Chapter 3.12 PURCHASING RULES AND PROCEDURES

(1) Statutory Authority. These rules are adopted in accordance with ORS 279A.050, 279A.070, 279C.345 and this chapter to establish the rules of public contracting procedure that Crook County will use for its public contracts.

(2) Model Rules Not Applicable. The model rules adopted by the Oregon Attorney General pursuant to ORS 279A.065 shall not apply to Crook County unless specifically referenced herein.

(3) Federal Requirements. Crook County may be subject to certain contracting requirements when a particular contract is supported with federal funds. Those requirements are not reiterated in these rules. Conflicts between these rules and a federal requirement imposed by a federal statute rule or grant agreement shall be resolved in favor of the federal government.

(4) Procurement Guidelines. The Crook County court in its capacity as local contracting board may establish and modify from time to time written or unwritten procurement guidelines consistent with these rules.

(5) Effective Date and Effect. These rules take effect upon adoption and supersede any conflicting procedures or practices now in effect.

(6) The Crook County court shall serve as the local contract review board for the county.

(7) Competitive Bidding. All contracts shall be awarded by competitive process except as otherwise allowed or required by state statute, these rules or as authorized by the county court. (Ord. 160 § 1, 2005)

3.12.030 Prohibition.

(1) Only those persons authorized to do so, pursuant to these rules, may enter into a binding agreement or contract, including a purchase order, for the purchase or sale of goods or services on the part of the county.

(2) All persons doing business with the county shall be responsible for being familiar with these rules and for ensuring that the person purporting to act for the county has been duly authorized. (Ord. 160 § 1, 2005)

3.12.040 Contract authority.

(1) Upon approval by the county court of a specified contract, the contract may be executed on behalf of the county by the county judge, or other designee of the court.

(2) A department head or elected official of Crook County may enter into contracts on behalf of the county when the value of the subject contract is up to $10,000. Only the county court or a duly authorized member thereof may enter into a contract on behalf of the county when the value of the subject contract is greater than $10,000.

(3) All contracts with a value of more than $10,000 up to $20,000 shall be signed or countersigned by at least one member of the county court. A contract with a value of more than $20,000 shall require the approval of the entire county court.

(4) A county court member may indicate his or her assent by initial rather than signature.

(5) Notwithstanding any other provision of this section, the following expenditures may be approved by the single signature of the county judge or other duly authorized representative of the county court:

(a) Expenditures which are routine and ongoing (i.e., utility payments).

(b) Expenditures discussed and approved by motion of the county court.

(c) Expenditures identified during and agreed to and approved as part of the county budget process, including expenditures called out as specific line items.

(6) The value of a contract for purposes of determining compliance with subsections (2) and (3) of this section is the total dollar amount over the anticipated life of the contract regardless of incremental or monthly payments. If, during the performance of a contract, the anticipated amount of the contract increases to an amount that would have initially required additional authorization, such authorization must be obtained prior to further performance. (Ord. 311 § 1, 2019; Ord. 264 § 1, 2013; Ord. 184, 2006; Ord. 180 §§ 1, 2, 2006; Ord. 160 § 1, 2005)

3.12.045 Grant application and acceptance.

(1) Department heads and elected officials of the county are encouraged to apply for grants that further the goals and objectives of the county. Department heads and elected officials shall notify the county court prior to submitting an application for a grant. Department heads and elected officials shall seek the advance approval of the court or a member thereof before applying for any grant which requires the commitment of county funds as match or which commits the county to an ongoing expense either during the term of a grant or after the expiration thereof. The term “funds” as used in this section encompasses materials and services provided by the county from nongrant funds.

(2) Only the county court may accept a grant on behalf of the county and only a member of the court may execute grant award acceptance documents. (Ord. 160 § 1, 2005)

3.12.050 Definitions.

The definitions in ORS 279A.010 apply to these rules. (Ord. 160 § 1, 2005)

3.12.060 Procurement methods.

(1) Small Procurements – ORS 279B.065.

(a) Any procurement of goods or services not exceeding $10,000 may be awarded in accordance with small procurement procedures established by rules adopted under ORS 279A.070. Contracts valued at $10,000 or less may be awarded in any manner deemed practical or convenient by the county, including direct selection or award.

(b) Procurement may not be artificially divided or fragmented so as to constitute a small procurement under this section.

(2) Intermediate Procurements – ORS 279B.070.

(a) Any procurement of goods or services exceeding $10,000 but not exceeding $150,000 may be awarded in accordance with intermediate procurement procedures. Where the amount of a purchase of goods or services exceeds $10,000 but is not greater than $150,000, the county may seek at least three informally solicited competitive price quotes from prospective contractors. The county shall keep a written record of the sources of the quotes or proposals received. If three quotes or proposals are not reasonably available, fewer will suffice, but the county will make a written record of the effort made to obtain the quotes or proposals.

(b) If a contract is awarded under this section, the county shall award the contract to the offeror whose quote or proposal will best serve the interest of the county, taking into account price as well as considerations, including, but not limited to, experience, expertise, product functionality, suitability for a particular purpose and contractor responsibility.

(3) Competitive Process Required.

(a) Unless otherwise exempted or allowed under these rules, all purchases of goods or services exceeding $150,000 shall be awarded pursuant to the competitive bidding requirements of these rules.

(b) In order to preserve the integrity of the competitive process, the practice of “bid peddling” is prohibited. “Bid peddling” means the sharing of information about a competitor’s quote during a period when quotes are being received or are anticipated to be received with a competitor who will bid, who is likely to bid or who is solicited to bid on the same project when the sharing of such information will create a competitive advantage. Any employee, officer or agent of the county who violates this subsection shall be liable to a charge of official misconduct.

(c) A contract which is awarded without benefit of competitive bidding shall be null and void unless such contract was exempted or otherwise allowed under these rules.

(4) Sole Source Procurements – ORS 279B.075. If there is only one manufacturer or seller of goods or services of the quality required, the county may award a contract for a particular product, provided it makes written findings that shall include at least one of the following:

(a) That the efficient utilization of existing goods requires the acquisition of compatible goods or services; or

(b) That the goods or services required for the exchange of software or data with other public or private agencies are available from only one source; or

(d) Other findings that support that the goods or services are available from only one source.

(5) Multiple Contracts. The county may award multiple public improvement contracts from a single competitive bidding process if the invitation to bid or request for proposals specifies that multiple contracts may be awarded. (Ord. 311 § 2, 2019; Ord. 217 § 1, 2009; Ord. 198 § 1, 2008; Ord. 160 § 1, 2005)

3.12.070 Special procurements – ORS 279B.085.

(1) Upon receipt of a written request describing the proposed contracting procedure, the goods or services to be acquired through special procurement and the circumstances which justify the use of a special procurement, the county court may approve the special procurement as described in the written request or designate an alternative procedure if the court finds that the request will:

(a) Be unlikely to encourage favoritism in the awarding of public contracts or to substantially diminish competition for public contracts; and

(b) Be reasonably expected to result in substantial cost savings to the county or the public; or

(c) Otherwise substantially promote the public interest in a manner that could not be practicably realized by complying with the regular adopted competitive procurement procedures.

(2) Public notice of the special procurement approval process shall be published at least once in a newspaper of general circulation in the area where the contract is to be performed at least seven days prior to the approval of the special procurement.

(3) Once the county court has approved a class special procurement for the purpose of entering into a series of contracts over time or for multiple projects under this section, the county may award contracts to acquire goods or services within the class of goods or services in accordance with the county court’s approval without making a subsequent request for a special procurement. (Ord. 198 §§ 2, 3, 2008; Ord. 160 § 1, 2005)

3.12.080 Prequalification.

(1) Generally. When the county permits or requires prequalification of bidders or proposers, a prospective bidder or proposer who wishes to prequalify shall submit a prequalification application to the county on a form prescribed under ORS 279B.120(1). Upon receipt of a prequalification application, the county shall investigate the prospective bidder or proposer as necessary to determine whether the prospective bidder or proposer is qualified. The determination shall be made in less than 30 days, if practicable, if the prospective bidder or proposer requests an early decision to allow the prospective bidder or proposer as much time as possible to prepare a bid or proposal for a contract that has been advertised. In making its determination, the county shall consider only the applicable standards of responsibility listed in ORS 279B.110(2). The county shall promptly notify the prospective bidder or proposer whether the prospective bidder or proposer is qualified.

(2) Disqualification. If the county finds that a prospective bidder or proposer is qualified, the notice shall state the type and nature of contracts that the prospective bidder or proposer is qualified to compete for and the period of time for which the prequalification is valid. If the county finds that the prospective bidder or proposer is not qualified as to any contracts covered by the rule, resolution, ordinance or other regulation, the notice shall specify the reasons given under ORS 279B.120 for not prequalifying the prospective bidder or proposer and inform the prospective bidder or proposer of a right to a hearing under ORS 279B.425. To be entitled to a hearing under ORS 279B.425, a prospective bidder or proposer shall, within three business days after receipt of the notice, notify the county that the prospective bidder or proposer demands a hearing. Such hearing shall be conducted before the county court or a hearings officer appointed by the court.

(3) If the county has reasonable cause to believe that there has been a substantial change in the conditions of a prequalified prospective bidder or proposer and that the prospective bidder or proposer is no longer qualified or is less qualified, the county may revoke or may revise and reissue the prequalification after reasonable notice to the prequalified prospective bidder or proposer in accordance with ORS 279B.125(3). (Ord. 160 § 1, 2005)

3.12.090 Exemptions.

The following contracts are exempt from the competitive process:

(1) Contracts made with other public agencies or with the federal government, ORS 279A.025 (2)(a);

(2) Contracts for goods and services negotiated or obtained by other another public agency using a competitive process, provided the price of such goods and services shall not exceed the price negotiated or paid by the public agency which engaged in the competitive process;

(3) Contracts made with qualified nonprofit agencies providing employment opportunities for individuals with disabilities per ORS 279A.025(4);

(4) Repairs and maintenance services for county heavy equipment, including but not limited to bulldozers, loaders, scrapers, dump trucks, rollers, and excavators, when the costs for such repairs are $150,000 or less. County departments are authorized but not required to directly engage the dealership or brand-approved repair services vendors without a competitive process, as a class special procurement. Notwithstanding the above, approval of any contract or service invoice must be in accordance with CCC 3.12.040 prior to the engagement of any services.

(5) A public improvement contract that does not exceed $100,000 made under procedures for competitive quotes as hereinafter set forth; and

(6) Grants, when the terms of the grant specifically require the use of a particular product or vendor;

(7) [Reserved.]

(8) [Reserved.]

(9) The Crook County road department may rent the services of a paving machine and paving machine operator without benefit of competitive bidding upon a finding by the roadmaster that no local market exists, the competitiveness of which would be enhanced by bidding or informal quoting;

(10) The county may purchase printing services and the purchase of ballots, ballot pages, envelopes and other similar products and services including election material without a competitive process;

(11) [Reserved.]

(12) The county library may purchase books and other materials for the permanent collection without competitive bidding or quoting;

(13) Any department of the county may forego competitive bidding or quoting upon a finding by the county court that the purchase of a specific type or class of materials from a particular vendor or manufacturer is necessary to maintain continuity within an existing system (e.g., computer hardware, uniforms, weapons). (Ord. 312 § 4, 2020; Ord. 311 § 3, 2019; Ord. 257 § 1, 2012; Ord. 252, 2012; Ord. 217 § 1, 2009; Ord. 198 §§ 4, 5, 2008; Ord. 166, 2005; Ord. 160 § 1, 2005)

3.12.100 Emergency procurements – ORS 279B.080.

(1) The county may execute contracts without a competitive process if an emergency exists and requires prompt execution of a contract to remedy the condition.

(2) The county court shall adopt an order indicating the existence of the emergency.

(3) Although no dollar limit applies to emergency contracts, the scope of the contract shall be limited to work or purchases that are necessary and appropriate to address the conditions creating the emergency as described in the order.

(4) Emergency contracts may be modified by change order or amendments to address the conditions described in the original declaration or an amended declaration that further describes additional work or purchases necessary and appropriate for related emergency circumstances.

(5) Pursuant to ORS 279C.380(4) and these rules, the emergency declaration may also state that, in the case of a public improvement, the county waives the requirement of furnishing a performance bond and payment bond for the emergency contract. After making such an emergency declaration, the bonding requirements are excused for the procurement.

(6) At any time an emergency has been declared by the county court under ORS 401.309, purchases and contracts necessary to deal with the emergency shall be exempt from competitive bidding and quoting for the duration of the emergency. As provided for in ORS 401.315, in carrying out the provisions of ORS 401.015 to 401.105, 401.260 to 401.325 and 401.355 to 401.580, the county may enter into contracts and incur obligations necessary without competitive bidding or quoting to mitigate, prepare for, respond to or recover from emergencies or major disasters.

(7) For an emergency procurement of construction services that are not public improvements, the county shall ensure competition for a contract for the emergency work that is reasonable and appropriate under the emergency circumstances. In conducting the procurement, the county shall set a solicitation time period, reasonable under the circumstances, and may issue written or oral requests for offers and make direct appointments without competition in cases of extreme necessity. (Ord. 198 § 6, 2008; Ord. 160 § 1, 2005)

3.12.110 Personal service contracts.

(1) Statutory Authority. Personal service contracts are not public contracts for purposes of ORS Chapters 279A, 279B, 279C, and these rules. ORS 279A.055 requires all public agencies to create procedures for the screening and selection of persons to perform personal services.

(2) Scope.

(a) The following are personal services contracts:

(i) Contracts for services performed as an independent contractor in a professional capacity, including, but not limited to, the services of an accountant, attorney, architectural or land use planning consultant, physician or dentist, registered professional engineer, appraiser or surveyor, aerial photographer, timber cruiser, data processing consultant or similar professional;

(ii) Contracts for services as a consultant;

(iii) Contracts for services of a specialized, creative and research oriented, noncommercial nature;

(iv) Contracts for a trade-related activity, even though a specific license is required to engage in the activity, when the value of such contract is less than $2,500. Examples are repair and/or maintenance of all types of equipment or structures.

(b) The following are not personal services:

(i) Contracts, even though in a professional capacity, if predominately for a product, e.g., a contract with a landscape architect to design a garden is for personal services, but a contract to design and supply all the shrubs and trees is predominantly for a tangible project;

(ii) A service contract to supply labor on an ongoing basis which is of a type that can generally be done by any competent worker, e.g., janitorial, security guard, laundry and landscape maintenance service contracts;

(iii) Contracts for a trade-related activity, even though a specific license is required to engage in the activity, when the value of such contract is in excess of $2,500.

(3) Employee Benefit Insurance. The county may purchase employee benefit plans without a competitive process.

(4) Litigation. The county may purchase the following types of personal services without a competitive process:

(a) Litigation services. Contracts for legal services approved by county court.

(b) Litigation support and related contracts approved by county court for the following services:

(i) Court reporters;

(ii) Expert witnesses;

(iii) Arbitrators and mediators;

(iv) Trial consultants;

(v) Investigators.

(5) Investment Contracts. The county may, without a competitive process, contract for the purpose of the investment of public funds or the borrowing of funds by the county when such investment or borrowing of funds is contracted pursuant to duly enacted state, federal or local laws or rules.

(6) Medical Services. The county may purchase hospitalization and medical services without a competitive process. Medical services include dental services, vision services, psychiatric, psychological, counseling, alcohol and drug treatment, pharmacy services, purchase of over-the-counter drugs, chiropractic therapy, physical therapy and other services needed to treat a medically diagnosed condition or ordered at the request of a licensed medical practitioner.

(7) Software Maintenance. The county may purchase software maintenance services without a competitive process. (Ord. 198 § 7, 2008; Ord. 160 § 1, 2005)

3.12.120 Rules of procedure.

(1) Public Improvements. The bidding rules of procedure of the Oregon Department of Transportation may be used as an alternative to these rules for road and bridge public improvements if specified in the solicitation document. (Ord. 160 § 1, 2005)

3.12.130 Solicitation document.

(1) The solicitation document shall generally include the following:

(a) Notice of any preoffer conference as follows:

(i) The time, date, and location of any preoffer conference;

(ii) Whether attendance at the conference will be mandatory or voluntary; and

(iii) A provision that statements made by the county’s representatives at the conference are not binding upon the county unless confirmed by a written addendum;

(b) The form and instructions for submission of bids or proposals and any other special information and whether submissions will be accepted electronically;

(c) The time, date and place that prequalifications must be filed under ORS 279C.430 or 279B.120 and these rules and the class or classes of work for which bidders must be prequalified if prequalification is a requirement;

(d) The date and time after which bids will not be received, which must be at least seven days after the last date of public notice of the solicitation;

(e) The name and title of the person designated for receipt of bids and the person designated as the contact person for the procurement;

(f) The date, time and place of opening;

(g) The office where the solicitation document may be reviewed;

(h) A statement that each bidder must identify whether the bidder is a “resident bidder” as defined in ORS 279A.120(1);

(i) Contractor’s certification of nondiscrimination in obtaining required subcontractors in accordance with ORS 279A.110(4);

(j) How the county will notify bidders or proposers of addenda and how the county will make addenda available;

(k) If applicable, that the contract is for a public work, subject to ORS 279C.800 to 279C.870 or the Davis-Bacon Act (40 USC 3141 et seq.) and a statement that no bid will be considered unless the bid contains a statement by the bidder that ORS 279C.838, 279C.840 or 40 USC 3141 to 3148 will be complied with;

(l) A statement that the county may cancel the procurement or reject any bid not in compliance with these rules and may reject for good cause all bids upon a finding by the county that it is in the public interest to do so;

(m) A statement that requires the contractor or subcontractor to possess an asbestos abatement license, if required under ORS 468A.720;

(n) A statement regarding any other licenses or certificates (other than those regulated by state law) which may be required by the county to perform the work required;

(o) If a public improvement, a statement that a bid for a public improvement contract may not be received or considered by the county unless the bidder is licensed by the construction contractors board or the state landscape contractors’ board;

(p) A description of the goods or services that the county is purchasing, including, if applicable, a description of the acquisition, specifications, delivery or performance schedule, inspection and acceptance requirements;

(q) A signed statement that the bidder has reviewed, is familiar with and agrees to abide by the terms and provisions of this chapter; and

(r) All contract terms and conditions. The request for proposals also may request that proposers propose contractual terms and conditions that relate to subject matter reasonably identified in the request for proposals.

(2) The term “time” as used in this section means the time as it appears on a clock designated by the county as the official “bid clock.” (Ord. 198 § 8, 2008; Ord. 160 § 1, 2005)

3.12.140 Bids or proposals.

(1) Offer and Acceptance. The bid or proposal is the bidder’s or proposer’s offer to enter into a contract. The county’s award of the contract constitutes acceptance of the offer and binds the supplier to the contract.

(2) Responsive Offer. The county will award a contract only to a responsible bidder or proposer with a responsive offer.

(3) Contingent Offers. A bidder or proposer shall not make its offer contingent upon the county’s acceptance of specifications or contract terms other then those contained or requested in the solicitation document.

(4) Bidder’s/Proposer’s Acknowledgement. By signing and returning the offer, the bidder or proposer acknowledges it has read and understands the terms and conditions applicable to a solicitation document and that it accepts and agrees to be bound by the terms and conditions of the contract. (Ord. 160 § 1, 2005)

3.12.150 Advertisement.

(1) Every solicitation for offers shall be advertised at least seven days prior to the solicitation closing date unless these rules or the county court specifically exempts the solicitation from the advertisement requirement. The advertisement for offers shall be published at least once in at least one newspaper of general circulation in the area where the contract is to be performed. Advertisements of invitations for bids and requests for proposals shall be published when required by statute, and any other time the county concludes that advertisement is desirable. An advertisement, other than for a public improvement contract estimated to cost more than $125,000, shall be deemed sufficient for the purposes of the applicable statutes and these rules if it appears once in the county’s newspaper of record, or, if the county’s contract review board has authorized electronic advertisement pursuant to ORS 279B.055(4)(c), it appears electronically in a commercially reasonable manner. Nothing in this section shall be deemed to prevent the court from satisfying the advertisement requirements of applicable statutes and these rules by publishing an advertisement once in any newspaper of general circulation in the Central Oregon area. An advertisement for a public improvement contract estimated to cost more than $125,000 shall be deemed sufficient if it appears once in a trade newspaper or other trade publication of general statewide circulation. The county may publish an advertisement more than once, and, in addition to publication designed to satisfy the requirements of applicable statutes and these rules, may publish one or more advertisements in any local, regional, or national publication deemed by the county to be appropriate for the particular procurement.

A bulletin board shall be established outside the office of the county court upon which notice shall be posted of proposed acquisitions expected to exceed the sum of $5,000. Notice of the proposed acquisition shall be posted no less than seven days prior to the date for receiving bids.

(2) All advertisements for offers shall set forth the following as applicable:

(a) The scheduled closing date and time, which shall not be less than seven days after the date of the last publication of the advertisement;

(b) The date that suppliers must file applications for prequalification if prequalification is a requirement and the class or classes of work for which suppliers must be prequalified;

(d) The office where contract terms, conditions and specifications are available;

(e) The name and phone number of the person authorized to discuss and further describe the nature of the good or service desired;

(f) The name, title and address of the county person authorized to receive offers;

(g) The date, time and place of the scheduled opening;

(h) If applicable, that the contract is for a public work subject to ORS 279C.800 to 279C.870 or the Davis-Bacon Act (40 USC 276(a)). (Ord. 198 § 9, 2008; Ord. 160 § 1, 2005)

3.12.155 Personal information.

All persons doing business with the county must maintain appropriate safeguards to protect the security of “personal information” as defined in ORS 646A.602(11) (2007). Such safeguards will be required as a standard provision in all county contracts. (Ord. 217 § 1, 2009; Ord. 198 § 11, 2008)

3.12.160 Prevailing wage rate.

(1) Generally.

(a) Public works projects are covered by prevailing wage rules if the contract price exceeds $50,000.

(b) Prevailing wage rates must be paid to all workers at the site of work as defined in OAR 839-025-0004(25).

(c) County must notify the Bureau of Labor and Industries (BOLI) within 30 days of awarding any public works contract subject to prevailing wage rate law.

(d) County may not divide a project to try to avoid prevailing wage rate law. BOLI treats separate contracts for the same project as a single project for prevailing wage rate purposes.

(e) County must submit to BOLI a list of public works projects it plans to fund during the coming budget period. The county must submit the list to BOLI at least 30 days before it adopts its budget. If county plans to use its own personnel and equipment to perform any project estimated to cost more than $125,000, it must also provide documentation showing that it is less expensive for the county to use its own resources than it is to contract out the project.

(f) County shall pay BOLI a prevailing wage rate fee for each public works project subject to prevailing wage rates.

(g) County may request the Commissioner of BOLI to determine whether a project or proposed project is or would be a public works on which the payment of the prevailing wage rate is or would be required under ORS 279C.840.

(2) Public Works. Public works include the following:

(a) A project for the construction, reconstruction, major renovation or painting of roads, highways, buildings, structures and improvements of all types which is carried on or contracted for by the county.

(b) A project for the construction, reconstruction, major renovation or painting of a privately owned road, highway, building or structure or improvement of any type that uses funds of a private entity and $750,000 or more of county funds.

(c) A project for the construction of a privately owned road, highway, building, structure or improvement of any type that uses county funds and in which 25 percent or more of the square footage of the completed project will be occupied or used by the county.

(3) Specifications. For public works projects, the county must include the following in the specifications:

(a) The state prevailing wage rate either physically contained within or attached to hard copies of procurement specifications or included by a statement incorporating the applicable wage rate publication into the specifications by reference. When the rates are available electronically or by Internet access, the rates may be incorporated into the specifications by referring to the rates and providing adequate information on how to access them.

(b) If applicable, the federal prevailing wage rate and information concerning whether the state or federal rate is higher in each trade or occupation, as determined by BOLI.

(d) A provision stating that the contractor and any subcontractor must file a public works bond with the Construction Contractors Board before starting work on the project, unless exempt from public works bond requirements.

(4) Contracts. For public works projects, the county must include the following in the contract:

(a) A provision that workers shall be paid not less than the specified minimum hourly rate of wage.

(b) A provision that the prevailing wage rate fee shall be paid to the Commissioner of BOLI under the administrative rule of the Commissioner.

(c) A provision stating that the contractor and any subcontractor must file a public works bond with the Construction Contractors Board before starting work on the project, unless exempt from public works bond requirements. (Ord. 198 § 10, 2008; Ord. 186 § 1, 2007; Ord. 160 § 1, 2005)

3.12.165 Solar energy technology.

(1) Except as otherwise provided in this section, a public improvement contract for the construction of a public building, as defined in ORS 174.109, or for the reconstruction or major renovation of a public building (if the cost of the reconstruction or major renovation exceeds 50 percent of the value of the public building) is considered to contain an amount equal to at least 1.5 percent of the total contract price for the inclusion of appropriate solar energy technology in the public building and is subject to 2007 Oregon Laws, Chapter 310 Section 3. Solar energy technology shall include solar electric or solar thermal systems and may include passive solar energy systems when a proposed passive solar energy system will achieve a reduction in energy usage of at least 20 percent.

(2) Before entering into a public improvement contract described in subsection (1) of this section, the county shall prepare a written determination of whether the inclusion of solar energy technology in the construction, reconstruction, or major renovation of the public building is appropriate. The county shall include in the determination the total contract price and the amount the agency intends to expend on the inclusion of solar energy technology in the public building.

(3) If any state funds are used and the county determines that it would be inappropriate to include solar energy technology in the construction, reconstruction or major renovation of the public building, subsection (1) of this section does not apply to the public improvement contract. However:

(a) The county shall spend an amount equal to at least 1.5 percent of the total contract price on the inclusion of appropriate solar energy technology in a future building project; and

(b) The amount spent by the county on the future public building project pursuant to subsection (3)(a) of this section is in addition to any amount required under subsection (1) of this section for the inclusion of appropriate solar energy technology in the future building project. (Ord. 198 § 12, 2008)

3.12.170 Prebid and preproposal conferences.

(1) Generally. The county may hold a prebid or preproposal conference to allow a site inspection and to hear and respond to questions. If the time and place of a prebid or preproposal conference are not stated in the invitation for bids or request for proposals, all prospective bidders or proposers on the list maintained by the county shall be notified of the time and place. Notification may be by telephone, fax, or in writing, at the county’s option.

(2) Mandatory. The county may require attendance at a prebid or preproposal conference as a condition precedent to the submission of a bid or proposal. The county may refuse to open or may reject as nonresponsive a bid from a bidder who failed to attend a mandatory prebid conference, and may refuse to open or decline to evaluate a proposal from a proposer who failed to attend a mandatory preproposal conference. The county may, but is not obligated to, arrange for a subsequent prebid or preproposal conference if requested by one or more prospective bidders or proposers who were unable to attend a scheduled, mandatory prebid or preproposal conference for a reason determined by the county to be commercially reasonable under the circumstances. If a subsequent prebid or preproposal conference is arranged, all prospective bidders or proposers on the county’s list shall be notified in advance and allowed to attend.

(3) Limited Effect. Statements and other information from county employees at a prebid or preproposal conference do not effect any change in the invitation for bids or the request for proposals, or the contracts that may arise from them. Changes in the invitation for bids or the request for proposals may be effected only by a written addendum issued by the county. Bidders and proposers may rely only upon the invitation for bids or the request for proposals, with any changes made by addendum, to establish all of the procurement requirements and all contract provisions other than those established by the bid or proposal.

(4) Change Requests. A prospective bidder or proposer who wants to propose a change to the invitation for bids or the request for proposals should submit a written request, even if the change was requested during a prebid or preproposal conference. The request should be submitted in accordance with any instructions in the invitation for bids or the request for proposals. If the county fails to respond to a change request made during a prebid or preproposal conference, or to a written change request, the request shall be deemed denied. If the county responds to a change request, the response may be in the form of an addendum issued to all prospective bidders or proposers, with no specific response to the requestor. (Ord. 160 § 1, 2005)

3.12.180 Addenda.

(1) Requirement. A solicitation document may be changed only by a written addendum issued by the county. When an addendum is required, it shall be issued to all bidders or proposers for the contract or services being solicited.

(2) Distribution and Receipt. Addenda may be distributed to all bidders by U.S. mail, fax, hand delivery, or other commercially reasonable means. Failure to receive an addendum to an invitation for bids does not excuse failure to acknowledge receipt of the addendum, even if the failure to receive was through no fault of the prospective bidder or proposer, and even if the failure to receive was the fault of the county. The county, in its sole discretion, may extend a bid opening to allow a bidder time to acknowledge receipt of an addendum. Failure to acknowledge receipt of an addendum may cause a bid to be rejected as nonresponsive. (Ord. 160 § 1, 2005)

3.12.190 Method of submitting offers.

(1) Bids. Bids must be submitted in writing on the form provided by the county or a reasonable facsimile. Bids may not be submitted by fax or other electronic means. A bid shall be considered timely submitted if it is delivered to the location designated for receipt of bids by the deadline stated in the invitation for bids.

(2) Proposals and Quotations. Proposals and quotations may be submitted by any commercially reasonable method, including but not limited to fax, unless the county has specified in the solicitation document that only certain methods of submission may be used, or that certain methods of submission may not be used. Electronic data interchange and electronic mail (e-mail) shall be considered commercially reasonable methods of submission only if they are expressly authorized in the solicitation document. When oral quotations are permitted, they may be submitted by telephone. The fact that oral quotations are permitted does not preclude an offeror from submitting a written quotation in lieu of an oral quotation.

(3) Timeliness. Offerors are responsible for ensuring their offers are timely. The county may decline to consider a late offer, even if the offer is late because of a delay in the county’s internal handling of mail or documents or because the county’s receiving equipment was unavailable.

(4) Completeness. Offerors are responsible for ensuring their offers are received by the county in a complete, legible, ungarbled form. The county may decline to consider an offer that is incomplete, illegible, or garbled, even if the problem is caused by the county’s hardware or software. (Ord. 160 § 1, 2005)

3.12.200 Bid withdrawal.

At any time before the first bid is opened, a bidder may withdraw its bid without consequence. The withdrawal must be in writing and be signed by someone with the necessary authority. A purported withdrawal after the first bid is opened shall be ineffective. (Ord. 160 § 1, 2005)

3.12.210 Bid opening.

(1) Generally. Bids shall be opened at the place and at or shortly after the time specified in the invitation for bids and advertisement, subject to any changes made by addendum.

(2) Postponement. The time for opening bids may be postponed at any time for the county’s convenience or if the county determines that postponement would be in the county’s best interest. Bids shall be opened in a place designated by the county that is open to the public at the time bids are opened. The place bids will be opened may be changed by the county at any time. A bid opening postponement or relocation shall be communicated orally or by a posted sign to anyone who appears at the previously designated time and place for the bid opening. If time permits, a bid opening postponement or relocation shall be communicated to all prospective bidders on the list maintained by the county by mail, fax, e-mail, or any other commercially reasonable means. A bid opening postponement or relocation need not be communicated by addendum. (Ord. 160 § 1, 2005)

3.12.220 Proposal opening.

“Proposal” means an informal, oral or written response to a request for proposals issued by the county for the award of a contract when the contract is a public contract exempt from the competitive bidding requirements under ORS 279.055 to 279.116. The county may open proposals at any time. There is no requirement for proposals to be opened in public. Subject to any exemptions under Oregon public records statutes, proposals shall be available for public inspection only after the county has finished evaluating them. (Ord. 160 § 1, 2005)

3.12.230 Bid evaluation.

(1) Generally. Opened bids shall be evaluated in accordance with applicable statutes and these rules. When a bid is determined to be unresponsive to the invitation for bids, it will not be evaluated further. Bidders who submit responsive bids shall be evaluated for responsibility under applicable statutes, these rules, and the invitation for bids.

(2) Correction of Certain Errors. Arithmetic errors apparent on the face of a bid shall be corrected by the county before comparing bid prices. Discrepancies between a unit price and an extended total price for a bid item shall be resolved in favor of the unit price unless there is evidence apparent on the face of the bid establishing that the extended price is correct. (Ord. 160 § 1, 2005)

3.12.240 Bid or proposal security – Performance and payment bonds.

(1) Security Amount. Bid or proposal security, if required, shall be expressly provided for in the solicitation document. If so required, the supplier shall forfeit bid or proposal security after the award if the supplier fails to execute the contract and promptly return it with any required performance bond and payment bond and any required proof of insurance.

(2) Public Improvement Contracts. Bid or proposal security is required for the solicitation of offers for public improvements unless the county has otherwise exempted the solicitation from bid or proposal security. Unless otherwise stated in the solicitation documents or specifically waived by the county, the following bonds are required:

(a) A performance bond in the amount equal to the full contract price conditioned on the faithful performance of the contract in accordance with the plans, specifications and conditions of the contract;

(b) A payment bond in an amount equal to the full contract price, solely for the protection of claimants under ORS 279C.600.

(3) Form of Bid or Proposal Security. Unless otherwise stated in the solicitation documents, the county will only accept the following forms of performance or payment bonds:

(a) A surety bond from a surety company authorized to do business in the state of Oregon.

(4) Return of Security. Upon execution of a contract and delivery of a good and sufficient performance bond and a good sufficient payment bond by a successful bidder or a proposer, the county shall return the successful contractor’s bid or proposal security. The county will also return or release the bid or proposal security for all unsuccessful suppliers after award or after a contract has been executed and a performance bond provided (if such performance bond is required), or after all offers have been rejected. (Ord. 160 § 1, 2005)

3.12.250 Bid errors.

(1) To protect the integrity of the competitive solicitation process and to assure fair treatment of the bidder or proposer, the county will carefully consider whether to permit waiver, correction or withdrawal of offers for certain mistakes.

(2) Errors of Judgment. A bid may not be corrected or withdrawn for an error in judgment. If a bidder is awarded a public contract and refuses to promptly and properly execute the public contract because of an error in judgment, the bidder’s bid security must be forfeited.

(3) Minor Informalities. The county may waive or permit a bidder to correct a minor informality. A minor informality is either a matter of form rather than substance that is evident on the face of the bid, or an insignificant mistake that can be waived without prejudice to other bidders. For example, failure to sign the bid in the designated block on the bid form is a minor informality if a signature appears on the bid bond or somewhere else in the bid evidencing an intent to be bound by the bid.

(4) Clerical Errors. A clerical error is an error in drafting the bid, and may include without limitation typographical errors, arithmetic errors, and transposition and other errors in transferring numbers from work sheets to the bid form. If a clerical error is apparent on the face of the bid and the correction also is apparent on the face of the bid, the county shall correct the error before evaluating bids. A discrepancy between a unit price and an extended bid item price is a clerical error and shall be corrected by giving precedence to the unit price. If an error not apparent on the face of the bid is brought to the county’s attention, the bidder may submit evidence to establish that the error is a clerical error. If it is clear from the face of the bid or from evidence submitted by the bidder that an error is a clerical error rather than an error in judgment, but the correction of the error is not apparent on the face of the bid, the bidder may either withdraw its bid without forfeiting its bid security, or agree to proceed with the public contract as bid, without correcting the error. If the bidder takes neither of those actions, the county shall reject the bid as nonresponsive. A bidder may not correct a clerical error if the correction is not apparent on the face of the bid. (Ord. 160 § 1, 2005)

3.12.260 Irrevocability of offers.

(1) Bids. All bids received by the county for a particular public contract become binding offers when the first bid is opened, and remain irrevocable for 30 calendar days after opening unless a different period is specified in the invitation for bids. (Ord. 160 § 1, 2005)

3.12.270 Tied low bids or quotations.

(1) Generally. If (a) low bids or quotations are tied, (b) the price, fitness, availability, and quality of the goods or services offered by the tied offerors are otherwise equal, and (c) one of the tied offerors offers goods or services manufactured or produced in Oregon, the contract shall be awarded to that offeror in accordance with ORS 279A.120. If two or more of the tied offerors offer goods or services manufactured or produced in Oregon, and none has principal offices or headquarters in Oregon, or if two or more of them have principal offices or headquarters in Oregon, the contract shall be awarded by drawing lots. If none of the tied offerors offer goods or services manufactured or produced in Oregon, the contract shall be awarded by drawing lots.

(2) Unequal Quality. If the fitness, availability, and quality of the goods or services offered by tied offerors are not otherwise equal, the contract shall be awarded to the offeror determined by the county to offer the superior goods or services. (Ord. 160 § 1, 2005)

3.12.280 Rejection of individual bids or proposals.

The county may reject any or all bids in accordance with ORS 279B.100 and 279C.395 for good cause upon a finding that rejection is in the public interest. Situations where good cause is sufficient to warrant rejection of all bids include but are not limited to:

(1) Process;

(2) All offered prices are too high or all offered performance is insufficient to meet the county’s needs;

(3) Ambiguous or misleading provisions in the solicitation document, or misconduct or error, threaten the fairness and integrity of the competitive process; and

(4) Events other than legitimate market forces threaten the integrity of the competitive procurement process. (Ord. 160 § 1, 2005)

3.12.285 Rejection of individual bids or proposals in specific incidences.

(1) The county court may at its sole discretion reject an individual bid or proposal from any contractor:

(a) When in the judgment of the county court a previous good or service provided by the contractor to the county or another public entity was of poor workmanship or inferior quality; or

(b) When in the judgment of the county court, the contractor failed to honor a warranty; or

(c) When a dispute regarding the terms and conditions of a previous contract with the county led to a monetary judgment being entered against the contractor; or

(d) When in the judgment of the county court the county has previously been required to expend funds to remedy defects of the contractor’s workmanship or failure to deliver all components of an agreed upon good or service.

(2) The county shall not reject on the basis of one of the above criteria if an intervening change in ownership within a business shall have resulted in substantial change in the control of said business so that the underlying concern related to performance has been mitigated.

(3) The county may reject a bid when the contractor or an employee of the contractor who will have a material role in delivering the good or service sought was previously engaged as an employee of the county and when such employment relationship ended in a manner which created ill will between the county and the employee.

(4) The county may reject any bid when in the judgment of the county court acceptance of such bid shall pose a security risk to the county or the public serviced by the county (e.g., the county may reject a contract for services to law enforcement when the contractor is the subject of an ongoing criminal investigation, or the county may reject a contract for maintenance in a violence prevention center when the contractor is a known abuser). (Ord. 160 § 1, 2005)

3.12.290 Cancellation.

The county may cancel a procurement at any time before a contract is signed if the county determines cancellation is in the county’s best interests. If a procurement is canceled, the county shall not be liable for any costs incurred by prospective offerors. If a procurement is canceled before bids or proposals are opened, the bids or proposals shall be returned to the bidders and proposers unopened, except that the county may open a bid or proposal to determine the identity and address of the bidder or proposer if the name and address are not shown on the outside of the envelope. If a procurement is canceled after bids or proposals are opened, the county shall retain the bids or proposals. (Ord. 160 § 1, 2005)

3.12.300 Protests.

(1) Written Protest Required. If an offeror or prospective offeror wishes to object to any aspect of a county procurement, the offeror or prospective offeror (“protester”) may file a written protest with the Crook County judge. The protest must include all grounds for the protest and all supporting evidence, in the form of physical evidence, documents, or affidavits.

(2) Timeliness. A protest must be filed promptly as soon as the protester knows of the grounds for the protest. If the grounds for a protest were apparent on the face of the solicitation document, the county may decline to consider a protest filed later than five business days before the scheduled bid opening or the date by which proposals must be submitted. If the grounds for a protest were not apparent until contract award, the county may decline to consider a protest filed later than 48 hours after bid opening.

(3) Written Decision. The county judge or his designee shall issue a written decision in response to a protest.

(4) Discretionary Meeting. The county judge may, but is not required to, schedule a meeting with the protester prior to issuing a written decision. The county judge may invite other county staff or representatives to the meeting and, in the case of a procurement involving a county evaluation team, may invite one or more members of the evaluation team to the meeting.

(5) Appeal and Final Administrative Action. If the protester disagrees with the written decision issued by the county judge, the protester may appeal in writing to the county court. The written appeal must be received by the county court within five business days after the protester’s receipt of the written decision by the county judge. The county court may decline to consider a late appeal. The written appeal must include all legal arguments and all evidence, in the form of physical evidence, documents, or affidavits. The county court shall issue a written decision in response to the appeal, and that written decision shall be the county’s final administrative action with respect to the protest. The county court’s written decision shall be the county’s final action with respect to the protest. (Ord. 160 § 1, 2005)

3.12.310 Notice of intent to award.

Unless otherwise provided in the solicitation document, the county shall provide notice of its intent to award to all bidders and proposers pursuant to ORS 279B.135 at least seven days before the award of a contract, unless the county determines that circumstances require the prompt execution of the contract, in which case the county may provide a shorter notice. This section does not apply to contracts awarded as small procurements under ORS 279B.065, an intermediate procurement under ORS 279B.070, a sole source procurement under ORS 279B.075, an emergency procurement under ORS 279B.080 or a special procurement under ORS 279B.085. (Ord. 160 § 1, 2005)

3.12.320 Supplemental rules and orders.

The county court may issue rules in the form of orders to further implement the provisions herein. (Ord. 160 § 1, 2005)

Article II. Public Improvement Contracts

3.12.330 Application.

In addition to the requirements set forth in these rules, the following rules apply to public improvement contracts. In the event of conflict or ambiguity, the more specific requirements of the rules in this article take precedence over the more general requirements. (Ord. 160 § 1, 2005)

3.12.340 Competitive procurement.

The county shall solicit bids for public improvement contracts by invitation to bid, except as otherwise allowed or required pursuant to state statute or these rules. (Ord. 160 § 1, 2005)

3.12.350 Exemption from competitive process – ORS 279C.335.

(1) The county court may exempt a public improvement contract or class of public improvement contracts from the competitive bidding requirements of these rules upon making the following findings:

(a) It is unlikely that the exemption will encourage favoritism in the awarding of public improvement contracts or substantially diminish competition for public improvement contracts; and

(b) The awarding of public improvement contracts under the exemption is reasonably expected to result in substantial cost savings to the county.

(2) When granting exemptions under this section, the county court shall:

(a) When appropriate, direct the use of alternative contracting methods that take account of market realities and modem practices and are consistent with the public policy of encouraging competition;

(b) Require and approve or disapprove written findings by the county that support the awarding of a particular public improvement contract or class of public improvement contracts without competitive bidding.

(3) The county court shall hold a hearing regarding the exemption of a public improvement or class of public improvements prior to adopting the findings required by subsection (1) of this section. Notification of the public hearing shall be published in at least one trade newspaper of general statewide circulation a minimum of 14 days before the hearing. The notice shall state that the public hearing is for the purpose of taking comments on the county’s draft findings for an exemption from the competitive bidding requirement. At the hearing, the county court shall offer an opportunity for any interested party to appear and present comment. Following the hearing, the county court shall either approve the exemption and adopt the draft findings or disapprove the exemption. (Ord. 198 § 13, 2008; Ord. 160 § 1, 2005)

3.12.360 Public improvement procurements.

(1) Public improvement contracts estimated by the county not to exceed $100,000 may be awarded through competitive quotes established by this rule.

(2) The selection criteria may be limited to price or some combination of price, experience, specific expertise, availability, project understanding, contractor capacity, responsibility, and similar factors.

(3) The county shall utilize written request for quotes whenever reasonably practicable.

(4) The county shall seek at least three competitive quotes, and keep a written record of the sources and amount of the quotes received.

(5) If awarded, the county shall award the contract to the prospective contractor whose quote will best serve the interest of the county, taking into account the announced selection criteria. (Ord. 197 § 1, 2007; Ord. 160 § 1, 2005)

3.12.370 Disclosure and substitution of first-tier subcontractors.

(1) Required Disclosure. Within two working hours of the bid closing for a public improvement having a contract price anticipated to exceed $100,000, all bidders shall submit a disclosure form as described by this rule, identifying any first-tier subcontractors (those suppliers that would be contracting directly with the prime contractor) that will be furnishing labor or materials on the contract, if awarded, whose subcontract value would be equal to or greater than:

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

(b) Three hundred fifty thousand dollars, regardless of the percentage of the total contract price.

(2) Bid Closing, Disclosure Deadline, and Bid Opening. The county will:

(a) Set the bid closing on a Tuesday through Thursday between 2:00 p.m. and 5:00 p.m.; provided, that the two-hour disclosure deadline described by this rule would not then fall on a legal holiday;

(b) Set a subsequent time for bid opening that is at least two working hours after bid closing; and

(c) Open only those bids for which the required disclosure has been separately submitted by the announced deadline on prescribed forms.

(3) Bidder Instructions and Disclosure Form. For the purposes of this rule, the county will:

(a) Prescribe the disclosure form that must be utilized; and

(b) Provide instructions in a notice substantially similar to the following:

Bidders are required to disclose information about certain first-tier subcontractors when the contract value for a Public Improvement is greater than $100,000 (See ORS 279). Specifically, when the contract amount of a first-tier subcontractor is greater than or equal to: (i) 5% of the project bid, but at least $15,000, or (ii) $350,000 you must disclose the following information about that subcontract within 12 hours of bid closing:

(a) The subcontractor’s name and address;

(b) Subcontractor’s Construction Contractor’s Board registration number;

(d) The subcontractor’s category of work.

(4) Submission. A bidder shall submit the disclosure form required by this rule within two working hours of bid closing.

(5) Responsiveness. Compliance with the disclosure and submittal requirements of ORS 279C.370(2) and this rule is a matter of responsiveness. Bids which are submitted by bid closing, but for which the separate disclosure submittal has not been made by the specified deadline, are not responsive and shall not be considered for contract award.

(6) Substitution. Substitution of affected first-tier subcontractors shall be made only in accordance with ORS 279C.585. (Ord. 160 § 1, 2005)

3.12.380 Negotiation when bids exceed cost estimate.

(1) General. In accordance with ORS 279C.340, if all responsive bids from responsible bidders on a competitively bid project exceed the county’s cost estimate, prior to contract award the county may negotiate value engineering and other options with the responsible bidder submitting the lowest responsive bid in an attempt to bring the project within the county’s cost estimate.

(2) Scope of Negotiations. The county will not proceed with contract award if the scope of the project is significantly changed from the original bid.

(3) Discontinuing Negotiations. The county may discontinue negotiations at any time, and shall do so if it appears to the county that the apparent low bidder is not negotiating in good faith or fails to share cost and pricing information upon request.

(4) Public Records. Notwithstanding any other provisions of law, the records of a bidder used in contract negotiations under this rule are not subject to public inspection until after the negotiated contract has been awarded or negotiation process has been terminated. (Ord. 160 § 1, 2005)

3.12.385 Division of procurement to avoid contracting rules prohibited.

No procurement shall be artificially divided or fragmented so as to avoid compliance with any procedure or rule covered by this chapter. (Ord. 160 § 1, 2005)

Article III. Disposition of Personal Property

3.12.400 General rule.

The county may dispose of personal property through direct sale, destruction, disposal in a solid waste facility or gift to a qualified nonprofit organization or other public entity without a competitive process if the county determines that one of the following applies: the property has a value of less than $500.00; the property is hazardous; the property is inoperable and not reasonably repairable. Personal property having a value in excess of $500.00 shall be disposed of through a competitive process at public auction or by acceptance of sealed bids. (Ord. 160 § 1, 2005)

3.12.401 Exception for trade-ins.

The county may trade in personal property of any value as part of purchase of like replacement property. (Ord. 160 § 1, 2005)

3.12.402 Exception for real property.

The county may transfer personal property of any value as part of the sale or transfer of real property. (Ord. 160 § 1, 2005)

3.12.403 Exception for donations to other public agencies, nonprofits.

The county may donate or sell personal property of any value, including recyclable or reclaimed materials to another public agency, or any sheltered workshop, or nonprofit organization, after a determination has been made that the personal property is not needed for other county purposes. A department or elected official proposing the disposition of personal property by donation shall offer such property to other departments of the county for at least five business days prior to disposition of such property. Any other county department desiring to use such priority shall have priority for use. (Ord. 160 § 1, 2005)

3.12.404 Exception for public interest.

The county court may dispose of personal property in any manner for any reason upon a finding that such disposal is in the public interest. (Ord. 160 § 1, 2005)

3.12.405 Disposition of proceeds.

Proceeds of the sale of personal property owned by the county and controlled by any department other than the road department shall be deposited to the general fund for the benefit of the county. Proceeds property controlled by the road department shall be deposited to the road fund. (Ord. 160 § 1, 2005)

3.12.410 Provisions related to acquisition by employees.

To ensure compliance with the Oregon Ethics Code, county employees or relatives of county employees shall not be eligible to purchase personal property previously owned by the county until such property has been offered for sale to the public on the same terms and conditions for at least three days. No county employee shall use an intermediary to circumvent this prohibition. A “relative” has the meaning given at ORS 244.020 and includes the spouse of the county employee, any children of the public employee or of the public employee’s spouse, and brothers, sisters or parents of the public employee or of the public employee’s spouse. This provision shall not apply to personal property sold at public auction. (Ord. 160 § 1, 2005)