71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
 
NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .
 
LC 3842
 
                           B-Engrossed
 
                         House Bill 3804
                  Ordered by the Senate June 13
  Including House Amendments dated May 22 and Senate Amendments
                          dated June 13
 
Sponsored by Representative SIMMONS, Senator FERRIOLI;
  Representatives BUTLER, JENSON, KNOPP, G SMITH (at the request
  of Mr. Steve Anderson)
 
 
                             SUMMARY
 
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
 
  Requires Department of Transportation, Oregon Department of
Administrative Services and any other state   { - agency that
contracts for engineers, architects or land surveyors - }
 { + public contracting agency + } to adopt two-tiered selection
process { +  for contracts with engineers, architects and land
surveyors + }. Provides that two-tiered process must be used when
public improvement is owned by local government and state agency
is lead public contracting agency for personal service contract
for work on improvement. Requires that under two-tiered process,
state agency must provide local government with list of at least
three most qualified consultants from which local government will
select consultant. { +  Excludes local public contracting agency
that executes contract directly with engineer, architect or land
surveyor.
  Permits agency or political subdivision of state to enter into
personal service contract directly with consultant if contract is
for continuation of project begun under earlier contract that was
awarded pursuant to certain public contract rules adopted by
Attorney General. + }
 
                        A BILL FOR AN ACT
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. + }
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