the cost a potential Contractor
			 would incur in performing the Services. However, The Contracting Agency may
			 proceed with the Procurement for Services only if it determines that the
			 Contracting Agency would incur more cost in performing the Services with the
			 Contracting Agency's own personnel than it would incur in procuring the
			 Services from a Contractor. In making this determination, the cost the
			 Contracting Agency would incur in procuring the Services from a Contractor
			 includes the fair market value of any interest in equipment, materials or other
			 assets the Contracting Agency will provide to the Contractor for the
			 performance of the Services.
(b)
			 Costs of Using Contracting Agency's Own Personnel and Resources. When
			 estimating the Contracting Agency's cost of performing the Services, the
			 Contracting Agency shall consider cost factors that include:
(A) The salary or wage and benefit costs for
			 the employees of the Contracting Agency who would be directly involved in
			 performing the Services, to the extent those costs reflect the proportion of
			 the activity of those employees in the direct provision of the Services. These
			 costs include those salary or wage and benefit costs of the employees who
			 inspect, supervise or monitor the performance of the Services, to the extent
			 those costs reflect the proportion of the activity of those employees in the
			 direct inspection, supervision, or monitoring of the performance of the subject
			 Services.
(B) The material costs
			 necessary to the performance of the Services, including the costs for space,
			 energy, transportation, storage, equipment and supplies used or consumed in the
			 provision of the Services.
(C) The
			 costs incurred in planning for, training for, starting up, implementing,
			 transporting and delivering the Services.
(D) Any costs related to stopping and
			 dismantling a project or operation because the Contracting Agency intends to
			 procure a limited quantity of Services or to procure the Services within a
			 defined or limited period of time.
(E) The miscellaneous costs related to
			 performing the Services. These costs exclude the Contracting Agency's indirect
			 overhead costs for existing salaries or wages and benefits for administrators,
			 and exclude costs for rent, equipment, utilities and materials, except to the
			 extent the cost items identified in this sentence are attributed solely to
			 performing the Services and would not be incurred unless the Contracting Agency
			 performed the Services.
(F) ORS
			 279B.033 provides that an
			 estimate of the Contracting Agency's costs of performing the Services includes
			 the costs described in subsections (5)(b)(A) through (E) of this rule.
			 Therefore, those costs do not constitute an exclusive list of cost information.
			 A Contracting Agency may consider other reliable information that bears on the
			 cost to the Contracting Agency of performing the Services. For example, if the
			 Contracting Agency has accounted for its actual costs of performing the
			 Services under consideration, or reasonably comparable Services, in a
			 relatively recent Services project, the Contracting Agency may consider those
			 actual costs in making its estimate.
(c) Costs a Potential Contractor Would Incur.
			 When estimating the costs a potential Contractor would incur in performing the
			 Services, the Contracting Agency shall consider cost factors that include:
(A) The average or actual salary or wage and
			 benefit costs for Contractors and Contractor employees:
(i) Who work in the business or industry most
			 closely involved in performing the Services; and
(ii) Who would be necessary and directly
			 involved in performing the Services or who would inspect, supervise or monitor
			 the performance of the Services.
(B) The material costs necessary to the
			 performance of the Services, including the costs for space, energy,
			 transportation, storage, raw and finished materials, equipment and supplies
			 used or consumed in the provision of the Services.
(C) The miscellaneous costs related to
			 performing the Services. These miscellaneous costs include reasonably
			 foreseeable fluctuations in the costs listed in subsections (5)(c)(A) and (B)
			 of this rule over the expected duration of the Procurement.
(D) ORS
			 279B.033 provides that an
			 estimate of the costs a potential Contractor would incur in performing the
			 Services includes the costs described in subsections (5)(c)(A) through (C) of
			 this rule. Therefore, those costs do not constitute an exclusive list of cost
			 information. A Contracting Agency may consider other reliable information that
			 bears on the costs a potential Contractor would incur. For example, if the
			 Contracting Agency, in the reasonably near past, received Bids or Proposals for
			 the performance of the Services under consideration, or reasonably comparable
			 Services, the Contracting Agency may consider the pricing offered in those Bids
			 or Proposals in making its estimate. Similarly, the Contracting Agency may
			 consider what it actually paid out under a Contract for the same or similar
			 Services. For the purposes of these examples, the reasonably near past is
			 limited to Contracts, Bids or Proposals entered into or received within the
			 five years preceding the date of the cost estimate. The Contracting Agency must
			 take into account, when considering the pricing offered in previous Bids,
			 Proposals or Contracts, adjustments to the pricing in light of measures of
			 market price adjustments like the consumer price indexes that apply to the
			 Services.