2001-147-Minutes for Meeting March 26,2001 Recorded 4/9/2001VOL: CJ2001
PAGE: 147
RECORDED DOCUMENT
STATE OF OREGON
COUNTY OF DESCHUTES
*02001-147 * Vol -Page Printed: 04/11/2001 08:38:18
DO NOT REMOVE THIS CERTIFICATE
(This certificate constitutes a part of the original instrument in accordance with
ORS 205.180(2). Removal of this certificate may invalidate this certificate and affect
the admissibility of the original instrument into evidence in any legal proceeding.)
I hereby certify that the attached instrument was received
and duly recorded in Deschutes County records:
DATE AND TIME:
DOCUMENT TYPE:
Apr. 9, 2001; 2:33 p.m.
Regular Meeting (CJ)
NUMBER OF PAGES: 14
MARY SUE PENHOLLOW
DESCHUTES COUNTY CLERK
KEjJED
APR 1 2001
f V
69
0 k -�
Board of Commissioners
1 130 N.W. Harriman St., Bend, Oregon 97701-1947
(541) 388-6570 - Fax (541) 388-4752
www.deschutes.org
Tom De Wolf
MINUTES OF MEETING Dennis R. Luke
Mike Daly
BOARD OF COUNTY COMMISSIONERS
CONVENED AS THE CONTRACT REVIEW BOARD
MONDAY, MARCH 26, 2001
Present were Commissioners Tom De Wolf, Dennis Luke and Michael Daly. Also
present were Mike Maier, County Administrator; Rick Isham, Legal Counsel; Dan
Despotopulos, Manager of the Deschutes County Fairgrounds and Expo Center;
Lee Smith and David Bishop, Fair Board; one representative of the media; and
five citizens.
Chair Tom De Wolf opened the meeting at II: 00 a. m.
Commissioner DeWolf explained that the meeting is being reconvened to consider
the rebid of the Fairgrounds parking lot expansion project.
Rick Isham said that consultant Matt Steele of Hickman Williams Engineering was
out of town, so his co-worker Jeff Clay attended the bid opening. The initial bid
opening resulted in issuing an intent to award the bid to Goodfellows Construction
Company. Ultimately the Board, after meeting with Fair Board, rescinded that
notice of intent and made a decision to re -bid the project. The re -bid was handled
on a relatively short time frame.
The bids were opened on March 22, and the invitation to bid and bid documents
required that the bid be submitted by no later than 10:00 a.m., with subcontractor
disclosures due no later than 2:00 p.m. on March 22.
A blind bid tabulation was submitted to the Board. Seven bids were submitted.
The contractor representing bid #7 was in attendance and wished to speak.
Minutes of Meeting March 26, 2001
Deschutes County Board of Commissioners
Convened as the Contract Review Board Page 1 and 6 Pages
Quality Services Performed with Pride
At the bid opening, there were seven bid packages to be opened. Matt Steele ran
the bid meeting, and six of the seven bidders were also in attendance. As Matt
went through the opening of the bids, they opened them in the order as the earliest
one received first.
The bids shown on the tabulation form are not in order by the total bid price, but
are placed in a random order.
Mr. Isham further explained that during the bid opening, each bid except for one
had a bid envelope and a separate subcontractor disclosure envelope, which were
opened separately and tabulated as to the base bid and the two alternates for each
bid. For one bid there was no separate subcontractor disclosure statement. The bid
appeared to have been delivered in what might have been a delivery envelope, so
the opening of the bids basically came to a stop at that point in an effort to try to
figure out what to do with respect to the bid that didn't have the separate
subcontractor disclosure envelope like the others. A special statement is also
required on the face of that envelope.
Mr. Isham said that he had a concern that the subcontractor disclosure statement
may have been inside an envelope inside of that bigger envelope. In the presence
of everyone attending, the envelope was opened to determine if there was a
separate envelope inside the large envelope; or, in the alternative, that there were
two envelopes inside what might have been just a delivery envelope. He said his
concern was that if there were two envelopes or a separate envelope inside the
larger envelope, then the requirements of the rules of submitting bid documents
would have been met, and it would have been improper for that bid not to be read.
The only thing in the large envelope was a bound bid book. It was not removed
from the envelope, and we peeked into the envelope to determine this, it was
announced that fact and resealed the envelope. The bid was not read.
Mr. Isham stated that a subcontractor disclosure law in place for over a year. The
County has opened many bids during that period of time, perhaps a couple of
hundred; and the subcontractor disclosure statement has always been received as a
separate statement. The subcontractor disclosure statement does not have to be
submitted at the time you submit your bid, although most do.
Minutes of Meeting
Deschutes County Board of Commissioners
Convened as the Contract Review Board
March 26, 2001
Page 2 and 6 Pages
He said that knowing the issue of the subcontractor disclosure statement goes to
responsiveness, he decided he should not read the bid due to the apparent omission
of the separate subcontractor disclosure list. The County operates pursuant to the
state rules in this regard, which clearly states, "separate, sealed envelope."
Therefore, the bid was resealed and not examined.
The contractor of that bid was not at the bid opening; however, his attorney called
later. He said that he felt this defect could be waived, since the subcontractor
disclosure statement was bound with the rest of the document.
Mr. Isham explained that this has not happened before. There has only been one
instance of a contractor failing to disclose the subcontractors at all, and that was
shortly after the law was passed. The ordinance clearly states that the
subcontractor disclosure statement must be submitted separately in a sealed
envelope with the appropriate wording on the envelope.
Jim Elting of Elting Construction, Inc., of Clackamas, then spoke. He distributed a
document to the Commissioners explaining his point of view and that of his
attorney. (Eight pages, attached as Exhibit A.)
Mr. Elting stated that Mr. Isham did not read to the other portions of the submittal
instructions. Mr. Elting said that he feels the instructions are ambiguous, since a
complete submittal was made. He stated that his actions conform to statements
within the instructions.
Commissioner DeWolf said that the instructions specifically state a separate
envelope is required. He asked Mr. Elting if he has ever bid on a County project in
the past. Mr. Elting said he did bid on the original Fairgrounds project.
Commissioner DeWolf stated that this is the first time this problem has arisen. It
appears that all of the other contractors understand and follow the instructions
according to the rules. He also explained that the County gets sued on this kind of
matter occasionally, and must listen to the recommendations of legal counsel.
Commissioner Luke stated that the Board does care what Mr. Elting says, but the
bid instruction documents are very clear. That means this one is non-responsive.
Minutes of Meeting March 26, 2001
Deschutes County Board of Commissioners
Convened as the Contract Review Board Page 3 and 6 Pages
Rick Isham said this is not a formal protest, as the Board still needs to do a notice
of intent to award. There will then be a five-day period for a formal protest to be
filed. He further stated that he does not know the pricing of each. The notice of
intent was sent to all. Mr. Elting is asking that you open his bid prior to issuing the
notice of intent to award.
Mr. Elting stated that the invitation to bid does not say anything about the separate
envelope. Commissioner Luke said that the bidders need to make themselves
familiar with the entire document. Mr. Elting said the directions are ambiguous,
leaving the reader to interpret what they mean.
Mr. Isham replied that the instructions are very clear. These instructions are
bolded in the first paragraph of the invitation to bid. He said he had to make a call
at the bid opening.
Commissioner Luke said that the subcontractor disclosure statement is not a minor
issue.
Rick Isham said there is no litigation on file on this particular situation at the state
level.
Lee Smith explained that the Fair Board wants the very best contract possible at
the lowest price for the Fairgrounds project. There are very strict rules. He said he
does not want to see this process delayed any further.
David Bishop said this has everything to do with the process, whether minor or
major. The advice of County counsel must be followed in regard to the process.
Rick Isham said that the County follows established state rules for uniformity. The
OAR says it must be a separate submittal. It does not say in a separate envelope;
however, the County further defined what separate means. It should have not been
bound within the bid document.
LUKE: I move that the Board of County Commissioners uphold the decision
on this bid as being non-responsive.
DALY: Second.
Minutes of Meeting
Deschutes County Board of Commissioners
Convened as the Contract Review Board
March 26, 2001
Page 4 and 6 Pages
Mr. Elting stated that he doesn't feel the documents do say what the Board says
they do. He further said that the law says all bids submitted must be opened and
read.
Mr. Isham read the OARS again. Mr. Elting asked what the envelope does for the
County.
VOTE: LUKE: Aye.
DALY: Aye.
DEWOLF: Chair votes aye.
At this time, the Board examined the bid breakdown document. Commissioner
DeWolf stated that the apparent low bidder is shown as contractor #1, with a price
of $871,235.
Rick Isham explained that the budget for this project is $900,000, and this is the
only bid less than that. He said if for some reason this bid is protested or if the
award doesn't hold, the next lowest bid is over the $900,000 allowed. He said that
is appears that bid #I made a mistake on item # 13, in that four inches of gravel
cannot cost less than two inches. He said that he cannot surmise that they will end
0
up doing the work.
Dave Bishop said that perhaps item # 13 of the bid document could be clarified, as
it is probably an oversight.
(A general discussion of the requirements listed as item #13 took place.)
DEWOLF: I move the accept bidder # 1, with alternate # 12 gravel surface, and the
parking lots at no less than two inches of gravel.
Rick Isham stated that perhaps they plan on using the rock on site, which is central
Oregon basalt, if they have the capability of crushing it. If there is an obvious
mistake, bidder #I may not be considered a responsible bid.
LUKE: I second.
At this time, Commissioner Daly stated that he feels selecting two inches of gravel
is totally inadequate, and that more will need to be added and it will cost more in
the future.
Minutes of Meeting March 26, 2001
Deschutes County Board of Commissioners
Convened as the Contract Review Board Page 5 and 6 Pages
Commissioner DeWolf replied that two weeks ago, Commissioner Daly was
willing to go with two inches of cinders at a higher cost.
Commissioner Luke stated that four inches is always preferable, but it is a matter
of cost at this point.
Dave Bishop asked if the Board wanted to go with more in item # 13, could it be
done. Rick Isham said that a minor change order would provide for it.
Lee Smith said that he is satisfied that this company and its subcontractors can
perform.
Dave Bishop asked if there was a time limit penalty. Rick Isham replied that there
is a penalty clause in the contract; and the work must be completed in
approximately ninety days, or by July 3.
VOTE: LUKE: Aye.
DALY: Aye.
DEWOLF: Chair votes aye.
Rick Isham then stated that the Chair needs to sign the notice of intent to award the
bid, and the low bidder selected is Jack Robinson and Sons.
Chair Tom DeWolf adjourned the meeting at 12: OS p.m.
DATED this 26th Day of March 2001 for the Deschutes County Board of
Commissioners.
ATTEST:
Recording Secretary
Minutes of Meeting
Deschutes County Board of Commissioners
Convened as the Contract Review Board
Tom DeWolf, Chai�J—
I)-elq is R. Luke, Commis loner
Mic ael M. Daly, Co issioner
March 26, 2001
Page 6 and 6 Pages
ELTING INCORPORATED
CCB # 63027
503.656.0954
Board of County Commissioners
1130 N. W. Harriman Street
Bend, Oregon 97701
Commissioners:
March 26, 2001
re: Rebid of Fairground Parking
Expansion Project
We are an established grading contractor having a good record building roads in
Oregon and Washington, with over 25 years of experience in Central Oregon.
We submitted a timely and complete bid which complies fully with the ORS
statute and which complies substantially with the County IFB document, "Submission of
Proposals".
Now the reason we are here is that, while we did submit the lowest responsible
bid for the work, the County has elected to not open and read our bid because we failed to
comply with a requirement -- we will call it a minor formality — and that requirement is
in conflict with Para 7 referred to above, and in the "Invitation to Bid". That paragraph,
number 7 at the top of page 2, says the proposal must include "a complete set of contract
documents". The IFB draws special attention to this requirement (using capital letters,
underlining, etc.).
While we recognize that County counsel is conscientiously trying to do their job,
we believe that the County is in fact in violation of the ORS 279.027 Para 2c when they
declined to open publicly our written bid proposal.
Referring now to ORS 279.029, which requires the agency to award the contract
to the lowest responsible bidder who has substantially met the bidding requirements, i.e.
-- timely submission
-- written bid containing all required documents and
-- complete bid proposal
we hereby request that the Commissioners award us the contract.
In summary we have the low bid, we have the experience, we have the equipment
and personnel, we have complied with every requirement — save the one requiring a
separate envelope -- and we would like to build your Parking Lot for you.
Respectfully submitted,
James A. Elting
Cell phone 503.519.5102
Encl: Invitation to Bid
p.p. 1-6 of IFB
Our `Bid Protest" Letter, dated March 22, 2001
p.p. 47 & 48 Public Contracting Laws
cc: Office of County Counsel, Mr. Rick Isham, Legal Counsel 541.383.0496
ELTINC INCORPORATED
'.0. BOX 366 - CLACKAMAS, OREGON 97015
March 22, 2001
Deschutes County Fair & Expo
c/o Hickman, Williams & Associates, Inc.
805 SW Industrial Way, Suite 10
Bend, OR 97702
Via: Mail and Fax (541)388-5416
Subject: Bid Protest
Project: Deschutes County Fairground Parking Expansion
Attn: Matthew K. Steele
J(503) 656-0954
FAX (503) 231-7453
During a telephone conversation today, you stated that you are refusing to consider our responsive and
timely proposal on the above project. You explained that your decision not to consider our bid was based
upon our failure to submit our subcontractor disclosure information in a separate envelope, so you
assumed that the form was not submitted. As we explained in the conversation, our form is included in
our bid proposal as required by paragraph number 4 of the Invitation To Bid requiring "incorporating all
contract documents".
Any requirement for a separate envelope is a minor formality and goes beyond the ORS statutes.
We are the low bidder for the work as specified. We expect to be awarded the contract for the work. We
would protest award to any other bidder.
Sincerely, ,
J es A. Elting
resident
Cc: Office of County Counsel, Mr. Rick Isham, Legal Counsel (541) 383-0496
Contractcr Lic. #'s: OR - 63027 • WA - ELTINI"095M4 • ID - 5148 -AAA -4(16) • CA - 516709
INFORMATION FOR BIDDERS
1. General Description of Project. A general description of the work to be performed is
contained in the Invitation to Bid. The scope is indicated in the applicable parts of these
Contract documents.
2. Bidding Documents. Bidding Documents include the Invitation to Bid, Information for
Bidders, the Bid Proposal and Bid Schedule, the Bid Bond, Subcontractors Disclosure
Form, and proposed Contract Documents, including any Addenda issued prior to
receipt of bids. All requirements and obligations of the Bidding Documents are herby
incorporated by reference into the Contract Documents and are binding on the
Successful Bidder upon award of the Contract.
3. Contract Documents. The Contract documents under which it is proposed to execute
the work consist of the material bound herewith. These Contract documents are
intended to be mutually complementary and to provide all details reasonably required
for the execution of the proposed work.
Any person contemplating the submission of a proposal and being in doubt as to the
meaning or intent of said contract document shall at once notify, in writing, the Project
Engineer, Matt Steele of Hickman, Williams & Associates, Inc. Any interpretation of
change will be mailed and faxed to each person receiving a set of documents.
4. Form of Proposals. All proposals must be submitted on the forms furnished.
5. Substitutions. Materials and/or products called for in the specifications are named in
order to establish a standard of quality design. Manufacturers or suppliers of products
similar to those specified may submit bids on the work providing requests for approval
of substitution materials are made at least five (5) working days prior to the bid opening.
Adequate information on which to base approval or disapproval must be furnished to
the Project Engineer or his representative and the Project Engineer shall be the sole
judge of any request. When the Project Engineer approves a substitution, it is with the
understanding that the Contractor guarantees the substituted article or materials to be
equal or better than the specified.
6. Preparation of Proposals. All blank spaces in the proposal form must be filled in, in
ink, or typed, in both words and figures where required. No changes shall be made in
phraseology of the forms. Written amount shall govern in cases of discrepancy
between the amount stated in writing and amount stated in figures.
Any proposal shall be deemed informal which contains omissions, erasures, alterations,
or additions of any kind, or prices uncalled for, or which, in any manner shall fail to
conform to the conditions of the published invitation to bidders.
The bidder shall sign his proposal in the blank space provided therefore. Proposals
made by corporations or partnerships shall contain names and addresses of the
principal officers or partners therein. If the proposal is made by a corporation, it must
be signed by one of the principal officers thereof, and the corporate seal affixed.
If made by a partnership, it must be signed by one of the partners, clearly indicating that
he is signing as a partner of the firm. In the case of a proposal made by a joint venture,
each of the joint venturers must sign the proposal in his personal capacity.
The wording of the proposal shall not be changed. Any additions, conditions, limitations
or provisions inserted by the bidder will render the proposal irregular and may cause its
rejection.
Page 1
DESCHUTES COUNTY, OREGON
DESCHUTES COUNTY FAIR AND EXPO
INVITATION TO BID
FAIRGROUNDS PARKING EXPANSION PROJECT - REBID
Sealed bids will be received at the Office of Hickman, Williams and Associates, Inc., 805 SW Industrial Way, Suite
10, Bend, Oregon 97702, until but not after, 10:00 a.m. on March 22, 2001; bids will be opened at 2:00 p.m. on
March 22, 2001 at the above location, at which time all bids for the above -entitled public works project will be
publicly opened and read aloud. Bidders must submit a Subcontractor Disclosure Statement in a separate
sealed envelope marked "SUBCONTRACTOR DISCLOSURE STATEMENT" "FAIRGROUNDS PARKING EXPANSION
PROJECT" prior to 2:00 p.m. on March 22, 2001 at the above location.
The proposed work consists of the following:
1) Constructing approximately 14,100 lineal feet of gravel roadway.
2) Constructing approximately 80 acres of gravel surfaced parking lots.
3) Completing construction of approximately 20 acres of gravel surfaced parking lots.
4) Performance of such additional and incidental work as specified in the drawing and specifications.
Construction drawings, specifications and other bid documents may be inspected and obtained for a fee of
$ 25 at the Office of Hickman, Williams and Associates, Inc., 805 SW Industrial Way, Suite 10, Bend, Oregon
97702. A full size 24" x 36" set of construction drawings will be available for an additional S 25. Inquiries
pertaining to these documents shall be directed to Matt Steele, Project Engineer, Hickman, Williams and
Associates Inc., (541)389-9351.
Bids shall be made on the forms furnished, incorporating all contract documents, including a Surety Bond,
Irrevocable Letter of Credit issued by an Insured Institution defined in ORS 706.008, Cashiers Check or Certified
Check for the minimum amount of 10% of the Bid Price, addressed and mailed in a sealed envelope plainly
marked "FAIRGROUNDS PARKING EXPANSION PROJECT" and the name and address of the bidder.
No bid will be received or considered by Deschutes County unless the bid contains a statement by the bidder
that the provisions of ORS 279.350 are to be complied with. Each bid must contain a statement as to whether
the bidder is a resident bidder, as defined in ORS 279.029.
Bidders shall be pre -qualified with Deschutes County or with the State of Oregon in accordance with ORS
279.039. The prequalification classification required for this project is "Highway, Road and Street
Improvements." The successful bidders and subcontractors providing labor shall maintain a qualified drug
testing program for the duration of the contract. Bidders shall be registered with the Construction Contractor's
Board. Contractors and subcontractors need not be licensed under ORS 468A.720.
Deschutes County may reject any bid not in compliance with all prescribed bidding procedures and
requirements, and may reject for good cause any or all bids upon finding of Deschutes County it is in the public
interest to do so. The protest period for this solicitation shall be five (5) calendar days.
DAVID BISHOP
DESCHUTES COUNTY FAIR BOARD
PUBLISHED:
DAILY JOURNAL OF COMMERCE: March 14, 2001
THE BEND BULLETIN: March 15, 2001
7. Submission of Proposals. All proposals must be submitted in the time and place and
in the manner prescribed in the invitation to bid. Proposals must be made on the
prescribed proposal forms furnished. Each proposal must be submitted in a sealed
envelope, so marked as to indicate its contents without being opened. If the proposal is
submitted by mail, the sealed envelope containing the bid must be enclosed in a
separate envelope plainly addressed for mailing to conformance with instructions in the
Invitation to Bid. NOTE: A proposal must include a complete set of Contract
documents. including specifications. etc.
8. Modification or Withdrawal of Proposal. Any bidder may modify his bid by written or
telegraphic communication at any time prior to the scheduled closing time for receipt of
bids, provided such communication is received by the Project Engineer prior to the
closing time, and provided further that a written confirmation of a telegraphic
modification over the signature of the bidder was mailed prior to the closing time. If
written confirmation of a telegraphic communication is not received within at least two
days of the closing time, no consideration will be given to the modification. The written
or telegraphic communication should not reveal the bid price, but should state the
addition or subtraction or other modification so that the final prices or terms will not be
known by the Project Engineer until the sealed bid is opened.
Proposals may be withdrawn prior to the scheduled time for the opening of the
proposals either by telegraphic or written request, or in person. No proposal may be
withdrawn after the time scheduled for opening of proposals, unless the Project
Engineer has failed to comply with the time limits applicable to award of the Contract.
9. Disclosure of First Tier Subcontractors. Within four working hours of the time of the
bid closing for which your bid exceeds $75,000, you are required to submit to the
Project Engineer in a separate sealed envelope marked "SUBCONTRACTOR
DISCLOSURE FORM" and the name of the project, a statement on the form provided
in these contract documents identifying all first-tier subcontractors that will furnish labor
or materials and whose contract value is equal to or greater than:
5% of the total project bid, but at least $15,000, or
$500,000 regardless of the percentage of the total project bid.
For each subcontractor listed, Include: il
The name, address and telephone number of the subcontractor.
The subcontractor's registration number if the Construction Contractors Board
requires the subcontractor to have a certificate of registration.
The anticipated amount of the subcontract.
If no subcontracts subject to the above disclosure requirements are anticipated, a
bidder shall so indicate by entering "NONE".
THE COUNTY MUST REJECT A BID IF THE BIDDER FAILS TO SUBMIT THE
DISCLOSURE FORM WITH THIS INFORMATION BY THE STATED DEADLINE (see
OAR 137-040-0017).
Page 2
MAR. :23'01(FRI) 15:44 SEIFER YEATS MILLS Z TEL:503 223-9564
x
PUBLIC CONTRACTS AND PURCHASING
(b) The date and time after which bids
will not be received, which shall be not less
than five days after the date of the last pub-
lication of the advertisement;
(c) The date that prequalification appli-
cations must be filed under ORS 279.039 (1)
and the class or classes of work for which
bidders must be prequalified if prequalifica-
tion is a requirement;
(d) The character of the work to be done
or the material or things to be purchased;
(e) The office where the specifications for
the work, material or things may be re-
viewed;
(f) The name and title of the person des-
ignated for receipt of bids; and
(g) The date, time and place that the
public contracting agency will publicly open
the bids. EFormetiy 279.065; 1977 c.289 §l; 1979 c282
§1; 1983 &690 §6; 1965 x724 §1; 1987 &741 018; 1987 &776
§1; 1967 c865 §2; 1991 x197 §l; 1997 &239 §2; 1997 &802
ill; 1999 c.88 §11
MA26 Mep=W by 1975 071 §93]
279.027 Regturements for bid docu-
ments and biddss; disclosure of first-tier
subcontractore- (1) A public contracting
agency preparing bid documents for a public
contract shall, at a minimum, include:
(a) A statement that, if the contract is
for a public work subject to ORS 279.348 to
279.380 or the Davis -Bacon Act (40 U.S.C.
276x), no bid will be received or considered
by the public contracting agency unless the
bid contains a statement by the bidder as a
part of its bid that the provisions of ORS
279.350 or 40 U.S.C. 276a are to be complied
with;
(b) The date and time after which bids
will not be received, which shall be not less
than five days after the date of the last pub-
lication of the advertisement;
(c) The date that prequalification appli-
cations must be filed under ORS 279.039 (1)
and the class or classes of work for which
bidders must be prequalified if prequalifica-
tion is a requirement;
(d) The character of the work to be done
or the material or things to be purchased;
(e) The office where the specifications for
the work, material or things may be re-
viewed;
(f) The name and title of the person des-
ignated for receipt of bids;
(g) The date, time and place that the
public contracting agency will publicly open
the bids;
(h) A statement that each bid must iden-
tify whether the bidder is a resident bidder,
as defined in ORS 279.029;
P. 002
279 027
(i) A statement that the public contract-
ing agency map compli-
ance
any bid not in com -
ance with all prescribed public bidding
procedures and requirements, and may re"ect
for good cause any or all bids upon a finding
of the agency that it is in the public interest
to do so;
0) Information addressing whether a
contractor or subcontractor must be licensed
under ORS 468A.720; and
(k) A statement that no bid for a con-
struction contract shall be received or con-
sidered by the public contracting agency
unless the bidder is registered with the Con-
struction Contractors Board or licensed by
the State Landscape Contractors Board as
required by ORS 671.530.
(2). 1 bids made to the public contract-
ingagency pursuant to ORS 279.015 and
279.025 shall be:
(a) In writing.
(b) Filed with the person designated for
receipt of bids by the public contracting
agency_
(c) Opened publicly by the public con- x
tracting agency at the time designated in the
advertisement_
(3)(a) Within urworking of the
date and time of the deadline when the bids
were due to the public contracting agency
for a public improvement, a bidder sb.W &yb-
mit to the public contractinagency a dis-
closure of any first-tier subcontractor
furnishing labor or materials in con-
nection with the public improvement and
whose contract value is equal to or greater
than:
(A) Five percent of the total project bid
or $15,000, whichever is larger; or •
(B) $500,000, regardless of the percentage
of the total project bid.
(b) The disclosure of first-tier subcon-
tractors shall include:
(A) The name and address of each sub-
contractor;
(B) The registration number assigned to
the subcontractor by the Construction Con-
tractors Board if the subcontractor is re-
quired to have a certificate of registration
issued by the board; and
(C) The amount of the contract of the
subcontractor.
(c) For each contract to which this sub-
section applies, the public contracting
agency shall designate a deadline for sub-
mission of bids that has a date and time that
is on Monday through Thursday or that is
on Friday prior to 12 noon.
Title 26 Page 47 (1999 Edition)
MAR:y23' 0I (FRI) 15:45 SEWER YEATS MILLS Z TEL:503 223-9564
w
{
279029 PUBLIC FACM11US; ECONOMIC DEVELOPMENT
(d) This subsection shall apply only to
public improvements with a contract value
of more than $76,000.
(4) After having been opened the bids
shall be filed for public inspection.
(5) A surety bond, irrevocable letter of
credit issued by an insured institution as de-
fined in ORS 706.008, cashiers check or cer-
tified check of the bidder shall be attached
to all bids as bid security unless the contract
for which the bid is submitted has been ex-
empted
x
emm�ppt�ed from this requirement pursuant to
OR5 279.039. Such security shaIl not exceed
10 percent of the amount bid for the con-
tract. (Formerly 279.070-,1997 x951 §2; 1999 cA8 52,
1.999 ese9 §91
27R= (Repealed by 1975 x771 §331
279.029 Award of contract; bond;
waiver of bond in case of emergency. (1)
After the bids are opened as required by ORS
279.027, and after a determination is made
that a contract is to be awarded, the public
contracting ' agency shall award the contract
to the lowest response a er.
(2) In determining the lowest responsible
bidder, a public contracting agency shall:
(a) If the contract is for a public im-
provement, check the list created by the
Construction Contractors Board under ORS
701.227 for bidders who are not qualified to
hold a contract for a public improvement;
and
(b) For the purpose of awarding the con-
tract, add a percent increase on the bid of a
nonresident bidder equal to the percent, if
any, of the preference given to that bidder in
the state in which the bidder resides.
(3) The Oregon Department of Adminis-
trative Services on or before January 1 of
each year shall publish a list of states that
give preference to in-state bidders with the
percent increase applied in each such state.
The public contracting agency may rely on
the names of states and percentages so pub-
lished in determining the lowest responsible
bidder without incurring any liability to any
bidder.
(4) The successful bidder shall:
(a) Promptly execute a formal contract.
(b) If the contract is for a public im-
provement, execute and deliver to the public
contracting agency a good and sufficient
bond, to be approved by the public contract-
ing agency, in a sum equal to the contract
price for the faithful performance of the
contract. In lieu of a surety bond, the public
contracting agency may permit the success-
ful bidder to submit a cashier's check or
certified check in an amount equal to 100
percent of the contract price. If the public
improvement contract is with a single person
to provide both design and construction of a
public improvement, the obligation of the
surety bond, or the obligation of the bidder
on the cashier's check or certified check, for
the faithful performance of the contract re-
quired by this paragraph, shall be also for
the preparation and completion of the design
and related services covered under the con-
tract. • Notwithstanding when a cause of ac-
tion, claim or demand accrues or arises, the
surety or the bidder on the cashier's check
or certified check shall not be liable after
final completion of the contract, or longer if
defined in the contract, for damages of any
nature, economic or otherwise and including
corrective work, attributable to the design
aspect of a design -build project, or for the
costs of design revisions needed to implement
corrective work.
(5) In cases of emergency, or where the
interest or property of the public contracting
agency probabl would suffer material injury
by delay or oer cause, the requirement of
furnishing a good and sufficient bond for the
faithful performance of any public contract
may be excused, if a declaration of such
emergency is made and concurred in by all
members of the governing board of the public
contracting agency.
(6) As used in this section:
(a) "Lowest responsible bidder" means ie
the lowest bidder who is not on the list es-
tablished by the Construction Contractors
Board pursuant to ORS 701.227 and who has:
(A) SA�Ti-bidding complied with all pre-
scribed �publiie procedures and re-
quirements;
(B) Met the standards of responsibility.
In determining if a prospective bidder has
met the standards of responsibility, the pub-
lic contracting agency shall consider
whether a prospective bidder has:
(i) Available the appropriate financial,
material, equipment, facility and personnel
resources and expertise, or ability to obtain
the resources and expertise, necessary to in-
dicate the capability of the prospective bid-
der to meet all contractual responsibilities;
(ii) A satisfactory record of performance.
The public contracting agency shall docu-
ment
ocument the record of performance of a pro-
spective bidder if the public contracting
agency finds the prospective bidder not to be
responsible under this sub -subparagraph;
(iii) A satisfactory record of integrity.
The public contracting agency shall docu-
ment the record of integrity of a prospective
bidder if the public contracting agency finds
the prospective bidder not to be responsible
under this sub -subparagraph;
Title 26 Page 48 (1999 Edition)
P. 003