Or. Admin. Code § 137-049-0430 - Negotiation When Bids Exceed Cost Estimate
(1) Generally. In accordance with ORS
279C.340, if all Responsive Bids from Responsible Bidders on a competitively
Bid Project exceed the Contracting Agency's Cost Estimate, prior to Contract
Award the Contracting Agency may negotiate Value Engineering and Other Options
with the Responsible Bidder submitting the lowest, Responsive Bid in an attempt
to bring the Project within the Contracting Agency's Cost Estimate. The
subcontractor disclosure and substitution requirements of OAR 137-049-0360 do
not apply to negotiations under this rule.
(2) Definitions. The following definitions
apply to this administrative rule:
(a) "Cost
Estimate" means the Contracting Agency's most recent pre-Bid, good faith
assessment of anticipated Contract costs, consisting either of an estimate of
an architect, engineer or other qualified professional, or confidential cost
calculation work sheets, where available, and otherwise consisting of formal
planning or budgetary documents.
(b) "Other Options" means those items
generally considered appropriate for negotiation in the RFP process, relating
to the details of Contract performance as specified in OAR 137-049-0650, but
excluding any material requirements previously announced in the solicitation
process that would likely affect the field of competition.
(c) "Project" means a Public
Improvement.
(d) "Value
Engineering" means the identification of alternative methods, materials or
systems which provide for comparable function at reduced initial or life-time
cost. It includes proposed changes to the plans, Specifications, or other
Contract requirements which may be made, consistent with industry practice,
under the original Contract by mutual agreement in order to take advantage of
potential cost savings without impairing the essential functions or
characteristics of the Public Improvement. Cost savings include those resulting
from life cycle costing, which may either increase or decrease absolute costs
over varying time periods.
(3) Rejection of Bids. In determining whether
all Responsive Bids from Responsible Bidders exceed the Cost Estimate, only
those Bids that have been formally rejected, or Bids from Bidders who have been
formally disqualified by the Contracting Agency, shall be excluded from
consideration.
(4) Scope of
Negotiations. Contracting Agencies shall not proceed with Contract Award if the
scope of the Project is significantly changed from the original Bid. The scope
is considered to have been significantly changed if the pool of competition
would likely have been affected by the change; that is, if other Bidders would
have been expected by the Contracting Agency to participate in the Bidding
process had the change been made during the solicitation process rather than
during negotiation. This rule shall not be construed to prohibit resolicitation
of trade subcontracts.
(5)
Discontinuing Negotiations. The Contracting Agency may discontinue negotiations
at any time, and shall do so if it appears to the Contracting Agency that the
apparent low Bidder is not negotiating in good faith or fails to share cost and
pricing information upon request. Failure to rebid any portion of the project,
or to obtain subcontractor pricing information upon request, shall be
considered a lack of good faith.
(6) Limitation. Negotiations may be
undertaken only with the lowest Responsive, Responsible Bidder pursuant to ORS
279C.340. That statute does not provide any additional authority to further
negotiate with Bidders next in line for Contract Award.
(7) Public Records. To the extent that a
Bidder's records used in Contract negotiations under ORS 279C.340 are public
records, they are exempt from disclosure until after the negotiated Contract
has been awarded or the negotiation process has been terminated, at which time
they are subject to disclosure pursuant to the provisions of the Oregon Public
Records Law, ORS 192.311 through 192.478.
Notes
Statutory/Other Authority: ORS 279C.340 & ORS 279A.065
Statutes/Other Implemented: ORS 279C.340
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