TITLE 10 137-049.pdf670); and all of the Prevailing Wage Rates re-quirements (ORS 279C.800 through 870) for Public Works Contracts. [Adopted 2005-052 eff 3/1/05; amd 2020-060 eff …

TITLE 10

SPECIAL ORDINANCES, REGULATIONS, RULES, POLICIES, ANDBARGAINING AGREEMENTS

LCPR 137-049

GENERAL PROVISIONS RELATED TOPUBLIC CONTRACTS FOR CONSTRUC-

TION SERVICES

TABLE OF CONTENTS

Section Title

I. GENERAL PROVISIONS RELATED TO PUBLIC CON-TRACTS 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 Contracts for Emergency Work; Bid-

ding and Bonding Exemptions 137-049-0155 Small Public Improvement Contracts Exempted from Competitive Bids 137-049-0160 Intermediate Procurements; Competi-

tive Quotes and Amendments

II. FORMAL PROCUREMENT RULES

137-049-0200 Solicitation Documents:; RequiredProvisions; 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; Registra-

tion 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 137-049-0300 Facsimile Bids and Proposals 137-049-0310 Electronic Procurement

137-049-0320 Pre-Closing Modification or Withdrawalof Offers

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

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

137-049-0350 Mistakes 137-049-0360 First-Tier Subcontractors; Disclosure

and Substitution 137-049-0370 Disqualification of Persons 137-049-0380 Bid or Proposal Evaluation Criteria 137-049-0390 O f f e r E v a l ua t i o n a n d A w a r d ;

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 Offer Acceptance; Extension 137-049-0420 Negotiation With Bidders Prohibited 137-049-0430 Negotiation When Bids Exceed Cost

Estimate 137-049-0440 Rejection of Offers 137-049-0450 Protest of Contractor Selection, Con-

tract Award 137-049-0460 Performance and Payment Security;

Waiver 137-049-0470 Substitute Contractor 137-049-0490 Foreign Contractor

III. ALTERNATIVE CONTRACTING METHODS

137-049-0600 Purpose 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 Con-

tractor Services

(Latest rev. June 23, 2020) LINN COUNTY — GENERAL PROVISIONS RELATED TO PUBLIC 137-049 Page 1Distribution CONTRACTS FOR CONSTRUCTION SERVICES

Run time: June 23, 2020 (3:49pm)

IV. CONTRACT PROVISIONS

137-049-0800 Required Contract Clauses 137-049-0810 Waiver of Delay Damages Against Pub-

lic 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 Procurement s Contracts 137-049-0870 Specifications; Brand Name Products 137-049-0880 Records Maintenance; Right to Audit

Records 137-049-0890 County Payment for Unpaid Labor or

Supplies 137-049-0900 Contract Suspension; Termination

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

Amendments

Statutory References and Other Authorities

Legislative History of LCPR 137-049

I. GENERAL PROVISIONS RELATED TO PUBLIC

CONTRACTS FOR CONSTRUCTION SERVICES

137-049-0100 Application (1) These Division 49 rules apply to Public

Improvement Contracts as well as Public Con-tracts for ordinary construction services that arenot Public Improvements. Model Rules that applyspecifically to Public Improvement Contracts areso identified. These Division 49 rules apply toContracts for Construction Manager/GeneralContractor Services, whether the initial Contractbetween the parties includes both pre-constructionservices and construction services, or only con-tains pre-construction services, since the underly-ing Procurement for Construction Man-ager/General Contractor Services authorizesContracting Agencies to enter into Contracts forboth pre-construction and construction services.

(2) These Division 49 rules address matterscovered in ORS Chapter 279C (with the exceptionof Architectural, Engineering, Land Surveying andRelated Services, all of which are addressed inDivision 48 of the LCPR).

[Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20]Stats. Implemented: ORS 279A.065

137-049-0110 PoliciesIn addition to the general Code policies set

forth in ORS 279A.015, the ORS 279C.300 policyon competition and the ORS 279C.305 policy onleast-cost for Public Improvements apply to theseDivision 49 rules.[Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20]Stats. Implemented: ORS 279C.300 & ORS 279C.305

137-049-0120 Definitions(1) "Amendment " means a Written modifi-

cation to the terms and conditions of a PublicImprovement Contract, other than by ChangeOrder, within the general scope of the originalProcurement that requires mutual agreementbetween the County and the Contractor.

(2) "Bid Form" means the documented Offersubmitted in response to an ITB. It may include,but is not limited to, the pricing submittal form,the first-tier disclosure form, the certifications andacknowledgment form, and the Offeror signatureform.

(3) "Change Order" means a Written order,signed by an authorized County representative,directed to the Contractor that requires a change inthe Work within the general scope of the originalContract, adjusts the Contract Price, and/or altersthe completion date of a Public ImprovementContract.

(4) "Conduct Disqualification" means aDisqualification pursuant to ORS 279C.440.

(5) "Construction" means the initial con-struction of County buildings and other structures,or additions thereto, and of County highways androads.

(6) "Disqualification" means the preclusionof a Person from contracting with the County fora period of time in accordance with LCPR137-049-0370.

(7) "Findings" has the meaning as set forth inORS 279C.330.

(8) "Foreign Contractor" means a Contrac-tor that is not domiciled in or registered to do

137-049 Page 2 LINN COUNTY — GENERAL PROVISIONS RELATED TO PUBLIC

CONTRACTS FOR CONSTRUCTION SERVICES (Latest rev. June 23, 2020)

Run time: June 23, 2020 (3:49pm) Distribution

business in the State of Oregon. (See LCPR137-049-0480).

(9) "Major Renovation" means the remodel-ing or alteration of County buildings, structures,highways, and roads that is not a minor alteration,ordinary repair, or maintenance of the Countybuilding, structure, highway, or road.

(10) "Notice" means any of the alternativeforms of public announcement of Procurements,as described in LCPR 137-049-0210.

(11) "Public Improvement" means a projectfor construction, reconstruction, or major renova-tion on real property by or for the County. "PublicImprovement" does not include: (a) projects forwhich no funds of the County are directly orindirectly used, except for participation that isincidental or related primarily to project design orinspection; or (b) emergency work, minor alter-ation, ordinary repair or maintenance necessary topreserve the real property.

(12) "Public Works" has the meaning as setforth in ORS 279C.800(6), and generally includes,but is not limited to, construction, reconstruction,major renovation, or painting projects where thetotal project cost is $50,000 or greater, and wherethe project directly or indirectly uses Countyfunds. In determining the total project cost, theCounty shall include the collective value of allWork being performed on the project, includingWork performed by each and all Contractors,subcontractors, and/or any other Persons beingpaid by a Contractor or subcontractor to Work onthe project.

(13) "Reconstruction" means the resurfacingand rebuilding of County highways and roads, therestoration of existing County highways androads, and the restoration of County buildings andother structures, none of which is considered aminor alteration, ordinary repair, or maintenanceof the County highway, road, building, or structur-e.[Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20]Stats. Implemented: ORS 279A.065, ORS 279A.010, & ORS 279C.800

137-049-0130 Competitive Bidding Require-ment

The County shall solicit Bids for PublicImprovement Contracts by Invitation to Bid("ITB"), except as otherwise allowed or requiredpursuant to ORS 279C.335 on competitive bid-ding exceptions and exemptions, 279A.030 onfederal law overrides, or 279A.100 on affirmativeaction. Also see LCPR 137-049-0600 to137-049-0690 regarding the use of AlternativeContracting Methods, use of Alternative Contract-ing Methods for Public Improvement projectswhich are excepted or exempt from the competi-tive Bidding process, use of Alternative Contract-ing Methods within the competitive Biddingprocess, and the process for obtaining an exemp-tion from competitive Bidding requirements.[Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20]Stats. Implemented: ORS 279C.335

137-049-0140 Contracts for ConstructionOther Than Public Improve-ments

(1) Procurement Under ORS Chapter279B. Pursuant to ORS 279C.320, Public Con-tracts for construction Services that are not PublicImprovement Contracts may be procured andamended as general trade Services under theprovisions of ORS Chapter 279B rather thanunder the provisions of ORS Chapter 279C andthese Division 49 rules. Emergency Contracts forconstruction Services are not Public ImprovementContracts and are regulated under ORS 279B.080and LCPR 137-048-0280.

(2) Application of ORS Chapter 279C.Non-procurement provisions of ORS Chapter279C and these Division 49 rules may still beapplicable to the resulting Contracts. See, forexample, particular statutes on Disqualification(ORS 279C.440, 445 and 450); Legal Actions(ORS 279C.460 and 465); Required ContractConditions (ORS 279C.505, 515, 520 and 530);Hours of Labor (ORS 279C.540 and 545); Retain-age (ORS 279C.550, 555, 560, 565 and 570);Subcontracts (ORS 279C.580); Action on Pay-ment Bonds (ORS 279C.600, 605, 610, 615, 620



and 625); Termination (ORS 279C.650, 660 and670); and all of the Prevailing Wage Rates re-quirements (ORS 279C.800 through 870) forPublic Works Contracts.[Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20]Stats. Implemented: ORS 279C.320

137-049-0150 Contracts for Emergency Work;Bidding and Bonding Exemp-tions

(1) Emergency Declaration. The Countymay declare that Emergency circumstances existthat require prompt execution of a Public Contractfor Emergency construction or repair Work. Thedeclaration shall be made by either the Board orthe Linn County Administrative Officer by aWritten declaration that describes the circum-stances creating the Emergency and the antici-pated harm from failure to enter into an Emer-gency Contract. The Emergency declaration shallexempt the Public Contract from the competitiveBidding requirements of ORS 279C.335(1) andshall thereafter be kept on file as a public record.

(2) Competition for Contracts. Pursuant toORS 279C.320(1), Emergency Contracts areregulated under ORS 279B.080, which providesthat the County will ensure competition that isreasonable and appropriate under the Emergencycircumstances, and may include Written requestsfor Offers, oral requests for Offers, or directappointment without competition in cases ofextreme necessity, in whatever Solicitation timeperiods the County considers reasonable in re-sponding to the Emergency.

(3) Emergency Contract Scope. Althoughno dollar limitation applies to Emergency Con-tracts, the scope of the Contract must be limited toWork that is necessary and appropriate to remedythe conditions creating the Emergency as de-scribed in the declaration.

(4) Emergency Contract Modification.Emergency Contracts may be modified by ChangeOrder or Amendment to address the conditionsdescribed in the original declaration or an amend-ed declaration that further describes additional

work necessary and appropriate for related Emer-gency circumstances.

(5) Excusing Bonds. Pursuant to ORS279C.380(4) and this rule, the Emergency declara-tion may also state that the County waives therequirement of furnishing a performance bond andpayment bond for the Emergency Contract. Aftermaking such an Emergency declaration the bond-ing requirements are excused for the Procurement,but this Emergency declaration does not affect theseparate Public Works bond requirement for thebenefit of the Bureau of Labor and Industries(BOLI) in enforcing prevailing wage rate andovertime payment requirements. See LCPR137-049-0815 and BOLI rules at OAR839-025-0015.[Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20; amd 2020-163 eff06/23/20]Stats. Implemented: ORS 279B.080, 279C.320 & 279C.380

137-049-0155 Small Public Improvement Con-tracts Exempted from Competi-tive Bids

(1) Pursuant to ORS 279C.335(1)(c), theCounty may Award a Public Improvement Con-tract with a value of less than $5,000 (a "SmallPublic Improvement Contract") in any mannerdeemed practical or convenient by the County,including by direct selection, appointment, orAward.

(2) A Small Public Improvement Contractmay be modified in accordance with LCPR137-049-0910, but the cumulative modificationsshall not increase the total Contract Price togreater than $5,000. If the Contract Price exceeds$5,000, the Work must be competitively bid orquoted as otherwise required herein.

(3) A Procurement may not be artificiallydivided or fragmented so as to establish a SmallPublic Improvement Contract under this rule.[Adopted 2020-060 eff 03/17/20]Stats. Implemented: ORS 279C.335




137-049-0160 Intermediate Procurements;Competitive Quotes and Amend-ments

(1) General. Public Improvement Contractsestimated by the County not to exceed $100,000may be Awarded in accordance with intermediatelevel Procurement procedures for competitivequotes established by this rule.

(2) Selection Criteria. The selection criteriamay be limited to price or some combination ofprice, experience, specific expertise, availability,project understanding, contractor capacity, respon-sibility and similar factors.

(3) Request for Quotes. The County shallutilize Written Requests for Quotes wheneverreasonably practicable. Written Requests forQuotes shall include the selection criteria to beutilized in selecting a Contractor and, if the crite-ria are not of equal value, their relative value orranking. When requesting quotations orally, priorto requesting the price quote the County shall stateany additional selection criteria and, if the criteriaare not of equal value, their relative value. ForPublic Works Contracts, oral quotations may beutilized only in the event that Written copies ofthe prevailing wage rates are not required by theBureau of Labor and Industries.

(4) Number of Quotes; Record Required.The County shall seek at least three competitivequotes, and keep a Written record of the sourcesand amounts of the quotes received. If threequotes are not reasonably available, the Countyshall make a Written record of the effort made toobtain those quotes.

(5) Award. If Awarded, the County shallAward the Contract to the prospective contractorwhose quote will best serve the interests of theCounty, taking into account the announced selec-tion criteria. If Award is not made to the Offeroroffering the lowest price, the County shall make aWritten record of the basis for Award.

(6) Price Increases. Intermediate level PublicImprovement Contracts obtained by competitivequotes may be increased above the originalamount of Award by the County’s issuance of a

Change Order or Amendment, pursuant to LCPR137-049-0910, within the following limitations:

(a) Up to an aggregate Contract Priceincrease of 25% over the original Contract amountwhen the County’s authorized representativedetermines that a price increase is warranted foradditional reasonably related Work, and;

(b) Up to an aggregate Contract Priceincrease of 50% over the original Contractamount, when the County determines that a priceincrease is warranted for additional reasonablyrelated Work and the Board approves the increase.

(7) Amendments. Amendments of intermedi-ate level Public Improvement Contracts thatexceed the thresholds stated in Section (1) of thisrule are specifically authorized by the Code whenmade in accordance with this rule. Accordingly,such Amendments are not considered newProcurements and do not require an exemptionfrom competitive Bidding.[Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20; amd 2020-163 eff06/23/20]Stats. Implemented: Temporary provisions relating to competitive quotes were notcodified but compiled as Legislative Counsel notes following ORS 279C.410.

II. FORMAL PROCUREMENT RULES

137-049-0200 Sol ici tat ion Documents;Required Provisions; Assign-ment or Transfer

(1) Solicitation Document. Pursuant to ORS279C.365 and this rule, the Solicitation Documentshall include the following:

(a) General Information.(A) Identification of the Public Im-

provement project, including the character of theWork, and applicable plans, Specifications, andother Contract documents;

(B) Notice of any pre-Offer confer-ence as follows:

(i) The time, date and location ofany pre-Offer conference;

(ii) Whether attendance at the con-ference will be mandatory orvoluntary; and



(iii) That statements made bythe County’s representa-tives at the conference arenot binding upon theCounty unless confirmedby Written Addendum.

(C) The deadline for submittingmandatory prequalification applications and theclass or classes of Work for which Offerors mustbe prequalified if prequalification is a require-ment;

(D) The name and title of the autho-rized Person designated by the County for receiptof Offers and contact Person (if different);

(E) Instructions and informationconcerning the form and submission of Offers,including the address of the office to which Offersmust be delivered, any Bid or Proposal securityrequirements, and any other required informationor special information, e.g., whether Offers maybe submitted by facsimile or electronic means(See LCPR 137-049-0300 regarding facsimileBids or Proposals and LCPR 137-049-0310regarding electronic Procurement);

(F) The time, date and place of Open-ing;

(G) The time and date of Closing afterwhich the County will not accept Offers, whichtime shall be not less than five Days after the dateof the last publication of the advertisement. If theCounty is issuing an ITB that may result in aPublic Improvement Contract with a value inexcess of $100,000, the County shall designate atime of Closing consistent with the first-tiersubcontractor disclosure requirements of ORS279C.370(1)(b) and LCPR 137-049-0360. Fortiming issues relating to Addenda, see LCPR137-049-0250;

(H) The office where the Specifica-tions for the Work may be reviewed;

(I) A statement that each Bidder to anITB must identify whether the Bidder is a "resi-dent Bidder," as defined in ORS 279A.120;

(J) If the Contract resulting from aSolicitation will be a Contract for a Public Work

subject to ORS 279C.800 to 279C.870 or theDavis-Bacon Act (40 U.S.C. 3141 to 3148), astatement that no Offer will be received or consid-ered by the County unless the Offer contains astatement by the Offeror as a part of its Offer that"Contractor agrees to be bound by and will com-ply with the provisions of ORS 279C.840 or 40U.S.C. 3141 to 3148.";

(K) A statement that the County willnot receive or consider an Offer for a PublicImprovement Contract unless the Offeror isregistered with the Construction ContractorsBoard, or is licensed by the State LandscapeContractors Board, as specified in LCPR137-049-0230;

(L) Whether a Contractor or a subcon-tractor under the Contract must be licensed underORS 468A.720 regarding asbestos abatementprojects;

(M) Contractor’s certification ofnondiscrimination in obtaining required subcon-tractors in accordance with ORS 279A.110(4).(See LCPR 137-049-0440(3));

(N) How the County will notifyOfferors of Addenda and how the County willmake Addenda available (See LCPR137-049-0250); and

(O) When applicable, instructions andforms regarding First-Tier Subcontractor Disclo-sure requirements, as set forth in LCPR137-049-0360.

(b) Evaluation Process:(A) A statement that the County may

reject any Offer not in compliance with all pre-scribed Public Contracting procedures and re-quirements, including the requirement to demon-strate the Bidder’s responsibility under ORS279C.375(3)(b), and may reject for good cause allOffers upon the County’s finding that doing so isin the public interest;

(B) The anticipated Solicitationschedule, deadlines, protest process and evalua-tion process, if any;

(C) Evaluation criteria, including therelative value applicable to each criterion, that the




County will use to determine the ResponsibleBidder with the lowest Responsive Bid (whereAward is based solely on price) or the Responsi-ble Proposer or Proposers with the best Respon-sive Proposal or Proposals (where use of Compet-itive Proposals is authorized under ORS 279C.335and LCPR 137-049-0620), along with the processthe County will use to determine acceptability ofthe Work;

(i) If the Solicitation Document isan Invitation to Bid, theCounty shall set forth any spe-cial price evaluation factors inthe Solicitation Document.Examples of such factors in-clude, but are not limited to,conversion costs, transporta-tion cost, volume weighing,trade-in allowances, cash dis-counts, depreciation allow-ances, cartage penalties, own-ership or life-cycle cost formu-las. Price evaluation factorsneed not be precise predictorsof actual future costs; but, tothe extent possible, such eval-uation factors shall be objec-tive, reasonable estimatesbased upon information theCounty has available concern-ing future use;

(ii) If the Solicitation Document isa Request for Proposals, theCounty will refer to the addi-tional requirements of LCPR137-049-0650; and

(c) Contract Provisions. The County shallinclude all Contract terms and conditions, includ-ing warranties, insurance and bonding require-ments, that the County considers appropriate forthe Public Improvement project. The County willalso include all applicable Contract provisionsrequired by Oregon law as follows:

(A) Prompt payment to all Personssupplying labor or material; contributions to

Industrial Accident Fund; liens and withholdingtaxes (ORS 279.505(1));

(B) Demonstrate that an employeedrug testing program is in place (ORS279C.505(2));

(C) If the Contract calls for demolitionWork described in ORS 279C.510(1), a conditionrequiring the Contractor to salvage or recycleconstruction and demolition debris, if feasible andcost-effective;

(D) If the Contract calls for lawn orlandscape maintenance, a condition requiring theContractor to compost or mulch yard waste mate-rial at an approved site, if feasible and cost effec-tive (ORS 279C.510(2));

(E) Payment of claims by publicofficers (ORS 279C.515(1));

(F) Contractor and first-tier subcon-tractor liability for late payment on Public Im-provement Contracts pursuant to ORS279C.515(2), including the rate of interest;

(G) Person’s right to file a complaintwith the Construction Contractors Board for allContracts related to a Public Improvement Con-tract (ORS 279C.515(3));

(H) Hours of labor in compliance withORS 279C.520;

(I) Environmental and natural re-sources regulations (279C.525);

(J) Payment for medical care andattention to employees (ORS 279C.530(1));

(K) A Contract provision substantiallyas follows: "All employers, including Contractor,that employ subject Workers who Work under thisContract in the State of Oregon shall comply withORS 656.017 and provide the required Workers’Compensation coverage, unless such employersare exempt under ORS 656.126. Contractor shallensure that each of its subcontractors complieswith these requirements." (ORS 279C.530(2));

(L) Maximum hours, holidays andovertime (ORS 279C.540);

(M) Time limitation on claims forovertime (ORS 279C.545);



(N) Prevailing wage rates (ORS279C.800 to 279C.870);

(O) BOLI Public Works bond (ORS279C.830(2));

(P) Retainage (ORS 279C.550 to279C.570);

(Q) Prompt payment policy, progresspayments, rate of interest (ORS 279C.570);

(R) Contractor’s relations with sub-contractors (ORS 279C.580);

(S) Notice of claim (ORS 279C.605);(T) Contractor’s certification of

compliance with the Oregon tax laws in accor-dance with ORS 305.385; and

(U) Contractor’s certification that allsubcontractors performing Work described inORS 701.005(2) (i.e., construction Work) will beregistered with the Construction ContractorsBoard or licensed by the State Landscape Contrac-tors Board in accordance with ORS 701.035 to701.055 before the subcontractors commenceWork under the Contract.

(2) Assignment or Transfer Restricted.Unless otherwise provided in the Contract, theContractor shall not assign, sell, dispose of, ortransfer rights, nor delegate duties under theContract, either in whole or in part, without theCounty’s prior Written consent. Unless otherwiseagreed by the County in Writing, such consentshall not relieve the Contractor of any obligationsunder the Contract. Any assignee or transfereeshall be considered the agent of the Contractorand be bound to abide by all provisions of theContract. If the County consents in Writing to anassignment, sale, disposal or transfer of the Con-tractor’s rights or delegation of Contractor’sduties, the Contractor and its surety, if any, shallremain liable to the County for complete perfor-mance of the Contract as if no such assignment,sale, disposal, transfer or delegation had occurredunless the County otherwise agrees in Writing.[Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20]Stats. Implemented: ORS 279A.110, ORS 279A.120, ORS 279C.365, ORS279C.370, ORS 279C.390, ORS 279C.505 to 580, ORS 279C.605, ORS 305.385,ORS 468A.720, ORS 701.005 & ORS 701.055

137-049-0210 Notice and Advertising Require-ments; Posting

(1) Notice and Distribution Fee. The Countyshall furnish "Notice" as set forth below in sub-sections (a) through (c), to a number of Personssufficient for the purpose of fostering and promot-ing competition. The Notice shall indicate where,when, how and for how long the SolicitationDocument may be obtained and generally describethe Public Improvement project or Work. TheNotice may contain any other appropriate infor-mation. The County may charge a fee or require adeposit for the Solicitation Document. TheCounty may furnish Notice using any methoddetermined to foster and promote competition,including:

(a) Mailing Notice of the availability ofSolicitation Documents to Persons that haveexpressed an interest in the County’s Procure-ments;

(b) Placing Notice on the County’s Elec-tronic Procurement System; or

(c) Placing Notice on the County’sInternet Web site.

(2) Advertising. Pursuant to ORS 279C.360and this rule, the County shall advertise everySolicitation for competitive Bids or competitiveProposals for a Public Improvement Contract,unless the Board of Commissioners has exemptedthe Solicitation from the advertisement require-ment as part of a competitive Bidding exemptionunder ORS 279C.335.

(a) Unless the County publishes by Elec-tronic Advertisement as permitted under subsec-tion 2(b), the County will publish the advertise-ment for Offers at least once in at least one news-paper of general circulation in Linn County and inas many additional issues and publications as theCounty may determine to be necessary or desir-able to foster and promote competition.

(b) The County may publish by ElectronicAdvertisement if the Board of Commissionersdetermines Electronic Advertisement is likely tobe cost effective and by order, authorizes Elec-tronic Advertisement.




(c) In addition to the County’s publicationrequired under subsection 2(a) or 2(b), the Countywill also publish an advertisement for Offers in atleast one trade newspaper of general statewidecirculation if the Contract is for a Public Improve-ment with an estimated cost in excess of$125,000.

(d) All advertisements for Offers will setforth:

(A) The Public Improvement project;(B) The office where Contract terms,

conditions, and Specifications may be reviewed;(C) The date that Persons must file

applications for prequalification under ORS279C.340, if prequalification is a requirement, andthe class or classes of Work for which Personsmust be prequalified;

(D) The scheduled Closing, whichshall not be less than five days after the date of thelast publication of the advertisement;

(E) The name, title, and address of thePerson authorized to receive Offers;

(F) The scheduled Opening; and(G) If applicable, that the Contract is

for a Public Works subject to ORS 279C.800 to279C.870 or the Davis-Bacon Act (40 U.S.C.276(a)).[Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20]Stats. Implemented: ORS 279C.360 & ORS 200.035

137-049-0220 Prequalification of Offerors(1) Prequalification. Pursuant to ORS

279C.430 and this rule, two types ofprequalification are authorized:

(a) Mandatory Prequalification. TheCounty may, by rule, resolution, ordinance orother law or regulation, require mandatoryprequalification of Offerors on forms prescribedby the County. The County shall indicate in theSolicitation Document if it will require mandatoryprequalification. Mandatory prequalification iswhen the County conditions a Person’s submis-sion of an Offer upon the Person’sprequalification. The County shall not consider anOffer from a Person that is not prequalified ifPrequalification was required.

(b) Permissive Prequalification. TheCounty may prequalify a Person for the County’ssolicitation list on forms prescribed by the Board,but in permissive prequalification the County shallnot limit distribution of a solicitation to that list.

(2) Prequalification Presumed. If an Offeroris currently prequalified by either the OregonDepartment of Transportation or the OregonDepartment of Administrative Services to performContracts, the Offeror shall be rebuttably pre-sumed qualified to perform similar Work for theCounty.

(3) Standards for Prequalification. APerson may prequalify by demonstrating to theCounty’s satisfaction:

(a) That the Person’s financial, material,equipment, facility and personnel resources andexpertise, or ability to obtain such resources andexpertise, indicate that the Person is capable ofmeeting all contractual responsibilities;

(b) The Person’s record of performance; (c) The Person’s record of integrity; (d) The Person is qualified to contract

with the County. (See, LCPR 137-049-0390(2)regarding standards of responsibility.)

(4) Notice Of Denial. If a Person fails to pre-qualify for a mandatory prequalification, theCounty shall notify the Person, specify the reasonsunder Section (3) of this rule and inform thePerson of the Person’s right to a hearing underORS 279C.445 and 279C.450.[Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20; amd 2020-163 eff06/23/20]Stats. Implemented: ORS 279C.430 & ORS 279C.435

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

(1) Construction Contracts. The Countyshall not consider a Person’s Offer to do Work asa contractor, as defined in ORS 701.005(2), unlessthe Person has a current, valid certificate of regis-tration issued by the Construction ContractorsBoard at the time the Offer is made.

(2) Landscape Contracts. The County shallnot consider a Person’s Offer to do Work as alandscape contractor as defined in ORS671.520(2), unless the Person has a current, valid



landscape contractors license issued pursuant toORS 671.560 by the State Landscape ContractorsBoard at the time the offer is made.

(3) Noncomplying Entities. The Countyshall deem an Offer received from a Person thatfails to comply with this rule nonresponsive andshall reject the Offer as stated in ORS279C.365(1)(k), unless contrary to federal law orsubject to different timing requirements set byfederal funding agencies.[Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20]Stats. Implemented: ORS 279C.365, ORS 671.530 & ORS 701.055

137-049-0240 Pre-Offer Conferences(1) Purpose. The County may hold pre-Offer

conferences with prospective Offerors prior toClosing, to explain the Procurement requirements,obtain information or to conduct site inspections.

(2) Required attendance. The County mayrequire attendance at the pre-Offer conference asa condition for making an Offer. Unless otherwisespecified in the Solicitation Document, a manda-tory attendance requirement is considered to havebeen met if, at any time during the mandatorymeeting, a representative of an offering firm ispresent.

(3) Scheduled time. If the County holds apre-Offer conference, it shall be held within areasonable time after the Solicitation Documenthas been issued, but sufficiently before the Clos-ing to allow Offerors to consider informationprovided at that conference.

(4) Statements Not Binding. Statementsmade by the County’s representative at thepre-Offer conference do not change the Solicita-tion Document unless the County confirms suchstatements with a Written Addendum to theSolicitation Document.

(5) County Announcement. The Countyshall set forth notice of any pre-Offer conferencein the Solicitation Document in accordance withLCPR 137-049-0200(1)(a)(B).[Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20]Stats. Implemented: ORS 279C.365 and 279C.370

137-049-0250 Addenda to Solicitation Docu-ments

(1) Issuance; Receipt. The County maychange a Solicitation Document only by WrittenAddenda. An Offeror shall provide Written ac-knowledgment of receipt of all issued Addendawith its Offer, unless the County otherwise speci-fies in the Addenda or in the Solicitation Docu-ment.

(2) Notice and Distribution. The Countyshall notify prospective Offerors of Addendaconsistent with the standards of Notice set forth inLCPR 137-049-0210(1). The Solicitation Docu-ment shall specify how the County will providenotice of Addenda and how the County will makethe Addenda available (see, LCPR137-049-0200(1)(a)(N).) For example, "TheCounty will not mail notice of Addenda, but willpublish notice of any Addenda on the County’sWeb site. Addenda may be downloaded off theCounty’s Web site. Offerors should frequentlycheck the County’s Web site until closing, i.e., atleast once weekly until the week of Closing and atleast once daily the week of the Closing,"

(3) Time lines; Extensions. The County shallissue Addenda within a reasonable time to allowprospective Offerors to consider the Addenda inpreparing their Offers. The County may extend theClosing if the County determines prospectiveOfferors need additional time to review andrespond to Addenda. Except to the extent requiredby public interest, the County will not issueAddenda less than 72 hours before the Closingunless the Addendum also extends the Closing.

(4) Request for Change or Protest. Unlessa different deadline is set forth in the Addendum,an Offeror may submit a Written request forchange or protest to the Addendum, as provided inLCPR 137-049-0260, by the close of the County’snext business day after issuance of the Addendum,or up to the last day allowed to submit a requestfor change or protest under LCPR 137-049-0260,whichever date is later. The County shall consideronly an Offeror’s request for change or protest tothe Addendum; the County shall not consider a




request for change or protest to matters not addedor modified by the Addendum, unless the Offerorsubmits the request for change or protest beforethe deadline for the County’s receipt of request forchange or protests as set forth in LCPR137-049-0260(2) and (3).[Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20]Stats. Implemented: ORS 279C.395 & ORS 279A.065

137-049-0260 Request for Clarification orChange; Solicitation Protests

(1) Clarification. Prior to the deadline forsubmitting a Written request for change or protest,an Offeror may request that the County clarify anyprovision of the Solicitation Document. TheCounty’s clarification to an Offeror, whetherorally or in Writing, does not change the Solicita-tion Document and is not binding on the Countyunless the County amends the Solicitation Docu-ment by Addendum.

(2) Request for Change.(a) Delivery. An Offeror may request in

Writing a change to the Specifications or Contractterms and conditions. Unless otherwise specifiedin the Solicitation Document, an Offeror mustdeliver the Written request for change to theCounty not less than 10 Days prior to Closing;

(b) Content of Request for Change.(A) An Offeror’s Written request for

change shall include a statement of the requestedchange(s) to the Contract terms and conditions,including any Specifications, together with thereason for the requested change.

(B) An Offeror shall mark its requestfor change as follows:

(i) "Contract Provision Requestfor Change"; and

(ii) Solicitation Document number(or other identification asspecified in the SolicitationDocument).

(3) Protest.(a) Delivery. An Offeror may protest

Specifications or Contract terms and conditions.Unless otherwise specified in the SolicitationDocument, an Offeror must deliver a Written

protest on those matters to the County not lessthan 10 Days prior to Closing;

(b) Content of Protest.(A) An Offeror’s Written protest shall

include:(i) A detailed statement of the

legal and factual grounds forthe protest;

(ii) A description of the resultingprejudice to the Offeror; and

(iii) A statement of the desiredchanges to the Contractterms and conditions, in-cluding any Specifications.

(B) An Offeror shall mark its protestas follows:

(i) "Contract Provision Protest";and

(ii) Solicitation Document number(or other identification asspecified in the SolicitationDocument)

(4) County Response. The County is notrequired to consider an Offeror’s request forchange or protest after the deadline established forsubmitting such request or protest. The Countyshall provide notice to the applicable Person if itentirely rejects a protest. If the County agrees withthe Person’s request or protest, in whole or in part,the County shall either issue an Addendum re-flecting its determination under LCPR137-049-0260 or cancel the Solicitation underLCPR 137-049-0270.

(5) Extension of Closing. If the Countyreceives a Written request for change or protestfrom an Offeror in accordance with this rule, theCounty may extend Closing if the County deter-mines an extension is necessary to consider therequest or protest and issue an Addendum, if any,to the Solicitation Document.[Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20]Stats. Implemented: ORS 279C.345 & ORS 279C365



137-049-0270 Cancellation of Solicitation Doc-ument

(1) Cancellation in the Public Interest. TheCounty may cancel a solicitation for good cause ifthe County finds that cancellation is in the publicinterest. The County’s reasons for cancellationshall be made part of the Solicitation file.

(2) Notice of Cancellation. If the Countycancels a solicitation prior to Opening, the Countyshall provide Notice of cancellation in accordancewith LCPR 137-049-0210(1). Such Notice ofcancellation shall:

(a) Identify the solicitation; (b) Briefly explain the reason for cancella-

tion; and (c) If appropriate, explain that an opportu-

nity will be given to compete on anyresolicitation.

(3) Disposition of Offers. (a) Prior to Offer Opening. If the County

cancels a Solicitation prior to Offer Opening, theCounty shall return all Offers it received toOfferors unopened, provided the Offeror submit-ted its Offer in a hard copy format with a clearlyvisible return address. If there is no return addresson the envelope, the County shall open the Offerto determine the source and then return it to theOfferor.

(b) After Offer Opening. If the Countyrejects all Offers, the County shall retain all suchOffers as part of the County’s solicitation file. [Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20]Stats. Implemented: ORS 279C.395

137-049-0280 Offer Submissions(1) Offer and Acceptance. The Bid or Pro-

posal is the Bidder’s or Proposer’s offer to enterinto a Contract.

(a) In competitive Bidding and competiti-ve Proposals, the Offer is always a "Firm Offer,"i.e., the Offer shall be held open by the Offeror forthe County’s review for the period specified inLCPR 137-049-0410.

(b) Notwithstanding the fact that a com-petitive Proposal is a "Firm Offer" for the periodspecified in LCPR137-049-0410, the County may

elect to discuss or negotiate certain contractualprovisions, as identified in these rules or in theSolicitation Document, with the Proposer. SeeLCPR 137-049-0650 on Requests for Proposalsand LCPR 137-049-0290 on Bid or ProposalSecurity. Where negotiation is permitted by therules or the Solicitation Document, Proposers arebound to an obligation to negotiate in good faithand only on those terms that the rules or theSolicitation Document has reserved for negotia-tion. (2) Responsive Offer. The County mayAward a Contract only to a Responsible Offerorwith a Responsive Offer.

(3) Contingent Offers. Except to the extentthat an Offeror is authorized to propose certainterms and conditions pursuant to LCPR137-049-0650, an Offeror shall not make an Offercontingent upon the County’s acceptance of anyterms or conditions (including Specifications)other than those contained in the SolicitationDocument.

(4) Offeror’s Acknowledgment. By signingand returning the Offer, the Offeror acknowledgesit has read and understands the terms and condi-tions contained in the Solicitation Document andthat it accepts and agrees to be bound by the termsand conditions of the Solicitation Document. Ifthe Request for Proposals permits proposal ofalternative terms under LCPR 137-049-0650, theOfferor’s Offer includes the nonnegotiable termsand conditions and any proposed terms and condi-tions offered for negotiation upon and to theextent accepted by the County in Writing.

(5) Instructions. An Offeror shall submit andSign its Offer in accordance with the SolicitationDocument. An Offeror shall initial and submit anycorrection or erasure to its Offer prior to theOpening in accordance with the requirements forsubmitting an Offer under the Solicitation Docu-ment.

(6) Forms. An Offeror shall submit its Offeron the form(s) provided in the Solicitation Docu-ment, unless an Offeror is otherwise instructed inthe Solicitation Document.




(7) Documents. An Offeror shall provide theCounty with all documents and descriptive litera-ture required under the Solicitation Document.

(8) Facsimile or Electronic Submissions. Ifthe County permits facsimile or electronic Offersin the Solicitation Document, the Offeror maysubmit facsimile or electronic Offers in accor-dance with the Solicitation Document. TheCounty shall not consider facsimile or electronicOffers unless authorized by the Solicitation Docu-ment.

(9) Product Samples and Descriptive Liter-ature. The County may require Product Samplesor descriptive literature if it is necessary or desir-able to evaluate the quality, features or character-istics of the offered items. The County shall dispo-se of Product Samples or make available forreturn Product Samples to the Offeror in accor-dance with the Solicitation Document.

(10) Identification of Offers (a) To ensure proper identification and

handling, Offers shall be submitted in a sealedenvelope appropriately marked or in the envelopeprovided by the County, whichever is applicable.

(b) The County is not responsible forOffers submitted in any manner, format or to anydelivery point other than as required in the Solici-tation Document.

(11) Receipt of Offers. The Offeror is re-sponsible for ensuring that the County receives itsOffer at the required delivery point prior to theClosing, regardless of the method used to submitor transmit the Offer. [Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20]Stats. Implemented: ORS 279C.365 &ORS 279C.375

137-049-0290 Bid or Proposal Security(1) Security Amount. If the County requires

Bid or Proposal security, it shall be not more than10% or less than 5% of the Offeror’s Bid orProposal, consisting of the base Bid or Proposaltogether with all additive alternates. The Countywill not use Bid or Proposal security to discouragecompetition. The County shall clearly state anyBid or Proposal security requirements in its Solici-tation Document. The Offeror shall forfeit Bid or

Proposal security after Award if the Offeror failsto execute the Contract and promptly return itwith any required Performance Bond and PaymentBond and, in the case of Proposal security, withany required proof of insurance. See ORS279C.365(4) and ORS 279C.385.

(2) Requirement for Bid Security (Optionalfor Proposals). Unless the County has otherwiseexempted a Solicitation or class of Solicitationsfrom Bid security pursuant to ORS 279C.390, theCounty will require Bid security for its Solicita-tion of Bids for Public Improvements. This re-quirement applies only to Public ImprovementContracts with a value, estimated by the County,of more than $100,000 or, in the case of Contractsfor highways, bridges, and other transportationprojects, more than $50,000. See ORS279C.365(6). The County may require Bid secu-rity even if it has exempted a class of Solicitationsfrom Bid security. The County may also requireProposal security in RFPs. See ORS 279C.400(5).

(3) Form of Bid or Proposal Security. TheCounty may accept the following forms of Bid orProposal security:

(a) A surety bond from a surety companyauthorized to do business in the State of Oregon;

(b) An irrevocable letter of credit issuedby an insured institution as defined in ORS706.008; or

(c) A cashier’s check or Offeror’s certi-fied check.

(4) Return of Security. The County shallreturn or release the Bid or Proposal security of allunsuccessful Offerors after a Contract has beenfully executed and all required bonds and insur-ance have been provided, or after all Offers havebeen rejected. The County may return the Bid orProposal security of unsuccessful Offerors prior toAward if the return does not prejudice ContractAward and the security of at least the Bidders withthe three lowest Bids, or the Proposers with thethree highest scoring Proposals, is retained pend-ing execution of a Contract.[Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20]Stats. Implemented: ORS 279C.365, ORS 279C.385 & ORS 279C.390



137-049-0300 Facsimile Bids and Proposals(1) Authorization. The County may autho-

rize Offerors to submit facsimile Offers. If theCounty determines that Bid or Proposal security isor will be required, the County will not authorizefacsimile Offers unless the County has establisheda method for receipt of such security. Prior toauthorizing the submission of facsimile Offers,the County shall determine that the County’sequipment and personnel are capable of receivingthe size and volume of anticipated Offers withina short period of time. In addition, the Countyshall establish administrative procedures andcontrols:

(a) To receive, identify, record and safe-guard facsimile Offers;

(b) To ensure timely delivery of Offers tothe location of Opening; and

(c) To preserve the Offers as sealed.(2) Provisions To Be Included in Solicita-

tion Document. In addition to all other require-ments, if the County authorizes a facsimile Offerfor Bids or Proposals, the County will include inthe Solicitation Document (other than in a Reque-st for Quotes) the following:

(a) A provision substantially in the formof the following: "A ‘facsimile Offer’, as used inthis Solicitation Document, means an Offer,modification of an Offer, or withdrawal of anOffer that is transmitted to and received by theCounty via a facsimile machine.";

(b) A provision substantially in the formof the following: "Offerors may submit facsimileOffers in response to this Solicitation Document.The entire response must arrive at the place andby the time specified in this Solicitation Docu-ment.";

(c) A provision that requires Offerors toSign their facsimile Offers;

(d) A provision substantially in the formof the following: "The County reserves the right toAward the Contract solely on the basis of thefacsimile Offer. However, upon the County’srequest the apparent successful Offeror shall

promptly submit its complete original SignedOffer";

(e) The data and compatibility characteris-tics of the County’s receiving facsimile machineas follows:

(A) Telephone number; and(B) Compatibility characteristics, e.g.,

make and model number, receiving speed, com-munications protocol; and

(f) A provision that the County is notresponsible for any failure attributable to thetransmission or receipt of the facsimile Offerincluding, but not limited to the following:

(A) Receipt of garbled or incompletedocuments;

(B) Availability or condition of thereceiving facsimile machine;

(C) Incompatibility between thesending and receiving facsimile machine;

(D) Delay in transmission or receipt ofdocuments;

(E) Failure of the Offeror to properlyidentify the Offer documents;

(F) Illegibility of Offer documents;and

(G) Security and confidentiality ofdata. [Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20]Stats. Implemented: ORS 279C.365

137-049-0310 Electronic Procurement(1) General. The County may utilize Elec-

tronic Advertisement of Public ImprovementContracts in accordance with ORS 279C.360(1),provided that advertisement of such Contractswith an estimated Contract Price in excess of$125,000 must also be published in a trade news-paper of general statewide circulation, and maypost notices of intent to Award electronically asprovided by ORS 279C.410(7).

(2) Alternative Procedures. In the event thatthe County desires to allow Electronic Offers fora Public Improvement Contract, it will first pro-mulgate supporting procedures substantially inconformance with LCPR 137-047-0330 (Elec-tronic Procurement under ORS Chapter 279B),




taking into account ORS Chapter 279C require-ments for Written bids, opening bids publicly, bidsecurity, first-tier subcontractor disclosure andinclusion of prevailing wage rates.

(3) Interpretation. Nothing in this rule shallbe construed as prohibiting the County frommaking Procurement documents for Public Im-provement Contracts available in electronicformat as well as in hard copy when Bids are to besubmitted only in hard copy. See ORS279C.365(2).[Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20]Stats. Implemented: ORS 279C.365

137-049-0320 Pre-Closing Modification orWithdrawal of Offers

(1) Modifications. An Offeror may modify itsOffer in Writing prior to the Closing. An Offerorshall prepare and submit any modification to itsOffer to the County in accordance with LCPR137-049-0280, unless otherwise specified in theSolicitation Document. Any modification mustinclude the Offeror’s statement that the modifica-tion amends and supersedes the prior Offer. TheOfferor shall mark the submitted modification asfollows:

(a) Bid (or Proposal) Modification; and (b) Solicitation Number (or Other Identifi-

cation as specified in the Solicitation Document). (2) Withdrawals:

(a) An Offeror may withdraw its Offer byWritten notice submitted on the Offeror’s letter-head, Signed by an authorized representative ofthe Offeror, delivered to the location specified inthe Solicitation Document (or the place of Closingif no location is specified), and received by theCounty prior to the Closing. The Offeror or autho-rized representative of the Offeror may alsowithdraw its Offer in person prior to the Closing,upon presentation of appropriate identificationand satisfactory evidence of authority.

(b) The County may release an unopenedOffer withdrawn under subsection 2(a) to theOfferor or its authorized representative, aftervoiding any date and time stamp mark.

(c) The Offeror shall mark the Writtenrequest to withdraw an Offer as follows:

(A) Bid (or Proposal) Withdrawal; and(B) Solicitation Number (or Other

Identification as specified in the SolicitationDocument).

(3) Documentation. The County shall includeall documents relating to the modification orwithdrawal of Offers in the appropriate solicitati-on file. [Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20]Stats. Implemented: ORS 279C.360(2), ORS 279C.365, ORS 279C.375 & ORS279C.395

137-049-0330 Receipt, Opening and Recordingof Offers; Confidentiality ofOffers

(1) Receipt. The County shall electronicallyor mechanically time-stamp or hand-mark eachOffer and any modification upon receipt. TheCounty shall not open the Offer or modificationupon receipt, but shall maintain it as confidentialand secure until Opening. If the County inadver-tently opens an Offer or a modification prior to theOpening, the County shall return the Offer ormodification to its secure and confidential stateuntil Opening. The County shall document theresealing for the Procurement file (e.g. "Countyinadvertently opened the Offer due to improperidentification of the Offer").

(2) Opening and Recording. The Countyshall publicly open Offers including any modifica-tions made to the Offer pursuant to LCPR137-049-0320.

(a) In the case of Invitations to Bid, to theextent practicable, the County shall read aloud thename of each Bidder, the Bid price(s), and suchother information as the County considers appro-priate. When Bids are opened at a Board meeting,the Bid Form is the only document required to beplaced in the Commissioner’s Journal.

(b) In the case of Requests for Proposals,unless the Solicitation Document states otherwise,the County will not read Offers aloud.

(3) Availability. After Opening, the Countyshall make Bids available for public inspection,but, pursuant to ORS 279C.410, Proposals are not



subject to disclosure until after Notice of Intent toAward is issued. In any event, the County maywithhold from disclosure those portions of anOffer that the Offeror designates as trade secretsor as confidential proprietary data in accordancewith applicable law. See ORS 192.345(2); ORS646.461 to 646.475. To the extent the Countydetermines such designation is not in accordancewith applicable law, the County shall make thoseportions available for public inspection. TheOfferor shall separate information designated asconfidential from other nonconfidential informa-tion at the time of submitting its Offer. Prices,makes, model or catalog numbers of items of-fered, scheduled delivery dates, and terms ofpayment are not confidential and shall be publiclyavailable regardless of an Offeror’s designation tothe contrary. [Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20]Stats. Implemented: ORS 279C.365, ORS 279C.375, 192.345, & ORS 279C.395

137-049-0340 Late Bids, Late Withdrawalsand Late Modifications

Any Offer received after Closing is late. AnOfferor’s request for withdrawal or modificationof an Offer received after Closing is late. TheCounty shall not consider late Offers, withdrawalsor modifications except as permitted in LCPR137-049-0350 or 137-049-0390. [Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20]Stats. Implemented: ORS 279C.365, ORS 279C.375 & ORS 279C.395

137-049-0350 Mistakes(1) Generally. To protect the integrity of the

competitive Procurement process and to assurefair treatment of Offerors, the County shallcarefully consider whether to permit waiver,correction or withdrawal of Offers for certainmistakes.

(2) Treatment of Mistakes. The County shallnot allow an Offeror to correct or withdraw anOffer for an error in judgment. If the Countydiscovers certain mistakes in an Offer after Open-ing, but before Award of the Contract, the Countymay take the following action:

(a) The County may waive, or permit anOfferor to correct, a minor informality. A minor

informality is a matter of form rather than sub-stance that is evident on the face of the Offer, oran insignificant mistake that can be waived orcorrected without prejudice to other Offerors.Examples of minor informalities include anOfferor’s failure to:

(A) Return the correct number ofSigned Offers or the correct number of otherdocuments required by the Solicitation Document;

(B) Sign the Offer in the designatedblock, provided a Signature appears elsewhere inthe Offer, evidencing an intent to be bound; and

(C) Acknowledge receipt of an Ad-dendum to the Solicitation Document, providedthat it is clear on the face of the Offer that theOfferor received the Addendum and intended tobe bound by its terms; or the Addendum involveddid not affect price, quality or delivery.

(b) The County may correct a clericalerror if the error is evident on the face of the Offeror other documents submitted with the Offer, andthe Offeror confirms the County’s correction inWriting. A clerical error is an Offeror’s error intranscribing its Offer. Examples include typo-graphical mistakes, errors in extending unit prices,transposition errors, arithmetical errors, instancesin which the intended correct unit or amount isevident by simple arithmetic calculations (forexample a missing unit price may be establishedby dividing the total price for the units by thequantity of units for that item or a missing, orincorrect total price for an item may be establishedby multiplying the unit price by the quantity whenthose figures are available in the Offer). In theevent of a discrepancy, unit prices shall prevailover extended prices.

(c) The County may permit an Offeror towithdraw an Offer based on one or more clericalerrors in the Offer only if the Offeror shows withobjective proof and by clear and convincingevidence:

(A) The nature of the error; (B) That the error is not a minor

informality under this subsection or an error injudgment;




(C) That the error cannot be correctedor waived under subsection (b) of this Section;

(D) That the Offeror acted in goodfaith in submitting an Offer that contained theclaimed error and in claiming that the allegederror in the Offer exists;

(E) That the Offeror acted withoutgross negligence in submitting an Offer thatcontained a claimed error;

(F) That the Offeror will suffer sub-stantial detriment if the County does not grant theOfferor permission to withdraw the Offer;

(G) That the County’s or the public’sstatus has not changed so significantly that relieffrom the forfeiture will work a substantial hard-ship on the County or the public it represents; and

(H) That the Offeror promptly gavenotice of the claimed error to the County.

(d) The criteria in subsection (2)(c) of thisrule shall determine whether the County willpermit an Offeror to withdraw its Offer afterClosing. These criteria also shall apply to thequestion of whether the County will permit anOfferor to withdraw its Offer without forfeiture ofits Bid bond (or other Bid or Proposal security), orwithout liability to the County based on the differ-ence between the amount of the Offeror’s Offerand the amount of the Contract actually awardedby the County, whether by Award to the nextlowest Responsive and Responsible Bidder or thebest Responsive and Responsible Proposer, or byresort to a new solicitation.

(3) Rejection for Mistakes. The County shallreject any Offer in which a mistake is evident onthe face of the Offer and the intended correctOffer is not evident or cannot be substantiatedfrom documents submitted with the Offer.

(4) Identification of Mistakes after Award.The procedures and criteria set forth above areOfferor’s only opportunity to correct mistakes orwithdraw Offers because of a mistake. FollowingAward, an Offeror is bound by its Offer, and maywithdraw its Offer or rescind a Contract enteredinto pursuant to these Division 49 rules only to theextent permitted by applicable law.

[Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20; amd 2020-163 eff06/23/20]Stats. Implemented: ORS 279C.375 & ORS 279C.395

137-049-0360 First-Tier Subcontractors; Dis-closure and Substitution

(1) Required Disclosure. Within two work-ing hours after the Bid Closing on an ITB for aPublic Improvement having a Contract Priceanticipated by the County to exceed $100,000, allBidders shall submit to the County a disclosureform as described by ORS 279C.370(2), identify-ing any first-tier subcontractors (those entities thatwould be contracting directly with the primeContractor) that will be furnishing labor or laborand materials on the Contract, if Awarded, whosesubcontract value would be equal to or greaterthan:

(a) Five percent of the total ContractPrice, but at least $15,000; or

(b) $350,000, regardless of the percentageof the total Contract Price.

(2) Bid Closing, Disclosure Deadline andBid Opening. For each ITB to which this ruleapplies, the County shall:

(a) Set the Bid Closing on a Tuesday,Wednesday or Thursday, and at a time between 2p.m. and 5 p.m., except that these Bid Closingrestrictions do not apply to an ITB for mainte-nance or construction of highways, bridges orother transportation facilities, and provided thatthe two-hour disclosure deadline described by thisrule would not then fall on a legal holiday;

(b) Open Bids publicly immediately afterthe Bid Closing; and

(c) Consider for Contract Award onlythose Bids for which the required disclosure hasbeen submitted by the announced deadline onforms prescribed by the County.

(3) Bidder Instructions and DisclosureForm. For the purposes of this rule, the County’sSolicitation will:

(a) Prescribe the disclosure form that mustbe substantially in the form set forth in ORS279C.370(2); and

(b) Provide instructions in a notice sub-stantially similar to the following:



"Instructions for First-Tier SubcontractorDisclosure

Bidders are required to disclose informa-tion about certain first-tier subcontractorswhen the contract value for a Public Im-provement is greater than $100,000 (seeORS 279C.370). Specifically, when thecontract amount of a first-tier subcontrac-tor furnishing labor or labor and materialswould be greater than or equal to: (i) 5%of the project Bid, but at least $15,000; or(ii) $350,000 regardless of the percentage,the Bidder must disclose the followinginformation about that subcontract eitherin its Bid submission, or within two hoursafter Bid Closing:

(A) The subcontractor’s name,(B) The category of Work that thesubcontractor would be performing,and(C) The dollar value of the subcon-tract. If the Bidder will not be usingany subcontractors that are subject tothe above disclosure requirements, theBidder is required to indicate ‘NONE’on the accompanying form.

THE COUNTY MUST REJECT A BIDIF THE BIDDER FAILS TO SUBMITTHE DISCLOSURE FORM WITH THISINFORMATION BY THE STATEDDEADLINE (see LCPR 137-049-0360)."

(4) Submission. A Bidder shall submit thedisclosure form required by this rule either in itsBid submission, or within two working hours afterBid Closing in the manner specified by the ITB.

(5) Responsiveness. Compliance with thedisclosure and submittal requirements of ORS279C.370 and this rule is a matter of Responsive-ness. Bids that are submitted by Bid Closing, butfor which the disclosure submittal has not beenmade by the specified deadline, are not Respon-

sive and shall not be considered for ContractAward.

(6) County Role. The County shall obtainand make available for public inspection thedisclosure forms required by ORS 279C.370 andthis rule. The County shall also provide copies ofdisclosure forms to the Bureau of Labor andIndustries as required by ORS 279C.835. TheCounty will not determine the accuracy or com-pleteness of the information provided on disclo-sure forms.

(7) Substitution. Substitution of affectedfirst-tier subcontractors shall be made only inaccordance with ORS 279C.585. The County shallaccept Written submissions filed under that statuteas public records. Aside from issues involvinginadvertent clerical error under ORS 279C.585,the County does not have a statutory role or dutyto review, approve, or resolve disputes concerningsuch substitutions. See ORS 279C.590 regardingcomplaints to the Construction Contractors Boardon improper substitution.[Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20]Stats. Implemented: ORS 279C.370, ORS 279C.585, ORS 279C.590 & ORS279C.835

137-049-0370 Disqualification of Persons(1) Authority. The County may disqualify a

Person from consideration of Award of CountyContracts after providing the Person with noticeand a reasonable opportunity to be heard in accor-dance with Sections (2) and (4) of this rule.

(a) Standards for Conduct Disqualifica-tion. As provided in ORS 279C.440, the Countymay disqualify a Person for:

(A) Conviction for the commission ofa criminal offense as an incident in obtaining orattempting to obtain a public or private contract orsubcontract, or in the performance of such con-tract or subcontract.

(B) Conviction under state or federalstatutes of embezzlement, theft, forgery, bribery,falsification or destruction of records, receivingstolen property or any other offense indicating alack of business integrity or business honesty thatcurrently, seriously and directly affects the Per-son’s responsibility as a contractor.




(C) Conviction under state or federalantitrust statutes.

(D) Violation of a contract provisionthat is regarded by the County to be so serious asto justify Conduct Disqualification. A violationunder this subsection 1(a)(D) may include, but isnot limited to, material failure to perform theterms of a contract or an unsatisfactory perfor-mance in accordance with the terms of the con-tract. However, a Person’s failure to perform orunsatisfactory performance caused by acts beyondthe Person’s control is not a basis for Disqualifica-tion.

(b) Standards for Disqualification. Asprovided in ORS 200.065, 200.075 or 279A.110,the County may disqualify a Person’s right tosubmit an Offer or to participate in a Contract(e.g. subcontractors) as follows:

(A) For a Disqualification under ORS200.065, the County may disqualify a Person uponfinding that:

(i) The Person fraudulently ob-tained or retained or attemptedto obtain or retain or aidedanother Person to fraudulentlyobtain or retain or attempt toobtain or retain certification asa disadvantaged business en-terprise, minority-owned busi-ness, women-owned business,emerging small business enter-prise, or a business that aservice-disabled veteran owns;or

(ii) The Person knowingly made afalse claim that any Person isqualified for certification or iscertified under ORS 200.055for the purpose of gaining aContract or subcontract orother benefit; or

(iii) The Person has been dis-qualified by anothercontracting agency pursu-ant to ORS 200.065.

(B) For a DBE Disqualification underORS 200.075, the County may disqualify a Personupon finding that:

(i) The Person has entered into anagreement representing that adisadvantaged business enter-prise, minority-owned busi-ness, women-owned business,emerging small business enter-prise, or a business that aservice-disabled veteran owns,certified pursuant to ORS200.055 ("Certified Enter-prise"), will perform or supplymaterials under a Public Im-provement Contract withoutthe knowledge and consent ofthe Certified Enterprise; or

(ii) The Person exercises manage-ment and decision-makingcontrol over the internal opera-tions, as defined by ORS200.075(1)(b), of any CertifiedEnterprise; or

(iii) The Person uses aCertified Enterprise to per-form Work under a PublicImprovement Contract tomeet an established Certi-fied Enterprise goal, andsuch enterprise does notperform a commerciallyuseful function, as definedby ORS 200.075(3), inperforming its obligationsunder the contract.

(iv) If a Person is Disqualifiedfor a DBE Disqualificationunder ORS 200.075, theCounty shall not permitsuch Person to participatein County Contracts.

(C) For a Disqualification under ORS279A.110, the County may disqualify a Person ifthe County finds that the Person discriminated



against a disadvantaged business enterprise,minority-owned business, women-owned busi-ness, emerging small business enterprise, or abusiness that a service-disabled veteran owns inawarding a subcontract under a Contract with theCounty.

(2) Notice of Intent to Disqualify. TheCounty shall provide Written notice to the Personof a proposed Disqualification personally or byregistered or certified mail, return receipt re-quested. This notice shall:

(a) State that the County intends to dis-qualify the Person;

(b) Set forth the reasons for the Disquali-fication;

(c) Include a statement of the Person’sright to a hearing if requested in Writing withinthe time stated in the notice and that if the Countydoes not receive the Person’s Written request fora hearing within the time stated, the Person shallhave waived its right to a hearing;

(d) Include a statement of the authorityand jurisdiction under which the hearing will beheld;

(e) Include a reference to the particularsections of the statutes and rules involved;

(f) State the proposed Disqualificationperiod; and

(g) State that the Person may be repre-sented by legal counsel.

(3) Hearing. The County shall schedule ahearing upon the receipt of the Person’s timelyhearing request. Within a reasonable time prior tothe hearing, the County shall notify the Person ofthe time and place of the hearing and provideinformation on the procedures, right of representa-tion and other rights related to the conduct of thehearing prior to hearing.

(4) Notice of Disqualification. The Countyshall provide Written notice to the Person of itsDisqualification, personally or by registered orcertified mail, return receipt requested. The noticeshall contain:

(a) The effective date and period ofDisqualification;

(b) The grounds for Disqualification; and (c) A statement of the Person’s appeal

rights and applicable appeal deadlines. For aConduct Disqualification or a Disqualificationunder ORS 279A.110, the disqualified personmust notify the County in Writing within threebusiness Days after receipt of the County’s noticeof Disqualification if the Person intends to appealthe County’s decision. [Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20; amd 2020-163 eff06/23/20]Stats. Implemented: ORS 200.065, ORS 200.075, ORS 279C.440, ORS 279C.445,ORS 279C.450, ORS 279A.110, & OL 2015 & ch 565 (HB 3303)

137-049-0380 Bid or Proposal Evaluation Cri-teria

(1) General. A Public Improvement Contract,if Awarded, shall be Awarded to the ResponsibleBidder submitting the lowest Responsive Bid, orto the Responsible Proposer submitting the bestResponsive Proposal. See LCPR 137-049-0390and Rules for Alternative Contracting Methods atLCPR 137-049-0600 to 137-049-0690.

(2) Bid Evaluation Criteria. Invitations toBid may solicit lump-sum Offers, unit-priceOffers or a combination of the two.

(a) Lump Sum. If the ITB requires alump-sum Bid, without additive or deductivealternates, or if the County elects not to awardadditive or deductive alternates, Bids shall becompared on the basis of lump-sum prices, orlump-sum base Bid prices, as applicable. If theITB calls for a lump-sum base Bid, plus additiveor deductive alternates, the total Bid price shall becalculated by adding to or deducting from the baseBid those alternates selected by the County, forthe purpose of comparing Bids.

(b) Unit Price. If the Bid includes unitpricing for estimated quantities, the total Bid priceshall be calculated by multiplying the estimatedquantities by the unit prices submitted by theBidder, and adjusting for any additive or deduc-tive alternates selected by the County, for thepurpose of comparing Bids. The County shallspecify within the Solicitation Document theestimated quantity of the Procurement to be usedfor determination of the low Bidder. In the event




of mathematical discrepancies between unit priceand any extended price calculations submitted bythe Bidder, the unit price shall govern. See LCPR137-049-0350(2)(b).

(3) Proposal Evaluation Criteria. If theBoard has exempted the Procurement of a PublicImprovement from the competitive Biddingrequirements of ORS 279C.335(1), and has di-rected the County to use an Alternative Contract-ing Method under ORS 279C.335(4), the Countyshall set forth the evaluation criteria in the Solici-tation Documents. See LCPR 137-049-0640,LCPR 137-049-0650, LCPR 137-049-0670,LCPR 137-049-0690, ORS 279C.335, and279C.405. [Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20]Stats. Implemented: ORS 279C.335 & OL 2011 & ch 458

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

(1) General. If Awarded, the County shallAward the Contract to the Responsible Biddersubmitting the lowest, Responsive Bid or theResponsible Proposer or Proposers submitting thebest, Responsive Proposal or Proposals, providedthat such Person is not listed by the ConstructionContractors Board as disqualified to hold a PublicImprovement Contract. See ORS 279C.375(2)(a).The County may Award by item, groups of itemsor the entire Offer provided such Award is consis-tent with the Solicitation Document and in thepublic interest. Where Award is based on compet-itive Bids, ORS 279C.375(5) permits multipleContract awards when specified in the ITB.

(2) Determination of Responsibility.Offerors are required to demonstrate their abilityto perform satisfactorily under a Contract. BeforeAwarding a Contract, the County must haveinformation that indicates that the Offeror meetsthe standards of responsibility set forth in ORS279.375(3)(b). To be a Responsible Offeror, theCounty must determine that the Offeror:

(a) Has available the appropriate financial,material, equipment, facility and personnel re-sources and expertise, or ability to obtain theresources and expertise, necessary to demonstrate

the capability of the Offeror to meet all contrac-tual responsibilities;

(b) Has completed previous contracts of asimilar nature with a satisfactory record of con-tract performance. A satisfactory record of perfor-mance means that, to the extent the costs associ-ated with and time available to perform a previouscontract were within the Offeror’s control, theOfferor stayed within the time and budget allottedfor the procurement and otherwise performed thecontract in a satisfactory manner. The Countyshall review an Offeror’s record of contract per-formance if the Offeror is or recently has beenmaterially deficient in contract performance. Inreviewing the Offeror’s performance, the Countyshall determine whether the Offeror’s deficientperformance was expressly excused under theterms of contract or whether the Offeror tookappropriate corrective action. The County mayreview the Offeror’s performance on both privateand public Contracts in determining the Offeror’srecord of contract performance. The County shallmake its basis for determining an Offeror notResponsible under this paragraph part of theSolicitation file;

(c) Has a satisfactory record of integrity.An Offeror may lack integrity if the Countydetermines the Offeror demonstrates a lack ofbusiness ethics such as violation of state environ-mental laws or false certifications made to theCounty or any other contracting agency. TheCounty may find an Offeror not Responsiblebased on the lack of integrity of any Person havinginfluence or control over the Offeror (such as akey employee of the Offeror that has the authorityto significantly influence the Offeror’s perfor-mance of the Contract or a parent company,predecessor or successor Person). The standardsfor Conduct Disqualification under LCPR137-049-0370 may be used to determine anOfferor’s integrity. The County shall make itsbasis for determining that an Offeror is not Re-sponsible under this paragraph part of the Solicita-tion file;



(d) Is qualified legally to contract with theCounty; and

(e) Has supplied all necessary informationin connection with the inquiry concerningResponsibility. If the Offeror fails to promptlysupply information requested by the Countyconcerning Responsibility, the County will basethe determination of Responsibility upon anyavailable information, or may find the Offeror notResponsible.

(3) In addition to making the Responsibilitydetermination under ORS 279C.375(3)(b) andSection (2) of this rule, the County may consider,as authorized by House Bill 2094 (2019 OregonLaws, chapter 124), as part of the County’sevaluation of an Offer, whether the Offeror owesa liquidated and delinquent debt to the State ofOregon.

(4) Documenting Determinations. TheCounty shall document their compliance withORS 279C.375(3) and the above Sections of thisrule on a Responsibility Determination Formsubstantially as set forth in 279.375(3)(c), and filethat form with the Construction Contractors Boardwithin 30 days after Contract Award.

(5) Evaluation. The County will evaluate anOffer only as set forth in the Solicitation Docu-ment and in accordance with applicable law. TheCounty will not evaluate an Offer using any otherrequirement or criterion.

(6) Offeror Submissions:(a) The County may require an Offeror to

submit product samples, descriptive literature,technical data, or other material and may alsorequire any of the following prior to Award:

(A) Demonstration, inspection ortesting of a product prior to Award for characteris-tics such as compatibility, quality or workman-ship;

(B) Examination of such elements asappearance or finish; or

(C) Other examinations to determinewhether the product conforms to Specifications.

(b) The County shall evaluate productacceptability only in accordance with the criteria

disclosed in the Solicitation Document to deter-mine that a product is acceptable. The Countyshall reject an Offer providing any product thatdoes not meet the Solicitation Document require-ments. The County’s rejection of an Offer becauseit offers non-conforming Work or materials is notDisqualification and is not appealable under ORS279C.445.

(7) Evaluation of Bids. The County shall useonly objective criteria to evaluate Bids as set forthin the ITB. The County shall evaluate Bids todetermine which Responsible Offeror offers thelowest Responsive Bid.

(a) Nonresident Bidders. In determiningthe lowest Responsive Bid, the County will, inaccordance with LCPR 137-046-0310, add apercentage increase to the Bid of a nonresidentBidder equal to the percentage, if any, of thepreference given to that Bidder in the state inwhich the Bidder resides.

(b) Clarifications. In evaluating Bids, theCounty may seek information from a Bidder onlyto clarify the Bidder’s Bid. Such clarification shallnot vary, contradict or supplement the Bid. ABidder must submit Written and Signed clarifica-tions and such clarifications shall become part ofthe Bidder’s Bid.

(c) Negotiation Prohibited. The Countyshall not negotiate scope of Work or other termsor conditions under an Invitation to Bid processprior to Award.

(8) Evaluation of Proposals. See LCPR137-049-0650 regarding rules applicable to Re-quests for Proposals. [Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20; amd 2020-163 eff06/23/20]Stats. Implemented: ORS 279C.335, ORS 279C.365, ORS 279C.375 & ORS279C.395 & OL 2015 & ch 454 (SB 491)

137-049-0395 Notice of Intent to Award(1) Notice. At least seven days before the

Award of a Public Improvement Contract, theCounty shall issue to each Bidder (pursuant toORS 279C.375(2)) and each Proposer (pursuant to279C.410(7)), or post electronically or otherwise,a notice of the County’s intent to Award theContract (the "Notice of Intent to Award".) This




requirement does not apply to Award of a small(under $5,000) or intermediate (informal competi-tive quotes) Public Improvement Contract award-ed under LCPR 137-049-0155 and LCPR 137-049-0160 respectively.

(2) Form and Manner of Posting. The formand manner of posting notice shall conform tocustomary practices within the County’sprocurement system, and may be made electroni-cally.

(3) Finalizing Award. The County’s Awardshall not be final until the later of the following:

(a) Seven Days after the date of the notice,unless the Solicitation Document provided adifferent period for protest; or

(b) The County provides a Written re-sponse to all timely-filed protests that denies theprotest and affirms the Award.

(4) Prior Notice Impractical. Posting ofNotice of Intent to Award shall not be requiredwhen the County determines that it is impracticaldue to unusual time constraints in making promptAward for its immediate procurement needs,documents the Contract file as to the reasons forthat determination, and posts notice of that actionas soon as reasonably practical.[Adopted 2020-060 eff 03/17/20]Stats. Implemented: ORS 279C.375

137-049-0400 Documentation of Award; Avail-ability of Award Decisions

(1) Basis of Award. After Award, the Countyshall make a record showing the basis for deter-mining the successful Offeror as part of theCounty’s Solicitation file.

(2) Contents of Award Record for Bids.The County’s record shall include:

(a) All submitted Bids; (b) Completed Bid tabulation sheet; and (c) Written justification for any rejection

of lower Bids. (3) Contents of Award Record for Propos-

als. Where the use of Requests for Proposals isauthorized as set forth in LCPR 137-049-0650, theCounty’s record shall include:

(a) All submitted Proposals.

(b) The completed evaluation of theProposals;

(c) Written justification for any rejectionof higher scoring Proposals or for failing to meetmandatory requirements of the Request for Pro-posal; and

(d) If the County permitted negotiations inaccordance with LCPR 137-049-0650, theCounty’s completed evaluation of the initialProposals and the County’s completed evaluationof final Proposals.

(4) Contract Document. The County shalldeliver a fully executed copy of the final Contractto the successful Offeror.

(5) Bid Tabulations and Award Summa-ries. The County shall, upon request of any Per-son, provide tabulations of Awarded Bids orevaluation summaries of Proposals for a nominalcharge which may be payable in advance. Re-quests must contain the Solicitation Documentnumber and, if requested, be accompanied by aself-addressed, stamped envelope. The Countymay also provide tabulations of Bids and Propos-als Awarded on designated Web sites or on theCounty’s Electronic Procurement System.

(6) Availability of Solicitation Files. TheCounty shall make completed Solicitation filesavailable for public review at the County.

(7) Copies from Solicitation Files. AnyPerson may obtain copies of material fromSolicitation files upon payment of a reasonablecopying charge.[Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20]Stats. Implemented: ORS 279C.365 & ORS 279C.375

137-049-0410 Time for Offer Acceptance; Ex-tension

(1) Time for Offer Acceptance. AnOfferor’s Bid, or Proposal submitted as a FirmOffer (see LCPR 137-049-0280), is irrevocable,valid and binding on the Offeror for not less than30 Days from Closing unless otherwise specifiedin the Solicitation Document.

(2) Extension of Acceptance Time. TheCounty may request, orally or in Writing, thatOfferors extend, in Writing, the time during which



the County may consider their Offer(s). If anOfferor agrees to such extension, the Offer shallcontinue as a Firm Offer, irrevocable, valid andbinding on the Offeror for the agreed-upon exten-sion period. [Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20]Stats. Implemented: ORS 279C.375

137-049-0420 Negotiation With Bidders Pro-hibited

(1) Bids. Except as permitted by ORS279C.340 and LCPR 137-049-0430, when all bidsexceed the cost estimate, the County shall notnegotiate with any Bidder prior to ContractAward. After Award of the Contract, the Countyand Contractor may modify the Contract only byChange Order or Amendment to the Contract inaccordance with LCPR 137-049-0860.

(2) Requests for Proposals. The County mayconduct discussions or negotiations with Propos-ers only in accordance with the requirements ofLCPR 137-049-0650.[Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20]Stats. Implemented: ORS 279C.340 & ORS 279C.375

137-049-0430 Negotiation When Bids ExceedCost Estimate

(1) Generally. In accordance with ORS279C.340, if all Responsive Bids from Responsi-ble Bidders on a competitively Bid Public Im-provement project exceed the County’s CostEstimate, prior to Contract Award the County maynegotiate Value Engineering and Other Optionswith the Responsible Bidder submitting thelowest, Responsive Bid in an attempt to bring theproject within the County’s Cost Estimate. Thesubcontractor disclosure and substitution require-ments of LCPR 137-049-0360 do not apply tonegotiations under this rule.

(2) Definitions. The following definitionsapply to this rule:

(a) "Cost Estimate" means the County’smost recent pre-Bid, good faith assessment ofanticipated Contract costs, consisting either of anestimate of an architect, engineer or other quali-fied professional, or confidential cost calculation

worksheets, where available, and otherwise con-sisting of formal planning or budgetary docu-ments.

(b) "Other Options" means those itemsgenerally considered appropriate for negotiation inthe RFP process, relating to the details of Contractperformance as specified in LCPR 137-049-0650,but excluding any material requirements previ-ously announced in the Solicitation process thatwould likely affect the field of competition.

(c) "Project" means a Public Improve-ment.

(d) "Value Engineering" means theidentification of alternative methods, materials orsystems which provide for comparable function atreduced initial or life-time cost. It includes pro-posed changes to the plans, Specifications, orother Contract requirements which may be made,consistent with industry practice, under the origi-nal Contract by mutual agreement in order to takeadvantage of potential cost savings without im-pairing the essential functions or characteristics ofthe Public Improvement. Cost savings includethose resulting from life cycle costing, which mayeither increase or decrease absolute costs overvarying time periods.

(3) Rejection of Bids. In determiningwhether all Responsive Bids from ResponsibleBidders exceed the Cost Estimate, only those Bidsthat have been formally rejected, or Bids fromBidders who have been formally disqualified bythe County, shall be excluded from consideration.

(4) Scope of Negotiations. The County willnot proceed with Contract Award if the scope ofthe Public Improvement project is significantlychanged from the original Bid. The scope isconsidered to have been significantly changed ifthe pool of competition would likely have beenaffected by the change; that is, if other Bidderswould have been expected by the County toparticipate in the Bidding process had the changebeen made during the Solicitation process ratherthan during negotiation. This rule shall not beconstrued to prohibit resolicitation of trade sub-contracts.




(5) Discontinuing Negotiations. The Countymay discontinue negotiations at any time, andshall do so if it appears to the County that theapparent low Bidder is not negotiating in goodfaith or fails to share cost and pricing informationupon request. Failure to rebid any portion of thePublic Improvement project, or to obtain subcon-tractor pricing information upon request, shall beconsidered a lack of good faith.

(6) Limitation. Negotiations may be under-taken only with the lowest Responsive, Responsi-ble Bidder pursuant to ORS 279C.340. Thatstatute does not provide any additional authorityto further negotiate with Bidders next in line forContract Award.

(7) Public Records. To the extent that aBidder’s records used in Contract negotiationsunder ORS 279C.340 are public records, they areexempt from disclosure until after the negotiatedContract has been awarded or the negotiationprocess has been terminated, at which time theyare subject to disclosure pursuant to ORS 192.311through 192.478.[Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20]Stats. Implemented: ORS 279C.340

137-049-0440 Rejection of Offers(1) Rejection of an Offer:

(a) The County may reject any Offer uponfinding that to accept the Offer may impair theintegrity of the Procurement process or that reject-ing the Offer is in the public interest.

(b) The County shall reject an Offer uponthe County’s finding that the Offer:

(A) Is contingent upon the County’sacceptance of terms and conditions (includingSpecifications) that differ from the SolicitationDocument;

(B) Takes exception to terms andconditions (including Specifications);

(C) Attempts to prevent public disclo-sure of matters in contravention of the terms andconditions of Solicitation Document or in contra-vention of applicable law;

(D) Offers Work or goods that fail tomeet the Specifications of the Solicitation Docu-ment;

(E) Is late;(F) Is not in substantial compliance

with the Solicitation Documents;(G) Is not in substantial compliance

with all prescribed public Solicitation procedures.(c) The County shall reject an Offer upon

the County’s finding that the Offeror: (A) Has not been prequalified under

ORS 279C.430 and the County required manda-tory prequalification;

(B) Has been Disqualified;(C) Has been declared ineligible under

ORS 279C.860 by the Commissioner of Bureau ofLabor and Industries and the Contract is for aPublic Work;

(D) Is listed as not qualified by theConstruction Contractors Board, if the Contract isfor a Public Improvement;

(E) Has not met the requirements ofORS 279A.105 if required by the SolicitationDocument;

(F) Has not submitted properly exe-cuted Bid or Proposal security as required by theSolicitation Document;

(G) Has failed to provide the certifica-tion required under Section 3 of this rule;

(H) Is not Responsible. See LCPR137-049-0390(2) regarding the County’s determi-nation that the Offeror has met statutory standardsof Responsibility.

(2) Form of Business. For purposes of thisrule, the County may investigate any Personsubmitting an Offer. The investigation may in-clude that Person’s officers, directors, owners,affiliates, or any other Person acquiring ownershipof the Person to determine application of this ruleor to apply the Disqualification provisions of ORS279C.440 to 279C.450 and LCPR 137-049-0370.

(3) Certification of Non-Discrimination.The Offeror shall certify and deliver to the CountyWritten certification, as part of the Offer that theOfferor has not discriminated and will not dis-



criminate against any disadvantaged businessenterprise, minority-owned business, women-owned business, emerging small business enter-prise, or business that a service-disabled veteranowns, in obtaining any required subcontracts.Failure to do so will be grounds forDisqualification.

(4) Contract and Subcontract Conditions.If the County Awards a Contract to an Offeror thathas been determined to be Responsible underORS 200.005(8) and ORS 200.045(3), or Awardsa Contract under ORS 279A.100:

(a) The County must provide, as a mate-rial condition of the Contract:

(A) That the Contractor must maintainits certification under ORS 200.055 throughoutthe term of the Contract and any extensions (if theCounty used the certification as a factor in or as abasis for the award of the Contract);

(B) That the Contractor must promptlypay each subcontractor that is certified under ORS200.055 in accordance with ORS 279B.220, or279C.570 and ORS 279C.580, whichever apply tothe Contract;

(C) That the Contractor must include,in any subcontract the Contractor establishes inconnection with the Contract, a provision thatrequires the subcontractor to maintain the subcon-tractor’s certification under ORS 200.055throughout the term of the subcontract and anyextensions (if the Contractor used the certificationas a factor in or as a basis for the award of thesubcontract); and

(D) That the County may require theContractor to terminate a subcontract with asubcontractor that fails to maintain its certificationunder ORS 200.055 throughout the term of thesubcontract and any extensions.

(b) In the administration of Contracts thatare subject to Section (4) of this rule, the Countymust verify the Contractor’s and any subcontrac-tor’s compliance with subsection (4)(a) of thisrule.

(c) Subparagraph (4)(a)(A) of this Sectiondoes not apply to an emerging small business that

ceases to qualify as a tier one firm or a tier twofirm (as ORS 200.005 defines those terms) due tothe growth in the business’s number of full-timeequivalent employees or in average annual grossreceipts during the term of the Contract. ThisSection (4) does not apply to an emerging smallbusiness for which a certification under ORS200.055 expires during the term of the Contract orany extensions.

(5) Rejection of all Offers. The County mayreject all Offers for good cause upon the County’sWritten finding it is in the public interest to do so.The County shall notify all Offerors of the rejec-tion of all Offers, along with the good causejustification and finding.

(6) Criteria for Rejection of All Offers. TheCounty may reject all Offers upon a Writtenfinding that:

(a) The content of or an error in theSolicitation Document, or the Solicitation processitself, unnecessarily restricted competition for theContract;

(b) The price, quality or performancepresented by the Offerors is too costly or ofinsufficient quality to justify acceptance of theOffer;

(c) Misconduct, error, or ambiguous ormisleading provisions in the Solicitation Docu-ment threaten the fairness and integrity of thecompetitive process;

(d) Causes other than legitimate marketforces threaten the integrity of the competitiveProcurement process. These causes include, butare not limited to, those that tend to limit competi-tion such as restrictions on competition, collusion,corruption, unlawful anti-competitive conduct andinadvertent or intentional errors in the SolicitationDocument;

(e) The County cancels the Solicitation inaccordance with LCPR 137-049-0270; or

(f) Any other circumstance indicating thatAwarding the Contract would not be in the publicinterest. [Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20; amd 2020-163 eff06/23/20]Stats. Implemented: ORS 279C.375, ORS 279C.380, ORS 279C.395, OL 2015 ch325 (HB 2716), OL 2015 ch 565 (HB 3303), ORS 279A.105 & ORS 279A.110




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

(1) Purpose. An adversely affected or ag-grieved Offeror must exhaust all avenues ofadministrative review and relief before seekingjudicial review of the County’s Contractor selec-tion or Contract Award decision.

(2) Notice of Competitive Range. Unlessotherwise provided in the RFP, when the competi-tive Proposal process is authorized under LCPR137-049-0650, the County shall provide Writtennotice to all Proposers of the County’s determina-tion of the Proposers included in the CompetitiveRange. The County’s notice of the Proposersincluded in the Competitive Range shall not befinal until the later of the following:

(a) Ten (10) days after the date of thenotice, unless otherwise provided therein; or

(b) Until the County provides a Writtenresponse to all timely-filed protests that denies theprotest and affirms the notice of the Proposersincluded in the Competitive Range.

(3) Notice of Intent to Award. Unless other-wise provided in the Solicitation Document, theCounty shall provide Written notice to all Offerorsof the County’s intent to Award the Contract, asprovided by LCPR 137-049-0395.

(4) Right to Protest Award:(a) An adversely affected or aggrieved

Offeror may submit to the County a Writtenprotest of the County’s intent to Award withinseven Days after issuance of the notice of intent toAward the Contract, unless a different protestperiod is provided under the Solicitation Docu-ment.

(b) The Offeror’s protest must be inWriting and must specify the grounds upon whichthe protest is based.

(c) An Offeror is adversely affected oraggrieved only if the Offeror is eligible for Awardof the Contract as the Responsible Bidder submit-ting the lowest Responsive Bid or the ResponsibleProposer submitting the best Responsive Proposaland is next in line for Award, i.e., the protesting

Offeror must claim that all lower Bidders orhigher-scored Proposers are ineligible for Award:

(A) Because their Offers were non-responsive; or

(B) The County committed a substan-tial violation of a provision in the SolicitationDocument or of an applicable Procurement statuteor LCPR, and the protesting Offeror was unfairlyevaluated and would have, but for such substantialviolation, been the Responsible Bidder offeringthe lowest Bid or the Responsible Proposer offer-ing the highest-ranked Proposal.

(d) The County shall not consider aprotest submitted after the time period establishedin this rule or such different period as may beprovided in the Solicitation Document. A Pro-poser may not protest the County’s decision not toincrease the size of the Competitive Range abovethe size of the Competitive Range set forth in theRFP.

(5) Right to Protest Competitive Range:(a) An adversely affected or aggrieved

Proposer may submit to the County a Writtenprotest of the County’s decision to exclude theProposer from the Competitive Range withinseven Days after issuance of the notice of theCompetitive Range, unless a different protestperiod is provided under the Solicitation Docu-ment. (See procedural requirements for the use ofRFPs at LCPR 137-049-0650.)

(b) The Proposer’s protest shall be inWriting and must specify the grounds upon whichthe protest is based.

(c) A Proposer is adversely affected onlyif the Proposer is Responsible and submitted aResponsive Proposal and is eligible for inclusionin the Competitive Range, i.e., the protestingProposer must claim it is eligible for inclusion inthe Competitive Range if all ineligiblehigher-scoring Proposers are removed fromconsideration, and that those ineligible Proposersare ineligible for inclusion in the CompetitiveRange because:

(A) Their Proposals were not respon-sive; or



(B) The County committed a substan-tial violation of a provision in the RFP or of anapplicable Procurement statute or LCPR, and theprotesting Proposer was unfairly evaluated andwould have, but for such substantial violation,been included in the Competitive Range.

(d) The County shall not consider aprotest submitted after the time period establishedin this rule or such different period as may beprovided in the Solicitation Document. A Pro-poser may not protest the County’s decision not toincrease the size of the Competitive Range abovethe size of the Competitive Range set forth in theRFP.

(6) Authority to Resolve Protests. TheBoard, or its designee, may settle or resolve aWritten protest submitted in accordance with therequirements of this rule.

(7) Decision. If a protest is not settled, theBoard, or its designee, shall promptly issue aWritten decision on the protest. Judicial review ofthis decision will be available if provided bystatute.

(8) Award. The successful Offeror shallpromptly execute the Contract after the Award isfinal. The County shall execute the Contract onlyafter it has obtained all applicable required docu-ments and approvals. [Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20]Stats. Implemented: ORS 279C.375, ORS 279C.380, ORS 279C.385 & ORS279C.460

137-049-0460 Performance and Payment Secu-rity; Waiver

(1) Public Improvement Contracts. Unlessthe required performance bond is waived underORS 279C.380(1)(a), excused in cases of emer-gency under ORS 279C.380(4), or unless theCounty exempts a Contract or classes of contractsfrom the required performance bond and paymentbond pursuant to ORS 279C.390, the Contractorshall execute and deliver to the County a perfor-mance bond and a payment bond each in a sumequal to the Contract Price for all Public Improve-ment Contracts. This requirement applies only toPublic Improvement Contracts with a value,estimated by the County, of more than $100,000

or, in the case of Contracts for highways, bridgesand other transportation projects, more than$50,000. See 279C.380(5). Also see LCPR137-049-0815 and BOLI rules at OAR839-025-0015 regarding the separate requirementfor a Public Works bond.

(2) Other Construction Contracts. TheCounty may require performance security forother construction Contracts that are not PublicImprovement Contracts. Such requirements willbe set forth in the Solicitation Document.

(3) Requirement for Surety Bond. TheCounty shall accept only a performance bondfurnished by a surety company authorized to dobusiness in Oregon unless otherwise specified inthe Solicitation Document (i.e., the County mayaccept a cashier’s check or certified check in lieuor all or a portion of the required performancebond if specified in the Solicitation Document).The payment bond must be furnished by a suretycompany authorized to do business in Oregon, andin an amount equal to the full Contract Price.

(4) Time for Submission. The apparentsuccessful Offeror must promptly furnish therequired performance security upon the County’srequest. If the Offeror fails to furnish the perfor-mance security as requested, the County mayreject the Offer and Award the Contract to theResponsible Bidder with the next lowest Respon-sive Bid or the Responsible Proposer with thenext highest-scoring Responsive Proposal, and, atthe County’s discretion, the Offeror shall forfeitits Bid or Proposal security. [Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20]Stats. Implemented: ORS 279C.375, ORS 279C.380 & ORS 279C.390

137-049-0470 Substitute ContractorIf the Contractor provided a performance

bond, the County may afford the Contractor’ssurety the opportunity to provide a substitutecontractor to complete performance of the Con-tract. A substitute contractor shall perform allremaining Contract Work and comply with allterms and conditions of the Contract, includingthe provisions of the performance bond and thepayment bond. Such substitute performance does




not involve the Award of a new Contract and shallnot be subject to the competitive Procurementprovisions of ORS Chapter 279C. [Adopted 2005-052 eff 3/1/05]Stats. Implemented: ORS 279C.365, ORS 279C.370, ORS 279C.375, ORS279C.380 & 279C.390

137-049-0490 Foreign ContractorIf the Contract Price exceeds $10,000 and the

Contractor is a Foreign Contractor, the Contractorshall promptly report to the Oregon Department ofRevenue on forms provided by the Department ofRevenue, the Contract Price, terms of payment,Contract duration and such other information asthe Department of Revenue may require beforefinal payment can be made on the Contract. Acopy of the report shall be forwarded to theCounty. The County shall satisfy itself that theabove requirements have been complied withbefore it issues final payment on the Contract. [Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20]Stats. Implemented: ORS 279A.120

III. ALTERNATIVE CONTRACTING METHODS

137-049-0600 PurposeLCPR 137-049-0600 to 137-049-0690 are

intended to provide guidance regarding the use ofAlternative Contracting Methods for PublicImprovement Contracts, as may be directed by aBoard under ORS 279C.335. These methodsinclude, but are not limited to, Design-Build,Energy Savings Performance Contract (ESPC)and Construction Manager/General Contractor(CM/GC) forms of contracting.[Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20]Stats. Implemented: ORS 279C.335, 279A.065 & 351.086

137-049-0610 Definitions for Alternative Con-tracting Methods

The following definitions shall apply to LCPR137-049-0600 to 137-049-0690, unless the con-text requires otherwise:

(1) "Affiliate" has the meaning as set forth inORS 279C.332(1).

(2) "Alternative Contracting Methods"means innovative Procurement techniques for

obtaining Public Improvement Contracts, utilizingprocesses other than the traditional method ofDesign- Bid-Build (with Award based solely onprice, in which a final design is issued with formalBid documents, construction services are obtainedby sealed Bid Awarded to the lowest Responsive,Responsible Bidder, and the Public Improvementproject is built in accordance with those docu-ments). In industry practice, such methods com-monly include variations of Design-Build con-tracting, CM/GC forms of contracting and ESPCs,which are specifically addressed in LCPR137-049-0600 to 137-049-0690. These methodsalso include other developing techniques, whichinclude, but are not limited to, general "perfor-mance contracting," "cost plus time" contracting(as more particularly described in ORS279C.332(3)(b)(D)(iii)(I)) and "qualifications plusproject approach" contracting (as more particu-l a r l y d e s c r i b e d i n O R S279C.332(3)(b)(D)(iii)(II)). Procedural require-ments for these methods are identified in LCPR137-049-0600 to 137-049-0690, when the Countyuses an Alternative Contracting Method in aProcurement that requires an exemption fromcompetitive bidding under ORS 279C.335(2), orin an ESPC procurement that is excepted fromcompetitive bidding under ORS 279.335(1).

(3) "Construction Manager/General Con-tractor"or "CM/GC" has the meaning as set forthin ORS 279C.332(2).

(4) "Construction Manager/General Con-tractor Method" or "CM/GC Method" meansthe Alternative Contracting Method which in-volves the County’s selection of a CM/GC toperform CM/GC Services for a Public Improve-ment project or projects.

(5) "Construction Manager/General Con-tractor Services" or "CM/GC Services" has themeaning as set forth in ORS 279C.332(3).

(6) "Design-Build" means a form of Procure-ment that results in a Public Improvement Con-tract in which the construction Contractor alsoprovides or obtains specified design services,participates on the project team with the County,



and manages both design and construction. In thisform of Contract, a single Person provides theCounty with all of the services necessary to bothdesign and construct the Public Improvementproject.

(7) "Early Work" means construction ser-vices, construction materials and other Workauthorized by the County to be performed underthe CM/GC Contract in advance of the establish-ment of the GMP, fixed price or other maximum,not-to-exceed Contract Price for the Public Im-provement project. Permissible Early Work shallbe limited to early procurement of materials andsupplies, early release of Bid or Proposal packagesfor site development and related activities, andany other advance Work related to importantcomponents of the Public Improvement project forwhich performance prior to establishment of theGMP will materially and positively affect thedevelopment or completion of the project.

(8) "Energy Conservation Measures" or"ECMs" or "Energy Efficiency Measures"means, as used in ESPC Procurement, any equip-ment, fixture or furnishing to be added to or usedin an existing building or structure, and any repair,alteration or improvement to an existing buildingor structure that is designed to reduce energyconsumption and related costs, including thosecosts related to electrical energy, thermal energy,water consumption, waste disposal, and futurecontract-labor costs and materials costs associatedwith maintenance of the building or structure. Forpurposes of LCPR 137-049-0600 to137-049-0690, use of either or both of the terms"building" or "structure" shall be deemed toinclude existing energy, water and waste disposalsystems connected or related to or otherwise usedfor the building or structure when such system(s)are included in the Public Improvement project,either as part of the project together with thebuilding or structure, or when such system(s) arethe focus of the project. Maintenance services arenot Energy Conservation Measures, for purposesof LCPR 137-049-0600 to 137-049-0690.

(9) "Energy Savings Guarantee" means theenergy savings and performance guarantee pro-vided by the ESCO under an ESPC Procurement,which guarantees to the County that certain energysavings and performance will be achieved for thePublic Improvement project covered by the RFP,through the installation and implementation of theagreed- upon ECMs for the project. The EnergySavings Guarantee shall include, but shall not belimited to, the specific energy savings and perfor-mance levels and amounts that will be guaranteed,provisions related to the financial remedies avail-able to the County in the event the guaranteedsavings and performance are not achieved, thespecific conditions under which the ESCO willguarantee energy savings and performance (in-cluding the specific responsibilities of the Countyafter final completion of the design and construc-tion phase), and the term of the energy savingsand performance guarantee.

(10) "Energy Savings Performance Con-tract " or "ESPC" means a Public ImprovementContract between the County and a QualifiedEnergy Service Company for the identification,evaluation, recommendation, design and construc-tion of Energy Conservation Measures, includinga Design-Build Contract, that guarantee energysavings or performance.

(11) "General Conditions Work" or "GCWork" means a general grouping of project Workrequired to support construction operations on theproject that is not included within the Contractor’soverhead or fee.

(12) "Guaranteed Maximum Price" or"GMP" has the meaning set forth in ORS279C.332(4), pertaining to procurements forCM/GC Services. For Alternative ContractingMethods other than the CM/GC Method, the totalmaximum price provided to the County by theContractor, and accepted by the County, thatincludes all reimbursable costs of and fees forcompletion of the Contract Work and any particu-larly identified contingency amounts, as definedby the Public Improvement Contract.




(13) "Measurement and Verification" or "M& V" means, as used in ESPC Procurement, theexamination of installed ECMs using the Interna-tional Performance Measurement and VerificationProtocol ("IPMVP"), or any other comparableprotocol or process, to monitor and verify theoperation of energy-using systems pre-installationand post-installation.

(14) "Project Development Plan" means asecondary phase of Personal Services performedby an ESCO in an ESPC Procurement when theESCO performs more extensive design of theagreed-upon ECMs for the Public Improvementproject, provides the detailed provisions of theESCO’s Energy Savings Guarantee that the fullyinstalled and commissioned ECMs will achieve aparticular energy savings level for the building orstructure, and prepares an overall report or plansummarizing the ESCO’s services during thissecondary phase of the Work and otherwiseexplaining how the agreed-upon ECMs will beimplemented during the design and constructionphase of the Work; the term "Project Develop-ment Plan" can also refer to the report or planprovided by the ESCO at the conclusion of thisphase of the Work.

(15) "Qualified Energy Service Company"or "ESCO" means, as used in ESPC Procurement,a company, firm or other legal Person with thefollowing characteristics: demonstrated technical,operational, financial and managerial capabilitiesto design, install, construct, commission, manage,measure and verify, and otherwise implementEnergy Conservation Measures and other Work onbuilding systems or building components that aredirectly related to the ECMs in existing buildingsand structures; a prior record of successfullyperforming ESPCs on projects involving existingbuildings and structures that are comparable to thePublic Improvement project under considerationby the County; and the financial strength to effec-tively guarantee energy savings and performanceunder the ESPC for the Public Improvementproject in question, or the ability to secure neces-sary financial measures to effectively guarantee

energy savings under an ESPC for that PublicImprovement project.

(16) "Savings" has the meaning set forth inORS 279C.337(4), pertaining to CM/GC ServicesProcurements. For other Alternative ContractingMethods, “Savings” means a positive differencebetween a Guaranteed Maximum Price or othermaximum not-to-exceed Contract Price set forthin a Public Improvement Contract, and the actualcost of the Contractor’s performance of the Con-tract Work payable by the County under the termsof the Contract, including costs for which theCounty reimburses a Contractor and fees, profitsor other payments the Contractor earns.

(17) "Technical Energy Audit" means, asused in ESPC Procurement, the initial phase ofPersonal Services to be performed by an ESCOthat includes a detailed evaluation of an existingbuilding or structure, an evaluation of the poten-tial ECMs that could be effectively utilized at thefacility, and preparation of a report to the Countyof the ESCO’s Findings during this initial phaseof the Work; the term "Technical Energy Audit"can also refer to the report provided by the ESCOat the conclusion of this phase of the Work.[Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20]Stats. Implemented: ORS 279C.332, ORS 279C.335 & ORS 279A.065

137-049-0620 Use of Alternative ContractingMethods

(1) Competitive Bidding Exemptions. ORSChapter 279C requires a competitive Biddingprocess for Public Improvement Contracts unlessa statutory exception applies, a class of Contractshas been exempted, or an individual Contract hasbeen exempted, in accordance with ORS279C.335 and the LCPR. Use of AlternativeContracting Methods may be directed by theBoard, however, when use of the AlternativeContracting Method requires an exemption to theprescribed competitive bidding requirement of279C.335. In any of these circumstances, use ofAlternative Contracting Methods must be justifiedin accordance with the Code and LCPR137-049-0600 to 137-049-0690. See LCPR137-049-0630 regarding required Findings and



restrictions on exemptions from the competitiveBidding requirement under ORS 279C.335.

(2) Energy Savings Performance Con-tracts. ESPCs may be exempted from the compet-itive Bidding process for Public ImprovementContracts pursuant to ORS 279C.335(1)(f), if theCounty complies with LCPR 137-049-0600 to137-049-0690 related to the Solicitation, negotia-tion and contracting for ESPC Work. If thoseprocedures are not followed, an ESPC Procure-ment may still be exempted from competitiveBidding requirements by following the generalexemption procedures within 279C.335.

(3) Post-Project Evaluation. ORS 279C.355requires that the County prepare a formalpost-project evaluation of Public Improvementprojects in excess of $100,000 for which thecompetitive Bidding process was not used. Thepurpose of this evaluation is to determine whetherit was actually in the County’s best interest to usean Alternative Contracting Method outside thecompetitive bidding process. The evaluation mustbe delivered to the Board within 30 Days of thedate the County "accepts" the Public Improvementproject, which event is typically defined in theContract. In the absence of such definition, accep-tance of the Public Improvement project occurs onthe later of the date of final payment or the date offinal completion of the Work. In the absence ofsuch definition, acceptance of the Public Improve-ment project occurs on the later of the date of finalpayment or the date of final completion of theContract Work. ORS 279C.355 describes thetiming and content of this evaluation, with threerequired elements:

(a) Financial information, consisting ofcost estimates, any Guaranteed Maximum Price,changes and actual costs;

(b) A narrative description of successesand failures during design, engineering and con-struction; and

(c) An objective assessment of the use ofthe Alternative Contracting Method as comparedto the exemption Findings.[Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20]Stats. Implemented: ORS 279C.335, ORS 279A.065, ORS 279C.355 & ORS351.086

137-049-0630 Findings, Notice and Hearing(1) Cost Savings Factors and Other Subst-

antial Benefits Factors. When Findings arerequired under ORS 279C.335 to exempt a Con-tract or class of Contracts from competitiveBidding requirements, the "substantial cost sav-ings" criterion at ORS 279C.335(2)(b) requiresconsideration of the type, cost, and amount of theContract, and to the extent applicable, the otherfactors set forth in 279C.335(2)(b). If a particularfactor has no application whatsoever to the partic-ular Public Improvement Contract or class ofPublic Improvement Contracts, the Board does notneed to consider that factor, and the County is notrequired to address the factor, other than to ex-plain why the factor has no application whatso-ever to the particular Public Improvement Con-tract or class of Public Improvement Contracts.

(2) Required Information. The statutorydefinition of "Findings" at ORS 279C.330(2),which applies to exemptions from competitiveBidding under ORS 279C.335, means the justifi-cation for a County conclusion regarding thefactors listed in both ORS 279C.335(2)(a) and279C.335(2)(b) or, in the alternative, both279C.335(2)(a) and 279C.335(2)(c).

(3) Addressing Cost Savings. Accordingly,when the Contract or class of Contracts underconsideration for an exemption contemplates theuse of Alternative Contracting Methods, the"substantial cost savings and other substantialbenefits" requirement may be addressed by acombination of:

(a) Specified Findings that address thefactors and other information specifically identi-fied by statute, including, but not limited to, ananalysis or reasonable forecast of future costsavings as well as present cost savings and othersubstantial benefits; and

(b) Additional Findings that addressindustry practices, surveys, trends, past experi-ences, evaluations of completed projects requiredby ORS 279C.355 and related information regard-ing the expected benefits and drawbacks of partic-




ular Alternative Contracting Methods. To theextent practicable, such Findings shall relate backto the specific characteristics of the Public Im-provement project or projects at issue in theexemption request.

(4) Favoritism and Competition. The crite-ria at ORS 279C.335(2)(a) that the exemption is"unlikely to encourage favoritism" or "substan-tially diminish competition" may be addressed incontemplating the use of Alternative ContractingMethods by specifying the manner in which anRFP process will be utilized, that the Procurementwill be formally advertised with public notice anddisclosure of the planned Alternative ContractingMethod, that competition will be encouraged, thatAward will be made based upon identified selec-tion criteria, and that there will be an opportunityto protest that Award.

(5) Class Exemptions. In making the Findin-gs supporting a class exemption, the County shallclearly identify the class with respect to its defin-ing characteristics. The class must meet the fol-lowing requirements:

(a) The class cannot be based on a singlecharacteristic or factor, so that the County directlyor indirectly creates a class whereby the Countyuses, for example, the CM/GC Method for allCounty Public Improvement projects or all CountyPublic Improvement projects over a particulardollar amount, unidentified future County PublicImprovement projects of a particular Work cate-gory, or all County Public Improvement projectsfrom a particular funding source such as the saleof bonds; and

(b) The class must include a combinationof factors, must be defined by the County throughcharacteristics that reasonably relate to the exemp-tion criteria set forth in ORS 279C.335(2), andmust reflect a detailed evaluation of those charac-teristics so that the class is defined in a limitedway that effectively meets the County’s objectiveswhile allowing for impartial and open competi-tion, and protecting the integrity of the exemptionprocess. An example of a class that might bepermitted under the statute is a series of Public

Improvement projects, such as a specific group ofbuilding renovation projects, that:

(A) Involve renovations for a commonpurpose;

(B) Require completion on a relatedschedule in order to avoid unnecessary disruptionof County operations;

(C) Share common characteristics,such as historic building considerations, thepresence of asbestos or other hazardous sub-stances, or the presence of County staff duringconstruction;

(D) Otherwise possess characteristicsthat meet the requirements of ORS 279C.335(2);and

(E) Otherwise meet the requirementsof the Board, as applicable.

(6) Public Hearing. Before final adoption ofFindings exempting a Public Improvement Con-tract from the requirement of competitive Bidding,the County shall give notice and hold a publichearing as required by ORS 279C.335(4). Thehearing shall be for the purpose of receivingpublic comment on the County’s draft Findings. [Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20; amd 2020-163 eff06/23/20]Stats. Implemented: ORS 279C.335 & ORS 279A.065

137-049-0640 Competitive Proposals; Proce-dure

The County may utilize the following RFPprocess for Public Improvement Contracts, allow-ing flexibility in both Proposal evaluation andContract negotiation, only in accordance withORS 279C.400 to 279C.410 and LCPR137-049-0600 to 137-049-690, unless otherapplicable statutes control the County’s use ofcompetitive Proposals for Public ImprovementContracts. Also see the subdivision of rules in thisdivision entitled Formal Procurement Rules,LCPR 137-049-0200 to 137-049-0480, and RFPrelated rules under the Alternative ContractingMethods subdivision at LCPR 137-049-0640 to137-049-0660. For ESPCs, the following RFPprocess as further specified in LCPR137-049-0645, 137-049-0650, 137-049-0660 and137-049-0680 shall be utilized if the County



desires the Procurement process to be exemptfrom the competitive Bidding requirements ofORS 279C.335. The RFP process for the Alterna-tive Contracting Methods identified in LCPR137-049-0600 to 137-049-0690 includes thefollowing steps:

(1) Proposal Evaluation. Factors in additionto price may be considered in the selection pro-cess, but only as set forth in the RFP. Proposalevaluation shall be as objective as possible. Evalu-ation factors need not be precise predictors offuture costs and performance, but to the extentpossible such evaluation factors shall:

(a) Be reasonable estimates based oninformation available to the County;

(b) Treat all Proposals equitably; and(c) Recognize that public policy requires

that Public Improvements be constructed at theleast overall cost to the County. See ORS279C.305. For ESPC Proposal evaluations, theCounty may provide in the RFP that qualifica-tions-based evaluation factors will outweigh theCounty’s consideration of price-related factors,due to the fact that prices for the major compo-nents of the Work to be performed during theESPC process contemplated by the RFP willlikely not be determinable at the time of Proposalevaluation. For CM/GC Services Proposal evalua-tions, the County shall comply with ORS279C.337.

(2) Evaluation Factors:(a) For basic negotiated Public Improve-

ment Contracts where the main justification forutilizing an RFP process is to consider factorsother than price, evaluation factors may consist offirm and personnel experience on similar projects,adequacy of equipment and physical plant, sourcesof supply, availability of key personnel, financialcapacity, past performance, safety records, projectunderstanding, proposed methods of construction,proposed milestone dates, references, service, andrelated matters that affect the cost or quality of theWork.

(b) For CM/GC Contracting, in additionto the factors set forth in subsection (a), evalua-

tion factors may also include the ability to respondto the technical complexity or unique character ofthe Public Improvement project, the capacity toanalyze and propose solutions or approaches tocomplex project problems, the coordination ofmultiple disciplines, the time required to com-mence and complete the Public Improvement, andrelated matters that affect the cost or quality of theWork.

(c) For Design-Build Contracting, inaddition to the factors set forth in subsections (a)and (b), evaluation factors may also includedesign professional qualifications, specializedexperience, preliminary design submittals, techni-cal merit, design-builder team experience andrelated matters that affect the cost or quality of theWork.

(d) For ESPC Contracting, in addition tothe factors set forth in subsections (a), (b) and (c),evaluation factors may also include sample Tech-nical Energy Audits from similar projects, sampleM & V reports, financial statements and relatedinformation of the ESCO for a time period estab-lished in the RFP, financial statements and relatedinformation of joint venturers comprising theESCO, the ESCO’s capabilities and experience inperforming energy baseline studies for facilities(independently or in cooperation with an inde-pendent third-party energy baseline consultant),past performance of the ESCO in meeting energyguarantee Contract levels, the specific Person thatwill provide the Energy Savings Guarantee to beoffered by the ESCO, the ESCO’s managementplan for the Public Improvement project, informa-tion on the specific methods, techniques andequipment that the ESCO will use in the perfor-mance of the Work under the ESPC, the ESCO’steam members and consultants to be assigned tothe Public Improvement project, the ESCO’sexperience in the Energy Savings PerformanceContracting field, the ESCO’s experience actingas the prime contractor on previous ESPC projects(as opposed to a sub-contractor or consultant to aprime ESCO), the ESCO’s vendor and productneutrality related to the development of ECMs,




the ESCO’s project history related to removalfrom an ESPC project or the inability or unwill-ingness of the ESCO to complete an ESPC pro-ject, the ESCO’s M & V capabilities and experi-ence (independently or in cooperation with anindependent third-party M & V consultant), theESCO’s ability to explain the unique risks associ-ated with ESPC projects and the assignment ofrisk in the particular Public Improvement projectbetween the County and the ESCO, the ESCO’sequipment performance guarantee policies andprocedures, the ESCO’s energy savings and costsavings guarantee policies and procedures, theESCO’s project cost guarantee policies and proce-dures, the ESCO’s pricing methodologies, theprice that the ESCO will charge for the TechnicalEnergy Audit phase of the Work and the ESCO’sfee structure for all phases of the ESPC.

(3) Contract Negotiations. Contract termsmay be negotiated to the extent allowed by theRFP and LCPR 137-049-0600 to 137-049-0690,provided that the general Work scope remains thesame and that the field of competition does notchange as a result of material changes to therequirements stated in the Solicitation Document.See LCPR 137-049-0650. Terms that may benegotiated consist of details of Contract perfor-mance, methods of construction, timing, assign-ment of risk in specified areas, fee, and othermatters that affect the cost or quality of the Work.For the CM/GC Method, terms that may be nego-tiated also include the specific scope ofpre-construction services, the GC Work, any earlyWork and other construction Work to be per-formed by the CM/GC, and any other terms thatthe County has identified as being subject tonegotiation, consistent with the requirements ofLCPR 137-049-0690. For ESPC Contracting,terms that may be negotiated also include thescope of preliminary design of ECMs to be evalu-ated by the parties during the Technical EnergyAudit phase of the Work, the scope of services tobe performed by the ESCO during the ProjectDevelopment Plan phase of the Work, the detailedprovisions of the Energy Savings Guarantee to be

provided by the ESCO and scope of Work, meth-odologies and compensation terms and conditionsduring the design and construction phase and M &V phase of the Work, consistent with the require-ments of LCPR 137-049-0680.[Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20]Stats. Implemented: ORS 279C.335, ORS 279A.065 & ORS 351.086

137-049-0645 Requests for Qualifications(RFQ)

As provided by ORS 279C.405(1), the Countymay utilize Requests for Qualifications (RFQs) toobtain information useful in the preparation ordistribution of a RFPs. When using RFQs as thefirst step in a two-step Procurement, in whichdistribution of the RFPs will be limited to thefirms identified as most qualified through theirsubmitted statements of qualification, the Countyshall first advertise and provide notice of the RFQin the same manner in which RFPs are advertised,specifically stating that RFPs will be distributedonly to the firms selected in the RFQ process. Insuch cases the County shall also provide withinthe RFQ a protest provision substantially in theform of LCPR 137-049-0450(5) regarding protestsof the Competitive Range. Thereafter, the Countymay distribute RFPs to the selected firms withoutfurther advertisement of the solicitation.[Adopted 2020-060 eff 03/17/20]

Stats. Implemented: ORS 279C.405

137-049-0650 Requests for Proposals (RFP)(1) Generally. The use of competitive

Proposals must be specially authorized for aPublic Improvement Contract under the competi-tive Bidding requirement of ORS 279C.335,LCPR 137-049-0130, and LCPR 137-049-0600 to137-049-0690. Also see ORS 279C.337 and ORS279C.400 to 279C.410 for statutory requirementsregarding competitive Proposals, and LCPR137-049-0640 regarding competitive Proposalprocedures.

(2) Solicitation Documents. In addition tothe Solicitation Document requirements of LCPR137-049-0200, this rule applies to the require-ments for Requests for Proposals. RFP Solicita-



tion Documents shall conform to the followingstandards:

(a) The County shall set forth selectioncriteria in the Solicitation Document. Examples ofevaluation criteria include price or cost, quality ofa product or service, past performance, manage-ment, capability, personnel qualification, priorexperience, compatibility, reliability, operatingefficiency, expansion potential, experience of keypersonnel, adequacy of equipment or physicalplant, financial wherewithal, sources of supply,references and warranty provisions. See LCPR137-049-0640 regarding Proposal evaluation andevaluation factors. Evaluation factors need not beprecise predictors of actual future costs and per-formance, but to the extent possible, such factorsshall be reasonable estimates based on informa-tion available to the County. Subject to ORS279C.410(4), the Solicitation Document mayprovide for discussions with Proposers to beconducted for the purpose of Proposal evaluationprior to award or prior to establishing any Com-petitive Range;

(b) When the County is willing to negoti-ate terms and conditions of the Contract or allowsubmission of revised Proposals following discus-sions, the County shall identify the specific termsand conditions in or provisions of the SolicitationDocument that are subject to negotiation or dis-cussion and authorize Offerors to propose certainalternative terms and conditions in lieu of theterms and conditions the County has identified asauthorized for negotiation. The County shalldescribe the evaluation and discussion or negotia-tion process, including how the County willestablish the Competitive Range, if any;

(c) When the County intends to AwardContracts to more than one Proposer, the Countyshall identify in the Solicitation Document themanner in which it will determine the number ofContracts it will Award. The County shall alsoinclude the criteria it will use to determine howthe County will endeavor to achieve optimalvalue, utility and substantial fairness when select-ing a particular Contractor to provide goods or

services from those Contractors Awarded Con-tracts.

(3) Evaluation of Proposals:(a) Evaluation. The County shall evaluate

Proposals only in accordance with criteria setforth in the RFP and applicable law. The Countyshall evaluate Proposals to determine the Respon-sible Proposer or Proposers submitting the bestResponsive Proposal or Proposals.

(A) Clarifications. In evaluatingProposals, the County may seek information froma Proposer to clarify the Proposer’s Proposal. AProposer must submit Written and Signed clarifi-cations and such clarifications shall become partof the Proposer’s Proposal.

(B) Limited Negotiation. If the Countydid not permit negotiation in its Request forProposals, the County may, nonetheless, negotiatewith the highest-ranked Proposer, but may thenonly negotiate the:

(i) Statement of Work; and (ii) Contract Price as it is affected

by negotiating the statement ofWork. The process fordiscussions or negotiationsthat is outlined and explainedin subsections (5)(b) and (6) ofthis rule does not apply to thislimited negotiation.

(b) Discussions; Negotiations. If theCounty permitted discussions or negotiations inthe Request for Proposals, the County shall evalu-ate Proposals and establish the CompetitiveRange, and may then conduct discussions andnegotiations in accordance with this rule.

(A) If the Solicitation Documentprovided that discussions or negotiations mayoccur at County’s discretion, the County mayforego discussions and negotiations and evaluateall Proposals in accordance with this rule.

(B) If the County proceeds withdiscussions or negotiations, the County shallestablish a negotiation team tailored for the acqui-sition. The County’s team may include legal,technical and negotiating personnel.




(c) Cancellation. Nothing in this rule shallrestrict or prohibit the County from canceling theSolicitation at any time.

(4) Competitive Range; Protest; Award. (a) Determining Competitive Range.

(A) If the County does not cancel theSolicitation after the Opening, the County shallevaluate all Proposals in accordance with theevaluation criteria set forth in the RFP. Afterevaluation of all Proposals in accordance with thecriteria set forth in the RFP, the County shalldetermine and rank the Proposers based on theCounty’s scoring and determine in CompetitiveRange.

(B) The County may increase thenumber of Proposers in the Competitive Range ifthe County’s evaluation of Proposals establishesa natural break in the scores of Proposers indicat-ing a number of Proposers greater than the initialCompetitive Range are closely competitive, orhave a reasonable chance of being determined thebest Proposer after the County’s evaluation ofrevised Proposals submitted in accordance withthe process described in this rule.

(b) Protesting Competitive Range. TheCounty shall provide notice to all Proposersidentifying Proposers in the Competitive Range.A Proposer that is not within the CompetitiveRange may protest the County’s evaluation anddetermination of the Competitive Range in accor-dance with LCPR 137-049-0450.

(c) Intent to Award; Discuss or Negotiate.After the protest period provided in accordancewith these rules expires, or after the County hasprovided a final response to any protest, which-ever date is later, the County may either:

(A) Provide Written notice to allProposers in the Competitive Range of its intentto Award the Contract to the highest-rankedProposer in the Competitive Range.

(i) An unsuccessful Proposer mayprotest the County’s intent toAward in accordance withLCPR 137-049-0450.

(ii) After the protest period pro-vided in accordance withLCPR 137-049-0450 expires,or after the County has pro-vided a final response to anyprotest, whichever date islater, the County shall com-mence final Contract negotia-tions with the highest-rankedProposer in the CompetitiveRange; or

(B) Engage in discussions with Pro-posers in the Competitive Range and acceptrevised Proposals from them, and, following suchdiscussions and receipt and evaluation of revisedProposals, conduct negotiations with the Propos-ers in the Competitive Range.

(5) Discussions; Revised Proposals. If theCounty chooses to enter into discussions with andreceive revised Proposals from the Proposers inthe Competitive Range, the County shall proceedas follows:

(a) Initiating Discussions. The Countyshall initiate oral or Written discussions with allof the Proposers in the Competitive Range regard-ing their Proposals with respect to the provisionsof the RFP that the County identified in the RFPas the subject of discussions. The County mayconduct discussions for the following purposes:

(A) Informing Proposers of deficien-cies in their initial Proposals;

(B) Notifying Proposers of parts oftheir Proposals for which the County would likeadditional information; and

(C) Otherwise allowing Proposers todevelop revised Proposals that will allow theCounty to obtain the best Proposal based on therequirements and evaluation criteria set forth inthe Request for Proposals.

(b) Conducting Discussions. The Countymay conduct discussions with each Proposer inthe Competitive Range as necessary to meet theintent of this Section (5), but it need not conductthe same amount of discussions with each Pro-poser. The County may terminate discussions with



any Proposer in the Competitive Range at anytime. However, the County shall offer all Propos-ers in the Competitive Range the opportunity todiscuss their Proposals with the County before theCounty notifies Proposers, pursuant to subsection(C) below, of the date and time that revised Pro-posals will be due.

(A) In conducting discussions, theCounty:

(i) Shall treat all Proposers fairlyand shall not favor any Pro-poser over another;

(ii) Shall not discuss other Propos-ers’ Proposals;

(iii) Shall not suggest specificrevisions that a Proposershould make to itsProposal, and shall nototherwise direct the Pro-poser to make any specificrevisions to its Proposal.

(B) At any time during the timeallowed for discussions, the County may:

(i) Continue discussions with aparticular Proposer;

(ii) Terminate discussions with aparticular Proposer and con-tinue discussions with otherProposers in the CompetitiveRange; or

(iii) Conclude discussions withall remaining Proposers inthe Competitive Range andprovide notice to the Pro-posers in the CompetitiveRange to submit revisedProposals.

(c) Revised Proposals. If the County doesnot cancel the solicitation at the conclusion of theCounty’s discussions with all remaining Proposersin the Competitive Range, the County shall giveall remaining Proposers in the Competitive Rangenotice of the date and time by which they mustsubmit revised Proposals. This notice constitutesthe County’s termination of discussions, and

Proposers must submit revised Proposals by thedate and time set forth in the County’s notice.

(A) Upon receipt of the revised Pro-posals, the County shall score the revised Propos-als based upon the evaluation criteria set forth inthe Request for Proposals and rank the revisedProposals based on the County’s scoring.

(B) The County may conduct discus-sions with and accept only one revised Proposalfrom each Proposer in the Competitive Rangeunless otherwise set forth in the Request forProposals.

(d) Intent to Award; Protest. The Countyshall provide notice to all Proposers in the Com-petitive Range of the County’s intent to Award theContract. An unsuccessful Proposer may protestthe County’s intent to Award in accordance withLCPR 137-049-0450. After the protest periodprovided in accordance with that rule expires, orafter the County has provided a final response toany protest, whichever date is later, the Countyshall commence final Contract negotiations.

(6) Negotiations:(a) Initiating Negotiations. The County

may commence negotiations with the highestranked Proposer in the Competitive Range follow-ing the:

(A) Initial determination of the Com-petitive Range; or

(B) Conclusion of discussions with allProposers in the Competitive Range and evalua-tion of revised Proposals.

(b) Conducting Negotiations; Scope. TheCounty may negotiate:

(A) The statement of Work; (B) The Contract Price as it is affected

by negotiating the statement of Work; and (C) Any other terms and conditions

reasonably related to those expressly authorizedfor negotiation in the RFP. Accordingly, Propos-ers shall not submit, and County shall not accept,for negotiation any alternative terms and condi-tions that are not reasonably related to those ex-pressly authorized for negotiation in the RFP.




(c) Continuing Negotiations. If the Countyterminates negotiations with a Proposer, theCounty may then commence negotiations with thenext highest scoring Proposer in the CompetitiveRange, and continue the process described in thisrule until the County has:

(A) Determined to Award the Contractto the Proposer with whom it is currently negotiat-ing; or

(B) Completed one round of negotia-tions with all Proposers in the Competitive Range,unless the County provided for more than oneround of discussions or negotiations in the RFP, inwhich case the County may proceed with anyauthorized further rounds of discussions or negoti-ations.

(d) Terminating Discussions or Negotia-tions. At any time during discussions or negotia-tions that the County conducts in accordance withthis rule, the County may terminate discussions ornegotiations with the highest-ranked Proposer, orthe Proposer with whom it is currently discussingor negotiating if the County reasonably believesthat:

(A) The Proposer is not discussing ornegotiating in good faith; or

(B) Further discussions or negotia-tions with the Proposer will not result in theparties agreeing to the terms and conditions of afinal Contract in a timely manner. [Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20; amd 2020-163 eff06/23/20]Stats. Implemented: ORS 279C.400 to 279C.410

137-049-0660 RFP Pricing Mechanisms(1) An RFP may result in a lump-sum Con-

tract Price, as in the case of competitive Bidding.Alternatively, a cost reimbursement Contract witha GMP, or some other maximum price specifiedin the Contract, may be negotiated.

(2) Economic incentives or disincentives maybe included to reflect the stated County purposesrelated to time of completion, safety or otherPublic Contracting objectives, including, but notlimited to, total least cost mechanisms such as lifecycle costing.

(3) A Guaranteed Maximum Price may beused as the pricing mechanism for CM/GC wherea total Contract Price is provided in the designphase in order to assist the County in determiningwhether the project scope is within the County’sbudget, and allowing for design changes duringpreliminary design rather than after final designWork has been completed.

(a) If the collaborative process describedin this Section (3) is successful, the Contractorshall propose a final GMP, which may be ac-cepted by the County and included within theContract.

(b) If the collaborative process describedin this Section (3) is not successful, and no mutu-ally agreeable resolution on the GMP for thePublic Improvement project can be achieved withthe Contractor, then the County shall terminate theContract. The County may then proceed to negoti-ate a new Contract (and GMP) with the firm thatwas next ranked in the original selection process,or employ other means for continuing the PublicImprovement project under ORS Chapter 279C.

(4) When cost reimbursement Contracts areutilized, regardless of whether a GMP is included,the County shall provide for audit controls thatwill effectively verify rates and ensure that costsare reasonable, allowable and properly allocated. [Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20; amd 2020-163 eff06/23/20]Stats. Implemented: ORS 279C.335

137-049-0670 Design-Build Contracts(1) General. The Design-Build Procurement

process, as defined at LCPR 137-049-0610(3), hastechnical complexities that are not readily appar-ent. The County may seek the assistance ofknowledgeable staff or consultants who are expe-rienced in its use. In order to use the Design-Buildprocess, the County must be able to reasonablyanticipate the following types of benefits:

(a) Obtaining, through a Design-Buildteam, engineering design, plan preparation, valueengineering, construction engineering, construc-tion, quality control and required documentationas a fully integrated function with a single point ofresponsibility;



(b) Integrating value engineering sugges-tions into the design phase, as the constructionContractor joins the project team early with designresponsibilities under a team approach, with thepotential of reducing Contract changes;

(c) Reducing the risk of design flaws,misunderstandings and conflicts inherent inconstruction Contractors building from designs inwhich they have had no opportunity for input,with the potential of reducing Contract claims;

(d) Shortening project time as construc-tion activity (early submittals, mobilization,subcontracting and advance Work) commencesprior to completion of a "Biddable" design, orwhere a design solution is still required (as incomplex or phased projects); or

(e) Obtaining innovative design solutionsthrough the collaboration of the Contractor anddesign team, which would not otherwise be possi-ble if the Contractor had not yet been selected.

(2) Authority. The County shall utilize theDesign-Build Procurement process in accordancewith the requirements of LCPR 137-049-0600 to137-049-0690. See particularly LCPR137-049-0620 on "Use of Alternative ContractingMethods" and LCPR 137-049-0680 pertaining toESPCs.

(3) Selection. Design-Build selection criteriamay include those factors set forth in LCPR137-049-0640(2)(a), (b) and (c).

(4) Qualifications-Based Selection ProcessInapplicable. Because the value of constructionservices predominates the Design- Build Procure-ment process, the qualifications-based selectionprocess mandated by ORS 279C.110, and furtherdefined in LCPR 137-048, in obtaining Architec-tural, Engineering, Photogrammetric Mapping,Transportation Planning, Land Surveying, orRelated Services is not applicable.

(5) Licensing. If a Design-Build Contractor isnot an Oregon licensed design professional, theCounty shall require that the Design-Build Con-tractor disclose in its Written Offer: 1) that it isnot an Oregon licensed design professional, and 2)the identity of the Oregon licensed design profes-

sional(s) who will provide design services. SeeORS 671.030(5) regarding the practice of archi-tectural services, and ORS 672.060(11) regardingthe practice of engineering services, that areappurtenant to construction services.

(6) Performance Security. ORS279C.380(1)(a) provides that for Design-BuildContracts, the surety’s obligation on performancebonds, or the Bidder’s obligation on cashier’s orcertified checks accepted in lieu thereof, includesthe preparation and completion of design andrelated Personal Services specified in the Con-tract. This additional obligation, beyond perfor-mance of construction Work, extends only to theprovision of Personal Services and related designrevisions, corrective Work, and associated costsprior to final completion of the Contract (or forsuch longer time as may be defined in the Con-tract). The obligation is not intended to be asubstitute for professional liability insurance anddoes not include errors and omissions or latentdefects coverage.

(7) Contract Requirements. The Countyshall conform their Design-Build Procurementpractices to the following requirements:

(a) Design Services. The level or type ofdesign services required will be clearly definedwithin the Procurement documents and Contract,along with a description of the level or type ofdesign services previously performed for thePublic Improvement project. The services to beperformed will be clearly delineated as eitherdesign Specifications or performance standards,and performance measurements must be identi-fied.

(b) Professional Liability. The Contractshall clearly identify the liability of design profes-sionals with respect to the Design-Build Contrac-tor and the County, as well as requirements forprofessional liability insurance.

(c) Risk Allocation. The Contract shallclearly identify the extent to which the Countyrequires an express indemnification from theDesign-Build Contractor for any failure to per-form, including professional errors and omissions,




design warranties, construction operations andfaulty Work claims.

(d) Warranties. The Contract shall clearlyidentify any express warranties made to theCounty regarding characteristics or capabilities ofthe completed project (regardless of whethererrors occur as the result of improper design,construction, or both), including any warranty thata design will be produced that meets the statedproject performance and budget guidelines.

(e) Incentives. The Contract shall clearlyidentify any economic incentives and disincen-tives, the specific criteria that apply, and theirrelationship to other financial elements of theContract.

(f) Honoraria. If allowed by the RFP,honoraria or stipends may be provided for earlydesign submittals from qualified finalists duringthe solicitation process on the basis that theCounty is benefitted from such deliverables.[Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20]Stats. Implemented: ORS 279C.335, ORS 279A.065, ORS 279C.110 & ORS351.086

137-049-0680 Energy Savings PerformanceContracts (ESPC)

(1) Generally. LCPR 137-049-0600 to137-049-0690 provides for a limited, efficientmethod for the County to enter into ESPCs out-side the competitive Bidding requirements of ORS279C.335 for existing buildings or structures, butnot for new construction. If the County choosesnot to utilize the ESPC Procurement method inLCPR 137-049-0600 to 137-049-0690, the Countymay still enter into an ESPC by complying withthe competitive Bidding exemption process setforth in ORS 279C.335, or by otherwise comply-ing with the Procurement requirements applicableto a contracting agency not subject to all therequirements of ORS 279C.335.

(2) ESPC Contracting Method. The ESPCProcurement process, as defined at LCPR137-049-0610(6), has unique technical complexi-ties associated with the determination of whatECMs are feasible for the County, as well as theadditional technical complexities associated witha Design-Build Contract. The County may seek

the assistance of knowledgeable staff or consul-tants who are experienced in its use. In order toutilize the ESPC contracting process, the Countymust be able to reasonably anticipate one or moreof the following types of benefits:

(a) Obtaining, through an ESCO, thefollowing types of integrated services: facilityprofiling, energy baseline studies, ECMs, Techni-cal Energy Audits, project development planning,engineering design, plan preparation, cost estimat-ing, life cycle costing, construction administra-tion, project management, construction, qualitycontrol, operations and maintenance staff training,commissioning services, M & V services andrequired documentation as a fully integratedfunction with a single point of responsibility;

(b) Obtaining, through an ESCO, anEnergy Savings Guarantee;

(c) Integrating the Technical Energy Auditphase and the Project Development Plan phaseinto the design and construction phase of Work ona Public Improvement project;

(d) Reducing the risk of design flaws,misunderstandings and conflicts inherent in theconstruction process, through the integration ofESPC Personal Services and Work;

(e) Obtaining innovative design solutionsthrough the collaboration of the members of theESCO integrated ESPC team;

(f) Integrating cost-effective ECMs intoan existing building or structure, so that the ECMspay for themselves through savings realized overthe useful life of the ECMs;

(g) Preliminary design development andimplementation and an Energy Savings Guaranteeof ECMs for an existing County building orstructure as a distinct part of a major remodel thatis being performed under a separate Contract; and

(h) Satisfying local energy efficiencydesign criteria or requirements.

(3) Authority. The County shall utilize theESPC Procurement process only in accordancewith the requirements of LCPR 137-049-0600 to137-049-0690.



(4) No Findings Required. The County isrequired only to comply with the ESPC Procure-ment procedures set forth in LCPR 137-049-0600to 137-049-0690 for the ESPC to be exempt fromthe competitive Bidding processes of ORS279C.335. No Findings are required for an ESPCto be exempt from the competitive Bidding pro-cess for Public Improvement Contracts pursuantto ORS 279C.335, unless the County is subject tothe requirements of ORS 279C.335 and choosesnot to comply with the ESPC Procurement proce-dures set forth in LCPR 137-049-0600 to137-049-0690.

(5) Selection. ESPC selection criteria mayinclude those factors set forth in LCPR137-049-0640(2)(a), (b), (c) and (d). Because theEnergy Savings Guarantee is a fundamentalcomponent in the ESPC Procurement process,Proposers must disclose in their Proposals theidentity of any Person providing (directly orindirectly) any Energy Savings Guarantee thatmay be offered by the successful ESCO during thecourse of the performance of the ESPC Work,along with any financial statements and relatedinformation pertaining to any such Person.

(6) Qualifications-Based Selection ProcessInapplicable. Because the value of constructionservices predominates in the ESPC Procurementprocess, the qualifications-based selection processmandated by ORS 279C.110, and further definedin LCPR 137-048, in obtaining Architectural,Engineering, Photogrammetric Mapping,Transportation Planning, Land Surveying, orRelated Services is not applicable.

(7) Licensing. If the ESCO is not an Oregonlicensed design professional, the County shallrequire that the ESCO disclose in the ESPC: 1)that it is not an Oregon licensed design profes-sional, and 2) the identity of the Oregon licenseddesign professional(s) who will provide designservices. See ORS 671.030(5) regarding thepractice of architectural services, and ORS672.060(11) regarding the practice of engineeringservices that are appurtenant to constructionservices.

(8) Performance Security. At the point in theESPC when the parties enter into a binding Con-tract that constitutes a Design-Build Contract, theESCO must provide a performance bond and apayment bond, each for 100% of the full ContractPrice, including the construction Work and designand related Personal Services specified in theESPC Design-Build Contract, pursuant to ORS279C.380(1)(a). For ESPC Design-Build Con-tracts, these "design and related professionalservices" include conventional design services,commissioning services, training services for theCounty’s operations and maintenance staff, andany similar professional services provided by theESCO under the ESPC Design-Build Contractprior to final completion of construction. M & Vservices, and any Personal Services or Workassociated with the ESCO’s Energy SavingsGuarantee are not included in these ORS279C.380(1)(a) "design and related professionalservices." Nevertheless, the County may requirethat the ESCO provide performance security forM & V services and any Personal Services orWork associated with the ESCO’s Energy SavingsGuarantee, if so required in the RFP.

(9) Contracting Requirements. The Countyshall conform their ESPC Procurement practicesto the following requirements:

(a) General ESPC Procurement Practices.An ESPC involves a multi-phase project, whichincludes the following contractual elements:

(A) A contractual structure whichincludes general Contract terms describing therelationship of the parties, the various phases ofthe Work, the contractual terms governing theTechnical Energy Audit for the Public Improve-ment project, the contractual terms governing theProject Development Plan for the Public Improve-ment project, the contractual terms governing thefinal design and construction of the Public Im-provement project, the contractual terms govern-ing the performance of the M & V services for thePublic Improvement project, and the detailedprovisions of the ESCO’s Energy Savings Guaran-tee for the Public Improvement project.




(B) The various phases of the ESCO’sWork will include the following:

(i) The Technical Energy Auditphase of the Work;

(ii) The Project Development Planphase of the Work;

(iii) A third phase of the Workthat constitutes a Design-Build Contract, duringwhich the ESCO com-pletes any plans and Speci-fications required to imple-ment the ECMs that havebeen agreed to by the par-ties to the ESPC, and theESCO performs all con-struction, commissioning,construction administra-tion and related PersonalServices or Work to con-struct the Public Improve-ment project; and

(iv) A final phase of the Work,whereby the ESCO, inde-pendently or in coopera-tion with an independentconsultant hired by theCounty, performs M & Vservices to ensure that theEnergy Savings Guaranteeidentified by the ESCO inthe earlier phases of theWork, and agreed to by theparties, has been fullyachieved.

(b) Design-Build Contracting Require-ments in ESPCs. At the point in the ESPC whenthe parties enter into a binding Contract thatconstitutes a Design-Build Contract, the Countyshall conform its Design-Build contracting prac-tices to the Design-Build contracting requirementsset forth in LCPR 137-049-0560(7).

(c) Pricing Alternatives. The County mayutilize one of the following pricing alternatives inan ESPC:

(A) A fixed price for each phase of thePersonal Services and Work to be provided by theESCO;

(B) A cost reimbursement pricingmechanism, with a maximum not-to-exceed priceor a GMP; or

(C) A combination of a fixed fee forcertain components of the Personal Services to beperformed, a cost reimbursement pricing mecha-nism for the construction Work to be performedwith a GMP, a single or annual fixed fee for M &V services to be performed for an identified timeperiod after final completion of the constructionWork, and a single or annual Energy SavingsGuarantee fixed fee payable for an identified timeperiod after final completion of the constructionWork that is conditioned on certain energy sav-ings being achieved at the facility by the ECMsthat have been implemented by the ESCO duringthe project (in the event an annual M & V servicesfee and annual Energy Savings Guarantee fee isutilized by the parties, the parties may provide inthe Design-Build Contract that, at the sole optionof the County, the ESCO’s M & V services maybe terminated prior to the completion of the M &V/Energy Savings Guarantee period and theCounty’s future obligation to pay the M & Vservices fee and Energy Savings Guarantee feewill likewise be terminated, under terms agreed toby the parties).

(d) Permitted ESPC Scope of Work. Thescope of Work under the ESPC is restricted toimplementation and installation of ECMs, as wellas other Work on building systems or buildingcomponents that are directly related to the ECMs,and that, as an integrated unit, will pay for them-selves over the useful life of the ECMs installed.The permitted scope of Work for ESPCs resultingfrom a Solicitation under LCPR 137-049-0600 to137-049-0690 does not include maintenanceservices for the project facility.[Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20]Stats. Implemented: ORS 279C.335, ORS 279A.065, ORS 279C.110 & ORS351.086



137-049-0690 Construction Manager/GeneralContractor (CM/GC)

(1) General. The CM/GC Method is a techni-cally complex project delivery system. TheCounty shall use this Procurement method onlywith the assistance of legal counsel with substan-tial experience and necessary expertise in usingthe CM/GC Method, as well as knowledgeablestaff, consultants, or both who have a demon-strated capability of managing the CM/GC processin the necessary disciplines of engineering, con-struction scheduling and cost control, accounting,legal, Public Contracting and project management.Unlike the Design-Build Procurement process, theCM/GC Method does not contemplate a "singlepoint of responsibility" under which the CM/GCis responsible for successful completion of allWork related to a performance Specification. TheCM/GC has defined contract obligations, includ-ing responsibilities as part of the project teamalong with the County and its design profes-sional(s). In order to utilize the CM/GC Method,the County must be able to reasonably anticipatethe following types of benefits:

(a) Time Savings. With the CM/GCMethod, the Public Improvement has significantschedule ramifications, such that concurrentdesign and construction are necessary in order tomeet critical deadlines and shorten the overallduration of construction. The County may con-sider operational and financial data that showsignificant savings or increased opportunities forgenerating revenue as a result of early completion,as well as less disruption to public facilities as aresult of shortened construction periods;

(b) Cost Savings. With the CM/GCMethod, early CM/GC input during the designprocess is expected to contribute to significantcost savings. The County may consider valueengineering, building systems analysis, life cyclecosting analysis, and construction planning thatlead to cost savings. The County shall specify anyspecial factors influencing this analysis, includinghigh rates of inflation, market uncertainty due tomaterial and labor fluctuations or scarcities, and

the need for specialized construction expertise dueto technical challenges; or

(c) Technical Complexity. With theCM/GC Method, the Public Improvement presentssignificant technical complexities that are bestaddressed by a collaborative or team effort be-tween the County, its design professionals, anyCounty project management or technical consul-tants, and the CM/GC, in which the CM/GC willassist in addressing specific project challengesthrough pre-construction Personal Services. TheCounty may consider the need for CM/GC inputon issues such as operations of the facility duringconstruction, tenant occupancy, public safety,delivery of an early budget or GMP, financing,historic preservation, difficult remodeling pro-jects, and projects requiring complex phasing orhighly coordinated scheduling.

(2) Authority. The County shall use theCM/GC Method only in accordance with therequirements of these Division 49 rules and ORS279C.337, when a competitive Bidding exemptionis approved. See particularly LCPR 137-049-0600on "Purpose" and LCPR 137-049-0620 on "Use ofAlternative Contracting Methods".

(3) Selection. CM/GC selection criteria mayinclude those factors set forth above in LCPR137-049-0640(2)(b).

(4) Basis for Payment. The CM/GC Methodadds specified construction manager PersonalServices to traditional general contractor Work,requiring full Contract performance within anegotiated GMP, fixed Contract Price, or othermaximum Contract Price. For a GMP pricingmethod, the basis for payment is reimbursabledirect costs as defined under the Contract, plus afee constituting full payment for Work and Per-sonal Services rendered, which together shall notexceed the GMP. See GMP definition at LCPR137-049-0610 and Pricing Mechanisms at LCPR137-049-0660.

(5) Contract Requirements. CM/GCcontracting practices to the followingrequirements:




(a) Nature of the Initial CM/GC ServicesContract Document. A solicitation for CM/GCServices is a Procurement for a Public Improve-ment, since the scope of the Procurement includesnot only pre-construction Personal Services to beperformed by the CM/GC, but also constructionWork that is expected to result in a completedPublic Improvement. In the traditional CM/GCServices contracting approach, the text of theresulting CM/GC Services Contract will includecomprehensive contract provisions that will notonly fully govern the relationship between theCounty and the CM/GC for the pre-constructionPersonal Services, but will also include the gen-eral contract provisions that will control theCM/GC’s providing of the construction Worknecessary to complete the project (with any re-maining necessary construction-related contrac-tual provisions being added through Early Workamendments to the Contract, a GMP amendmentto the Contract, or, if necessary, a conventionalamendment to the Contract). The traditionalCM/GC Services contracting approach, however,also contemplates that the County will only autho-rize the CM/GC to perform the pre-constructionPersonal Services when the Contract is firstexecuted unless construction Work is specificallyincluded in the initial CM/GC Contract. Underthis approach, the construction phase or phases ofthe CM/GC project are not yet authorized and theContract only becomes a Public ImprovementContract once the parties amend the Contract,through an Early Work or a GMP amendment, toauthorize the construction of a portion of theproject or the entire project. See also OAR839-025-0020, regarding the Bureau of Labor andIndustries’ determination of when a Contract forCM/GC Services becomes a Public Works Con-tract for purposes of paying prevailing wage ratesfor construction Work under the CM/GC Con-tract.

(b) Setting the GMP. The GMP, fixedContract Price or other maximum Contract Priceshall be set at an identified time consistent withindustry practice, after supporting information

reasonably considered necessary to its use hasbeen developed, which will normally take placeby the end of the design development phase of theproject. The supporting information for the GMPshall define with particularity both what PersonalServices and construction Work are included andexcluded from the GMP, fixed Contract Price, orother maximum Contract Price. A set of projectdrawings and Specifications shall be producedestablishing the scope of construction Workcontemplated by the GMP, fixed Contract Price,or other maximum Contract Price.

(c) Adjustments to the GMP, FixedContract Price or Other Maximum Contract Price.The Contract shall clearly identify the standards orfactors under which changes or additional con-struction Work will be considered outside of theWork scope that warrants an increase in the GMP,fixed Contract Price, or other maximum ContractPrice, as well as criteria for decreasing the GMP,fixed Contract Price, or other maximum ContractPrice. The GMP, fixed Contract Price, or othermaximum Contract Price shall not be increasedwithout a concomitant increase to the scope of theWork defined at the establishment of the GMP,fixed Contract Price, or other maximum ContractPrice, or most recent amendment to the GMP,fixed Contract Price, or other maximum ContractPrice. An increase to the scope of the Work maytake the form of conventional additions to theproject scope, as well as corrections to the Con-tract terms and conditions, additions to insurancecoverage required by the County and otherchanges to the Work.

(d) Cost Savings. The Contract shallclearly identify the disposition of any cost savingsresulting from completion of the Work below theGMP, fixed Contract Price or other maximumContract Price; that is, under what circumstances,if any, the CM/GC might share in those costsavings, or whether they accrue only to theCounty’s benefit. Unless there is a clearly articu-lated reason for sharing the cost savings set forthin the Contract, the Cost Savings must accrue tothe County.



(e) Cost Reimbursement. The Contractshall clearly identify what items or categories ofitems are eligible for cost reimbursement withinthe GMP, fixed Contract Price or other maximumContract Price, including any category of GCWork costs, and may also incorporate a mutu-ally-agreeable cost-reimbursement standard.

(f) Audit. Cost reimbursements shall bemade subject to final audit adjustment, and theContract shall establish an audit process to ensurethat Contract costs are allowable, properly allo-cated, and reasonable.

(g) Fee. Compensation for the CM/GC’sPersonal Services and construction Work, wherethe Contract uses a GMP, shall include a fee thatis inclusive of profit, overhead, and all otherindirect or non-reimbursable costs. Costs deter-mined to be included within the fee should beexpressly defined in the Contract terms and condi-tions at the time the County selects the CM/GC.The fee, which may be expressed as either a fixeddollar amount or as a proposed percentage of allreimbursable costs, shall be identified during andbecome an element of the selection process. Itshall subsequently be expressed as a fixed amountfor particular construction Work authorized to beperformed, when Early Work is added to theContract through an amendment and when theGMP is established. The CM/GC fee does notinclude any fee paid to the CM/GC for performingpre-construction services during a separatepre-construction phase.

(h) Incentives. The Contract shall clearlyidentify any economic incentives, the specificcriteria that apply, and their relationship to otherfinancial elements of the Contract (including theGMP, fixed Contract Price or other maximumContract Price).

(i) Controlled Insurance Programs. ForPublic Improvement projects where anowner-controlled or contractor-controlled insur-ance program is permitted under ORS 737.602,the Contract will clearly identify whether anowner-controlled or contractor-controlled insur-ance program is anticipated or allowable. If so, the

Contract shall clearly identify (1) anticipated costsavings from reduced premiums, claims reduc-tions, and other factors, (2) the allocation of costsavings, and (3) safety responsibilities and/orincentives.

(j) Early Work. The RFP shall clearlyidentify, whenever feasible, the circumstancesunder which any Early Work may be authorizedand undertaken for compensation prior to estab-lishing the GMP, fixed Contract Price or othermaximum Contract Price.

(k) Subcontractor Selection. Subcontractsunder the Contract are not Public Contracts withinthe meaning of the Code. However, the Contractmust include provisions that clearly meet therequirements of ORS 279C.337(3) and otherCounty requirements. Within the scope of ORS279C.337(3), the CM/GC’s subcontractor selec-tion process must meet the following parameters:

(A) Absent a Written justificationprepared by the CM/GC and approved by theCounty as more particularly provided for in thisSection, the CM/GC’s subcontractor selectionprocess must be "competitive", meaning that theprocess should include publicly-advertised sub-contractor solicitations and be based on a low-bidcompetitive method, a low-quote competitivemethod for contracts in a specified dollar rangeagreeable to the County, or a method wherebyboth price and qualifications of the subcontractorsare evaluated in a competitive environment,consistent with the RFP and Contract require-ments;

(B) When the subcontractor selectionprocess for a particular Work package will not be"competitive" as provided for in this Section, theprocess must meet the following requirements:

(i) The CM/GC must prepare andsubmit a Written justificationto the County, explaining theproject circumstances that sup-port a non-competitivesubcontractor selection pro-cess for a particular Workpackage, including, but not




limited to, Emergency circum-stances, the CM/GC’s need toutilize a key subcontractormember of the CM/GC’s pro-ject team consistent with theCM/GC’s project Proposal, theneed to meet other specifiedContract requirements, thecontinuation or expansion ofan existing subcontractoragreement that was awardedthrough a "competitive pro-cess" along with facts support-ing the continuation or expan-sion of the subcontractoragreement, or a "sole source"justification;

(ii) For a "sole source" selection ofa subcontractor to proceed, theCounty must evaluate theWritten justification providedby the CM/GC and must findthat critical project efficienciesrequire utilization of labor,services or materials from onesubcontractor; that technicalcompatibility issues on theproject require labor, servicesor materials from one subcon-tractor; that particular labor,services or materials are need-ed as part of an experimentalor pilot project or as part of anexperimental or pilot aspect ofthe project; or that other pro-ject circumstances exist tosupport the conclusion that thelabor, services or materials areavailable from only one sub-contractor;

(iii) The CM/GC must providean independent cost esti-mate for the Work packagethat will be subject to the

non-competitive process, ifrequired by the County;

(iv) The CM/GC must fullyrespond to any questionsor comments submitted tothe CM/GC by the County;and

(v) The County must approve theCM/GC’s use of thenon-competitive subcontractorselection process prior to theCM/GC’s pursuit of thenon-competitive process.

(C) A competitive selection processmay be preceded by a publicly advertisedsubcontractor pre-qualification process, with onlythose subcontractors meeting the pre-qualificationrequirements being invited to participate in thelater competitive process through which theCM/GC will select the subcontractor to performthe construction Work described in the selectionprocess;

(D) If the CM/GC, or an affiliate orsubsidiary of the CM/GC, will be included in thesubcontractor selection process to perform partic-ular construction Work on the project, the CM/GCmust disclose that fact in the selection processdocuments and announcements. The Contractmust also identify the conditions, processes andprocedures the CM/GC will utilize in that compet-itive process in order to make the process impar-tial, competitive and fair, including but not limitedto objective, independent review and opening ofbids or proposals for the elements of Work in-volved, by a representative of the County oranother independent third party.

(l) Subcontractor Approvals and Protests.The Contract shall clearly establish whether theCounty must approve subcontract awards, and towhat extent, if any, the County will resolve or beinvolved in resolution of protests of the CM/GC’sselection of subcontractors and suppliers. Theprocedures and reporting mechanisms related tothe resolution of subcontractor and supplierprotests shall be established in the Contract with



certainty, including the CM/GC’s roles and re-sponsibilities in this process and whether theCM/GC’s subcontracting records are consideredto be public records. In any event, the Countyshall retain the right to monitor the subcontractingprocess in order to protect the County’s interestsand to confirm the CM/GC’s compliance with theContract and with applicable statutes, administra-tive rules and other legal requirements.

(m) CM/GC Self-Performance or Perfor-mance by CM/GC Affiliates or SubsidiariesWithout Competition. Consistent with the require-ments of ORS 279C.337(3)(c), the Contract mustestablish the conditions under which the CM/GCor an Affiliate or subsidiary of the CM/GC mayperform elements of the construction Work with-out competition from subcontractors, including,for example, job-site GC Work. Other than for GCWork, in order for the CM/GC or an Affiliate orsubsidiary of the CM/GC to perform elements ofthe construction Work without competition fromsubcontractors, the CM/GC must provide, or musthave included in the CM/GC’s RFP Proposal toperform CM/GC Services for the project, a de-tailed proposal for performance of the Work bythe CM/GC or an affiliate or subsidiary of theCM/GC. If required by the County, the CM/GC’sProposal to perform the construction Work besupported by at least one independent cost esti-mate prior to the Work being included in theContract.

(n) Unsuccessful Subcontractor Briefing.ORS 279C.337(3)(e) is designed to allow a sub-contractor who was not selected by the CM/GC toperform a particular element of the constructionWork to obtain specific information from theCM/GC, and meet with the CM/GC to discuss thesubcontractor qualification and selection processinvolved and the CM/GC’s subcontractor selec-tion decisions, in order to better understand whythe subcontractor was not successful in beingselected to perform the particular element of theWork and to improve the subcontractor’s substan-tive qualifications or the subcontractor’s methodsin competing for elements of the Work for the

particular project involved, or for future projects.The briefing meetings may be held with individualsubcontractors or, if the subcontractors agree, ingroups of subcontractors, with those groupsestablished by bid package or other designationagreed to by the County and the CM/GC. Never-theless, the CM/GC is not obligated to providethis briefing opportunity unless the CM/GCreceives a Written request from a subcontractor todiscuss the subcontractor qualification and selec-tion process involved. Unless the County and theCM/GC agree on a different schedule, the CM/GCContract should include provisions:

(A) Allowing a subcontractor 60 daysfrom the CM/GC’s notice of award of a subcon-tract for a particular Work package to request, inWriting, a post-selection meeting with theCM/GC under this Section; and

(B) Requiring the CM/GC to set ameeting with the subcontractor under this Sectionwithin 45 days of the subcontractor’s Writtenrequest.

(o) Performance and Payment Bonds.Provided no construction Work is included withthe pre-construction services to be performedunder the initial form of the CM/GC Contract, noperformance bond or payment bond is required tobe provided by the CM/GC at the time of Contractsigning, consistent with ORS 279C.380. Onceconstruction Work is included in the Contract andauthorized by the County to be performed by theCM/GC, however, the CM/GC must provide aperformance bond and payment bond each in thefull amount of any Early Work to be performed bythe CM/GC, or the full amount of the GMP, fixedContract Price, or other maximum Contract Price,as applicable. Furthermore, in the event additionalEarly Work is added to the CM/GC Contract afterthe initial Early Work or in the event an amend-ment to the CM/GC Contract is made so that theGMP, fixed Contract Price, or other maximumContract Price must be increased, the performancebond and the payment bond must each be in-creased in an amount equal to the additional Early




Work or the increased GMP, fixed Contract Price,or other maximum Contract Price.

(p) Independent Review of CM/GCPerformance; Conflicts of Interest. If the Countyrequires independent review, monitoring, inspec-tion or other oversight of a CM/GC’s performanceof pre-construction Personal Services, construc-tion Work, or both pre-construction PersonalServices and construction Work, the County mustobtain those independent review services from aContractor independent of the CM/GC, theCM/GC’s affiliates, and the CM/GC’ssubcontractors, pursuant to the requirements ofORS 279C.307. However, ORS 279C.307 doesnot prohibit the following:

(A) The CM/GC’s performance ofboth pre-construction Personal Services andconstruction Work that are included within thedefinition of CM/GC Services, consistent withORS 279C.307(2); or

(B) The CM/GC’s performance ofinternal quality control services, quality assuranceservices, or other internal peer review of CM/GCwork product that is intended to confirm theCM/GC’s performance of the CM/GC Contractaccording to its terms.

(q) Socio-Economic Programs. TheContract shall clearly identify conditions relatingto any required socio-economic programs (such asAffirmative Action or Prison Inmate Labor Pro-grams), including the manner in which suchprograms affect the CM/GC’s subcontractingrequirements, the enforcement mechanismsavailable, and the respective responsibilities of theCM/GC and the County. [Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20; amd 2020-163 eff06/23/20]Stats. Implemented: ORS 297C.335, ORS 279C.337, & ORS 279C.380(2)

IV. CONTRACT PROVISIONS

137-049-0800 Required Contract ClausesExcept as provided by LCPR 137-0490-0150

and 137-049-0160, the County shall include in allSolicitation Documents for Public ImprovementContracts all of the ORS Chapter 279C required

Contract clauses, as set forth in the checklistcontained in LCPR 137-049-0200(1)(c) regardingSolicitation Documents. The following series ofrules provide further guidance regarding particularPublic Contract provisions. [Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20]Stats. Implemented: ORS 297C.505 to ORS 279C.545 & ORS 279C.800 to279C.870

137-049-0810 Waiver of Delay DamagesAgainst Public Policy

The County shall not place any provision in aPublic Improvement Contract purporting to waive,release, or extinguish the rights of a Contractor todamages resulting from the County’s unreason-able delay in performing the Contract. However,Contract provisions requiring notice of delay,providing for alternative dispute resolution suchas arbitration (where allowable) or mediation,providing other procedures for settling contractdisputes, or providing for reasonable liquidateddamages, are permissible. [Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20]Stats. Implemented: ORS 279C.315

137-049-0815 BOLI Public Works BondPursuant to ORS 279C.830(2), the

Specifications for every Public Works Contractshall contain a provision stating that the Contrac-tor and every subcontractor must have a PublicWorks bond filed with the Construction Contrac-tors Board before starting Work on the PublicImprovement project, unless otherwise exempt.This bond is in addition to performance bond andpayment bond requirements. See BOLI rule atOAR 839-025-0015.[Adopted 2020-060 eff 03/17/20]Stats. Implemented: ORS 279C.830

137-049-0820 Retainage (1) Withholding of Retainage. The County

shall not retain an amount in excess of five per-cent of the Contract Price for Work completed. Ifthe Contractor has performed at least 50 percentof the Contract Work and is progressing satisfac-torily, upon the Contractor’s submission of Writ-ten application containing the surety’s Writtenapproval, the County may, in its discretion, reduce



or eliminate retainage on any remaining progresspayments. The County shall respond to all suchapplications within a reasonable time. When theContract Work is 97-1/2 percent completed, theCounty may, at its discretion and without applica-tion by the Contractor, reduce the retained amountto 100 percent of the value of the remainingunperformed Contract Work. The County may atany time reinstate retainage. Retainage shall beincluded in the final payment of the ContractPrice.

(2) Cash Retainage - Contract Price$500,000 or Less. When the Contract Price for aPublic Improvement Contract is $500,000 or less,the County may reserve as retainage from anyprogress payment an amount not to exceed fivepercent, pursuant to ORS 279C.570(7). If theCounty chooses to reserve retainage, the Countyshall hold all retained moneys in a County fund oraccount, and interest is not required to accrue onthe retained moneys.

(3) Cash Retainage - Contract Price inExcess of $500,000. When the Contract Price fora Public Improvement Contract exceeds $500,000,the County shall, in the ordinary course, depositcash retainage in an amount not to exceed fivepercent from any progress payment due under thePublic Improvement Contract into an inter-est-bearing escrow account, pursuant to ORS279C.570(2) [House Bill 2415 (2019 OregonLaws, Chapter 486)]. The Contractor under thePublic Improvement Contract is entitled to receiveinterest on the retained moneys from the date theContractor's related payment request is fullyapproved by the County until the date the retainedmoneys are paid by the County to the Contractor.For purposes of this Section, a payment of retaina-ge is deemed to be "paid" by the County when thepayment is transmitted to the Contractor, orotherwise applied against an obligation of theContractor under the Public Improvement Con-tract.

(4) Alternatives In Lieu of Cash Retainage.Unless the County reserves an amount asretainage finds in Writing that accepting bonds,

securities, or other instruments described in part(a) of this Section or a surety bond described inpart (b) of this Section poses an extraordinary riskthat is not typically associated with the bonds,securities, other instruments or surety bond, asapplicable, the County shall, in lieu of withhold-ing moneys from payment, accept from the Con-tractor:

(a) Bonds, securities or other instrumentsthat are deposited and accepted as provided insubsection (6)(a) of this rule; or

(b) A surety bond deposited as providedin subsection (6)(b) of this rule.

(5) Deposit in Interest-bearing Accounts.Upon election of the Contractor and when theContract Price in the Public Improvement Con-tract is $500,000 or less, the County shall depositcash retainage in an interest-bearing account in abank, savings bank, trust company, or savingsassociation, for the benefit of the County. Earn-ings on such an account shall accrue on the cashretainage from the date the Contractor's relatedpayment request is fully approved by the Countyuntil the date the retained moneys are paid by theCounty to the Contractor. For purposes of thisSection, a payment of retainage is deemed to be"paid" by the County when the payment is trans-mitted to the Contractor, or otherwise appliedagainst an obligation of the Contractor under thePublic Improvement Contract. When the Contrac-tor makes an election for deposit of retainage intoan interest-bearing account and the Contract Pricein the Public Improvement Contract exceeds$500,000, the Contractor's election shall be satis-fied by the County’s establishment of an inter-est-bearing escrow account, pursuant to ORS279C.570(2) [House Bill 2415 (2019 OregonLaws, Chapter 486)].

(6) Alternatives In Lieu of Cash Retainage- Requirements. In lieu of cash retainage to beheld by the County, the Contractor may substituteone of the following:

(a) Deposit of bonds, securities or otherinstruments.




(A) The Contractor may depositbonds, securities or other instruments with theCounty or in any bank or trust company to be heldfor the benefit of the County. If the County ac-cepts the deposit, the County shall reduce the cashretainage by an amount equal to the value of thebonds and securities, and reimburse the excess tothe Contractor.

(B) Bonds, securities or other instru-ments deposited or acquired in lieu of cashretainage must be of a character approved by theCounty, which may include, without limitation:

(i) Bills, certificates, notes orbonds of the United States.

(ii) Other obligations of the Unit-ed States or agencies of theUnited States.

(iii) Obligations of a corpora-tion wholly owned by theFederal Government.

(iv) Indebtedness of the Fed-eral National MortgageAssociation.

(v) General obligation bonds ofthe State of Oregon or a politi-cal subdivision of the State ofOregon.

(vi) Irrevocable letters of creditissued by an insured insti-tution, as defined in ORS706.008.

(C) Upon the County’s determinationthat all requirements for the protection of theCounty’s interests have been fulfilled, it shallrelease to the Contractor all bonds and securitiesdeposited in lieu of retainage.

(b) Deposit of Surety Bond. The Countymay, at its discretion, allow the Contractor todeposit a surety bond in a form acceptable to theCounty in lieu of all or a portion of funds retainedor to be retained. A Contractor depositing such abond shall accept surety bonds from its subcon-tractors and suppliers in lieu of retainage. In suchcases, retainage shall be reduced by an amount

equal to the value of the bond, and the excessshall be reimbursed.

(7) Recovery of costs. Pursuant to ORS279A.560(3), the County may recover from theContractor all additional costs incurred in theproper handling of retainage alternatives requestedby the Contractor, whether a request for thedeposit of bonds, securities, or other instrumentsin lieu of cash retainage, a request for a suretybond in lieu of cash retainage or an election for aninterest-bearing account. If the County incurscosts associated with establishing a fund or ac-count under Section (2) of this rule, or establish-ing an interest-bearing escrow account underSection (3) of this rule, the County is not permit-ted to recover such costs from the Contractor.

(8) Additional Retainage When CertifiedPayroll Statements Not Filed. Pursuant to ORS279C.845(7), if a Contractor is required to filecertified payroll statements and fails to do so, theCounty shall retain 25 percent of any amountearned by the Contractor on a Public WorksContract until the Contractor has filed such state-ments with the County. The County shall pay theContractor the amount retained under this provi-sion within 14 days after the Contractor files thecertified statements, regardless of whether asubcontractor has filed such statements (but see279C.845(1) regarding the requirement for bothContractors and subcontractors to file certifiedstatements with the County). See BOLI rule atOAR 839-025-0010.[Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20; amd 2020-163 eff06/23/20]Stats. Implemented: ORS 279C.560, ORS 279C.570, ORS 701.420, & OL 2019 ch486

137-049-0830 Contractor Progress Payments (1) Request for Progress Payments. Unless

the Contract requires otherwise, each month theContractor shall submit to the County its Writtenrequest for a progress payment based upon anestimated percentage of Contract completion. Atthe County’s discretion, this request may alsoinclude the value of material to be incorporated inthe completed Work that has been delivered to thepremises and appropriately stored. The sum of



these estimates is referred to as the "value ofcompleted Work." With these estimates as a base,the County shall make a progress payment to theContractor, which shall be equal to:

(a) The value of completed Work;(b) Less those amounts that have been

previously paid;(c) Less other amounts that may be de-

ductible or owing and due to the County for anycause; and

(d) Less the appropriate amount ofretainage.

(2) Progress Payments Do Not Mean accep-tance of Work. Progress payments shall not beconstrued as an acceptance or approval of any partof the Work and shall not relieve the Contractor ofresponsibility for defective workmanship ormaterial. [Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20]Stats. Implemented: ORS 279C.570

137-049-0840 Interest (1) Prompt Payment Policy. The County

shall pay promptly all payments due and owing tothe Contractor on Contracts for Public Improve-ments pursuant to the terms of the Contract.

(2) Interest on Progress Payments. Latepayment interest shall begin to accrue on pay-ments due and owing on the earlier of 30 Daysafter receipt of invoice or 15 Days after theCounty’s approval of payment (the "ProgressPayment Due Date "). The interest rate shall equalthree times the discount rate on 90-day commer-cial paper in effect on the Progress Payment DueDate at the Federal Reserve Bank in the FederalReserve district that includes Oregon, up to amaximum rate of 30 percent.

(3) Interest on Final Payment. Final pay-ment on the Contract Price, including retainage,shall be due and owing no later than 30 Days afterContract completion and acceptance of the Work.Late-payment interest on such final payment shallthereafter accrue at the rate of one and one-halfpercent per month until paid.

(4) Settlement or Judgment Interest. In theevent of a dispute as to compensation due a

Contractor for Work performed, upon settlementor judgment in favor of the Contractor, interest onthe amount of the settlement or judgment shall beadded to, and not made part of, the settlement orjudgment. Such interest, at the discount rate on90-day commercial paper in effect at the FederalReserve Bank in the Federal Reserve District thatincludes Oregon, shall accrue from the later of theProgress Payment Due Date, or thirty Days afterthe Contractor submitted a claim for payment tothe County in Writing or otherwise in accordancewith the Contract requirements. [Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20]Stats. Implemented: ORS 279C.570

137-049-0850 Final Inspection (1) Notification of Completion; Inspection.

The Contractor shall notify the County in Writingwhen the Contractor considers the Contract Workcompleted. Within fifteen (15) days of receivingContractor’s notice, the County will inspect thePublic Improvement project and project recordsand will either accept the Work or notify theContractor of remaining Work to be performed.

(2) Acknowledgment of Acceptance. Whenthe County finds that all Work required under theContract has been completed satisfactorily, theCounty shall acknowledge acceptance of the Workin Writing. [Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20]Stats. Implemented: ORS 279C.570(8)

137-049-0860 Public Works Contracts(1) Generally. ORS 279C.800 to 279C.870

regulates Public Works Contracts and require-ments for payment of prevailing wage rates. Alsosee administrative rules of the Bureau of Laborand Industries (BOLI) at OAR Chapter 839.

(2) Required Contract Conditions. Asdetailed in the above statutes and rules, everyPublic Works Contract must contain the followingprovisions:

(a) County authority to pay certain unpaidclaims and charge such amounts to Contractors, asset forth in ORS 279C.515(1).

(b) Maximum hours of labor and over-time, as set forth in ORS 279C.520(1).




(c) Employer notice to employees ofhours and days that employees may be required towork, as set forth in ORS 279C.520(2).

(d) Contractor required payments forcertain services related to sickness or injury, as setforth in ORS 279C.530.

(e) A requirement for payment of prevail-ing rate of wage, as set forth in ORS 279C.830(1).If both state and federal prevailing rates of wageapply, the contract and every subcontract mustprovide that all workers must be paid the higher ofthe applicable state or federal prevailing rate ofwage.

(f) A requirement for payment of fee toBOLI, as set forth in ORS 279C.830(2).

(3) Requirements for Specifications. TheSpecifications for every Public Works Contract,consisting of the Procurement package (such asthe Project Manual, Bid or Proposal Booklets,Request for Quotes or similar Procurement Speci-fications), must contain the following provisions:

(a) The state prevailing rate of wage, and,if applicable, the federal prevailing rate of wage,as required by ORS 279C.830(1)(a):

(A) Physically contained within orattached to hard copies of Procurement Specifica-tions;

(B) Included by a statement incorpo-rating the applicable wage rate publication into theSpecifications by reference, in compliance withOAR 839-025-0020; or

(C) When the rates are availableelectronically or by Internet access, the rates maybe incorporated into the Specifications by refer-ring to the rates and providing adequate informa-tion on how to access them in compliance withOAR 839-025-0020.

(b) If both state and federal prevailingrates of wage apply, a requirement that theContractor shall pay the higher of the applicablestate or federal prevailing rate of wage to allworkers. See BOLI rules at OAR 839-025-0020and 0035. A requirement for filing a Public Worksbond by the Contractor, and every subcontractor,as set forth in ORS 279C.830(2).

[Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20; amd 2020-163 eff06/23/20]Stats. Implemented: ORS 279C.800 to ORS 279C.870, OL 2011 & ch 458

137-049-0870 Specifications; Brand NameProducts

(1) Generally. The County’s SolicitationDocument shall not expressly or implicitly requireany product by brand name or mark, nor shall itrequire the product of any particular manufactureror seller, except pursuant to an exemption grantedunder ORS 279C.345(2).

(2) Equivalents. The County may identifyproducts by brand names so long as the followinglanguage: "approved equal"; "or equal"; "approvedequivalent" or "equivalent," or similar language isincluded in the Solicitation Document. The Coun-ty shall determine, in its sole discretion, whetheran Offeror's alternate product is "equal" or "equiv-alent."[Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20]Stats. Implemented: ORS 279C.345

137-049-0880 Records Maintenance; Right toAudit Records

(1) Records Maintenance; Access. Contrac-tors and subcontractors shall maintain all fiscalrecords relating to Contracts in accordance withgenerally accepted accounting principles("GAAP"). In addition, Contractors and subcon-tractors shall maintain all other records necessaryto clearly document (I) their performance; and (ii)any claims arising from or relating to their perfor-mance under a Public Contract. Contractors andsubcontractors shall make all records pertaining totheir performance and any claims under a Contract(the books, fiscal records and all other records,hereafter referred to as "Records") accessible tothe County at reasonable times and places,whether or not litigation has been filed as to suchclaims.

(2) Inspection and Audit. The County may,at reasonable times and places, have access to andan opportunity to inspect, examine, copy, andaudit the records of any Person that has submittedcost or pricing data according to the terms of aContract to the extent that the records relate to



such cost or pricing data. If the Person mustprovide cost or pricing data under a Contract, thePerson shall maintain such records that relate tothe cost or pricing data for 3 years from the dateof final payment under the Contract, unless ashorter period is otherwise authorized in Writing.

(3) Records Inspection; Contract Audit.The County, and its authorized representatives,shall be entitled to inspect, examine, copy, andaudit any Contractor’s or subcontractor’s records,as provided in Section (1) of this rule. The Con-tractor and subcontractor shall maintain the recor-ds and keep the records accessible and available atreasonable times and places for a minimum periodof 3 years from the date of final payment underthe Contract or subcontract, as applicable, or untilthe conclusion of any audit, controversy or litiga-tion arising out of or related to the Contract,whichever date is later, unless a shorter period isotherwise authorized in Writing. [Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20; amd 2020-163 eff06/23/20]Stats. Implemented: ORS 279A.030, ORS 279C.375, ORS 279C.380 & ORS279C.440

137-049-0890 County Payment for UnpaidLabor or Supplies

(1) Contract Incomplete. If the Contract isstill in force, the County may, in accordance withORS 279C.515(1), pay a valid claim to the Personfurnishing the labor or services, and charge theamount against payments due or to become due tothe Contractor under the Contract. If the Countychooses to make such a payment as provided inORS 279C.515(1), the Contractor and the Contrac-tor’s surety shall not be relieved from liability forunpaid claims.

(2) Contract Completed. If the Contract hasbeen completed and all funds disbursed to theprime Contractor, all claims shall be referred tothe Contractor’s surety for resolution. The Countyshall not make payments to subcontractors orsuppliers for Work already paid for by the County.[Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20]Stats. Implemented: ORS 279C.515

137-049-0900 Contract Suspension; Termina-tion Procedures

(1) Suspension of Work. In the event theCounty suspends performance of Work for anyreason considered by the County to be in thepublic interest other than a labor dispute, theContractor shall be entitled to a reasonable exten-sion of Contract time, and to reasonable compen-sation for all costs, including a reasonable allow-ance for related overhead, incurred by the Con-tractor as a result of the suspension.

(2) Termination of Contract by MutualAgreement for Reasons Other than Default.

(a) Reasons for Termination. The partiesmay agree to terminate the Contract or a divisibleportion thereof if:

(A) The County suspends Work underthe Contract for any reason considered to be in thepublic interest (other than a labor dispute, or anyjudicial proceeding relating to the Work filed toresolve a labor dispute); and

(B) Circumstances or conditions aresuch that it is impracticable within a reasonabletime to proceed with a substantial portion of theWork.

(b) Payment. When a Contract, or anydivisible portion thereof, is terminated pursuant tothis Section (2), the County shall pay the Contrac-tor a reasonable amount of compensation forpreparatory Work completed, and for costs andexpenses arising out of termination. The Countyshall also pay for all Work completed, based onthe Contract Price. Unless the Work completed issubject to unit or itemized pricing under theContract, payment shall be calculated based onpercent of Contract completed. No claim for lossof anticipated profits will be allowed.

(3) Public Interest Termination by County.The County may include in its Contracts termsdetailing the circumstances under which theContractor shall be entitled to compensation as amatter of right in the event the County unilaterallyterminates the Contract for any reason consideredby the County to be in the public interest.




(4) Responsibility for Completed Work.Termination of the Contract, or a divisible portionthereof, pursuant to this rule shall not relieveeither the Contractor or its surety of liability forclaims arising out of the Work performed.

(5) Remedies Cumulative. The County may,at its discretion, avail itself of any or all rights orremedies set forth in these rules, in the Contract,or available at law or in equity. [Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20; amd 2020-163 eff06/23/20]Stats. Implemented: ORS 279C.650, ORS 279C.326, ORS 279C.655, ORS279C.660, ORS 279C.665 & ORS 279C.670

137-049-0910 Changes to the Work and Con-tract Amendments

(1) Changes Provisions. Changes to theWork are anticipated in construction and, accord-ingly, the County shall include changes provisionsin all Public Improvement Contracts that detail thescope of the changes clause, provide pricingmechanisms, authorize the County or its autho-rized representatives to issue Change Orders andprovide a procedure for addressing Contractorclaims for additional time or compensation. WhenChange Orders are agreed to or issued consistentwith the Contract’s changes provisions, they arenot considered to be new Procurements and anexemption from competitive Bidding is not re-quired for their issuance by the County.

(2) Change Order Authority. The Countymay establish internal limitations and delegationsfor authorizing Change Orders, including dollarlimitations. Dollar limitations on Change Ordersare not set by Division 49, but such changes arelimited by the above definition of that term.

(3) Contract Amendments. ContractAmendments within the general scope of theoriginal Procurement are not considered to be newProcurements and an exemption from competitiveBidding is not required in order to add compo-nents or phases of Work specified in or reasonablyimplied from the Solicitation Document. Amend-ments to a Public Improvement Contract may bemade only when:

(a) They are within the general scope ofthe original Procurement;

(b) The field of competition and Contrac-tor selection would not likely have been affectedby the Contract modification. Factors to be con-sidered in making that determination includesimilarities in Work, project site, relative dollarvalues, differences in risk allocation and whetherthe original Procurement was accomplishedthrough competitive Bidding, competitive Propos-als, competitive quotes, sole source or Emergencycontract(s);

(c) In the case of a Contract obtainedunder an Alternative Contracting Method, anyadditional Work was specified or reasonablyimplied within the Findings supporting the com-petitive Bidding exemption; and

(d) The Amendment is made consistentwith applicable legal requirements.[Adopted 2005-052 eff 3/1/05; amd 2020-060 eff 03/17/20]Stats. Implemented: ORS 279A.065, 279C.335 & ORS 279C.400(1)

Statutory References and Other Authorities:ORS 203; ORS 279A, 279B, 279C; OAR137-049;

Legislative History of LCPR 137-049:1st Adopted 2005-052 eff 3/1/05; effectiveness

reaffirmed 2010-003 eff 1/5/10Amendments to 2005-052:

#1 2020-060 eff 03/17/20#2 2020-163 eff 06/23/20



[This page is intentionally blank]


