Chapter 712 Oregon Laws 2001

AN ACT

HB 3804

Relating to public contracting; creating new provisions; and amending ORS 279.047, 279.049 and 279.057.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 279.047 is amended to read:

279.047. (1) If a person is prequalified with the Department of Transportation to perform contracts, or with the Oregon Department of Administrative Services to perform contracts, that person is rebuttably presumed qualified with any other public contracting agency for the same kind of work. When qualifying for the same kind of work with another public contracting agency, that person may submit proof of such prequalification in lieu of a prequalification application as required by ORS 279.039 (1) or as a request for prequalification under ORS 279.041 (1).

(2)(a) The Department of Transportation, the Oregon Department of Administrative Services or any other state public contracting agency shall adopt rules establishing a two-tiered selection process for when the department or agency executes contracts with engineers, architects and land surveyors to perform personal service contracts. This process shall apply only if:

(A) A public improvement is owned and maintained by a local government; and

(B) The Department of Transportation, the Oregon Department of Administrative Services or other state public contracting agency will serve as the lead state public contracting agency and will execute personal service contracts with engineers, architects and land surveyors for work on the public improvement project.

(b) The selection process required by paragraph (a) of this subsection shall require the lead state public contracting agency to select no fewer than the three most qualified consultants where feasible in accordance with ORS 279.057.

(c) The local government shall be responsible for the final selection of the consultant from the list of qualified consultants selected by the lead state public contracting agency or through an alternative process adopted by the local government.

(d) Nothing in this subsection applies to the selection process used by a local public contracting agency when the agency executes a contract directly with engineers, architects or land surveyors.

SECTION 2. ORS 279.049 is amended to read:

279.049. (1) The Attorney General shall prepare and maintain model rules of procedure appropriate for use by all public contracting agencies governing bid procedures, advertisements, the awarding of bids, retainage, claims, liens, bid security, payment and performance bonds and other matters involving public contracts, and may devise and publish forms for use therewith. The model rules prepared by the Attorney General under this section must be adopted by the Attorney General in the manner provided by ORS 183.310 to 183.550. Before adopting or amending any such rule, the Attorney General shall consult with the Director of the Oregon Department of Administrative Services, the Director of Transportation, representatives of county governments, representatives of city governments, representatives of school boards and other knowledgeable persons.

(2)(a) The Attorney General shall add to the model rules described in subsection (1) of this section a provision for procedures for the screening and selection of persons to perform architectural, [and] engineering and land surveying personal service contracts. In developing such procedures, the Attorney General shall use the least restrictive processes allowed under ORS 183.341.

(b) The Attorney General shall add to the model rules described in subsection (1) of this section a two-tiered selection process for contracts executed with engineers, architects and land surveyors to perform personal service contracts as required by ORS 279.047.

(3) After each legislative session, the Attorney General shall review all laws passed by the Legislative Assembly that affect public contracting to determine if the model rules prepared under this section should be modified by the adoption of a new rule or by the amendment or repeal of an existing rule. If the Attorney General determines that a modification to the model rules is necessary, the Attorney General shall prepare the modification within such time as to allow the modification to take effect no later than 120 days after the effective date of the legislation that caused the rule to be modified. However, the Attorney General may prepare a modification to take effect 121 days or more after the effective date of the legislation if the Attorney General provides notice designating the time period within which the modification will take effect to the state agencies and persons listed in subsection (1) of this section.

(4) All public contracting agencies that have not established their own rules of procedure under subsection (5) of this section are subject to the model rules adopted by the Attorney General under this section, including all modifications to the model rules that the Attorney General may adopt.

(5)(a) A public contracting agency may elect to establish its own rules of procedure for public contracts that:

(A) Specifically state that the model rules adopted by the Attorney General under this section do not apply to the agency; and

(B) Prescribe the rules of procedure that the agency will use for public contracts, which may include portions of the model rules adopted by the Attorney General.

(b) A public contracting agency that has adopted its own rules under paragraph (a) of this subsection shall review those rules each time the Attorney General adopts a modification to the model rules under subsection (3) of this section to determine whether any modifications need to be adopted by the agency to ensure compliance with statutory changes.

SECTION 3. ORS 279.057 is amended to read:

279.057. (1) A contract entered into by a public agency for the consulting services of registered professional engineers, registered architects or registered professional land surveyors is a personal service contract.

(2) A public agency shall select consultants described in subsection (1) of this section on the basis of qualifications for the type of professional service required. A public agency may solicit or use pricing policies and proposals or other pricing information to determine consultant compensation only after the public agency has selected a candidate under subsection (3) or (4)of this section.

(3) Subject to the requirements of subsection (2) of this section, the procedures that a public agency creates for the screening and selection of consultants and the selection of a candidate under this section shall be within the sole discretion of the public agency and may be adjusted to accommodate the public agency's scope, schedule and budget objectives for a particular project. Adjustments to accommodate an agency's objectives may include provision for the direct appointment of a consultant if the value of the project does not exceed a threshold amount as determined by the agency. Screening and selection procedures may include a consideration of each candidate's:

(a) Specialized experience, capabilities and technical competence that may be demonstrated by the proposed approach and methodology to meet the project requirements;

(b) Resources available to perform the work, including any specialized services, within the applicable time limits;

(c) Record of past performance, including but not limited to price and cost data from previous projects, quality of work, ability to meet schedules, cost control and contract administration;

(d) Ownership status and employment practices regarding women, minorities and emerging small businesses or historically underutilized businesses;

(e) Availability to the project locale;

(f) Familiarity with the project locale; and

(g) Proposed project management techniques.

(4) If the screening and selection procedures created by a public agency under subsection (3) of this section result in the determination by the public agency that two or more candidates are equally qualified, the public agency may select a candidate through any process adopted by the public agency.

(5) It is the goal of this state to promote a sustainable economy in the rural areas of the state. In order to monitor progress toward this goal, a state agency to which this section applies shall keep a record of the locations for the personal service contracts to be performed throughout the state that are entered into on or after the effective date of this 2001 Act, the locations of the selected consultants and the direct expenses on each contract. This record shall include the total number of contracts over a 10-year period for each consultant firm. The record of direct expenses shall include all personnel travel expenses as a separate and identifiable expense on the contract. Upon request, the state agency shall make these records available to the public.

[(4)] (6) The public agency and the selected candidate shall mutually discuss and refine the scope of services for the project and shall negotiate conditions, including but not limited to compensation level and performance schedule, based on the scope of services. The compensation level paid must be reasonable and fair to the public agency as determined solely by the public agency. Authority to negotiate a contract under this section does not supersede any provision of ORS 279.316 or 279.712.

[(5)] (7) If the public agency and the selected candidate are unable for any reason to negotiate a contract at a compensation level that is reasonable and fair to the public agency, the public agency shall, either orally or in writing, formally terminate negotiations with the selected candidate. The public agency may then negotiate with another candidate. The negotiation process may continue in this manner through successive candidates until an agreement is reached or the agency terminates the consultant contracting process.

[(6)] (8) Notwithstanding ORS 279.011, this section applies only if the public agency personal service contract is issued by an agency of the State of Oregon and not by an agency of any political subdivision thereof or any public body created by intergovernmental agreement.

SECTION 4. Section 5 of this 2001 Act is added to and made a part of ORS 279.011 to 279.063.

SECTION 5. (1) As used in this section, “consultant” means a registered professional engineer, registered architect or registered professional land surveyor.

(2) An agency of any political subdivision of this state may enter into a personal service contract directly with a consultant if the project described in the personal service contract consists of work that has been substantially described, planned or otherwise previously studied or rendered in an earlier contract with the consultant that was awarded pursuant to rules adopted under ORS 279.049 and the new contract is a continuation of that project.

(3) A political subdivision may adopt criteria for determining when this section shall apply to a personal service contract.

SECTION 6. Section 5 of this 2001 Act and the amendments to ORS 279.047, 279.049 and 279.057 by sections 1 to 3 of this 2001 Act apply to public contracts entered into on or after the effective date of this 2001 Act.

Approved by the Governor July 2, 2001

Filed in the office of Secretary of State July 2, 2001

Effective date January 1, 2002

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