Oregon Administrative Rules › Chapter 137 - DEPARTMENT OF JUSTICE › Division 49 - MODEL RULES GENERAL PROVISIONS RELATED TO PUBLIC CONTRACTS FOR CONSTRUCTION SERVICES › Section 137-049-0610 - Definitions for Alternative Contracting Methods

Current through Register Vol. 63, No. 7, July 1, 2024
The following definitions shall apply to these OAR 137-049-0600 to 137-049-0690  rules, unless the context requires otherwise:
(1) Affiliate has the meaning set forth in
			 ORS 279C.332(1).
(2) Alternative Contracting Methods means
			 innovative techniques for procuring or performing Public Improvement Contracts,
			 utilizing processes other than the traditional methods involved in the
			 design-bid-build construction contracting method (with Award of a Public
			 Improvement Contract based solely on price, in which a final design is issued
			 with formal Bid documents, construction Work is obtained by sealed Bid Awarded
			 to the Responsible Bidder submitting the lowest Responsive Bid, and the project
			 is built in accordance with those documents). In industry practice, such
			 methods commonly include variations of Design-Build contracting, CM/GC forms of
			 contracting and ESPCs, which are specifically addressed in these OAR
			 137-049-0600  to 137-049-0690  rules. These methods also include other developing
			 techniques, which include but are not limited to general "performance
			 contracting," "cost plus time" contracting (as more particularly described in
			 ORS 279C.332(3)(b)(D)(iii)(I))
			 and "qualifications plus project approach" contracting (as more particularly
			 described in ORS 279C.332(3)(b)(D)(iii)(II)).
			 Procedural requirements for these methods are identified in these OAR
			 137-049-0600  to 137-049-0690  rules, when a Contracting Agency uses an
			 Alternative Contracting Method in a procurement that requires an exemption from
			 competitive bidding under ORS
			 279C.335(2) or
			 in an ESPC procurement that is excepted from competitive bidding under ORS
			 279.335(1).
(3) Construction Manager/General Contractor
			 (or "CM/GC") has the meaning set forth in ORS
			 279C.332(2).
(4) Construction Manager/General Contractor
			 Method (or "CM/GC Method") means the Alternative Contracting Method which
			 involves a Contracting Agency's selection of a CM/GC to perform CM/GC Services
			 for a project or projects.
(5)
			 Construction Manager/General Contractor Services (or "CM/GC Services") has the
			 meaning set forth in ORS
			 279C.332(3).
(6) Design-Build means a form of Procurement
			 that results in a Public Improvement Contract in which the construction
			 Contractor also provides or obtains specified design services, participates on
			 the project team with the Contracting Agency, and manages both design and
			 construction. In this form of Contract, a single Person provides the
			 Contracting Agency with all of the Personal Services and construction Work
			 necessary to both design and construct the project.
(7) Early Work means construction services,
			 construction materials and other Work authorized by the parties to be performed
			 under the CM/GC Contract in advance of the establishment of the GMP, fixed
			 price or other maximum, not-to-exceed price for the project. Permissible Early
			 Work shall be limited to early procurement of materials and supplies, early
			 release of bid or proposal packages for site development and related
			 activities, and any other advance Work related to important components of the
			 project for which performance prior to establishment of the GMP will materially
			 and positively affect the development or completion of the project.
(8) Energy Conservation Measures (or "ECMs")
			 (also known as "energy efficiency measures") means, as used in ESPC
			 Procurement, any equipment, fixture or furnishing to be added to or used in an
			 existing building or structure, and any repair, alteration or improvement to an
			 existing building or structure that is designed to reduce energy consumption
			 and related costs, including those costs related to electrical energy, thermal
			 energy, water consumption, waste disposal, and future contract-labor costs and
			 materials costs associated with maintenance of the building or structure. For
			 purposes of these OAR 137-049-0600  to 137-049-0690  rules, use of either or both
			 of the terms "building" or "structure" shall be deemed to include existing
			 energy, water and waste disposal systems connected or related to or otherwise
			 used for the building or structure when such system(s) are included in the
			 project, either as part of the project together with the building or structure,
			 or when such system(s) are the focus of the project. Maintenance services are
			 not Energy Conservation Measures, for purposes of these 137-049-0600  to
			 137-049-0690  rules.
(9) Energy
			 Savings Guarantee means the energy savings and performance guarantee provided
			 by the ESCO under an ESPC Procurement, which guarantees to the Contracting
			 Agency that certain energy savings and performance will be achieved for the
			 project covered by the RFP, through the installation and implementation of the
			 agreed-upon ECMs for the project. The Energy Savings Guarantee shall include,
			 but shall not be limited to, the specific energy savings and performance levels
			 and amounts that will be guaranteed, provisions related to the financial
			 remedies available to the Contracting Agency in the event the guaranteed
			 savings and performance are not achieved, the specific conditions under which
			 the ESCO will guarantee energy savings and performance (including the specific
			 responsibilities of the Contracting Agency after final completion of the design
			 and construction phase), and the term of the energy savings and performance
			 guarantee.
(10) Energy Savings
			 Performance Contract (or "ESPC") means a Public Improvement Contract between a
			 Contracting Agency and a Qualified Energy Service Company for the
			 identification, evaluation, recommendation, design and construction of Energy
			 Conservation Measures, including a Design-Build Contract, that guarantee energy
			 savings or performance.
(11)
			 General Conditions Work (or "GC Work") means a general grouping of project Work
			 required to support construction operations on the project that is not included
			 within the Contractor's overhead or fee.
(12) Guaranteed Maximum Price (or "GMP") has
			 the meaning set forth in ORS
			 279C.332(4),
			 pertaining to procurements for CM/GC Services. For Alternative Contracting
			 Methods other than the CM/GC Method, "Guaranteed Maximum Price" or "GMP" means
			 the total maximum price provided to the Contracting Agency by the Contractor
			 and accepted by the Contracting Agency that includes all reimbursable costs and
			 fees for completion of the Contract Work and any particularly identified
			 contingency amounts, as defined by the Public Improvement Contract.
(13) Measurement and Verification (or "M
			 & V") means, as used in ESPC Procurement, the examination of installed ECMs
			 using the International Performance Measurement and Verification Protocol
			 ("IPMVP"), or any other comparable protocol or process, to monitor and verify
			 the operation of energy-using systems pre-installation and
			 post-installation.
(14) Project
			 Development Plan means a secondary phase of Personal Services and Work
			 performed by an ESCO in an ESPC Procurement when the ESCO performs more
			 extensive design of the agreed-upon ECMs for the project, provides the detailed
			 provisions of the ESCO's Energy Savings Guarantee that the fully installed and
			 commissioned ECMs will achieve a particular energy savings level for the
			 building or structure, and prepares an overall report or plan summarizing the
			 ESCO's Work during this secondary phase of the Work and otherwise explaining
			 how the agreed-upon ECMs will be implemented during the design and construction
			 phase of the Work; The term "Project Development Plan" can also refer to the
			 report or plan provided by the ESCO at the conclusion of this phase of the
			 Work.
(15) Qualified Energy Service
			 Company (or "ESCO") means, as used in ESPC Procurement, a company, firm or
			 other legal Person with the following characteristics: demonstrated technical,
			 operational, financial and managerial capabilities to design, install,
			 construct, commission, manage, measure and verify, and otherwise implement
			 Energy Conservation Measures and other Work on building systems or building
			 components that are directly related to the ECMs in existing buildings and
			 structures; a prior record of successfully performing ESPCs on projects
			 involving existing buildings and structures that are comparable to the project
			 under consideration by the Contracting Agency; and the financial strength to
			 effectively guarantee energy savings and performance under the ESPC for the
			 project in question, or the ability to secure necessary financial measures to
			 effectively guarantee energy savings under an ESPC for that project.
(16) Savings has the meaning set forth in ORS
			 279C.337(4),
			 pertaining to CM/GC Services procurements. For other Alternative Contracting
			 Methods, "Savings" means a positive difference between a Guaranteed Maximum
			 Price or other maximum not-to-exceed price set forth in a Public Improvement
			 Contract and the actual cost of the Contractor's performance of the Contract
			 Work payable by the Contracting Agency under the terms of the Contract,
			 including costs for which a Contracting Agency reimburses a Contractor and
			 fees, profits or other payments the Contractor earns.
(17) Technical Energy Audit means, as used in
			 ESPC Procurement, the initial phase of Personal Services to be performed by an
			 ESCO that includes a detailed evaluation of an existing building or structure,
			 an evaluation of the potential ECMs that could be effectively utilized at the
			 facility, and preparation of a report to the Contracting Agency of the ESCO's
			 findings during this initial phase of the Work; the term "Technical Energy
			 Audit" can also refer to the report provided by the ESCO at the conclusion of
			 this phase of the Work.
Statutory/Other Authority: ORS
				  279A.065
Statutes/Other Implemented: ORS
				  279C.332,
				  279C.335 &
				  279A.065