Bill Text: OR HB3396 | 2011 | Regular Session | Introduced

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Bill Title: Relating to preferences in public contracting; declaring an emergency.

Sponsorship: Partisan Bill (Democrat 1)

Status: (Failed) 2011-06-30 - In committee upon adjournment. [HB3396 Detail]

Download: Oregon-2011-HB3396-Introduced.html

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     76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular Session

NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .

LC 2975

                         House Bill 3396

Sponsored by Representative CLEM

                             SUMMARY

The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.

  Requires proposal for public contract for services to include
personnel deployment disclosure. Specifies contents of personnel
deployment disclosure.
  Requires contracting agency to state in request for proposals
that proposer must submit personnel deployment disclosure and
that contracting agency will apply preferences in awarding
contract in part on basis of information in personnel deployment
disclosure.
  Requires contracting agency to apply certain preferences in
awarding contract.
  Requires contracting agency to reject proposal submitted
without personnel deployment disclosure unless contracting agency
makes certain findings.
  Declares emergency, effective on passage.

                        A BILL FOR AN ACT
Relating to preferences in public contracting; creating new
  provisions; amending ORS 279B.060, 279B.100 and 279B.145; and
  declaring an emergency.
Be It Enacted by the People of the State of Oregon:
  SECTION 1.  { + Section 2 of this 2011 Act is added to and made
a part of ORS chapter 279B. + }
  SECTION 2.  { + (1) As used in this section:
  (a) 'Locally' means in the county in which the work described
in a request for proposals will be performed or in an adjacent
county.
  (b) 'Regionally' means within 750 miles of the location in this
state in which the work described in a request for proposals will
be performed.
  (2) A proposer that submits a proposal under ORS 279B.060 shall
submit with the proposal a personnel deployment disclosure.  The
personnel deployment disclosure shall specify:
  (a) The number of workers the proposer and the proposer's
first-tier subcontractors plan to deploy to perform work
described in the request for proposals;
  (b) The minimum number of workers the proposer and the
proposer's first-tier subcontractors will employ in each of the
following categories:
  (A) Locally;
  (B) Within this state;
  (C) Regionally; and
  (D) Within the United States; and
  (c) Whether the proposer is headquartered locally, within this
state, regionally or within the United States and whether the
proposer is owned locally, regionally, by a resident of this
state or by a resident of the United States.
  (3) The proposer shall certify by signature and oath that the
proposer has prepared, read and verified the accuracy of the
personnel deployment disclosure and that to the best of the
proposer's knowledge the information in the personnel deployment
disclosure is true. + }
  SECTION 3. ORS 279B.060 is amended to read:
  279B.060. (1) A contracting agency may solicit and award a
public contract for goods or services, or may award multiple
public contracts for goods or services when specified in the
request for proposals, by requesting and evaluating competitive
sealed proposals.
  (2) The request for proposals must:
  (a) Specify a time and date by which sealed proposals must be
received, and a place at which the proposals must be submitted.
The contracting agency, in the contracting agency's sole
discretion, may receive proposals by electronic means or may
direct or permit proposers to submit proposals by electronic
means.
  (b) Specify the name and title of the person designated to
receive proposals and the person the contracting agency
designates as the contact person for the procurement, if
different.
  (c) Describe the procurement. In the description, the
contracting agency shall identify the scope of work included
within the procurement, outline the contractor's anticipated
duties and set expectations for the contractor's performance.
Unless the contractor is providing architectural, engineering and
land surveying services or related services, both as defined in
ORS 279C.100, or unless the contracting agency for good cause
specifies otherwise, the scope of work shall require the
contractor to meet the highest standards prevalent in the
industry or business most closely involved in providing the
appropriate goods or services.
  (d) Specify a time, date and place for prequalification
applications, if any, to be filed and the classes of work, if
any, for which proposers must be prequalified in accordance with
ORS 279B.120.
  (e) State that the contracting agency may cancel the
procurement or reject any or all proposals in accordance with ORS
279B.100.
  (f) State that 'Contractors shall use recyclable products to
the maximum extent economically feasible in the performance of
the contract work set forth in this document.' if a state
contracting agency issues the request for proposals.
  (g) Require the contractor or subcontractor to possess an
asbestos abatement license, if required under ORS 468A.710.
   { +  (h) Require the proposer to submit the personnel
deployment disclosure described in section 2 of this 2011 Act and
state that the contracting agency in awarding the contract that
is the subject of the request for proposals will apply
preferences in part on the basis of information provided in the
personnel deployment disclosure. + }
    { - (h) - }  { +  (i) + } Include all contractual terms and
conditions applicable to the procurement. The contract terms and
conditions shall specify clear consequences for a contractor's
failure to perform the scope of work identified in the request
for proposals or the contractor's failure to meet established
performance standards. The consequences may include, but are not
limited to:
  (A) Reducing or withholding payment;

  (B) Requiring the contractor to perform, at the contractor's
expense, additional work necessary to perform the identified
scope of work or meet the established performance standards; or
  (C) Declaring a default, terminating the public contract and
seeking damages and other relief available under the terms of the
public contract or other applicable law.
  (3) The request for proposals also may:
  (a) Identify contractual terms or conditions that the
contracting agency reserves, in the request for proposals, for
negotiation with proposers;
  (b) Request that proposers propose contractual terms and
conditions that relate to subject matter reasonably identified in
the request for proposals;
  (c) Contain or incorporate the form and content of the contract
that the contracting agency will accept, or suggest contract
terms and conditions that nevertheless may be the subject of
negotiations with proposers;
  (d) Announce the method the contracting agency will use to
select the contractor, which may include, but is not limited to,
negotiating with the highest ranked proposer, competitive
negotiations, a multiple-tiered competition that is designed to
identify a class of proposers that fall within a competitive
range or to otherwise eliminate from consideration a class of
lower ranked proposers or a combination of methods, as authorized
or prescribed by rules adopted under ORS 279A.065; and
  (e) Describe the manner in which the contracting agency will
evaluate proposals, identifying the relative importance of price
and other factors the contracting agency will use to evaluate and
rate the proposals in the first tier of competition. If the
contracting agency uses more than one tier of competitive
evaluation, the request for proposals must describe the process
the contracting agency will use to evaluate proposals in the
subsequent tiers.
  (4)(a) The contracting agency may require proposal security in
any form the contracting agency deems prudent. Proposal security
shall serve the same function with respect to requests for
proposals as bid security serves with respect to invitations to
bid under ORS 279B.055.
  (b) The contracting agency shall return the proposal security
to all proposers upon the execution of the contract.
  (c) The contracting agency shall retain the proposal security
if a proposer who is awarded a contract fails to promptly and
properly execute the contract. For purposes of this paragraph,
prompt and proper execution of the contract includes all action
by a proposer that is necessary to form a contract in accordance
with the request for proposals, including posting performance
security and submitting proof of insurance when the request for
proposals requires the submission. If contract negotiations or
competitive negotiations are conducted, the failure, prior to
award, of a contracting agency and a proposer to reach agreement
does not constitute grounds for retaining proposal security.
  (5) Public notice of the request for proposals must be given in
the same manner as provided for public notice of invitations to
bid in ORS 279B.055 (4).
  (6)(a) Notwithstanding ORS 192.410 to 192.505, proposals may be
opened in a manner to avoid disclosing contents to competing
proposers during, when applicable, the process of negotiation,
but the contracting agency shall record and make available the
identity of all proposers as part of the contracting agency's
public records after the proposals are opened. Notwithstanding
ORS 192.410 to 192.505, proposals are not required to be open for
public inspection until after the notice of intent to award a
contract is issued. The fact that proposals are opened at a
meeting, as defined in ORS 192.610, does not make the contents of
the proposals subject to disclosure, regardless of whether the
public body   { - opening - }  { +  that opens + } the proposals
fails to give notice of or provide for an executive session for
the purpose of opening proposals.
  (b) Notwithstanding a requirement to make proposals open to
public inspection after the contracting agency issues notice of
intent to award a contract, a contracting agency may withhold
from disclosure to the public materials included in a proposal
that are exempt or conditionally exempt from disclosure under ORS
192.501 or 192.502.
  (c) If a request for proposals is canceled under ORS 279B.100
after proposals are received or if a proposal is rejected, the
contracting agency may return a proposal to the proposer that
made the proposal. The contracting agency shall keep a list of
returned proposals in the file for the solicitation.
  (7) As provided in the request for proposals or in written
addenda   { - issued thereunder - }  { +  to the request for
proposals + }, the contracting agency may conduct site tours,
demonstrations, individual or group discussions and other
informational activities with proposers before or after
 { - the - }  opening   { - of - }  proposals   { - for the
purpose of clarification - }  { +  to clarify and + } to ensure
full understanding of, and responsiveness to, the solicitation
requirements or to consider and respond to requests for
modifications of the proposal requirements. The contracting
agency shall use procedures designed to accord proposers fair and
equal treatment with respect to any opportunity for discussion
and revision of proposals.
  (8) For purposes of evaluation, when provided for in the
request for proposals, the contracting agency may employ methods
of contractor selection that include, but are not limited to:
  (a) An award or awards based solely on the ranking of
proposals;
  (b) Discussions leading to best and final offers, in which the
contracting agency may not disclose private discussions leading
to best and final offers;
  (c) Discussions leading to best and final offers, in which the
contracting agency may not disclose information derived from
proposals submitted by competing proposers;
  (d) Serial negotiations, beginning with the highest ranked
proposer;
  (e) Competitive simultaneous negotiations;
  (f) Multiple-tiered competition designed to identify, at each
level, a class of proposers that fall within a competitive range
or to otherwise eliminate from consideration a class of lower
ranked proposers;
  (g) A multistep request for proposals   { - requesting - }
 { +  in which the contracting agency asks proposers to
submit + }   { - the submission of - }  unpriced technical
submittals, and then later   { - issuing - }  { +  issues + }
a { +  subsequent + } request for proposals   { - limited - }
 { +  only + } to the proposers whose technical submittals the
contracting agency   { - had - }  determined to be qualified
under the criteria set forth in the initial request for
proposals; or
  (h) A combination of methods described in this subsection, as
authorized or prescribed by rules adopted under ORS 279A.065.
   { +  (9)(a) In addition to and not in lieu of the preferences
described in ORS 279A.120, a contracting agency, based on
information the proposer provides in the personnel deployment
disclosure described in section 2 of this 2011 Act, shall apply
the following preferences in evaluating proposals the contracting
agency receives under this section:
  (A) A proposer that is headquartered in or is owned by a
resident of the county in which the work described in the request
for proposals will be performed, or is headquartered in or owned
by a resident of an adjacent county, shall receive first
preference, unless the proposed contract price is more than 10
percent higher than the contract price of a competing proposal
from a proposer that is not headquartered in or owned by a
resident of the county in which the work will be performed, or is
not headquartered in or owned by a resident of an adjacent
county.
  (B) A proposer that is headquartered in or is owned by a
resident of this state shall receive second preference, unless
the proposed contract price is more than seven percent higher
than the contract price of a competing proposal from a proposer
that is not headquartered in or owned by a resident of this
state.
  (C) A proposer that is headquartered in or is owned by a
resident of the United States shall receive third preference,
unless the proposed contract price is more than five percent
higher than the contract price of a competing proposal from a
proposer that is not headquartered in or owned by a resident of
the United States.
  (b) A contracting agency shall apply a preference described in
paragraph (a) of this subsection to a proposal that the
contracting agency determines is otherwise responsive to the
request for proposals. A contracting agency may not award a
contract to a proposer on the basis of a preference described in
paragraph (a) of this subsection if the contracting agency
determines that the proposer is not responsible under ORS
279B.110. + }
    { - (9) - }  { +  (10) + } Revisions of proposals may be
permitted after the submission of proposals and before award for
the purpose of obtaining best offers or best and final offers.
    { - (10) - }  { +  (11) + } After   { - the - }  opening
 { - of - }  proposals, a contracting agency may issue or
electronically post an addendum to the request for proposals that
modifies the criteria, rating process and procedure for any tier
of competition before the start of the tier to which the addendum
applies. The contracting agency shall send an addendum that is
issued by a method other than electronic posting to all proposers
who are eligible to compete under the addendum. The contracting
agency shall issue or post the addendum at least five days before
the start of the subject tier of competition or as the
contracting agency otherwise determines is adequate to allow
eligible proposers to prepare for the competition in accordance
with rules adopted under ORS 279A.065.
    { - (11) - }  { +  (12) + } The cancellation of requests for
proposals and the rejection of proposals must be in accordance
with ORS 279B.100.
    { - (12) - }  { +  (13) + } In the request for proposals, the
contracting agency shall describe the methods by which the agency
will make the results of each tier of competitive evaluation
available to the proposers who competed in the tier. The
contracting agency shall include a description of the manner in
which the proposers who are eliminated from further competition
may protest or otherwise object to the contracting agency's
decision.
    { - (13) - }  { +  (14) + } The contracting agency shall
issue or electronically post the notice of intent to award
described in ORS 279B.135 to each proposer who was evaluated in
the final competitive tier.
    { - (14) - }  { +  (15) + } If the contracting agency awards
a contract, the contracting agency shall award the contract to
the responsible proposer whose proposal the contracting agency
determines in writing is the most advantageous to the contracting
agency based on the evaluation process and evaluation factors
described in the request for proposals, applicable preferences
described in  { + this section and + } ORS 279A.120 and 279A.125
and, when applicable, the outcome of any negotiations authorized
by the request for proposals. { +  The contracting agency may not
use + } other factors   { - may not be used - }  in the
evaluation. When the request for proposals specifies or
authorizes awarding multiple public contracts, the contracting
agency shall award public contracts to the responsible proposers
who qualify for the award of a contract under the terms of the
request for proposals.
    { - (15) - }  { +  (16) + } The contracting agency may issue
a request for information, a request for interest, a request for
qualifications or other preliminary documents to obtain
information useful in preparing a request for proposals.
    { - (16) - }  { +  (17) + } Before executing a contract
solicited under this section, a contracting agency shall obtain
the proposer's agreement to perform the scope of work and meet
the performance standards set forth in the final negotiated scope
of work.
  SECTION 4. ORS 279B.100 is amended to read:
  279B.100. (1)   { - Any - }  { +  A contracting agency may
cancel a + } solicitation or { +  a + } procurement described in
a solicitation   { - may be canceled, - }  or { +  may reject + }
any or all bids or proposals   { - may be rejected - }  in whole
or in part,   { - when the cancellation or rejection - }  { +  if
the contracting agency determines that canceling the solicitation
or procurement or rejecting the proposal + } is in the  { +
contracting agency's + } best interest   { - of the contracting
agency as determined by the contracting agency - } . The { +
contracting agency shall make the + } reasons for the
cancellation or rejection   { - must be made - }  part of the
solicitation file. A contracting agency is not liable to
 { - any - }  { +  a + } bidder or proposer for   { - any - }
 { +  a + } loss or expense caused by or resulting from the
cancellation or rejection of a solicitation, bid, proposal or
award.
  (2)   { - Any - }  { +  A contracting agency may delay or
suspend a + } solicitation or { +  a + } procurement described in
a solicitation { + , + }   { - may be delayed or suspended when
the delay or suspension - }  { +  if the contracting agency
determines that delaying or suspending the solicitation or
procurement + } is in the { +  contracting agency's + } best
interest   { - of the contracting agency as determined by the
contracting agency - } . The contracting agency shall make the
reasons for the delay or suspension part of the solicitation
file. A contracting agency is not liable to   { - any - }  { +
a + } bidder or proposer for
  { - any - }  { +  a + } loss or expense caused by or resulting
from the delay or suspension of a solicitation, bid, proposal or
award.
   { +  (3) A contracting agency shall reject a proposal if the
proposal does not include the personnel deployment disclosure
described in section 2 of this 2011 Act unless the contracting
agency finds in writing that:
  (a) Requiring a personnel deployment disclosure or evaluating a
proposal on the basis of information provided in a personnel
deployment disclosure conflicts with or would not be permitted
by:
  (A) Conditions placed on a grant or other source of funding
that the contracting agency will use for the procurement;
  (B) Applicable federal law, treaties or regulations; or
  (C) The needs of the contracting agency because of exceptional
circumstances;
  (b) Services that the contracting agency requires cannot
reasonably be performed or supplied in this state or cannot be
reasonably performed or supplied in quantities or within delivery
times that the contracting agency requires; or
  (c) Services that are the subject of the solicitation or
procurement by nature must be performed within this state.
  (4) A contracting agency that makes a finding described in
subsection (3) of this section shall report to the Oregon
Department of Administrative Services which proposals the
contracting agency received and evaluated without a personnel
deployment disclosure. The department shall maintain a list of
the proposals the contracting agency exempted from the
requirement to submit a personnel deployment disclosure and shall
make the list available for public inspection. + }
  SECTION 5. ORS 279B.145 is amended to read:
  279B.145. The determinations under ORS 279B.030, 279B.033,
279B.036, 279B.055 (3) and (7), 279B.060 (4) and   { - (14) - }
 { +  (15) + }, 279B.075, 279B.080, 279B.085 and 279B.110 are
final and conclusive unless they are clearly erroneous,
arbitrary, capricious or contrary to law.
  SECTION 6.  { + (1) The Attorney General, in model rules the
Attorney General adopts under ORS 279A.065, shall prescribe the
form and content of the personnel deployment disclosure described
in section 2 of this 2011 Act and shall devise standards,
criteria and procedures for applying the preferences set forth in
ORS 279B.060 (9).
  (2) The Oregon Department of Administrative Services or a
contracting agency that is subject to ORS 279A.065, in
consultation with the Attorney General, by rule shall prescribe
the form and content of the personnel deployment disclosure
described in section 2 of this 2011 Act for the department's or
the contracting agency's use and shall devise standards, criteria
and procedures for guiding the department or the contracting
agency in applying the preferences set forth in ORS 279B.060 (9).
To the extent practicable, the department and the contracting
agency shall adopt rules that are consistent with the model rules
the Attorney General adopts under subsection (1) of this
section. + }
  SECTION 7.  { + (1) Section 2 of this 2011 Act and the
amendments to ORS 279B.060, 279B.100 and 279B.145 by sections 3,
4 and 5 of this 2011 Act become operative January 1, 2012.
  (2) Before January 1, 2012, the Attorney General, the Oregon
Department of Administrative Services and a contracting agency
subject to ORS 279A.065 may adopt rules that are necessary to
enable the Attorney General, the department and the contracting
agency to exercise, on and after January 1, 2012, all the duties,
powers and functions conferred on the Attorney General, the
department and the contracting agency by section 2 of this 2011
Act and the amendments to ORS 279B.060, 279B.100 and 279B.145 by
sections 3, 4 and 5 of this 2011 Act. + }
  SECTION 8.  { + Section 2 of this 2011 Act and the amendments
to ORS 279B.060, 279B.100 and 279B.145 by sections 3, 4 and 5 of
this 2011 Act apply to contracts first advertised or otherwise
solicited or, if not advertised or solicited, entered into on or
after the operative date specified in section 7 of this 2011
Act. + }
  SECTION 9.  { + This 2011 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2011 Act takes effect on its
passage. + }
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