Procurement Rules

COMMUNITY COLLEGE RULES

OF 

 PROCUREMENT 


PROPOSED CHAGES TO THE COMMUNITY COLLEGE RULES OF PROCUREMENT DATED JANUARY 19, 2005, FOR ADOPTION IN WINTER 2014, PENDING BOARD APPROVAL.

 
ADOPTED IN ACCORDANCE WITH

ORS 279A.065(5)(a) and ORS 279A.070    

BY

  CENTRAL OREGON COMMUNITY COLLEGE

 

 

 

These Community College Rules of Procurement shall remain in effect unless modified, in writing, and adopted by the College's Local Contract Review Board through Board Resolution.

TABLE OF CONTENTS    

SECTION 100        GENERAL INFORMATION

          CCR.102               Purpose and Statutory Authority

          CCR.104               Definitions

SECTION 200        PUBLIC CONTRACT SPECIAL PROCUREMENTS AND

RULES OF PROCEDURE

GENERAL CONTRACT PROVISIONS

CCR.202               Advertisement Contracts

CCR.204               Bid Security and Bond Requirements, Waiver of

CCR.205               Cooperative Procurement Participation  (Oregon Cooperative

                              Purchasing Program, Western States Contracting Alliance, Association of Educational

                              Purchasing Agencies, Oregon Educational Technology Consortium, US Communities

                              & Government Purchasing Alliance, Etcetera)

CCR.206               Donated Materials and/or Services

CCR.207               Emergency Contracts (Including Oil or Hazardous Material Removal)

CCR.208               Equipment Repair and Overhaul (Including Maintenance Agreements)

CCR.210               Federal Contracts, Purchases under

CCR.212               Intellectual Property (Periodicals/Library Books, Proprietary Software

                              Licenses, Art, and Other Products of the Creative Process

CCR.216               Life Cycle Costing/Best Value

CCR.218               Perishables (Chemicals, Food, Laboratory Supplies)

CCR.220               Personal Property, Used (Purchase of)

CCR.222               Price Regulated Items (Including Gas, Diesel Fuel, Heating Oil,

                              Lubricants, Asphalts, Distilled Alcohol, Postage, and Certain Utilities)

CCR.226               Requirements Contracts and Price Agreements

CCR.228               Resale - Items for

CCR.230               Telecommunications Services

 

PERSONAL SERVICES CONTRACTING RULES

CCR.250               Personal Services - General

 

PUBLIC IMPROVEMENT CONTRACTS EXCEPTIONS AND EXEMPTIONS

CCR.280               Alternative Contracting Methods

CCR.281               Donated Public Improvements

CCR.282               First-Tier Subcontractors; Disclosure and Substitution

CCR.283               Limited Negotiations with Bidder

  

 

SECTION 300        SUPPLEMENTARY PROVISIONS - CONTRACTING RULES

These Community College Rules of Procurement were drafted by participating statewide community college representatives with the intent that Sections 100 and 200 be adopted in their entirety and remain unchanged by their respective institutions unless modified by participating committee members at a later date and subsequently ratified by all their Local Contract Review Boards.  Section 300 has been specifically set aside to address the unique philosophies, cultures, and/or concerns of the various community colleges, voting districts, and Local Contract Review Boards.  In the event of conflict between rules or sections within these Community College Rules of Procurement, the rules in Section 300 (excluding Appendix B), shall take precedence over the rules in Sections 100 and/or 200 except as otherwise expressly provided in Sections 100 and 200; in all cases, Sections 100, 200, and 300 (excluding Appendix B), shall take precedence over Appendix B. 

CCR.301               Consultant Selection:  Architect, Engineers ,Photogrammetrists, Transportation Planning,  Land Surveyors and Providers of  Related Services Contracts               (See also OAR 137-048-0210(2)(b), contained in Appendix B.)

CCR.302               Contract Amendments & Reinstatements (See also OAR 137-047-0800 contained in Appendix B.)

CCR.304               Cumulative Awards of Small Contracts (i.e., Anti-Fragmenting Rule)

CCR.306               Educational & Institutional Cooperative Service, Incorporated

CCR.308               Energy Management Controls Systems

CCR.310               Exception (Including Sole Source) - Purchases of Goods or Services through

CCR.312               Personal Services Contracts (Amends CCR.250.)

CCR.314               Public Contracts Under Certain Dollar Amounts:  Small Procurements and

                              Intermediate Procurements (See also ORS 279B.065 and 279B.070.)

CCR.316               Rejection of an Offer (Amendments to OAR 137-047-0640 and 137-049-0440 contained in Appendix B.)

CCR.318               Space Rentals (hotels, conferences, temporary offices, etcetera)

CCR.320               Special Risk Insurance Policies

APPENDIX B:  OREGON ATTORNEY GENERAL'S MODEL PUBLIC CONTRACT RULES (OREGON ADMINISTRATIVE RULES), AS EXPRESSLY IDENTIFIED BY RULE NUMBER, AND INCORPORATED HEREIN BY REFERENCE--DIVISIONS 46, 47, 48, AND 49, PREPARED AND MAINTAINED BY THE STATE OF OREGON, DEPARTMENT OF JUSTICE, GENERAL COUNSEL DIVISION, AS AMENDED FROM TIME TO TIME.

Sections 100, 200, and/or 300 (excluding Appendix B), in these Community College Rules of Procurement shall prevail in every instance where there is a conflict or similarity between the Oregon Attorney General's Model Public Contract Rules, (Appendix B), and these Community College Rules of Procurement, effective March 1, 2005, subsequently reviewed/modified pursuant to ORS279A.065(5)(b).  Rules from the Oregon Attorney General's Model Public Contract Rules that have been identified in the Table of Contents herin but which are shown with a line drawn through them have been stricken and have not been adopted by the College.  

  

DIVISION 46 GENERAL PROVISIONS RELATED TO PUBLIC CONTRACTING

137-046-0100      Content and General Application; Federal Law Supremacy

137-046-0110      Definitions for the Model Rules

137-046-0120      Policy

137-046-0130      Application of the Code and Model Rules; Exceptions

137-046-0200      Notice to Advocate for Minorities, Women and Emerging Small Businesses

137-046-0210      Subcontracting to and Contracting with Emerging Small Businesses; DBE Disqualification

137-046-0300      Preferences for Oregon Goods and Services

137-046-0310      Reciprocal Preferences

137-046-0320      Preference for Recycled Materials

137-046-0400      Authority for Cooperative Procurements

137-046-0410      Responsibilities of Administering Contracting Agencies and Purchasing Contracting Agencies

137-046-0420      Joint Cooperative Procurements

137-046-0430      Permissive Cooperative Procurements

137-046-0440      Advertisements of Intent to Establish Contracts through a Permissive Cooperative Procurement

137-046-0450      Interstate Cooperative Procurements

137-046-0460      Advertisements of Interstate Cooperative Procurements

137-046-0470      Protests and Disputes

137-046-0480      Contract Amendments (See also CCR.302.)

137-046-0500      Repealed Rules

 

DIVISION 47 GENERAL PROVISIONS

137-047-0000      Application

137-047-0100      Definitions

137-047-0250      Methods of Source Selection; Feasibility Determination; Cost Analysis (see also CCR.314)

137-047-0255      Competitive Sealed Bidding

137-047-0257      Multistep Sealed Bidding

137-047-0260      Competitive Sealed Proposals

137-047-0261     Multi-tiered and Multistep Proposals

137-047-0265      Small Procurements (see also CCR.314)

137-047-0270      Intermediate Procurements (see also CCR.314; CCR.302)

137-047-0275      Sole-Source Procurements (see ORS.279B.075 (see also CCR.212; CCR.310)

137-047-0280      Emergency Procurements

137-047-0285      Special Procurements

137-047-0290      Cooperative Procurements

137-047-0310      Bids or Proposals are Offers

137-047-0320      Facsimile Bids and Proposals

137-047-0330      Electronic Procurement

137-047-0400      Offer Preparation

137-047-0410      Offer Submission

137-047-0420      Pre-Offer Conferences

137-047-0430      Addenda to Solicitation Document

137-047-0440      Pre-Closing Modification or Withdrawal of Offers

137-047-0450      Receipt, Opening, and Recording of Offers; Confidentiality of Offers

137-047-0460      Late Offers, Late Withdrawals and Late Modifications

137-047-0470      Mistakes

137-047-0480      Time for Agency Acceptance

137-047-0490      Extension of Time for Acceptance of Offer

137-045-0500      Responsibility of Bidders and Proposers

137-047-0525      Qualified Products Lists

137-047-0550      Prequalification of Prospective Offerors; Pre-negotiation of Contract Terms and Conditions

137-047-0575      Debarment of Prospective Offerors

137-047-0600      Offer Evaluation and Award

137-047-0610      Notice of Intent to Award

137-047-0620      Documentation of Award

137-047-0630      Availability of Award Decisions

137-047-0640      Rejection of an Offer (See CCR.316.)

137-047-0650      Rejection of All Offers (See CCR.316.)

137-047-0660      Cancellation of Procurement or Solicitation

137-047-0670      Disposition of Offers if Procurement or Solicitation Canceled

137-047-0700      Protests and Judicial Review of Special Procurements

137-047-0720      Protests and Judicial Review of Multiple-Tiered and Multistep Solicitations

137-047-0730      Protests and Judicial Review of Solicitations

137-047-0740      Protests and Judicial Review of Contract Award

137-047-0745      Protest and Judicial Review of Qualified Products List Decisions

137-047-0750      Judicial Review of Other Violations

137-047-0760      Review of Prequalification and Debarment Decisions

137-047-0800      Amendments to Contracts and Price Agreements (see also CCR.302)

137-047-0810      Termination of Price Agreements

 

DIVISION 48 CONSULTANT SELECTION:  ARCHITECTURAL, ENGINEERING AND LAND SURVEYING SERVICES AND RELATED SERVICES CONTRACTS(See also CCR.301.)

137-048-0100      Application

137-048-0110      Definitions

137-048-0120      List of Interested Consultants; Performance Record

137-048-0130      Applicable Selection Procedures; Pricing Information, Disclosure of Proposals; Conflicts of Interest

137-048-0200      Direct Appointment Procedure

137-048-0210      Informal Selection Procedure (see also CCR.301)

137-048-0220      Formal Selection Procedure

137-048-0230      Ties Among Proposers

137-048-0240      Protest Procedures

137-048-0250      Solicitation Cancellation Delay or Suspension; Rejection of All Proposals or Responses; Consultant Responsibility For Costs

137-048-0260      Two-Tiered Selection Procedure for Local Contracting Agency Public Improvement Projects

137-048-0270      Price Agreements

137-048-0300      Prohibited Payment Methodology; Purchase Restrictions

137-048-0310      Expired or Terminated Contracts; Reinstatement

137-048-0320      Contract Amendments

 

DIVISION 49 GENERAL PROVISIONS RELATED TO PUBLIC CONTRACTS FOR CONSTRUCTION SERVICES

137-049-0100      Application

137-049-0110      Policies

137-049-0120      Definitions

137-049-0130      Competitive Bidding Requirement

137-049-0140      Contracts for Construction Other Than Public Improvements

137-049-0150      Emergency Contracts; Bidding and Bonding Exemptions

137-049-0160      Intermediate Procurements; Competitive Quotes and Amendments

137-049-0200      Solicitation Documents; Required Provisions; Assignment or Transfer

137-049-0210      Notice and Advertising Requirements; Posting

137-049-0220      Prequalification of Offerors

137-049-0230      Eligibility to Bid or Propose; Registration or License

137-049-0240      Pre-Offer Conferences

137-049-0250      Addenda to Solicitation Documents

137-049-0260      Request for Clarification or Change; Solicitation Protests

137-049-0270      Cancellation of Solicitation Document

137-049-0280      Offer Submissions

137-049-0290      Bid or Proposal Security (see also CCR.204)

137-049-0300      Facsimile Bids and Proposals

137-049-0310      Electronic Procurement

137-049-0320      Pre-Closing Modification or Withdrawal of Offers

137-049-0330      Receipt, Opening and Recording of Offers; Confidentiality of Offers

137-049-0340      Late Bids, Late Withdrawals and Late Modifications

137-049-0350      Mistakes

137-049-0360      First-Tier Subcontractors; Disclosure and Substitution (see also CCR.282)

137-049-0370      Disqualification of Persons

137-049-0380      Bid or Proposal Evaluation Criteria

137-049-0390      Offer Evaluation and Award; Determination of Responsibility

137-049-0395      Notice of Intent to Award

137-049-0400      Documentation of Award; Availability of Award Decisions

137-049-0410      Time for Contracting Agency Acceptance; Extension

137-049-0420      Negotiation With Bidders Prohibited

137-049-0430      Negotiation When Bids Exceed Cost Estimate

137-049-0440      Rejection of Offers (see also CCR.316.).

137-049-0450      Protest of Contractor Selection, Contract Award

137-049-0460      Performance and Payment Security; Waiver

137-049-0470      Substitute Contractor

137-049-0490      Foreign Contractor

137-049-0600      Purpose (Alternative Contracting Methods)

137-049-0610      Definitions for Alternative Contracting Methods

137-049-0620      Use of Alternative Contracting Methods

137-049-0630      Findings, Notice and Hearing

137-049-0640      Competitive Proposals; Procedure

137-049-0645      Requests for Qualifications (RFQ)

137-049-0650      Requests for Proposals (RFP)

137-049-0660      RFP Pricing Mechanisms

137-049-0670      Design-Build Contracts

137-049-0680      Energy Savings Performance Contracts (ESPC)

137-049-0690      Construction Manager/General Contractor (CM/GC)

137-049-0800      Required Contract Clauses

137-049-0810      Waiver of Delay Damages Against Public Policy

137-049-0815      BOLI Public Works Bond

137-049-0820      Retainage

137-049-0830      Contractor Progress Payments

137-049-0840      Interest

137-049-0850      Final Inspection

137-049-0860      Public Works Contracts

137-049-0870      Specifications; Brand Name Products

137-049-0880      Records Maintenance; Right to Audit Records

137-049-0890      Contracting Agency Payment for Unpaid Labor or Supplies

137-049-0900      Contract Suspension; Termination Procedures

137-049-0910      Changes to the Work and Contract Amendments


SECTION 100 - GENERAL INFORMATION

 

Purpose and Statutory Authority                                                                                                                                                             CCR.102

(1)   Purpose.  These rules prescribe public contract Special Procurements  (exemptions), whereby a Local Contract Review Board may approve a special procurement (pursuant to ORS 279B.085), personal services contracting rules, competitive procurement process rules, and supplementary provisions for community colleges, who have formally adopted through board resolution, these Community College Rules of Procurement, hereinafter referred to as Rules or CCRP.

(2)   Statutory Authority.  These Rules are authorized by Public Contracting Code 279A.050 (Procurement Authority), 279A.055 (Personal Services Contracts), 279A.060 (Local Contract Review Boards), and 279A.070 (Rules).  All references to PCC shall mean Public Contracting Code as defined in ORS 279A.010(1)(bb).  (Note:  Under ORS 279A.065(4), public contracting agencies in Oregon will be operating under the State of Oregon Attorney General's Model Rules unless they have taken special action to opt out and adopt their own contracting rules.)

(3)   Participating Oregon Community Colleges  These Community College Rules of Procurement (CCRP), were drafted through a statewide, collaborative effort by representatives of Participating Oregon Community Colleges (POCC).  Pursuant to the POCC participatory agreement, Sections 100 and 200 of the CCRP shall remain unchanged unless modified by the POCC at a later date and subsequently ratified by each institution's Local Contract Review Board.  Any member of the POCC that adopts changes to Sections 100 and/or 200 of the CCRP that have not been mutually agreed upon and adopted by all other POCC members, shall by and through its actions, no longer qualify as a member of the POCC cooperative procurement group and shall not represent itself as such.

(4)   Sustainability Commitment        In accordance with the Oregon Community College Rules of Procurement, member colleges are committed to the use and purchase of environmentally and socially responsible materials and products, which are fiscally responsible, reduce resource consumption and waste, perform adequately, and promote human health and well-being. Recognizing their regional economic role, colleges shall seek opportunities to educate, encourage, and influence their respective markets by utilizing, where feasible, products and services, including new environmentally preferable products, reusable products, recycled content and recycled products.   

Definitions for these Community College Rules of Procurement                                                                                                      CCR.104

        The following terms, when they appear capitalized in these Community College Rules of Procurement, shall have the meaning set forth below unless otherwise indicated:

(1)     "Addendum" or "Addenda" means an addition to or deletion from, a material change in, or general interest explanation of a Solicitation Document. 

(2)     "Auxiliary Funds" means funds intended to be profit making and/or self-sustaining for providing product or services to the College's customers.  (See also "Enterprise Funds.")  Examples of Auxiliary Fund or Enterprise Fund operations may include: bookstores; food services; printing services; medical/dental/science stores; student automotive and mechanical stores; and miscellaneous student stores for the resale of books and computers for instruction.

(3)   "Award" or "Intent to Award" means, as the context requires, either the act or occurrence of the College's identification of the Person with whom the College will enter into a Contract following the resolution of any protest of the College's selection of that Person, and the completion of all Contract negotiations.

(4)   "Best Value, Arriving at" means evaluation or assessment of performance factors and other aspects of service and product quality, as well as pricing, which may include, but not be limited to, combinations of quality, services, time, total cost of ownership considerations, and the probability of the Offeror performing the requirements stated in the Solicitation.

(5)   "Bid" means a Written response to an Invitation to Bid.

(6)   "Bidding/Proposing Period" means the span of time between the date of the Solicitation Document and the time and date set for receipt of Offers.  The time period shall be stated in the Solicitation Document.  Generally a period of fourteen (14) calendar days shall be provided, but in no case shall the time provided be less than five (5) calendar days.

(7)   "Closing" means the date and time specified in a Solicitation Document as the deadline for submitting Offers.

(8)   "Code" means the Public Contracting Code, as defined in ORS 279A.010.

(9)   "College" means Community College District or Community College Service District established under ORS chapter 341, hereinafter known as the specific College whose name appears on the Solicitation Document and/or subsequent Contract and whose Local Contract Review Board has adopted by resolution or ordinance these Community College Rules of Procurement. 

(10) "Competitive Range" means the Offerors with whom the College will conduct discussions or negotiations if the College intends to conduct discussions or negotiations in accordance with its own rules.

 (11) "Contract" means a "Public Contract," as defined in ORS 279A.010(1)(z), a sale or other disposal, or a purchase, lease, rental or other acquisition, by a contracting agency of personal property, services, including personal services, public improvements, public works, minor alterations, or ordinary repair or maintenance necessary to preserve a public improvement.  "Public Contract" does not include grants.  The "Contract" includes the College's Solicitation Document and the accepted portions of a Solicitation Document, whether attached or incorporated by reference, between the College and Contractor describing the work to be done and the obligations of the parties.  Depending upon the goods and services being procured, the College may use "Contract" as meaning a purchase order, price agreement, or other contract document in addition to the College's Solicitation Document and the accepted portions of a Solicitation Document.  If the Contract is for a public improvement or public work, the "Contract" may consist of the College's Solicitation Document, including any addenda, the general and special and/or supplementary conditions or other conditions governing the work, the accepted portions of the Solicitation Document, the performance and payment bond (if required), certificates of insurance, plans, technical specifications, approved shop drawings, Construction Change Directive or written order for a minor change in the Work, Notice of Award, Notice to Proceed, and any contract amendments, including approved change orders.

(12) "Contract Price" means, as the context requires, (i) the maximum monetary obligation that the College either will or may incur under a Contract, including bonuses, incentives, approved alternates, and contingency amounts, if the Contractor fully performs under the Contract.

(13) "Contract Review Authority" means the College's Local Contract Review Board as set forth in ORS 279A.060.

(14) "Contract Value" - in determining the applicability of dollar threshold requirements for competitive procurements within these Community College Rules of Procurement, "Contract Value" means the gross amount of goods and/or services procured by or for the College and shall take into consideration, but not be limited to, the following elements:  (1) Contract Price; (2) total amount estimated to be generated, if contract is anticipated to be revenue generating; (3) economic value, and (4) total estimated expenses incurred for which the College would be required to report to the Internal Revenue Service (e.g., 1099).

(15) "Contractor" means the Person with whom the College enters into a Contract and shall be synonymous with "Independent Contractor" (i.e., a person or business that provides services to the College in which the College neither controls nor has the right to control the means or manner by which work is performed).  The College may control the results of the services, but not control the means or manner of the Contractor's performance of the Work.

(16) "Cost" means not only the product price but also other items of expense such as the actual or reasonably estimated costs related to quality or conversion, and may include such actual or estimated items as shipping, delivery, setup, installation, and training.

(17) "Descriptive Literature" means Written information submitted with the Offer that addresses the Goods and Services included in the Offer.

(18) "Disadvantaged Business Enterprise (DBE)" means a small business concern pursuant to ORS 200.005(1), which is at least 51 percent owned by one or more socially and economically disadvantaged individuals, or, in the case of any corporation, at least 51 percent of the stock of which is owned by one or more socially and economically disadvantaged individuals and whose management and daily business operations are controlled by one or more of the socially and economically disadvantaged individuals who own it.

(19) "Effective Date of Contract" means the date established in the Contract for the Contractor's work to begin, or the date the Contract has been fully executed and received all required approvals, whichever date is later.

(20) "Electronic Advertisement" means notice of the College's request for Offers or Request for Quotes, available over the Internet via (a) The World Wide Web or some other Internet protocol; or (b) the College's electronic procurement system.

(21) "Electronic Offer" means a response to the College's request for Offers or Request for Quotes submitted to the College via email or through the College's Electronic Procurement System. 

(22) "Electronic Procurement System" means an information system that Persons may access through the Internet, using the World Wide Web or some other Internet protocol, or that Persons may otherwise remotely access using a computer, that enables Persons to send Electronic Offers and the College to post Electronic Advertisements, receive Electronic Offers, and conduct other activities related to a procurement. 

(23) "Emergency" means circumstances that were not reasonably foreseen by the governing body of the College, its President or another officer authorized by the College, and create a substantial risk of loss, damage or interruption of services; a substantial threat to property, public health, welfare or safety of the environment that requires prompt execution of a Contract to remedy the condition or deal with the risk.

(24) "Enterprise Funds" means funds intended to be profit making and/or self-sustaining for providing product or services to the College's customers.  (See also "Auxiliary Funds.")  Examples of Auxiliary Fund or Enterprise Fund operations may include: bookstores; food services; printing services; medical/dental/science stores; student automotive and mechanical stores; and miscellaneous student stores for the resale of books and computers for instruction.

(25) "Evidence of Competition" means College documentation demonstrating competitive solicitation of responses/Offers from Person(s) in selecting a Contractor in accordance with the College's public contracting rules.

(26) "Facsimile" means electronic equipment that communicates and reproduces both printed and handwritten material.

(27) "Gift" means something of economic value given to a public official or a relative or member of the household of the public official without valuable consideration of equivalent value, including the full or partial forgiveness of indebtedness, which is not extended to others who are not public officials or the relatives or members of  the household of public officials on the same terms and conditions; or for valuable consideration less than that required from others who are not public officials.

(28) "Goods and Services" or "Goods or Services" have the meaning set forth in ORS 279A.010(1)(j).

(29) "Interstate Agreement" means any agreement between the College and a unit of local government or state agency of another state.

(30) "Invitation to Bid" (ITB) means the Solicitation Document issued to invite Offers from prospective Contractors pursuant to either ORS 279B.055 or 279C.335.

(31) "Life Cycle Costing" means the total cost of ownership, including the total cost of acquiring, operating, maintaining, supporting, and if applicable, disposal.

(32) "Local Contract Review Board" (LCRB) means the LCRB and/or Board of Education as established by Board resolution or ordinance by each respective College adopting these Community College Rules of Procurement, to serve as its public contract review authority.

(33) "Lowest Responsible Bidder" as defined in ORS 279A.010(1)(r) means:  (a) the lowest bidder whose Offer substantially complies with the requirements and criteria set forth in the Invitation to Bid and with all prescribed public procurement procedures and requirements; or (b) When the Iinvitation to Bid specifies or authorizes the award of multiple contracts to the responsible bidders, the bidders whose bids substantially comply with the requirements and criteria set forth in the Invitation to Bid and with all prescribed public procurement procedures and requirements and who qualify for the award of a public contract under the terms of the Invitation to Bid.  (ORS 279B.055(10); and who has met the standards of responsibility set forth in ORS 279B.110(2) or 279C.375, has not been debarred or disqualified by the College under ORS 279B.130 or 279C.440, and is not on the list created by the Oregon Construction Contractors Board under ORS 701.227, if the advertised contract is a Public Improvement Contract. Depending upon the requirements of the Solicitation Document, "Lowest Responsible Bidder" may also mean one who, in the determination of the Advocate for Minority, Women and Emerging Small Businesses, has undertaken both a policy and practice of actively pursuing participation by minority and women-owned business in all bids, both public and private, submitted by such bidder, pursuant to ORS 200.025 and 200.045, or a business enterprise that is owned or controlled by or that employs a disabled veteran, as defined in ORS 408.225.

(34) "Model Rules" means the State of Oregon's Attorney General's model rules of procedure for Public Contracting, which are set forth in OAR Chapter 137, divisions 46, 47, 48, and 49, and required under ORS 279A.065.

(35) "ORPIN" System:  The on-line electronic Oregon Procurement Information Network (ORPIN) administered through the State Procurement Office of the Procurement, Fleet and Surplus Services Division of the Oregon Department of Administrative Services.

(36) "ORS" means Oregon Revised Statutes.

(37) "Offer" means a Written offer to provide Goods or Services in response to a Solicitation Document. 

(38) "Offeror" means a Person, who submits an Offer.

(39) "Opening" means the date, time and place specified in the Solicitation Document for the public opening of Offers.

(40) "PCC" means Public Contracting Code as it is defined in ORS 279A.010(1)(bb).

(41) "Person" means any of the following with legal capacity to enter into a Contract:  individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, governmental agency, public corporation or any other legal or commercial entity.

(42) "Personal Property" means everything subject to ownership, which is not real property and has exchangeable value; includes all chattels and movables, such as boats and vessels, merchandise and stock in trade, furniture and personal effects, goods, livestock, vehicles, farming implements, movable machinery, movable tools and movable equipment pursuant to ORS 307.020.

(43) "Personal Services Competitive Solicitation" means a documented process providing an equal and open opportunity to qualified parties, which culminates in a selection based on criteria that include, but are not limited to, the Contractor's availability, capacity, experience, reputation, responsiveness to time limitations, responsiveness to solicitation requirements, quality of previous performance and fees or costs.

(44) "Personal Services Contract" or "Contract for Personal Services" means a Contract or member of a class of Contracts for Personal Services, other than a Contract for the services of an Architect, Engineer, Photogrammetrist, Transportation Planner, Land Surveyor or Provider of Related Services as defined in ORS 279C.100 that the College's Local Contract Review Board has designated as a Personal Services Contract pursuant to ORS 279A.055, whose primary purpose is to acquire specialized skills, knowledge and resources in the application of technical or scientific expertise, or the exercise of professional, artistic or management discretion or judgment, including, without limitation, a Contract for the services of a(n): accountant; physician, dentist or lawyer; educator; information technology professional, travel, banking, investing, collections, or other consultant; broadcaster or artist (including a photographer, filmmaker, painter, weaver, or sculptor). "Personal Services" is also defined in ORS 279C.100, and that definition applies only to ORS 279C.100 to 279C.125 for Architectural, Engineering, Photogrammetric Mapping, Transportation Planning, Land Surveying Services, or Related Services. Contracts for Architectural, Engineering, Photogrammetric Mapping, Transportation Planning, or Land Surveying Services, and Related Services are designated as a special class of Personal Services Contracts, defined in ORS 279C.100(5).  (See also Personal Services Contracting Rules section within these Community College Rules of Procurement for an expanded definition.)

(45) "Personal Services Contractor" means an Independent Contractor that performs a Contract for Personal Service(s) for the College, when the College has no right to and does not control the means and manner of performing the contract, except as to the delivery schedule, determining compliance with the Statement of Work, and accepting or rejecting the deliverables or results required under the Contract.

(46) "Prequalification of Offeror" means a process followed by the College, in advance of issuance of Solicitation Documents, to determine the qualifications of prospective Offerors to perform Public Contracts.

(47) "Product Sample" means the exact Goods or a representative portion of the Goods offered in an Offer, or the Goods requested in the Solicitation Document as a sample.

(48) "Proposal" means a Written response to a Request for Proposals.

(49) "Public Contract" means a sale or other disposal, or a purchase, lease, rental or other acquisition, by the College of personal property, services, including personal services, public improvements, public works, minor alterations, or ordinary repair or maintenance necessary to preserve a public improvement.  (ORS 279A.010(1)(z)).

(50) "Public Notice" means a public notice of Solicitation Document that is published electronically or at least once in at least one newspaper of general circulation in the area where the Contract is to be performed, in at least one trade newspaper of statewide circulation if the Solicitation Document is for a public improvement and the Contract has an estimated cost in excess of $125,000, and in as many additional issues and publications as the College determines is likely to be cost effective.

(51) "Recycled Materials" means recycled paper (as defined in ORS 279A.010(1)(gg)), recycled PETE products (as defined in ORS 279A.010(1)(hh), and other recycled plastic resin products and recycled products (as defined in ORS 279A.010(1)(ii).

(52) "Request for Proposals" or "RFP" means all documents used for soliciting Proposals in accordance with either ORS 279B.060 or 279C.110, where proposal evaluation and contract award is based on criteria such as proposer qualifications and experience, product features and characteristics, service quality and efficiency, and conformance with the specifications and requirements of the Solicitation Document.  Price may be evaluation criterion for an RFP, but will not necessarily be the predominant basis for contract award.

(53) "Request for Qualifications" means a Written document issued by the College, to which Contractors respond in Writing by describing their experience with and qualifications for the Services, Personal Services , or Architectural, Engineering; Photogrammetric Mapping, Transportation Planning, or Land Surveying Services, or Related Services, described in the document.

(54) "Request for Quotations" means a Written or oral request for prices, rates or other conditions under which a potential Contractor would provide Goods or perform Services, Personal Services or Public Improvements described in the request.

(55) "Requirements Contract" means a price agreement that constitutes a firm Offer by the Contractor, regardless of whether any order or purchase has been made or any performance has been tendered under the price agreement and is enforceable for the period stated in the price agreement and is not revocable by the Contractor.  A price agreement does not constitute an exclusive dealing commitment on the part of the College or the Contractor unless the price agreement expressly so provides.  (ORS 279B.140)

(56) "Responsible" means meeting the standards set forth in OAR 137-047-0640 or 137-049-0390(2), and not debarred or disqualified by the College under OAR 137-047-0575 or 137-049-0370.

(57) "Responsible Offeror" (also, "Responsible Bidder" or "Responsible Proposer," as applicable), means a Person that has submitted an Offer and meets the standards set forth in OAR 137-047-0640 or 137-049-0390(2), and that has not been debarred or disqualified by the College under OAR 137-047-0575 or 137-049-0370. When used alone, "Responsible" means meeting the aforementioned standards.

(58) "Responsive Offer" means, as the context requires, a Responsive Bid or Responsive Proposal, or other Offer that substantially complies in all material respects with applicable solicitation requirements.  When used alone, "Responsive" means having the characteristic of substantially complying in all material respects with applicable solicitation requirements.

        (59) "Service Contract" means a Contract that calls primarily for a Contractor's time and effort rather than for an end product.

(60)"Signature" means any Written mark, word or symbol that is made or adopted by a Person with the intent to be bound and that is attached to or logically associated with a Written document to which the Person intends to be bound.

(61) "Signed" means, as the context requires, that a Written document contains a Signature or that the act of making a Signature has occurred.

(62) "Solicitation" means: (a) a request by the College for the purpose of soliciting Offers. This request may take the form of an Invitation to Bid, a Request for Proposal, a Request for Quotation, a Request for Qualifications or a similar document; or (b) the process of notifying prospective Offerors that the College requests such Offers; or the Solicitation Document itself.

(63) "Solicitation Document" means an Invitation to Bid, Request for Proposals, Request for Quotations, or other similar document issued to invite Offers from prospective Contractors pursuant to ORS Chapter 279B or 279C. The following are not Solicitation Documents if they do not invite Offers from prospective Contractors: a Request for Qualifications, a prequalification of bidders, or a request for product prequalification.

(64) "Special Procurement" means, unless the context requires otherwise, a Class Special Procurement, a Contract-Specific Special Procurement or both (ORS 279B.085).  A "Class Special Procurement" means a contracting procedure that differs from the procedures described in ORS 279B.055, 279B.060, 279B.065 and 279B.070 and is for the purpose of entering into a series of contracts over time for the acquisition of a specified class of goods or services (ORS 279B.085(1)(a)).  "Contract-Specific Special Procurement" means a contracting procedure that differs from the procedures described in ORS 279B.055, 279B.060, 279B.065 and 279B.070 and is for the purpose of entering into a single contract or a number of related contracts for the acquisition of specified goods or services on a one-time basis or for a single project (ORS 279B.085(1)(b)).

(65) "Specification" means any description of the physical or functional characteristics, or of the nature of a supply, service or construction item, including any requirement for inspecting, testing or preparing a supply, service or construction item for delivery and the quantities or qualities of materials to be furnished under a Contract.  Specifications generally will state the result to be obtained and may, on occasion, describe the method and manner of doing the Work to be performed.  Specifications may be incorporated by reference and/or through attachment to the Contract.

(66) "Standard Fee Contract" means a contract awarded for service to be performed for a standard fee, when the standard fee is established by the College, and a like Contract is available to all qualified applicants.

(67) "Statement of Work" means a Written statement that specifically describes the phases of Work or services, major tasks, or areas of responsibility the Contractor is to perform at a particular site, or within a particular locale during a stated period of time, according to a schedule of delivery.  The statement must identify specific objectives that the Contractor is to attain or describe, in detail, and the deliverables that the Contractor is to provide.

(68) Telecommunications" means 1-way and 2-way transmission of information over a distance by means of electromagnetic systems, electro-optical systems, or both.

(69) "Work" means the furnishing of all materials, equipment, labor and incidentals necessary to successfully complete any individual item in a Contract or the entire Contract, and successful completion of all duties and obligations imposed by the Contract.

(70) "Writing" means letters, characters and symbols inscribed on paper by hand, print, type or other method of impression, intended to represent or convey particular ideas or meanings.  "Writing," when required or permitted by law, or required or permitted in a Solicitation Document, also means letters, characters and symbols made in electronic form and intended to represent or convey particular ideas or meanings.

(71) "Written" means existing in Writing.

 

                   

SECTION 200 - PUBLIC CONTRACT SPECIAL PROCUREMENTS

 

General Contract Special Procurements

 

 

Advertisement Contracts                                                                                                                                                                           CCR.202

The College may purchase advertising, which does not include contracting with advertising agencies, regardless of dollar amount, without competitive bidding.  Where it is determined to be cost effective, the College may publish its public notices electronically, via the college's or other public entity's electronic procurement system or world wide web site instead of, or in addition to, a newspaper of general circulation unless otherwise required by law..

 

Findings of Fact

1.       By their nature, media sources are generally unique.  Advertisements are placed in a particular source because of the specific audience that source serves.

2.       Competition to furnish advertising space in daily newspapers of general, trade, or business circulation in the vicinity of the College is limited.

3.       Cost savings are difficult to quantify where the sources are unique and not interchangeable.  Where the volume of purchases warrants, the College may enter into advertising contracts in accordance with ORS 279B.065 and ORS 279B.070 whenever possible to maximize savings achieved through economies of scale.

4.       Public notices may be advertised electronically and/or in a newspaper of general circulation in an effort to increase exposure and generate more widespread competition, except for public improvement contracts with an estimated cost in excess of $125,000, which must be published in at least one trade newspaper of general statewide circulation (ORS 279C.360).  Cost savings for increased competition are difficult to quantify, but the cost to the College for advertising may be significantly reduced where electronic advertising methods are utilized.

 

Conclusion of Compliance with Law

It is unlikely that this Special Procurement will result in favoritism in the awarding of public contracts or substantially diminish competition since all vendors, including Oregon businesses, are able to compete (ORS 279B.085(4)(a)), and it will enable the College to promote the public interest (ORS 279B.085(4)(b)(B)), by expediting its procurement processes while maximizing its circulation efforts and notice of bidding opportunities without compromising integrity for cost. 

 

This rule satisfies the requirements of Oregon Revised Statute 279B.055(4)(c), wherein a Local Contract Review Board may, by rule or order, authorize public notice of bids or proposals to be published electronically instead of in a newspaper of general circulation if it is likely to be cost-effective. 

 

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Bid Security and Bond Requirements, Waiver of                                                                                                                                   CCR.204

Pursuant to ORS 279C.390, the College may, at its discretion, exempt certain contracts or classes of contracts from all or a portion of the requirement for bid security and from all or a portion of the requirement that good and sufficient bonds be furnished to ensure performance of the contract and payment of obligations incurred in the performance. 

 

The College may waive bid security requirements and/or performance/payment bond requirements pursuant to ORS 279C.390 and this rule under the following conditions:

 

(1)     If the contract is for a public improvement or a public work and the amount of the contract does not exceed $75,000 or another threshold as indicated by rule amendment in Section 300, and the contractor has filed a public works bond with the State of Oregon Construction Contractors Board;

(2)     If the contract is not for a public improvement; or if the contract is for a public improvement that resulted from an alternative contracting method and the contract is only for pre-construction services;

(3)     Where bidders are drawn exclusively from a list of certified Emerging Small Businesses maintained by the Advocate for Minority, Women and Emerging Small Business enterprise certified under ORS 200.055, or a business enterprise that is owned or controlled by or that employs a disabled veteran, as defined in ORS 408.225, and the College has been provided funds by the legislature for the purpose of assisting Emerging Small Businesses;

(4)     In cases of emergency, or when the interest or property of the College or the public agency or agencies for whose benefit the contract was awarded probably would suffer material injury by delay or other cause and a declaration of such emergency has been made in accordance with rules adopted under ORS 279A.065.

 

The College shall not use Bid or Proposal security to discourage competition.  The Offeror shall forfeit Bid or Proposal security after award of the contract if the Offeror fails to execute the contract and promptly return it with any required Performance Bond and Payment Bond.

 

Conclusion of Compliance with Law

It is unlikely that this Special Procurement will result in favoritism in the awarding of public contracts or substantially diminish competition since all vendors, including Oregon businesses, are able to compete, it is reasonably expected to result in substantial cost savings to the College or to the public (ORS 279B.085(4)(b)(A)), and it will enable the College to otherwise substantially promote the public interest (ORS 279B.085(4)(b)(B), by reducing costs of bidding and maximizing participation from Emerging Small Businesses.

 

This rule satisfies the requirements of ORS 279C.390 wherein a Local Contract Review Board may exempt certain contracts or classes of contracts from all or a portion of the requirement for bid security and from all or a portion of the requirement that good and sufficient bonds be furnished to ensure performance of the contract and payment of obligations incurred in the performance.  Consequently, findings otherwise required by law are unnecessary here.

 

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Cooperative Procurement Participation                                                                                                                        CCR.20514

Examples of cooperative procurement participation may include, but not be limited to:  Oregon Cooperative Purchasing Program (ORCPP), Western States Contracting Alliance (WSCA), Association of Educational Purchasing Agencies (AEPA), Organization for  Educational Technology and Curriculum (OETC), Participating Oregon Community Colleges (POCC),and US Communities Government Purchasing Alliance.

 

Pursuant to ORS 279A.205, 279A.210, 279A.215, and 279A.220, contracting agencies may participate in any joint, permissive, or interstate cooperative procurement and/or subsequent contract award resulting from any solicitation which has been accomplished in compliance with ORS, as if said agencies had generated the solicitation and made the award on their own behalf.  

Comment

In general, the results of any solicitation, formal or informal, which has taken place under the requirements of ORS and has resulted in an award, and is current (i.e., not closed, terminated, in abeyance or in default), may be utilized by the College pursuant to ORS 279A.205, 279A.210, 279A.215, and 279A.220. Prior to the College engaging in a cooperative procurement, due diligence must be performed, best practices employed, and factors in the buying decision considered. Examples of these factors include:  in-state preferences. Legislatively-mandated or LCRB-approved socioeconomic programs that overlay public contracting and accompany the expenditure of public funds; sustainability objectives; administrative resources and capacity; contracting efficiencies; time constraints; members participation costs; and ability to leverage economies of scale.

 

Conclusion of Compliance with Law

Cooperative Procurement Participation is not an exemption from the competitive procurement requirements of law; therefore, the College has determined that findings of fact are not required.  The awarding of contracts pursuant to this process will should "provide effective outcomes that represent optimal value to the College and, to the greatest extent feasible, be consistent with market practices" (ORS 279B.010(1)).  Consequently, findings otherwise required by law are unnecessary here. 

 

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Donated Materials and/or Services                                                                                                                                                          CCR.206

The College may authorize a Person to perform services and/or provide materials regardless of dollar amount, if:

 

  1. The Person has agreed to donate all, or a portion of, the materials and/or services necessary to perform the work; and
  2. The Person enters into a license or agreement with the College whereby the Person agrees to comply with the public contract requirements applicable to the particular project and any requirements that the College deems necessary or beneficial in order to protect the College.

 

Findings of Fact

1.     Students, staff, contractors, and other community groups from time to time offer to donate all or a portion of their professional skilled services and/or materials, to help the College meet its facilities' and/or educational needs.  The ability to take advantage of such donated materials and/or services enables the College to use its limited funds in other areas, and frequently results in improvements or services that the College would not otherwise be able to afford.  This class special procurement thus has budgetary, operational, and public benefits.

2.     This class special procurement enables the College to take advantage of these offers, while continuing to ensure that the requirements of the Public Contracting Code continue to be met.

 

Conclusion of Compliance with Law

It is unlikely that this class special procurement will encourage favoritism in the award of College Contracts or substantially diminish competition for College Contracts, because it will only apply when a Person donates all or part of the materials and/or services.  In many instances, the donations are outside of the competitive market for goods and/or services.  In many instances, the donations will enable the College to construct or complete projects that it otherwise would not be able to afford to do, and thus will not displace what would otherwise be a competitively solicited project.  This class special procurement also substantially promotes the public interest because award of contracts pursuant to the procurement procedures in ORS Chapter 279B is not practicable in the case of donated goods and/or services.

 

The use of this class special procurement will result in substantial cost savings to the College, because the College is not required to pay for the goods and/or services if they are donated.

 

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Emergency Contracts (Including Oil or Hazardous Material Removal)                                                                              CCR.207

(1)   Pursuant to the requirements of this rule, the College may, at its discretion, enter into a public contract without competitive solicitation if an emergency exists.  Emergency means circumstances that could not have been reasonably foreseen which create a substantial risk of loss, damage, interruption of services or threat to public health, welfare, or safety, and require prompt execution of a contract to remedy the condition (ORS 279A.010(1)(f)).

(2)   Regardless of the dollar value of the contract, when entering into an emergency contract the College shall:

  1. Make a written declaration of emergency, including findings describing the emergency circumstances that require the prompt performance of the contract, stating the anticipated harm from failure to establish the contract on an expedited basis; and
  2. Encourage competition to the extent reasonable under the circumstances; and
  3. Record the measures taken under subsection (b) of this section to encourage competition, the amounts of the bids, quotes or proposals obtained, and the reason for selecting the contractor.

(3)   Pursuant to ORS 279B.080, if an emergency exists as defined in subsection (1) of this rule, the Board of Education, its President, or another officer authorized by the College shall declare the existence of the emergency as required by subsection (2) of this rule, which shall authorize the College to enter into an emergency contract.

(4)   The written declaration of an Emergency and resulting contract are solely entered into at the discretion of the College's President or authorized officer. 

(5)     If the total award exceeds the threshold for formal public bidding, the Board shall be notified at its next available public meeting and provided with an opportunity to discuss the emergency, the award, and ratification thereof. 

(6)     Oil or Hazardous Material Removal:  The College may enter into public contracts without competitive bidding, regardless of dollar amount, when ordered to clean up oil or hazardous waste pursuant to the authority granted the Department of Environmental Quality (DEQ), under ORS 466.605 through 466.680 and such DEQ order necessitates the prompt establishment and performance of the contract in order to comply with the statutes regarding spill or release of oil or hazardous material that has created an emergency condition.  In exercising its authority under this exemption, the College shall:

(a)   (1)   To the extent reasonable under the circumstances, encourage competition by attempting to make informal solicitations or to obtain informal quotes from potential suppliers of goods or services;

(1)     Make written findings describing the circumstances requiring clean up or a copy of the DEQ order ordering such cleanup;

(2)     Record the measures taken under subsection (a) of this section to encourage competition, the amount of the quotes or proposals obtained, if any, and the reason for selecting the contractor selected.

(b)     The College shall not contract pursuant to this exemption in the absence of an order from the Department of Environmental Quality to clean up a site with a time limitation that would not permit hiring a contractor under the usual competitive bidding procedures.

 

Findings of Fact

1.       Under ORS 279B.080, public contracts may be exempted from the requirements of ORS 279B.050 if emergency conditions exist, which require prompt execution of the contract, subject to the additional requirements of ORS 279B.080.

 

2.       ORS 279B.080 allows the Local Contract Review Board to adopt rules to allow the head of the contracting agency or a designated person to declare that an emergency exists and to establish procedures for determining when emergency conditions are present.  Subsections (2)(a), (2)(b), and (2)(c) of this rule accomplish this.

 

3.       When DEQ orders a public agency to remove or clean up hazardous material or oil, the public agency must respond within a very short time, which is stated in the DEQ order.  This time period does not generally allow the agency to take the time necessary to solicit written bids or proposals for the work to be performed.  The College would be liable for any delay in responding to DEQ orders to perform hazardous material removal or clean up.

 

4.       This exemption, as it pertains to subsection (7), will not be used in those situations where there is no DEQ order to remedy the situation.  Routine competitive procurement methods will be used where there is no DEQ order to act immediately.  The college maintains open lists of vendors, who are interested in providing hazardous materials removal and clean up services.  Whenever it needs hazardous material removal or disposal, the College makes use of these lists to solicit quotes, bids, or proposals as needed, in addition to advertising the procurement as required.

 

5.       Cost savings are achieved through this exemption, because the college can be liable for DEQ penalties and fines, if it does not timely remove hazardous materials or oil as ordered.  Serious risk in these situations could result in property damage or personal injury, if the College is slow to act.

 

Conclusion of Compliance with Law

Procurements made by the College in compliance with this exemption meet the requirements of emergency public contracts pursuant to:  ORS 279B.050; 279B.080, and 279C.335.

 

It is unlikely that this exemption will encourage favoritism in the awarding of public contracts or substantially diminish competition for such contracts as required by ORS 279C.335(2)(a).  If the College is under DEQ order to act immediately, the College will still attempt to obtain competitive quotes for the work to be performed as it has the ability and time to do so.  Unless the College is faced with the quasi-emergency situation of a DEQ order to remove or clean up hazardous waste or oil, it will follow normal competitive procedures to obtain these services. The award of public contracts pursuant to this exemption will likely result in a substantial cost savings to the College in these situations, as required by ORS 279C.335(2)(b), because the College must comply with the law and avoid and minimize risk to persons and property.  Where possible, the College will seek competitive quotes for the work to be performed and will award the contract to the lowest, responsive and responsible proposer.

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Equipment Repair & Overhaul (Including Maintenance Agreements)                                                                                                                 CCR.208

(1)   The College may enter into a public contract for equipment repair, maintenance agreements, or overhaul of equipment without competitive bidding, subject to the following conditions:

  1. Service and/or parts required are unknown, and the cost cannot be determined without extensive preliminary dismantling or testing; and/or
  2. Service and/or parts required are for sophisticated equipment for which specially trained personnel are required and such personnel are available from only one source;
  3. Maintenance agreements must be procured from the provider of the equipment and/or software being maintained in order to be valid, preserve warranties, provide the best possible service, or conform to other similar agreements being provided by the same provider for maximizing economy and/or servicing functions;
  4. The College shall conduct its procurement for equipment repair, maintenance agreements, or overhaul of equipment pursuant to methods and parameters established in (2) of this rule.

(2)   The following limitations shall apply:

  1. At the discretion of the College, if it is practical to competitively procure equipment repair, maintenance agreements, or overhaul of equipment using quotations or other forms of Solicitation Documents then these competitive processes shall be utilized.  If not, the file should be documented with the reasons for invoking this exemption from competitive procurement, specifically supporting the impracticality of a competitive procurement.
  2. If the contract exceeds or is anticipated to exceed the thresholds for Small or Intermediate Procurements as these thresholds are defined in Section 300, the College shall document in its procurement file the reasons why a competitive procurement process was deemed impractical, and the College may directly enter into the contract.

 

Findings of Fact

The need for equipment repair or overhaul of equipment cannot always be anticipated by College staff.  If a piece of equipment is broken or not working properly, the College incurs the cost of down time, possible replacement equipment rental fees, staff time, and other inconveniences or liabilities to its programs.

 

1.     Generally, there are a limited number of vendors, who are able to perform repair or overhaul on a particular piece of equipment, because of its make or manufacture.  Sophisticated equipment may require specially trained personnel available from only one source.  Often, a piece of equipment will have a partial warranty in place, which will guarantee some savings to the College in the parts and/or labor needed to do the repair or overhaul.  This warranty savings may only be achieved if the original manufacturer or provider of the equipment performs the necessary repair or overhaul.

 

2.     The dollar limits on the use of this Special Procurement ensure that when the cost of the equipment repair or overhaul is expected to exceed threshold amounts for Small and Intermediate Procurements as these are defined in Section 300, the College will competitively procure, or if that is not practical or cost effective, declare an emergency or obtain a specific exemption from the president of the College or the president's designee, with notification to the LCRB to proceed with the purchase of the needed repair or overhaul.

 

Conclusion of Compliance with Law

It is unlikely that this Special Procurement will encourage favoritism in the awarding of public contracts or substantially diminish competition and is reasonably expected to result in substantial cost savings to the College for such contracts as required by ORS 279B.085(4), because the dollar amount of the exempted purchase (i.e., Special Procurement), may not exceed the thresholds established in Section 300 for Intermediate Procurements without additional notification and/or approval from the LCRB and/or the College president or the president's designee.  Where it is practical, the College will competitively procure equipment repair, maintenance agreements, and overhaul of equipment; where it is impractical, written justification, provided by the department, will become part of the public record of the contract.

 

The awarding of public contracts pursuant to this exemption is reasonably expected to result in a cost savings to the College, as required by ORS 279B.085(4)(b)(A), because the College incurs direct and indirect costs from the moment equipment breaks down or becomes unusable.  This Special Procurement only applies to equipment already owned by the College.  Time is of the essence in contracts for equipment repair, maintenance agreements, and equipment overhaul.  The College must be able to purchase necessary services and parts as quickly as possible in order to minimize equipment down time and provide uninterrupted levels of service to support the College's educational initiatives. 

 

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Federal Contracts, Purchases under                                                                                                                                                         CCR.210

When the price of goods and services has been established by a contract with the federal government pursuant to a federal contract award, the College may purchase the goods and services in accordance with the federal contract.  In exercising this authority under this class special procurement, the College must:

 

(1)     Include in the contract file a memorandum confirming the federal official who granted permission to the College to purchase under the federal contract; and

(2)     Include documentation in the contract file showing the cost savings to be gained from anticipated purchases from the federal contract.

 

Comment:

In order to utilize GSA contracts, a class special procurement must be adopted by the local contract review board.  For those GSA schedules available for use by local governments or any other federal contracts for goods and/or services, this rule requires a two-prong test be met prior to its use.

 

Findings of Fact

1.             Federal contracts for goods and/or services are established by federal agencies with private vendors through competitive processes, which meet the standards of the Public Contracting Code.  These processes include open competitive bidding, to which all interested vendors are invited to participate.  No Oregon company is excluded from, or disadvantaged in, participation in bidding on federal contracts.  Thus the class special procurement has the public benefit of supporting a competitive selection process, while providing the operational and budgetary benefits to the College by avoiding the cost and delay of replicating the solicitation process.

 

2.             The prices or rates for goods and services under federal contracts are based upon competitive bids or proposals.  This rule requires the College to document the cost savings to be gained from the anticipated purchase(s) from the federal contract.  Documentation might include competitive comparison of previous bid prices obtained from other sources, including local Oregon businesses. 

 

3.             This rule requires that the College obtain the permission of both the federal agency and the federal vendor to use the federal contract.

 

Conclusions of Compliance with the Law:

This class special procurement will not encourage favoritism or substantially diminish competition in the awarding of College contracts.  All vendors, including Oregon businesses, are able to compete for the initial federal contract.  Also, the College will not use a federal contract without agency and vendor permission.

 

This special procurement will result in substantial cost savings to the College.  Federal contracts are based on competitive bidding, which result in the most advantageous price to the federal agency.  Before it makes a purchase from a federal contract, the College will document the cost savings it will achieve by using the contract.  These two facts will ensure that the College purchases the desired goods or services at the best price available.  Further, by being able to take advantage of a competitive federal procurement, the College saves the cost of needlessly duplicating the solicitation process.

 

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Intellectual Property (Periodicals, Library Books, Proprietary Software Licenses, Art, and Other                                                                CCR.212

Products of the Creative Process)

If the contract is for the purchase of Intellectual Property, which shall include, but not be limited to, Periodicals, Library Books, Subscription Services, Proprietary Software Licenses, Art, and Other Products of the Creative Process, the College may contract for the purchase of the product(s) without competitive procurement, regardless of dollar amount when the product(s) are protected under copyright law, and/or there is only one known supplier (e.g., manufacturer, copyright holder), available for such products. 

 

Examples of copyrighted materials typically covered by this Special Procurement include, but are not limited to: magazines and other periodicals; textbooks; workbooks; curriculum kits; reference materials; audio tapes; video tapes; calculators such as those used for aircraft navigation; and most software and products of the visual, aural and written arts.  It should be noted that if there is more than one supplier of copyrighted materials (especially software), and the product(s) are not being purchased directly from the writer, manufacturer or other original source, every attempt should be made to establish a competitive selection process in order to achieve the greatest economy.


 

Findings of Fact

1.       By design, Intellectual Property is protected for the use of a single owner.  Copyrighted products may not be duplicated by others without the express permission or license of the copyright holder.

 

2.     Instructional initiatives define the various materials, which the college will purchase for use in its educational programs, and it is not uncommon for Intellectual Property to be produced by only one supplier (i.e., sole source), who may be the copyright holder or licensee. 

 

Conclusion of Compliance with Law

This rule will not encourage favoritism or substantially diminish competition in the awarding of public contracts.  The production and distribution of Intellectual Property is controlled by the copyright holder/owner, and may only be permitted through a sole source.  This rule provides additional parameters for consideration that are complementary to the Public Contracting Code where competition does exist.  It is not intended to diminish the College's ability to consider other factors or limit fair and open competition when arriving at best value.  It is the policy of the State of Oregon that public contracting activities should provide effective outcomes that represent optimal value to the contracting agency, and to the greatest extent feasible, be consistent with market practices (ORS 279B.010(1)). 

 

Additionally, pursuant to ORS 279A.025(2)(h), the Public Contracting Code does not apply to contracts for the procurement or distribution of textbooks; consequently, findings otherwise required by law are unnecessary when the procurement or distribution of Intellectual Property is specifically for textbooks-a subcategory of Intellectual Property.

 

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Life Cycle Costing/Best Value                                                                                                                                                                    CCR.216

(1)     In determining the lowest bid or best proposal, in the award of a contract, the College may use the concept of life cycle costing if it complies with section (2) of this rule:

(2)  

    1. At the time of writing specifications for the product, the College shall identify those factors which will have cost implications over the life of the product, and which, for evaluation purposes, will be used to adjust the bid or proposal price of the product;
    2. The solicitation document shall set out clearly the factors and methodology to be used in life cycle cost adjustments; and
    3. The results of life cycle costing adjustments shall be applied to the bid or proposal price of the product(s) offered, and the bid or proposal that results in the lowest overall ownership cost or "best value" as it is determined by ORS 279A.015(5), taking into account the life cycle costing adjustments, and other aspects of service and product quality, as well as pricing.

 

Conclusion of Compliance with Law

This rule provides additional parameters for consideration that are complementary to the Public Contracting Code while supporting impartial and open competition.  It is not intended to diminish the College's ability to consider other factors when arriving at best value.  As such, it is not an exemption or Special Procurement to the competitive bidding requirements of law.  It is the policy of the State of Oregon that public contracting activities should provide effective outcomes that represent optimal value to the contracting agency, and to the greatest extent feasible, be consistent with market practices (ORS 279B.010(1)).  Consequently, findings otherwise required by law are unnecessary here.

 

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Perishables (Chemicals, Food, Laboratory Supplies)                                                                                                                             CCR.218

Competitive procurement need not be used for the procurement of perishables under this Special Procurement provided that the perishability and commensurate quality is of greater importance than the cost to the College.

 

Comment

If longevity is not an issue and multiple sources exist, standard procurement practices shall be utilized.

 

Findings of Fact

This rule permits such items as foodstuffs and scientific supplies, which have definitive shelf lives, and associated attributes such as quality and longevity, to be purchased without strict competitive processes based upon price.  Shelf life and the associated attributes may be the determining factors.

 

The rule enables the buyer to decide on a source based upon time since manufactured, remaining shelf life, and interim quality, since various states of decay can affect the product.

 

Conclusion of Compliance with Law

It is unlikely that this Special Procurement will result in favoritism in the awarding of public contracts or substantially diminish competition, since all vendors, including Oregon businesses, are able to compete , it is reasonably expected to result in substantial cost savings to the College (ORS 279B.085(4)(b)(A)), and it will enable the College to otherwise substantially promote the public interest (ORS 279B.085(4)(b)(B)), through expediting its procurement processes without compromising integrity for cost.

 

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Personal Property, Used (Purchase of)                                                                                                                                                    CCR.220

Competitive procurement need not be used for the procurement of Used Personal Property if the College has determined that the purchase will result in cost savings and will not diminish competition or encourage favoritism.

 

For purchases of used personal property or equipment costing $25,000 or more, or an amount otherwise indicated in Section 300, the College shall, where feasible, obtain three competitive quotations, unless such comparisons are highly impractical to obtain.  Procurement files pertaining to Used Personal Property shall contain documentation of price comparisons and attempts to secure competitive pricing as much as is practical.

 

When the value of any such purchase exceeds the threshold for Intermediate Procurements as that threshold is defined herein, Section 300, Supplementary Provisions of the Community College Rules of Procurement, such purchases shall be authorized and/or delegated only by the College President, who shall notify the LCRB of such purchases at the next regularly scheduled meeting of the LCRB.

 

Comment

Used Personal Property is property which has been placed in use by a previous owner or user for a period of time recognized in the relevant trade or industry as qualifying the personal property or equipment as "used," at the time of purchase.

 

Used Personal Property generally does not include property or equipment of which the College was the previous or current user, whether under a lease, as part of a demonstration, trial or pilot project, or similar arrangement.

 

Findings of Fact

The additional liberty for purchasing used personal property is essential for those who participate in auctions or other spot sales, where it is impractical to utilize conservative procedures because of the necessities of the selling process.

 

Conclusion of Compliance with Law

This rule provides additional parameters for consideration that are complementary to the Public Contracting Code while supporting impartial and open competition as much as is practical.  It is the policy of the State of Oregon that public contracting activities should provide effective outcomes that represent optimal value to the contracting agency, and to the greatest extent feasible, be consistent with market practices (ORS 279B.010(1)).  Pursuant to ORS 279B.075(1) Used Personal Property may be considered a sole-source procurement, if it is available from only one source; written findings supporting this determination and conclusion shall be made by the College.  Findings otherwise required by law to support this Special Procurement are unnecessary here.

 

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Price Regulated Items (Including Gas, Diesel Fuel, Heating Oil, Lubricants, Asphalts,                                                                    CCR.222

Distilled Alcohol, Postage, and Certain Utilities

The College  may, without competitive bidding, contract for the direct purchase of goods or services where the rate or price for the goods or services being purchased is established by federal, state, or local regulatory authority  (ORS 279A.025(2)(g) and ORS 279A.025(2)(j). Regardless of whether fuel is price regulated, it may be procured via spot purchases, and such purchases may be combined on a single, written agreement such as an open purchase order between the supplier and the College, in an effort to reduce administrative costs to the College.  Spot purchases are defined as one-time purchases occasioned by a small requirement (for example, one vehicle's tankful of gasoline), where the purchase is taking advantage of availability and the most favorable market conditions.

 

Comment

If competition exists and it is practical to solicit quotations, bids, or proposals for Price Regulated Items, then these procurement methods should be utilized in an effort to obtain best value. 

 

Conclusion of Compliance with Law

Competition is not generally a relevant issue in the procurement of goods or services where the provider's rate or price of the goods or services being purchased is established by federal, state, or local regulatory authority, and the goods or services are provided through a sole source.  Examples include:  Postage, Sewer/Water Service, Garbage Service, Electricity, Etcetera.  Since there is virtually no competition available within these price regulated items, and/or the amount of the non-regulated fuel acquisitions are spot purchases and are subject to market forces and availability, it is unlikely that this exemption will encourage favoritism in the awarding of public contracts or substantially diminish competition for public contracts.  Consequently, findings otherwise required by law are unnecessary here.

 

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Requirements Contracts and Price Agreements                                                                                                                                   CCR.226 

(1)   Requirements contracts, for the purposes of this Rule, mean price agreements, services agreements, and sales that may be established for the purposes of minimizing paper work, achieving continuity of product, securing a source of supply, reducing inventory, combining college requirements for volume discounts, standardization among agencies, and reducing lead time for ordering.  The College may enter into requirements contracts whereby it is agreed to purchase supplies and/or services for an anticipated need at a predetermined price provided the contract is let by a competitive procurement process pursuant to the requirements of ORS 279ABC and these Rules or is a contract for the procurement of products or services from a qualified nonprofit agency for individuals with disabilities pursuant to ORS 279.850.

(2)   The College may purchase the supplies and/or services from a contractor awarded a requirements contract without first undertaking additional competitive solicitation.

(3)   The term of the contract including renewals, must not exceed the maximum term stated in the original solicitation.

 

Conclusion of Compliance with Law

This rule provides additional parameters for consideration that are complementary to the Public Contracting Code while supporting impartial and open competition as much as is practical.  It is the policy of the State of Oregon that public contracting activities should provide effective outcomes that represent optimal value to the contracting agency, and to the greatest extent feasible, be consistent with market practices (ORS 279B.010(1)).  Pursuant to ORS 279A.065(5)(a) and ORS 279A.070, a contracting agency may, in the exercise of authority granted under ORS 279A.050, adopt rules necessary to carry out the provisions of the Public Contracting Code; consequently, findings otherwise required by law are unnecessary when the College has determined it is in its best interests to purchase supplies and/or services utilizing a competitively procured requirements contract or price agreement.

 

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Resale - Items for                                                                                                                                                                                        CCR.228

Competitive procurement processes need not be used for the procurement of product or services being purchased strictly for resale.  This Special Procurement applies to products or services that are specifically for resale as opposed to internal use or consumption. 

 

Findings of Fact

1,     College Enterprise, Auxiliary Fund, and/or General Fund operations that compete in the open market need to be able to purchase products or services for resale without undue restrictions.

2.     In order to compete in the open market, these operations must be knowledgeable, proactive, and stay abreast of current trends, consumer wants, tastes and desires, and be able to meet those needs in their offerings.  Additionally, fund operators must be free to purchases products or services for resale that the consumers want even if it means having a limiting factor such as brand, functionality, price, or quality.

3.     These operations must work as efficiently as possible to hold down their own costs as well as to present the goods or services to the public at a fair market price.  Thus, they will be looking for the goods for resale at the most competitive prices and highest quality within their parameters.

4.     In awarding contracts, these operations must ensure the appropriate amount of the product or service will be in stock or be readily available, received, or provided at the appropriate time.  Ensuring that the products or services are available and of the proper freshness and quality may prevent the operation from conducting timely competitive buying.

 

Conclusion of Compliance with Law

It is unlikely that this exemption will encourage favoritism in the awarding of public contracts or substantially diminish competition, and it is reasonably expected to result in substantial cost savings to the College or to the public (ORS 279B.085(4)).  Additionally, this Special Procurement will substantially promote the public interest as required by ORS 279B.085(4)(b)(B), in a manner that could not practically be realized under the requirements of ORS 279B.050, 279B.055, 279B.060, 279B.065, 279B.070 (Methods of Source Selection).

 

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Telecommunications Services                                                                                                                                                                    CCR.230

(1)   This rule is intended to allow the College to secure the most competitive, cost-effective telecommunications services of the quality needed to meet all service, performance requirements while minimizing administrative and service delivery costs. 

 

(2)   In determining the appropriate procurement method for telecommunications services, the College must determine whether competition exists.  The College may consider the following factors:

        (a) The extent to which alternative providers exist in the relevant geographic and service market.  The relevant market will vary with the geographic area and from service category to service category, depending on changes in the regulatory environment and competitive marketplace.  Thus, the relevant market will depend on the facts and circumstances of each case.  For example, an alternative local access service or private line provider might offer services in Portland, but not in Salem or the rest of the state; (b) The extent to which alternative services offered are comparable or substitutable in technology, service provided, and performance.  (For example, if the College requires digital services, analog services are not comparable or substitutable, or if the College requires fiber optic technology, then copper, microwave, or satellite transmission technology may not be comparable or substitutable); (c) The extent to which alternative providers can respond to the College's interests in consistency and continuity of services throughout its service area, volume discounts, equitable service for all users, centralized management, and limiting College liability.  For example, to be considered as the College's telephone long distance provider, any long distance service vendor must be able to meet, support, and interface with the College's centralized automated billing requirements.  The College must document for the record the findings on these factors or any other factors used in determining whether competition exists.  In developing its findings, the College may solicit the information either through informal telephone or written contacts or through a formal request for information.

 

(3)     Upon determining that competition does not exist for the relevant service and geographical area, the College may proceed to secure the service on a sole source basis, as described in these Rules.

 

Findings of Fact

1.       In some cases, the use of competitive procurement processes is either not practicable, advantageous, or in the College's best interest due to unforeseen circumstances, unreasonable costs, difficulty in locating vendors even after extensive searches, or where time constraints occur that are due to circumstances beyond reasonable control.

 

2.       All practical measures will be taken to encourage competition when possible.

 

3.       The chief fiscal officer or designee will report to the Local Contract Review Board the reason(s) that competitive procurement processes were deemed to be impracticable and what steps, where possible, were taken to encourage competition if the acquisition meets or exceeds $100,000.  A copy of the waiver shall be placed on file in the Purchasing office or other designated official location.

 

Conclusion of Compliance with Law

It is unlikely that this exemption from competitive procurement processes will encourage favoritism in the awarding of public contracts or substantially diminish competition , and it is reasonably expected to result in substantial cost savings to the College or to the public (ORS 279B.085(4)), since it would be an Exception, and would be due to extenuating circumstances.  Additionally, this Special Procurement will substantially promote the public interest in a manner that could not practicably be realized by complying with requirements that are applicable under ORS 279B.055, 279B.060, 279B.065, or 279B.070 or under any rules adopted thereunder.  (Stat. Auth:  ORS 279B.075 and 279B.085, Sole-Source Procurements and Special Procurements, respectively.)

 

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PERSONAL SERVICES CONTRACTING RULES

 

Personal Services Contracts                                                                                                                                                                       CCR.250

I.      Definition - General

(1)   A Contract for "Personal Services" is a Public Contract that calls for specialized skills, knowledge, and resources in the application of highly technical or scientific expertise, or the exercise of professional, artistic or management discretion or judgment.  Qualifications and performance history, expertise, knowledge and creativity, and the ability to exercise sound professional judgment are typically the primary considerations when selecting a Personal Services Contractor, with price being secondary. 

        (a)   Contracts for Architectural, Engineering, Photogrammetric Mapping, Transportation Planning, Land Surveying Services, or Related Services are designated as a special class of Personal Services Contracts, defined in ORS 279C.100 (5), and that definition applies only to ORS 279C.100 to 279C.125. Contracts for Architectural, Engineering, Photogrammetric Mapping, Transportation Planning,  Land Surveying Services or Related Services are not subject to the provisions of  rule CCR.250 of the Community College Rules of Procurement, but are, instead, subject to the provisions of Division 48 of the Oregon Attorney General's Model Public Contract Rules as adopted by the College, and the Community College Rules of Procurement adopted by the College, excluding rule CCR.250.

(2)   The College may waive the requirement for a competitive selection process and directly negotiate a Personal Services Contract, if the Contract Price is not more than the Minimum Threshold as this threshold is defined in Section 300-Supplementary Provisions.  Regardless of the dollar value of the contract, the College may, at its discretion, enter into a Personal Services Contract without complying with formal or informal solicitation requirements if an Emergency, as defined in CCR.207 exists.

(a)   Unless there are compelling reasons not to do so, competitive selection processes for Personal Services contractors should take place at intervals not greater than five years after initial completion and acceptance of services.

(b)   The screening and selection procedures for the award of Personal Services Contracts are governed by ORS 279A.055 and are subject to the competitive procurement provisions of the Personal Services Contracting rules and procedures adopted herein.  Every contract for Personal Services shall be based upon these screening and selection procedures developed by the College.  Personal Services Contracts are considered "public contracts" as defined in ORS 279A.010. 

(3)   The College may enter into Personal Services Contracts with an independent contractor when:

(a)   The work to be performed requires specialized skills, knowledge and resources in the application of highly technical or scientific expertise, or the exercise of professional, artistic, or management discretion or judgment;

(b)   The College will not control the means or manner of the contractor's performance, but must rely on the Contractor's specialized skills, knowledge and expertise to accomplish the work.  Note:  The College's reservation of the right to determine and modify the delivery schedule, evaluate the quality of completed performance, and accept or reject the completed performance does not mean that the College will control the means and manner of performance; and 

(c)   Selecting a Contractor primarily on the basis of qualifications, rather than price, in accordance with the provisions of the Personal Services Contracting Rules and Procedures adopted herein would most likely meet the College's needs and result in obtaining satisfactory contract performance and optimal value for the College.

(4)   Pursuant to ORS 279A.055(2), the College has the authority to designate certain service contracts or classes of service contracts as Personal Services Contracts.  Personal Services Contracts may include, but are not limited to, contracts for services performed in a professional capacity such as:

(a)   Contracts for the services of an accountant;

(b)     Contracts for the services of an attorney;

(c)     Contracts for the services of a physician or dentist,

(d)   Contracts for the services of an information technology consultant,

(e)   Contracts for the services of a broadcaster;

(f)    Contracts for services as an artist in the performing or fine arts including, but not limited to, any person identified as a photographer, filmmaker, painter, weaver, or sculptor;

(g)   Contracts for services that are specialized, creative and research-oriented;

(h)   Contracts for services as a consultant;

(i)    Contracts for educational services;

(j)    Contracts for investment services;

(k)   Contracts for travel services;

(l)    Contracts for banking services;

(m)  Contracts for auditing services;

(n)   Contracts for student loan and college receivables;

(o)   Contracts for real estate services (ORS 279A.025(2)(f));

(p)   Contracts for property management;

(q)   Contracts for employee benefit insurance (ORS 279A.025(2)(r));

(r)    Contracts for investments (ORS 279A.025(2)(q)(C));

(s)    Contracts for energy savings performance contracts (ORS 279C.335(1)(f));

(t)    Contracts for agents of record (examples where agents of record may be used are advertising, general insurance, sales of surplus property, workers compensation insurance, etcetera);

(u)   Contracts for speakers, lecturers, and performers; and

(v)   Contracts for human custodial care services;

(w)  Contracts for food service management; and

(x)   Contracts for telecourse providers.

 

(5)   Personal Services Contracts do not include:

(a)   Contracts, even though in a professional capacity, if primarily for equipment, supplies or materials, e.g., a contract to supply all hardware and standard software is not a Personal Services Contract, but a contract with a technology consultant to design or develop a new computer system is a Personal Services Contract;

(b)     Contracts with a temporary service or personnel agency to supply labor, which is of a type that can generally be done by any skilled worker (e.g., janitorial, security guard, crop spraying, laundry, and landscape maintenance service contracts)

(c)     Contracts for services of a trade-related activity, even though a specific license is required to engage in the activity.  Examples are repair and/or maintenance of all types of equipment or structures.

 

II.     Screening and Selection Procedures and Assistance

        These rules set forth procedures for the College to follow when entering into Personal Services Contracts.

(1)   The policy of the College is to select Contractors based on demonstrated qualifications and competence to perform the required services, encourage competition, discourage favoritism and obtain services at a fair and reasonable price.  The purpose of this rule is to specify the College's policies and procedures for screening and selection of Contractors to perform Personal Services.

(2)   The College shall comply with the procedures set out in these rules for screening and selecting Contractors to perform Personal Services Contracts.

(3)   The College shall provide Evidence of Competition for all Public Contracts where competition exists or justify entering into contracts by direct negotiation if an exemption from the screening and selection process is utilized.  While qualifications are the primary criteria, whenever the College determines that the services offered by two or more individuals or firms are equally able to meet the College's needs and are of equal value, the College shall award the contract to the individual or firm offering the service at the lowest price.

(4)   The College may procure Personal Services from Contractors who are under contract with another governmental entity pursuant to a Cooperative Agreement as permitted and subject to ORS 279A.200 to 279A.225, if such action is expressly permitted under the original contract and if the administering agency's solicitation and award process for the original contract is an open and impartial competitive process and uses source selection methods substantially equivalent to those specified in ORS 279B.055, 279B.060 or uses a competitive bidding process substantially equivalent to the competitive bidding process in ORS chapter 279C.

 

III.    Solicitation Requirements

A.    General

(1)   All formal solicitations must satisfy the requirements of this rule.  Request for Proposals and Request for Qualifications must be in writing and must be advertised in accordance with the following procedures:

    1. All advertisements for a formal solicitation shall be placed in at least one newspaper of general circulation and in as many additional issues and publications as may be necessary or desirable to achieve adequate competition.  At the option of the College, the College may publish its public notices electronically instead of, or in addition to, a newspaper of general circulation.  The advertisement(s) for a formal solicitation shall be first published and appear at least once, no fewer than fourteen (14) calendar days before close of the solicitation, unless the governing body of the  College, its President, or another officer authorized by the College declares in writing that a shorter period is deemed necessary in the public interest for a particular procurement.  Conversely, the College shall broaden and extend public notice if deemed necessary to serve the public's interest for a particular procurement; and
    2. All advertisement(s) shall describe, at a minimum, a brief summary of the proposed contract, the services sought, where copies of the solicitation may be obtained, and the deadline for submitting a proposal.

(2)   The Solicitation Document must provide that the College  may, at any time during the solicitation process, reject any or all proposals or cancel the solicitation without liability if it is in the public interest to do so.

(3)   Unless compensation is expressly provided for in the Solicitation Document, the Request for Proposals or Request for Qualifications must provide that the College is not responsible for any costs of any Offeror incurred while submitting Offers and that all Offerors who respond to solicitations do so solely at their own expense

(4)   The Solicitation Document must:

(a)   Notify proposers of  potential Solicitation Document addenda.  Failure to provide such notice in any solicitation may prevent addenda from being incorporated into any resulting contract, and include protest procedures for all formal solicitation and selection.


 

        B.     Formal Selection Procedures

The College shall use a formal selection procedure whenever the cost of the services is estimated or anticipated to be equal to or more than the Intermediate Threshold for Personal Services contracts as this threshold is defined in Section 300--Supplementary Provisions.  Under these formal procedures, Requests for Proposals (RFP) or Requests for Qualifications must be advertised in at least one newspaper of general circulation or through electronic means as indicated in Section 200, Rule 202, and in as many other issues or electronic procurement systems, and publications as may be necessary or desirable to achieve adequate competition. 

(1)   Request for Qualifications.   A Request for Qualifications may be used to determine whether competition exists to perform the needed services or to establish a list of qualified Contractors prior to issuing an RFP  (Note:  It is not mandatory that the College issue a Request for Qualifications; it may elect to forego using a Request For Qualifications before issuing an RFP.)

    1. At a minimum, the Request for Qualifications shall describe the particular specialty desired, the qualifications the Contractor(s) must have in order to be considered, and the evaluation factors and their relative importance.  The Request for Qualifications may require information including, but not limited to:  the Contractor's particular capability to perform the required services; the number of experienced staff available to perform the required services, including specific qualifications and experience of personnel; a list of similar services the Contractor has completed, with references concerning past performance; and any other information necessary to evaluate Contractor qualifications.
    2. A qualifications pre-submission meeting (voluntary or mandatory) may be held for all interested Contractors to discuss the proposed services.  If the meeting is mandatory, the Request for Qualifications shall include the date, time and place of the meeting(s).
    3. Unless the Request for Qualifications establishes that competition does not exist or unless the solicitation process is canceled or all qualification statements rejected, all respondents (who met the published qualifications) shall receive a notice (or other materials as appropriate) of any required services and have an opportunity to submit an Offer in response to the College's subsequent RFP.

(2)   Request for Proposals.  The RFP is used as a formal competitive solicitation that describes specific services to be performed within a defined period of time.  The solicitation sets forth criteria and methods for screening, selecting and ranking the best proposal(s).   The RFP may result in contracts with more than one provider.

    1. The RFP must either describe the situation and background for which Offers are being requested and state the outcome(s) desired, or propose a Statement of Work.  The RFP must describe any conditions affecting the delivery of the services and the time period in which the services are to be completed. The RFP must, at a minimum, address the following information:
      1. Minimum standards and qualifications required to be met by the Offeror(s) to be eligible to provide the services;
      2. The evaluation process and criteria to be used to select the Contractor(s), including the weight or points applicable to each criterion. Information must include the manner in which the Offeror's cost and pricing proposal will be evaluated;
      3. A requirement to provide a list of similar services completed by the proposer(s) with references concerning past performance;
      4. The closing date and time of the solicitation and the delivery location(s) for proposals;
      5. Reservation of the right to seek clarifications of each proposal, and the right to negotiate the Statement of Work within the scope of work described in the RFP;
      6. Reservation of the right to reject any or all Proposals, if such rejection would be in the public interest;
      7. Reservation of the right to cancel the solicitation, if such cancellation would be in the public interest;
      8. Contractual provisions that will be contained in the resulting contract;
      9. The possibility of interviews; and
      10. Any other information to be used to evaluate, rank and select the best proposer(s).  This should include, but is not limited to: anticipated contract award date, and at the College's discretion, funding information and budget requirements. 
    2. A pre-proposal meeting (voluntary or mandatory) may be held for all prospective Contractors to discuss the proposed services, solicitation provisions and contract requirements.  The RFP shall include the date, time and place of the meeting(s).
    3. An evaluation committee shall evaluate Proposals.  The College's Purchasing Department shall provide the evaluation committee with guidelines for completing evaluations consistent with the process described in the RFP.  The evaluation committee may consist of College employees and, if desired, members of the community with experience in related services.  Evaluators shall be selected on the basis of their ability to provide an objective, impartial evaluation of the proposals.  If there is a conflict of interest, the evaluator shall declare this in writing and shall be excluded from participating in the evaluation.
    4. The proposal evaluation committee shall review, score and rank all responsive proposals according to the evaluation criteria in the RFP, which may include, but are not limited to, the following:
  1. Availability and capability to perform the work;
  2. Experience of key staff on comparable projects, or in performing comparable services;
  3. Demonstrated ability to successfully complete similar projects or perform similar services on time and within budget;
  4. References from past clients, public and private;
  5. Performance history in meeting deadlines, submitting accurate estimates, producing quality work, and meeting financial obligations;
  6. Status and quality of any required licensing or certification;
  7. Knowledge and understanding of the required services as shown through the proposed approach to staffing and scheduling needs;
  8. Fees or costs;
  9. Results from oral interviews, if conducted;
  10. Availability of any specific required resources or equipment;
  11. Geographic proximity to the project or the area where the services will be performed;
  12. Identity of proposed subcontractors and their qualifications; and
  13. Any other criteria deemed relevant to the provision of services.
    • Final ranking will be based on the evaluation criteria consistent with the process described in the RFP.  Price will be considered, but will not necessarily govern selection of the Contractor(s).
    • Contracts entered into under the formal selection procedure may be amended, provided the original contract allows for the particular amendment and the services to be provided under the amendment are included within, or directly related to, the scope of the project or the scope of the services described in the solicitation document.

 

        C.     Informal Selection Procedures

The College may use an informal selection process to obtain services if the estimated fee or Contract Price is less than the Minimum Threshold for Personal Services Contracts and the College shall use an informal selection process to obtain services if the estimated fee or Contract Price is more than the Minimum Threshold but less than the Intermediate Threshold for Personal Services Contracts as this threshold is defined in Section 300-Suplementary Provision, unless otherwise exempted.

(1)   The informal selection process shall solicit Offers from at least three qualified contractors offering the required services.  Prospective contractors may be drawn from the ORPIN System and/or from the certified list of the Advocate for Minority, Women and Emerging Small Business or its list of Contractors.  The College may place the solicitation on the ORPIN System and/or use the system-generated potential Offer list to meet the three (3) responses/proposals requirement for informal solicitations.

(2)   The informal selection process shall be competitive.  The selection and ranking may be based on criteria including, but not limited to, each Offeror's:

    1. Particular capability to perform the services required;
    2. Experienced staff available to perform the services required, including each Offeror's recent, current, and projected workloads;
    3. Performance history;
    4. Approach and philosophy used in providing services;
    5. Fees or costs;
    6. Geographic proximity to the project or the area where the services are to be performed; and
    7. Work volume previously awarded by the College, with the object of effecting an equitable distribution of contracts among qualified Contractors, provided such distribution does not violate the policy of selecting the most highly-qualified Contractor to perform the services at a fair and reasonable price.

(3)   All proposals received shall be reviewed and documented and the most qualified Contractor(s) selected.

(4)   If the scope of the services is revised to the extent that the estimated cost of the services is considered to be equal to or more than  the Minimum Threshold as this threshold is defined in Section 300-Supplementary Provisions, and the services are still required, the College shall either (a) terminate the contract and issue a new solicitation using the formal selection procedures or procedures allowed by subsequent rules set forth in this Section, unless waived under the provisions of Section CCR.250(I)(2), or (b) seek approval by the College's Local Contract Review Board for contract amendment.

 

        D.    Selection by Negotiation

(1)   The College may procure Personal Services with Contractors directly through negotiation if the Contract Price is less than the Minimum Threshold as this threshold is defined in Section 300-Supplementary Provisions.

(2)   If the scope of the services is revised to the extent that the estimated cost of the services is equal to or more than the Minimum Threshold as this threshold is defined in Section 300-Supplementary Provisions, the College shall solicit for a new Contractor(s) using applicable selection procedures under these rules.

 

Conclusion of Compliance with Law

The requirements of this rule ensure that competition will be carefully addressed and protected, if the College finds it is in the public's best interest to competitively procure Personal Services.  This rule satisfies the requirements of Oregon Revised Statute ORS 279A.055 wherein the College may enter into Personal Services contracts, subsequent to the Local Contract Review Board's designation of certain service contracts or classes of service contracts as personal services contracts.  Consequently, findings otherwise required by law are unnecessary here. 

 

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PUBLIC IMPROVEMENT CONTRACTS EXCEPTIONS AND EXEMPTIONS

 

Alternative Contracting Methods                                                                                                                                                             CCR.280

The College may, at its discretion, exempt public improvement contracts from competitive bidding requirements utilizing Alternative Contracting Methods (ORS 279C.335(2)).  These methods shall take into account market realities and modern practices that are consistent with the public policy of encouraging competition.  Examples of Alternative Contracting Methods are Request for Proposals for the selection of construction manager/general contractor firms (CM/GC), and Design/Build firms.

The College shall prepare written findings that support the use of this exemption from competitive bidding and obtain approval from its Local Contract Review Board.  A public hearing shall be held before final adoption (ORS 279C.335(5)) of the exemption.  The findings must show compliance with ORS 279C.330, and shall include, but not be limited to, information regarding:

(a)   Operational, budget and financial data;

(b)   Public benefits;

(c)   Value engineering;

(d)   Specialized expertise required;

(e)   Public safety;

(e)     Market conditions;

(f)      Technical complexity; and

(g)     Funding sources but shall not be based solely on funding sources, such as a particular bond fund, or by the method of procurement.

                   

Conclusion of Compliance with Law

The College must demonstrate that the use of this exemption is unlikely to encourage favoritism in the awarding of public contracts or substantially diminish competition for such contracts  and will likely result in substantial cost savings to the College or the public (ORS 279C.335(2)).  The requirements of this rule ensure that competition will be carefully addressed and protected, if the College's Local Contract Review Board finds it is in the public's best interest to use an Alternative Contracting Method.  Consequently, findings otherwise required by law are unnecessary here. 

 

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Donated Public Improvements                                                                                                                                                                 CCR.281

The College may authorize a Person to construct a public improvement without competitive bidding or other competitive process regardless of dollar amount, if:

 

(1)   The Person has agreed to donate all of the labor, materials and services necessary to construct the public improvement and perform the work; and

(2)   The Person enters into a license or agreement with the College whereby the Person agrees to comply with the public contract requirements applicable to the particular project, requirements of the Public Contracting Code, and any requirements that the College deems necessary or beneficial to protect the College.

 

Findings of Fact

1.     Students, staff, contractors, and other community groups from time to time offer to donate all or a portion of their professional skilled services and/or materials, to help the College meet its facilities' and/or educational needs.  The ability to take advantage of such donated materials and/or services enables the College to use its limited funds in other areas, and frequently results in improvements or services that the College would not otherwise be able to afford.  This class special procurement thus has budgetary, operational, and public benefits.

2.     This exemption enables the College to take advantage of these offers, while continuing to ensure that the requirements of the Public Contracting Code continue to be met.

3.     ORS 279A.010 excludes projects for which no funds of a public entity are used from the definition of Public Improvement subject to the Code.  This exemption will allow the College to take advantage of donated materials and/or services, where all or part of the project or funds used for the project are donated.

 

Conclusion of Compliance with Law

It is unlikely that this exemption will encourage favoritism in the award of College Contracts or substantially diminish competition for College Contracts because it will only apply when a Person donates all or part of the materials and/or services.  Charitable donations are outside of the competitive market for construction services.  In many instances, the donations will enable the College to construct or complete projects that it otherwise would not be able to afford to do, and thus will not displace what would otherwise be a competitively bid project.

 

The use of this class special procurement will result in substantial cost savings to the College because the College is not required to pay for the goods and/or services if they are donated.

 

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First-Tier Subcontractors; Disclosure and Substitution                                                                                                                        CCR.282

This rule amends (i.e., additions are indicated by italics and deletions are indicated by a line drawn through the word(s) that has been stricken.), Appendix B of these Community College Rules of Procurement (i.e., State of Oregon, Department of Justice, Model Public Contract Rules effective January 1, 2010, Division 49), as follows:

 

OAR 137-049-0360(2)(b) shall be replaced with:

"(b)     The College may, at its discretion, open Bids publicly immediately after the Bid Closing; or it may open Bids publicly immediately following the deadline for submission of the first-tier subcontractor disclosure forms, or some other time as permitted or not prohibited by Oregon Revised Statutes."

 

Conclusion of Compliance with Law

As this amendment to the Attorney General's Public Contract Rules is not a Special Procurement or exemption from the competitive procurement requirements of law, the College has determined that findings of fact are not required.

 

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Limited Negotiations with Bidder                                                                                                                                                            CCR.283

I.      Definitions

        For purposes of this rule, the terms below shall be defined, as follows:

 

"College's Cost Estimate" shall mean the fixed limit of construction cost that has been agreed upon by the College and the College's consultant.

 

"Value Engineering and Other Options" refers to a process agreed upon by the College, which involves the lowest responsive, responsible bidder and may include other consultants to identify deletions or adjustments to the project to reduce the cost of such work.

 

"Significantly Changed" with reference to the scope of the project, shall mean deletion or adjustment of components of the project or elements of the work, which in the aggregate are estimated to cost in excess of twenty-five percent of the College's Cost Estimate as originally designed.

 

II.     Limited Negotiations and College's Cost Estimate

(1)     If a project is competitively bid and all the responsive bids from responsible bidders exceed the College's Cost Estimate, the College may, prior to award, negotiate with the Lowest Responsible Bidder utilizing Value Engineering and Other Options to bring the contract price within the College's Cost Estimate.

(2)   The College's negotiation with the Lowest Responsible Bidder shall not result in award of the contract to such bidder if the scope of the project is Significantly Changed from that specified in the Invitation to Bid at the time of bidding.

(2)     If the College elects to use the negotiation process under this rule, the College will not produce for public inspection prior to award or termination of the negotiation process, any records of the Lowest Responsible Bidder.  After award of the contract or termination of the negotiation process, the College will make available for public inspection such records as are subject to inspection under any other provision of law.

 

III.    Negotiation and Award Process

(1)     If the Lowest Responsible Bidder's Bid exceeds the College's Cost Estimate, the College may, but shall not be required to, negotiate with the Lowest Responsible Bidder to bring the cost of the project within the College's Cost Estimate.

(2)     If the College elects to negotiate with the Lowest Responsible Bidder, the College shall give written notice to the Lowest Responsible Bidder of its intent, within ten (10) days of bid Opening.  The notice shall include disclosure to the Lowest Responsible Bidder of the College's Cost Estimate.

(3)     During any such negotiations, the Lowest Responsible Bidder's bid shall remain firm for the period prescribed in the Bid.  At all times until such expiration of the Bid, and notwithstanding the occurrence of negotiations under this rule, the College shall have the right to accept the original Bid.

(4)     Upon and within five (5) days of receipt of the College's notice of intent to negotiate, the Lowest Responsible Bidder and the College's representative shall meet and present to each other, in writing, any proposals either may have for Value Engineering and Other Options to bring the project within the College's Cost Estimate.

(5)     The College and the Lowest Responsible Bidder shall negotiate in good faith regarding value engineering and other options, exerting their best efforts to bring the cost of the project within the College's Cost Estimate.

(6)     If the College and the Lowest Responsible Bidder are able to reach agreement through value engineering and other options to identify measures which bring the project within the college's Cost Estimate, but do not Significantly Change the scope of the project, such value engineering and other options shall be reduced to writing and signed by the Lowest Responsible Bidder as an amendment to its bid and will be incorporated into the Contract at the time of award.

(7)     Upon award, the terms and conditions of the amendment to the Bid shall be made public.

(8)     Any protest of this negotiation process shall be subject to the Protest Process specified in the Invitation to Bid.

 

Conclusion of Compliance with Law

This rule satisfies the requirements of Oregon Revised Statute 279C.340 wherein the College may negotiate with the lowest responsive, responsible bidder in accordance with rules adopted by the College.  Consequently, findings otherwise required by law are unnecessary here.

 

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SECTION 300    SUPPLEMENTARY PROVISIONS - CONTRACTING RULES

 

These Community College Rules of Procurement were drafted by participating statewide community college representatives with the intent that Sections 100 and 200 be adopted in their entirety and remain unchanged by their respective institutions unless modified by participating committee members at a later date and subsequently ratified by their local contract review boards.  Section 300 has been specifically set aside to address the unique philosophies, cultures, and/or concerns of the various community colleges, voting districts, and contract review boards.  In the event of conflict between rules or sections within these Community College Rules of Procurement, the rules in Section 300 shall take precedence over the Appendices in Section 300, and the rules in Sections 100 and/or 200 except as otherwise expressly provided.

 

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Consultant Selection:  Architects, Engineers, Photogrammetrists, Transportation planners, Land Surveyors and Providers of Related Services Contracts                                           CCR.301

This rule amends (i.e., additions are indicated by italics and deletions are indicated by a line drawn through the word(s) that has been stricken.), Appendix B of these Community College Rules of Procurement (i.e., State of Oregon's DOJ Model Public Contract Rules 2012, Division 48), as follows:

 OAR 137-048-0200(1)(b) shall be replaced with: “Small Estimated Fee. The Estimated Fee to be paid under the Contract does not exceed $50,000, or”

OAR 137-048-0200(1)(c) shall be replaced with: “Continuation of Project With Intermediate Estimated Fee. For Contracting Agencies where a Project is being continued, as more particularly described below, and where the Estimated Fee will not exceed $100,000, the Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services to be performed under the Contract must meet the following requirements;

(A) The services consist of or are related to Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services that have been substantially described, planned or otherwise previously studied in an earlier Contract with the same Consultant and are rendered for the same Project as the Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services rendered under the earlier Contract:

   

(B) The Estimated Fee to be made under the Contract does not exceed $100,000 and

(C) The Contracting Agency used either the formal selection procedure under OAR 137-048-0220 (Formal Selection Procedure) or the formal selection procedure applicable to selection of the Consultant at the time of original selection to select the Consultant for the earlier Contract; or”

OAR 137-048-0200(1)(d) shall be replaced with: “Continuation or Project With Extensive Estimated Fee. For Contracting Agencies where a Project is being continued, as more particularly described below, and where the Estimated Fee is expected to exceed $100,000, the Architectural, Engineering, Photogrammetric mapping, Transportation Planning or Land Surveying Services or Related Services to be performed under the Contract must meet the following requirements:”

OAR 137-048-0210(1) shall be replaced with:  "The College may use the informal selection procedure described in this rule to obtain a contract if the Estimated Fee is expected not to meet or exceed $125,000."

 OAR 137-048-0210(2)(b) shall be replaced with; “Provide a Request for Proposals to a minimum  of three (3) prospective Consultants drawn from:

(A) Contracting Agency’s list of Consultants that is created and maintained under OAR 137-048-0120 (List of Interested Consultants: Performance Record);

(B) Another Contracting Agency’s list of Consultants that is created and maintained under OAR 137-048-0120 (List of Interested Consultants; Performance Record); or

(C) All Consultants that the Contracting Agency reasonably can locate that offer the desired Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related services, or any combination of the foregoing,”

OAR 137-048-0210(5) shall be replaced with:  "The College shall terminate the informal selection procedure and proceed with the formal selection procedure under OAR 137-048-0220 if the scope of the anticipated Contract is revised during negotiations so that the Estimated Fee will exceed $125,000.   

Conclusion of Compliance with Law

As this amendment to the Attorney General's Public Contract Rules, 2012, is not a Special Procurement or exemption from the competitive procurement requirements of law, the College has determined that findings of fact are not required.  The requirements of this rule ensure that competition will be carefully addressed and protected, if the College finds it is in the public's best interest to competitively procure Architectural, Engineering, Photogrammetric Mapping, Transportation Planning, or Land Surveying Services or Related Services Contracts.  This rule satisfies the requirements of Oregon Revised Statute ORS 279A.055 wherein the College may enter into Personal Services contracts, subsequent to the Local Contract Review Board's designation of certain service contracts or classes of service contracts as personal services contracts, and ORS 279C.105 wherein a Local Contract Review Board shall adopt procedures for the screening and selection of persons to perform those services under ORS 279C.110 or 279C.120.  Consequently, findings otherwise required by law are unnecessary here. 

 

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Contract Amendments & Reinstatements                                                                                                                                             CCR.302

A.    The College may award an amendment(s) for additional work or product which is reasonably related to the scope of work under the original contract, including change orders, extra work, field orders, or other changes in the original specifications that increases the original Contract Price, without competitive bidding or alternate contracting method, for a Special Procurement that is exempted under these rules or is subject to the following conditions:

(1)   Contract amendments must be made in writing;

(2)   Amendments to Contracts must fall within the scope of the original solicitation.  Amendments shall not be used to circumvent rules establishing approvals at certain monetary thresholds;

(3)   The original Contract was let by competitive bidding or alternative procurement process;

(4)   Such amendment(s) shall not exceed a total of thirty-three percent (33%) of the original Contract Price for goods and services or twenty-five percent (25%) over the original Contract Price if the Contract is for public improvements, public works, or general trade services and the amount of the amended Contract is defined as a Small or Intermediate Procurement as these thresholds are defined in Section 300, "Public Contracts Under Certain Dollar Amounts," Supplementary Provisions of the Community College Rules of Procurement;

(5)   Such amendment(s) shall not exceed a total of fifty percent (50%) of the original Contract Price, if the original Contract Price exceeds the threshold for Intermediate Procurements as this threshold is defined in Section 300, "Public Contracts Under Certain Dollar Amounts," Supplementary Provisions of the Community College Rules of Procurement, and the Contract is for public improvements, public works, or general trade services;

(6)   The vice President/Chief Financial Officer or designee approve the amendment if the Contract is for a Public Contract, including a Public contract for a Special Procurement, but may authorize the Director of Capital Projects/Facilities and Operations to approve amendments, if the Contract is for a public improvement, public work, or general trade services Contract.

 

B.     The "Reinstatement of Expired Contracts" means the action of reinstatement of an expired Contract that was previously properly executed containing all the required approval signatures and following all required procurement processes.  The College may approve reinstatement of an expired Contract if the following conditions are met:

(1)     The College determines concisely, in writing, that the failure to extend or renew the Contract in a timely manner was due to unforeseen or unavoidable conditions;

(2)     The written reinstatement justification is presented to the VP/CFO for approval within ninety (90) days after expiration of the original Contract; and

(3)     The reinstatement is exclusively for the purpose of permitting completion of the work or services for no additional compensation; or

(a)   When the services are of a continuing or repetitive nature, which are compensated at an hourly, daily or similar periodic rate, the reinstatement either:

(i)    Does not increase the rate of compensation; or

(ii)   Does not increase the rate of compensation so as to exceed the rate of the increase determined by comparing the Portland, Oregon Metropolitan Area Consumer Price Index (all items), published immediately prior to the date the original contract was established with the same Index published immediately prior to the date of the reinstatement and extension.

(4)     When a Contract is reinstated pursuant to this Rule, the College may compensate the Contractor, at the rate of compensation established in the original Contract, for work performed in the interim between the expiration of the original Contract and the execution and approval(s) of the extension or amendment.

(5)     This rule authorizes only one reinstatement of a Contract.

(6)     No reinstatement of a Contract must modify the original contract except with respect to the time for performance.

(7)     If the reinstatement of a Contract pursuant to this rule raises the aggregate amount of compensation to a level that requires approval by the Local Contract Review Board, the College must obtain such approval before the extension becomes binding and before any services may be performed under the reinstated contract.

(8)     Once a contract is reinstated, it is in full force and effect, as if it had not expired.

Stat. Auth:  ORS 279A.065(5)(a); ORS 279A.070

 

Conclusion of Compliance with Law

Contracts are living entities.  The work they represent is subject to change at any moment; contract amendments record and formalize those changes.  Options for change orders are needed for contract administrators and contractors to perform the work in the most efficient manner.  As the contract amendment process is not an exemption from the competitive procurement requirements of law, the College has determined that findings of fact are not required.  It is unlikely that this process will encourage favoritism in the awarding of public contracts or substantially diminish competition for such contracts as required by ORS 279B(3)(a).  Consequently, findings otherwise required by law are unnecessary here. 

 

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Cumulative Awards of Small Contracts (i.e., Anti-Fragmenting Rule)                                                                                               CCR.304

When the College awards a series of small contracts, other than Special Procurements subject to ORS 279B.085, with values less than $100,000, intends to award a series of such contracts, or is likely to award a series of such contracts within one fiscal year, the sum of which will, or is likely to, meet or exceed $100,000, and the Work of which is similar, identical, or within the same operational domain, the College shall submit findings to its Local Contract Review Board to the effect that:

 

(1)   The contracts are not intentionally fractionalized to avoid sealed, competitive public procurement; and,

(2)   Competition is not being diminished by the awarding of such contracts and the consequent avoidance of public advertising of the requirement; and,

(3)   Other requirements such as those of the Bureau of Labor and Industries, (prevailing wage rates), bonding, insurance and OMWESB (Office of minority, Women and Emerging Small Business, reporting requirements), will not be avoided by the award of such contracts;

or, the College shall formulate and issue a formal solicitation for the totality of such annual requirements, and shall, as a result of such solicitation, establish a requirements contract naming one or more qualified providers, for the provision of the required goods or services.

Conclusion of Compliance with Law

This rule is intended to apply to all goods, services, client services, public improvements, public works, maintenance, repair, supplies, and all other College requirements.  Its purpose is to ensure that the College does not intentionally or inadvertently exceed the College's formal competitive procurement threshold requirement of $100,000 without good cause and without the approval of its Local Contract Review Board, and that compliance with other statutory requirements invoked by the formal competitive procurement threshold requirements (such as prevailing wage rates, maximizing competition, minority contracting and reporting requirements, and the like), are not avoided.  As Special Procurements may result in a series of Contracts over time or for multiple projects, and the Cumulative Awards of Small Contracts Rule is not an exemption from the competitive procurement requirements of law, the College has determined that findings of fact are not required.

 

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Energy Management Controls Systems                                                                                                                                                   CCR.308

Competitive procurement need not be used for Energy Management Controls Systems provided the hardware or software is required to match or be specifically compatible with existing equipment (see Brand Names or Marks, "or Equal," Single Seller and Sole Source), or that the items are available from only one source and the College has determined that competition does not exist.

 

In determining the appropriate procurement method for Energy Management Controls Systems or whether competition exists, the College may consider the following factors:  the extent to which alternative services offered are comparable or substitutable in technology; service provided; performance; the extent to which latest upgrades and options are offered by the manufacturer; upward and downward compatibility; and the extent to which alternative providers can respond to the College's interests in consistency and continuity of services throughout its service area, volume discounts, equitable service for all users, centralized management, and limiting College liability.

 

Conclusion of Compliance with Law

This rule will not encourage favoritism or substantially diminish competition in the awarding of public contracts.  An energy management controls system is essentially a system of data processors, input/output devices, field devices (thermostats, terminal control units, etc.), and software that result in energy-saving strategies.  This rule provides additional parameters for consideration that are complementary to the Public Contracting Code where competition does exist.  It is not intended to diminish the College's ability to consider other factors or limit fair and open competition when arriving at best value.  It is the policy of the State of Oregon that public contracting activities should provide effective outcomes that represent optimal value to the contracting agency, and to the greatest extent feasible, be consistent with market practices (ORS 279B.010(1)).

 

Additionally, pursuant to ORS 279A.025(2)(p), the Public Contracting Code does not apply to energy savings performance contracts; consequently, findings otherwise required by law are unnecessary for the procurement or distribution of Energy Management Controls Systems.

 

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Exception (Including Sole Source) - Purchases of Goods or Services through                                                                                 CCR.310

Competitive procurement processes need not be used for the procurement of goods or services when the College makes a determination, based on written findings subject to ORS 279B.075(2), that the goods or services, or class of goods or services, are available from only one source, and the award of the Contract is approved, in writing, by the college's chief financial officer or designee with such determination of sole source being placed on file in the Purchasing office or other designated official location;  notification shall subsequently be given to the college's Local Contract Review Board, if the amount of the contract exceeds $100,000. The College is entitled to negotiate with any sole source Contractor to obtain a favorable price, terms, and/or conditions. This exception may be used for either a Contract or class of goods or services resulting in a series of Contracts, subject to these written findings, without submitting written findings for each subsequent request for a Contract, for not longer than five years, and is to be used infrequently and only when deemed by the chief financial officer or designee to be in the best interest of the College.

 

Findings of Fact

1.     In some cases, the use of competitive procurement processes is either not practicable, advantageous, or in the College's best interest due to unforeseen circumstances, unreasonable costs, difficulty in locating vendors even after extensive searches, or where time constraints occur that are due to circumstances beyond reasonable control.

 

2.     All practical measures will be taken to encourage competition when possible.

 

  1. The chief fiscal officer or designee will report to the Local Contract Review Board the reason(s) that competitive procurement processes were deemed to be impracticable and what steps, where possible, were taken to encourage competition if the acquisition meets or exceeds the Intermediate Procurement threshold as defined in Section 300, "Public Contracts Under Certain Dollar Amounts;" a copy of the waiver shall be placed on file in the Purchasing office or other designated official location.

 

Conclusion of Compliance with Law

It is unlikely that this exemption from competitive procurement processes will encourage favoritism in the awarding of public contracts or substantially diminish competition for such contracts as required by ORS 279B.085(3)(a), since it would be an Exception, and would be due to extenuating circumstances.  Additionally, this Special Procurement will substantially promote the public interest in a manner that could not practicably be realized by complying with requirements that are applicable under ORS 279B.055, 279B.060, 279B.065, or 279B.070 or under any rules adopted there under.  (Stat. Auth.:  ORS 279B.075 and 279B.085, Sole-Source Procurements and Special Procurements, respectively.)

 

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Personal Services Contracts (CCR250 Amended)                                                                                                                                  CCR.312

This rule replaces and amends Personal Services Contracts Rule CCR.250(I.)(2) to read:

 

(2)   The College may waive the requirement for a competitive selection process and directly negotiate a Personal Services Contract, if the contract price is not more than the Minimum Threshold as this threshold is defined in Section 300-Supplementary Provisions, Rule CCR.312 "Minimum Threshold" means $30,000;  "Intermediate Threshold" means $100,000.  Regardless of the dollar value of the contract, the College may, at its discretion, enter into a Personal Services Contract without complying with formal or informal solicitation requirements if an Emergency, as defined in CCR.207 exists.

(a)   Unless there are compelling reasons not to do so, competitive selection processes for Personal Services contractors should take place at intervals not greater than five years.

        (1)   Informal Selection Procedures may be used for contracts less than the Minimum Threshold (i.e., $30,000), but are not required to be used for contracts less than the Minimum Threshold.

        (2)   Informal Selection Procedures shall be used for contracts estimated or anticipated to be equal to or more than $30,000, but which are not estimated or anticipated to be more than the Intermediate Threshold (i.e., $100,000). 

        (3)   Formal Selection Procedures shall be used for contracts estimated or anticipated to be equal to or more than the Intermediate Threshold (i.e., $100,000), but may be used for contracts of any estimated dollar value if it is deemed to be in the college's best interest.

(b)   The screening and selection procedures for the award of Personal Services Contracts are governed by ORS 279A.055 and are subject to the competitive procurement provisions of the Personal Services Contracting rules and procedures adopted herein.  Every contract for Personal Services shall be based upon these screening and selection procedures developed by the College.  Personal Services Contracts are considered "public contracts" as defined in ORS 279A.010.  

 

This rule replaces and amends Personal Services Contracts Rule CCR.250(I.)(5) to read:

 

(5)   Personal Services Contract do not include:

  1. Contracts, even though in a professional capacity, if primarily for equipment, supplies or materials, e.g., a contract to supply all hardware and standard software is not a Personal Services Contract, but a contract with a technology consultant to design or develop a new computer system is a Personal Services Contract;
  2. Contracts with a temporary service or personnel agency to supply labor, which is of a type that can generally be done by any skilled worker;
  3. Contracts for services of a trade-related activity, even though a specific license is required to engage in the activity.  Examples are repair and/or maintenance of all types of equipment or structures;
  4. Employees.

 

Conclusion of Compliance with Law

The requirements of Rule CCR.250 and its subsequent amendment, CCR.312, ensure that competition will be carefully addressed and protected, if the College finds it is in the public's best interest to competitively procure Personal Services.  This rule satisfies the requirements of Oregon Revised Statute ORS 279A.055 wherein the College may enter into Personal Services contracts, subsequent to the local contract review board's designation of certain service contracts or classes of service contracts as personal services contracts.  Consequently, findings otherwise required by law are unnecessary here.

 

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Public Contracts Under Certain Dollar Amounts                                                                                                                                   CCR.314 

(1) the college shall submit recommendations for contract award to the Local Contract Review Board for contracts greater than $100,000, subsequent to College policies and procedures contained herein and defined in Appendix A.

(2)   The College may, at its discretion, enter into public contracts not to exceed $100,000 for the purchase of goods, materials, supplies, and services, including contracts for architectural, engineering, photogrammetric mapping, transportation planning, or land surveying services or related services, and public improvements or general trade services, without issuing a formal competitive Solicitation Document, if the College has determined that the awarding of the contract without issuing a formal competitive Solicitation Document will result in cost savings and the following conditions are met:

  1. The contract is for a single project, and is not a component of or related to any other project;
  2. When the amount of the contract does not exceed $10,000, defined herein as a "Small Procurement," the College shall, where feasible, obtain competitive quotes, unless the contract is for architectural, engineering, photogrammetric mapping, transportation planning, or land surveying services, or related services procedures in which case a Direct Appointment (see Appendix B, 137-048-0200), may be made for contracts with Estimated Fees less than $30,000;
  3. When the amount of the contract is more than $10,000, but less than $100,000, defined herein as an "Intermediate Procurement," and is not for architectural, engineering, photogrammetric mapping, transportation planning, or land surveying services, or related services, the College shall obtain a minimum of three informally solicited competitive quotes.  At least one of the three quotes should be obtained from a disadvantaged, minority, women or emerging small business enterprise certified under ORS 200.055 or a business enterprise that is owned or controlled by or that employs a disabled veteran, as defined in ORS 408.225. The College shall keep a written record of the source and amount of the quotes received.  If three quotes are not available, a lesser number will suffice provided that a written record is made of the effort to obtain the quotes;
  4. The College will  abide by ORS 279A.025(4), regarding Qualified Nonprofit Agencies, unless the required goods, materials, supplies or services are unavailable from a Qualified Nonprofit Agency as provided in ORS 279.835 to 279. 855;
  5. The College shall encourage Disadvantaged, Minority, Women-owned and Emerging Small Businesses to participate in its purchasing processes, where applicable. By notifying the Advocate for Minority, Women and Emerging Small Business as required by ORS 200.035; and
  6. The goods or services, or class of goods or services, are available from only one source and the determination of a sole source is based upon written findings in accordance with the provisions set forth in ORS 279B.075.

(3)           The College may, at its discretion, enter into Public Contracts not to exceed $100,000, where competitive procurement processes have been waived pursuant to ORS 279B.075 and/or 279B.085, and the provisions of CCR.310, “Exception (Including Sole Source) – Purchases of Goods or Services through.”

(4)   The College may, at its discretion, enter into public contracts for trade-related projects, i.e., construction, maintenance, repair, or similar labor and materials contracts without competitive bidding if the College has determined that the awarding of the contract without competitive bidding will result in cost savings and the following conditions are met:

  1. The contract is for a single project, and is not a component of or related to any other project;
  2. When the amount of the contract does not exceed $10,000, the College should, where feasible, obtain competitive quotes (ORS 279B.065);
  3. When the amount of the contract is more than $10,000, but less than $100,000 the College shall obtain a minimum of three competitive quotes.  The College shall keep a written record of the source and amount of the quotes received.  If three quotes are not available, a lesser number will suffice provided that a written record is made of the effort to obtain the quotes;
  4. When the contract is a public improvement contract of less than $100,000, and the bidders are being drawn exclusively from a list of certified Emerging Small Businesses maintained by the Office of Disadvantaged, Minority, Women and Emerging Small Business, the College may let the contract without formal competitive bidding after a good faith effort to obtain a minimum of three competitive quotes from Emerging Small Businesses.  To obtain maximum exposure for all firms and guard against favoritism, care shall be taken to obtain quotes from different firms each time the list is used.  The College shall keep a written record of the source and amount of the quotes received and comply with the requirements, as applicable, of subsection (2)(e) of this rule.  A lesser number will suffice provided a written record is maintained of the effort to obtain the quotes; and
  5. When the contract is for a "public improvement" as defined in ORS 279A.010(1)(aa) and/or for "public works" as defined in ORS 279C.800(5), and the contract price exceeds $50,000 but is less than $100,000, the College and the contractor shall comply with:
  6. The prevailing wage provisions of ORS 279C.800 to 279C.870, when applicable;
  7. The contractor registration requirements of ORS 701; and

iii)    Any other law applicable to such a contract.

(5)     If more than one supplier may be available and the total purchase is estimated to exceed $100,000, the College shall select a contractor through a formal competitive solicitation process;

(6)   Pursuant to ORS 279C.105, when the contract is for architectural, engineering, photogrammetric mapping, transportation planning, or  land surveying services, or related services, and the Estimated Fee is $100,000 or greater, the College shall screen and select a contractor through a formal competitive solicitation process as these procedures are defined in Appendix B, 137-048-0220, of these Community College Rules of Procurement. 

(7)   Renegotiated Contracts for Supplies and Services

The College may renegotiate the terms and conditions, including the Contract Price, of a Contract without additional competition and amend a Contract if it is in the best interest of the College subject to the following conditions:

  1. The College must determine that, with all things considered, the renegotiated Contract is at least as favorable to the College as the original Contract; and
  2. The renegotiated Contract will not have a total term greater than allowed in the original Solicitation Document, Contract or approval of a Special Procurement after combining the initial and extended terms.  For example, a one-year Contract, renewable each year for up to four additional years, may be renegotiated as a two to five-year Contract, but not beyond a total of five years.  Also, if Contracts with a single Contractor are restated as a single contract, the term of the single Contract may not have a total term greater than any one of the prior Contracts. 
  3. If a Contractor offers a lower price in exchange for a change in term or condition that was expressly rejected in the original solicitation, the amended Contract may be structured with this changed term as an optional, but not as a mandatory Contract term.
  4. If the Contract is the result of a Cooperative Procurement, the amended Contract must be within the Scope of the Original Contract and may not materially change the terms, conditions, and prices of the Original Contract.

 (8)  If the procurement is grant-funded, “Minimum Threshold” means the amount as identified by the grant-funding agency, if the grant-funding agency’s threshold requirements are more restrictive than the College’s. The College will follow the provisions of the Public Contracting rules of the grant-funding agency and/or those of the College, or a combination thereof, as identified by the grantor.

Comment:       

Public contract shall mean the "completed project cost basis" of a public contract (i.e., the total cost of performing one discrete, identifiable totality of work, including all components, shipping, warranty costs, service agreements obtained in conjunction with the purchase contract, reimbursables, and any other associated costs). 

 

Conclusion of Compliance with Law

This rule is more restrictive than the requirements of the Public Contracting Code.  As such, it is not an exemption or Special Procurement to the competitive bidding requirements of law.  Consequently, findings otherwise required by law are unnecessary here. 

 

* * * * *

Rejection of an Offer                                                                                                                                                                                   CCR.316

This rule amends (i.e., additions are indicated by italics and deletions are indicated by a line drawn through the word(s) that has been stricken.), Appendix B of these Community College Rules of Procurement (i.e., State of Oregon's DOJ Model Public Contract Rules 2004, Division 48), as follows:

 

OAR 137-047-0640(1)(b) shall be replaced with:

"(b)     The College may reject an Offer upon the College's finding that the Offer:"

 

OAR 137-049-0440(1)(b) shall be replaced with:

"(b)     The College may reject an Offer upon the College's finding that the Offer:"

 

Conclusion of Compliance with Law

As this amendment to the Attorney General's Public Contract Rules, 2004, is not a Special Procurement or exemption from the competitive procurement requirements of law, the College has determined that findings of fact are not required. 

 

* * * * *

 

Space Rentals (hotels, conferences, temporary offices, etcetera)                                                                                                     CCR.318 

Competitive procurement need not be used for the rental of real estate, floor space or other short- or long-term rentals of physical space. 

 

Findings of Fact

Many space rental transactions must, of necessity, take place in private in order to ensure that public disclosure will not have negative effects upon price or other contractual considerations.  Additionally, rentals are subject to considerable personal judgment in the selection of the space, its availability, its surrounds, its geographical location, the landlord, and the contract terms.  Many of these items are not subject to negotiation or are extremely difficult to compare objectively.  Moreover, many such rentals must be finalized in extremely short periods, occasionally within minutes, or the arrangement may be lost to another offeror.  It is not in the best interest of the public to disadvantage the College by necessitating an arduous selection process for rentals of space, which, of necessity, are highly subjective activities.

 

Conclusion of Compliance with Law

It is unlikely that this Special Procurement will result in favoritism in the awarding of public contracts or substantially diminish competition since all vendors, including Oregon businesses, are able to compete (ORS 279B.085(3)(a)), and it will enable the College to promote the public interest (ORS 279B(3)(b)(B)), through expediting its procurement processes without compromising integrity for cost.

 

* * * * *

 

Property Disposition                                                                                                                                                                         CCR.320

Auction Sales of Personal Property

Personal Property may be sold at auction if the College determines that the auction contemplated will probably result in a higher net return then if the property were sold by competitive written bid.

Sales of Personal Property

The College may sell personal property, including recyclable or reclaimed materials, without competitive bidding if it has determined that a negotiated sale will result in increased net revenue and the following conditions are met:

    1. the personal property has been made available to other College departments and local government units when deemed appropriate; and
    2. when the current market value per item is deemed to be less than $1000, the College may establish a selling price, schedule and advertise a sale date, and sell to the first qualified bidder meeting the sales terms; or
    3. when the current value per item is deemed to exceed $1,000 the personal property must be offered for competitive written bid and be advertised, or be offered for sale at public auction.
    4. When the personal property is deemed relevant to students enrolled in a certificate or degree program, the College may sell directly to students prior to making the sale available to the public.

 

Liquidation Sales of Personal Property

The College may sell personal property through a commercially recognized third party liquidator if it has determined that a liquidation sale will result in increased net revenue and the following conditions are net:

    1. the personal property has been made available to College departments and local government units; and
    2. selection of the liquidator was conducted by a competitive process.

 

Donations of Personal Property

The College may transfer personal property without remuneration or only nominal remuneration without competitive bids to the following entities:

    1. another public agency; or
    2. any QRF, work activity center or group care home which operates under contract or agreement with, or grant from, any State agency and which is certified to receive federal surplus property; or
    3. any recognized 501(c)(3)  non-profit activity.

 Trade of Personal Property 

 Surplus property may be traded for goods or services of an equivalent value, the intent to trade will be advertised on the College website.

 

    1. Property with an estimated value of $1,000 or less may be traded for goods or services of an equivalent value without conducting a competitive bid process.
    2. Surplus property with an estimated value in excess of $1,000 may be traded for goods or services of an equivalent or greater value:
  1. after a public solicitation of bids or public sale, and
  2. when the bids or offers received at the public sale are for less than the value of the goods or services for which the property is exchanged.

 

Destruction of Personal Property

Surplus property may be recycled or destroyed when the estimated unreimbursed costs of transfer or sale exceed the estimated proceeds or if no bids are received for the surplus items.

Conclusion of Compliance with Law

It is unlikely that this Special Procurement will result in favoritism in the disposition of surplus property.  The intent of CCR.320 is to minimize the costs of disposing of surplus property for items of low value, while ensuring that the College receives maximum return for items of greater value.  For items of limited value the costs of storage, advertising a sealed bid sale and the time consumed by the sale itself can take a larger portion of the proceeds received from sale.  The rule also allows for the donation of property to other specific entities when such action is deemed to be in the public good.              

APPENDIX B

Appendix B, Attorney General's Model Public Contract Rules with Commentary, effective January 1, 2010, may be purchased from the State of Oregon, Department of Justice, 100 Justice Building, 1162 Court Street NE, Salem, Oregon 97301-4096, or you may contact the Department of Justice at 503.378.2992, or 503.378.5938 (TTY).

The aforementioned Attorney General's Model Public Contract Rules, effective January 1, 2010, are incorporated by reference into these Chemeketa Community College Rules of Procurement.

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