2024-212-Order No. 2024-028 Recorded 7/26/2024Recorded in Deschutes County CJ2024-212
Steve Dennison, County Clerk
REVIEWED Commissioners' Journal 07/26/2024 9:03:27 AM
LEGAL COUNSEL gC\�UTfi5 COG�� II I I (III I I'�I I' I I II � II I II II I III
2024-212
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Adopting the Findings of Fact to
Exempt from Competitive Bidding and Authorize
the Use of Design -Build Services of Contracting
for the Courthouse Expansion Project PV Solar
Technology System at Deschutes County Fair and
Expo Center
*
* ORDER NO. 2024-028
*
*
WHEREAS, the Board of County Commissioners of Deschutes County ("Board") is the Local Contract
Review Board for the County and in that capacity has authority to exempt certain contracts from competitive
bidding requirements of ORS 279C and associated county code provisions;
WHEREAS, a public hearing was held on July 24, 2024; and,
WHEREAS, the Board has determined that the Construction of the Deschutes County Courthouse
Expansion Project-PV Solar Technology System at the Deschutes County Fair and Expo Center should be
constructed by a Design -Build Contractor; now, therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY
ORDERS as follows:
Section 1. The Board adopts the specific "Findings of Fact" as set forth in Attachment A.
Section 2. The "Findings of Fact" show that an exemption from competitive bidding for the project
complies with the requirements of ORS 279C.335 (2) and the Attorney General's Model Contract Rules, OAR
137-049-0630 (2) for exemption of the project from competitive bidding.
Dated this)V'-� J�A, 20
ATTEST:
ecording Secretary
PAGE 1 OF I -ORDER No. 2024-028
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
P& TI ADAIR, Chair
Z,/;A,, V �i , I - 1, �
ANTHONY DeBONE, Vice Chair
PHIL CHANG, Commissioner
DESCHUTES COUNTY, OREGON
ORDER NO.2024-028 - ATTACHMENT A
FINDINGS OF FACT
For Exemption from Competitive Bidding and the Use of Design -Build Services of Contracting for
for
Deschutes County — Courthouse Expansion Project
PV Solar Technology System at Deschutes County Fair and Expo Center
ODOE 1.5% Green Energy Technology Requirement
1. General
ORS 279C.335(2) permits a local contracting agency to exempt public improvement projects from
traditional competitive bidding upon approval of Findings of Fact ("Findings") showing that an
alternative contracting process is a) unlikely to encourage favoritism or diminish competition and that b)
the process will result in substantial cost savings and benefit to the local contracting agency.
ORS 279C.400 — ORS 279C.410 describe the Request for Proposals method of solicitation as an
alternative to traditional competitive bidding. Pursuant to ORS 279C.410(8), a public Agency using the
Request for Proposals method may award a contract to the responsible proposer "whose proposal is
determined in writing to be the most advantageous to the contracting agency based on the evaluation
factors set forth in the request for proposals and, when applicable, the outcome of any negotiations
authorized by the request for proposals."
ORS 279C.330 defines "Findings" and identifies specific information to be provided as a part of
Deschutes County's justification. Under ORS 279C.335(5) a public hearing must be held before the
findings are adopted, allowing an opportunity for interested parties to comment on the draft findings.
2. General
The current regional and local construction market is navigating unprecedented challenges, including
labor shortages, global — local supply chain issues, as well as multiple public projects slated for
construction over the coming year. This project has a fixed budget and would benefit from a single point
of contact to lead the design, control costs, and manage and deliver the construction of the project.
In consideration of these circumstances, Deschutes County Facilities seeks to utilize Design -Build
Contractor Services, an alternative method of contracting, based on the Findings of Fact presented herein.
Page 1 of 6- Order No. 2024-028 ATTACHMENT A
FINDINGS OF FACT
SUMMARY FINDINGS
1. Competition will not be diminished. This exception will likely encourage more competition in this
tight market, rather than diminish competition. The Request for Proposals selection process will be
competitive based on relevant selection criteria, will be publicly advertised, and will be open to all
interested proposers as described in the findings below.
2. This process will attract more contractors in this currently tight market. This exemption will
result in attracting more contractors in this tight market and result in better construction costs. Also,
value will be added to the project and outcomes that would not otherwise be obtained under the
standard design -bid -build process, especially in these current market conditions.
SPECIFIC FINDINGS, WHICH SUPPORT THE SUMMARY FINDINGS, ARE AS
FOLLOWS:
1. The Design -Build Contractor will be selected through a competitive process in accordance with
the qualifications -based selection process authorized by Deschutes County Board of
Commissioners. Therefore, it is unlikely that the awarding of the construction contract for the
Project will encourage favoritism or substantially diminish competition. This finding is
supported by the following:
A. SOLICITATION PROCESS: Pursuant to ORS 279C.360, the Design -Build Contractor
solicitation will be advertised at least once in the Daily Journal of Commerce, The Bulletin, and
the Deschutes County website to maximize exposure.
The Design -Build Contractor proposals and interviews will be rated based on a predetermined list
of evaluation factors subject to the requirements of OAR 137-049-0640(2)(a), (b) and (c). The
County will enter into contract negotiations with the highest-ranking firm. Should negotiations
fail, the County will have the right to negotiate with the second highest-ranking firm.
B. FULL DISCLOSURE: To ensure full disclosure of all information, the Request for Proposals
solicitation package will include:
a. Detailed Description of the Project
b. Contractual Terms and Conditions
c. Selection Process
d. Evaluation Criteria
e. Role of Selection Committee
f. Provisions for Comments
g. Complaint Process and Remedies Available
C. COMPETITION: As outlined below, the County will follow processes which maintain
competition in the procurement of a Design -Build Contractor.
a. The County anticipates that competition for this contract will be similar to that experienced in
other Projects of this type. The competition will remain open to all qualifying proposers.
b. The selection and solicitation process employed will be open and impartial. Selection will be
made on the basis of final proposal scores derived from qualifications, price and other
components, which expand the ground of competition beyond price alone to include
experience, quality, and approach to market conditions.
Page 2 of 6- Order No. 2024-028 ATTACHMENT A
The competitive process used to award subcontracts for all competitively bid construction
work will be specified in the Design -Build Contractor contract and will be monitored by the
County.
D. SELECTION PROCESS: Other highlights of the selection process will include:
a. A mandatory Pre -Proposal Conference and Site Tour will be announced and held. This
conference will be open to all interested parties. During this Pre -Proposal Conference, as well
as any time prior to five (5) business days before the close of the solicitation, interested
parties will be able to ask questions, request clarifications and suggest changes in the
solicitation documents if such parties believe that the terms and conditions of the solicitation
are unclear, inconsistent with industry standards, or unfair and unnecessarily restrictive of
competition. As applicable, an addendum with questions, clarifications, and questions will be
publicized to all interested parties prior to the final deadline.
b. The evaluation process will determine whether a proposal meets the screening requirements
of the RFP, and to what extent. The following process will be used:
i. Proposals will be evaluated for completeness and compliance with the screening
requirements of the RFP. Those proposals that are materially incomplete or non-
responsive will not be accepted.
ii. Proposals considered complete and responsive will be evaluated to determine if they meet
and comply with the qualifying criteria of the RFP. If a proposal is unclear, the proposer
may be asked to provide written clarification. Those proposals that do not meet all
requirements will be rejected.
iii. Proposals will independently be scored by the voting members of the Selection
Committee. Scores will then be combined and assigned to each proposal.
iv. The Selection Committee will convene to select from the highest -scoring proposers, a
finalist(s) for formal interviews.
v. The Selection Committee will conduct the interview/s with the short-listed proposer(s).
vi. The Selection Committee will use the interview to confirm the scoring of the proposal
and to clarify any questions. Based upon the revised scoring, the Selection Committee
will rank the proposers, and provide an award recommendation.
vii. Deschutes County will negotiate a contract with the top -ranked firm. If an agreement
cannot be reached, the County will have the option to enter into an agreement with the
second -ranked firm, and so forth.
c. Competing proposers will be notified in writing of the selection of the apparent successful
proposer and will be given seven (7) calendar days after receipt of the notice to file any
questions, concerns, or protests about the selection process. Protests will be subject to the
requirements of the OAR 137-049-0450, must be in writing, and must be delivered to the
County within seven (7) calendar days after receipt of the selection notice. No protest of the
award selection shall be considered after this time period.
d. The contract achieved through this process will require the Design -Build Contractor to use an
open competitive selection process to bid all components of the job. The Design -Build
Contractor's general conditions and fee make-up of the total cost will be evaluated as one of
the scoring criteria. General Conditions must include supervision, bonding, insurance, and
mobilization, and must be within the current industry standard range. The Design -Build
Contractor's fee must be within the industry's standard range for a project of this size. The
Page 3 of 6- Order No. 2024-028 ATTACHMENT A
entire value of the project will be awarded through open, competitive processes, at either the
Design -Build Contractor and/or the subcontractor level.
2. The awarding of a construction contract for the Project using Design -Build Contractor method
would offer the County critical construction expertise and value to the Project. This finding is
supported by the following information required by ORS 279C.335(2)(b) and ORS 279C.330.
A. SPECIALIZED EXPERTISE: Early selection of the Design -Build Contractor creates more
informed, better -quality decision making by the project team. A more efficient design and
construction team saves the County money and helps the team anticipate and mitigate challenges
in the current construction market.
This exemption will allow Deschutes County to proactively seek construction and constructability
expertise during the design process, well in advance of the standard competitive bid timeline, to
address the complexities of existing conditions and the current construction market, to help
inform the best decisions on behalf of the County. Value will be added to the Project, via early
and time -critical construction expertise, that could not otherwise be obtained to the same depth,
duration, or quality.
a. COORDINATION: Use of a Design -Build Contractor in conjunction with the team
approach will result in a better coordinated Project. By having the Design -Build Contractor
part of the project team early, the Design -Build Contractor will have time to fully evaluate
and understand the existing facilities and systems, along with the intended design direction
prior to start of construction. This information will inform design direction and approach to
site logistics and safety and security measures during construction.
b. The Design -Build Contractor clarifies several critical variables valuable to the Project design.
The DeJlgn-Build 0__+ actol ;11 d-;l -A complete the specified P—Ject within the
maximum budget; determines the construction schedule; establishes the sequence of work; is
contractually bound to implement the final Project design within the project budget; and
participates as an essential member of the Project design and construction team. By utilizing
the Request for Proposal selection process, which allows the County to consider factors such
as experience and expertise in addition to price, the County will ensure that the selected
Design -Build Contractor will be competent addition to the team.
The Design -Build Contractor would help assess material selections relative to lead time
issues, best opportunities to secure subcontractors and labor for trade coverage, better pricing,
and will help discuss and/or adjust the work plan to address project and construction market
needs. This component cannot be addressed by the usual design/bid/build method of
construction because selection is typically based on the lowest bidder and occurs at the
completion of the design process.
CONSTRUCTION COORDINATION: A Design -Build Contractor participating on this
Project would provide timely assistance and support to the development of the design and the
most suitable approach to accommodate existing infrastructure and safety for the building
occupants.
d. MARKET CONDITIONS: As well as the multitude of construction market factors that
currently exist today in Oregon and Washington (e.g., supply chain and lead time issues,
construction labor shortages, significant competition of and with other projects), the difficulty
in establishing the best work sequence complicates our ability to accurately estimate the cost
of this Project. The current constriction market challenges the interest and capacity for
contractors to bid for jobs. Design -Build Contractor Services, an alternative contracting
Page 4 of 6- Order No. 2024-028 ATTACHMENT A
method, will be more likely to result in a more experienced and better suited contractor for
this Project than the usual competitive/low bid procurement.
B. OPERATIONAL, BUDGET, FINANCIAL DATA
a. BUDGET: The County has a fixed budget available for the Project, as well as a desired "as
soon as possible" project delivery date. Early reliable pricing provided by the Design -Build
Contractor, as well as scheduling and procuring help with long lead items during the design
phase will allow for the potential to mitigate later related challenges.
b. LONG TERM COSTS: The Project will require expertise regarding the constructability and
long-term cost/benefit analysis of innovative design. This knowledge is best obtained directly
from the construction industry. Many decisions will be required during the design process
that will encompass immediate feedback on constructability and pricing. Under the traditional
design -bid -build process, there is a high risk of increased change orders and schedule impacts
for a Project of this size and complexity. Since there are significant costs associated with
delay, time is of the essence. Because the contractor participates during the design phase, the
Design -Build Contractor process will assist in providing a scope of work, constructible
design and phasing solutions that best meet the requirements of the Project with significantly
lower risk to the Project' costs. Involving the Design -Build Contractor during design will also
allow Project risks to be addressed early and teamwork between the County, the design
consultants, and the contractor (design -build contractor) to minimize those risks.
c. FEWER CHANGE ORDERS: When the Design -Build Contractor participates in the
design process, fewer change orders occur during project construction. This is due to the
Design -Build Contractor's better understanding of the owner's needs, the existing building
and the engineering team's intent. As a result, the Project is more likely to be completed on
time and within budget. In addition, fewer change orders reduce the administrative time and
costs of project management for both the County and the contractor.
d. DESIGN -BUILD CHANGE ORDERS COST LESS: Design -Build Contractor change
orders will be processed at a lower cost. The design -bid -build method typically results in the
contractor charging 15%+ markup on construction change orders.
e. POTENTIAL SAVINGS: Under the design -build method the Design -Build Contractor will
design and build the specified project within the fixed budget, avoiding costly scope gaps that
can occur with typical design -bid -build contracts.
f. CONTRACTOR'S FEE IS LESS: Contracts with Design -Build Contractors are designed to
create a better working relationship with the contractor. As a result, the overhead and profit
fee is typically slightly lower than the fee anticipated on similar design -bid -build contracts.
C. ADDITIONAL PUBLIC BENEFITS
a. TIME SAVINGS: The use of Design -Build Contractor as an alternative contracting method
allows for more streamlined construction documents, in lieu of a fully bid set where
everything needs to be documented for pricing. This will help streamline the project and the
completion date.
b. COST SAVINGS: The Project will benefit from the active involvement of a Design -Build
Contractor during the design process in the following ways:
i. The contractor's input regarding material availability and lead times, as well as the cost-
effectiveness of various alternatives will guide the design toward the most economic
choices.
Page 5 of 6- Order No. 2024-028 ATTACHMENT A
ii. The contractor will be able to provide current and reliable information regarding the cost
of materials that are experiencing price volatility and the availability of scarce materials.
iii. The contractor will also be able to order materials while design is being completed in
order to avoid inflationary price increases and/or lead time issues, to mitigate the lead-
times that may be required for scarce materials.
PROJECT SCOPE & FIXED BUDGET ARE RECONCILED BEFORE
COMPLETION OF DOCUMENTS: The Design -Build Contractor will be able to obtain a
complete understanding of the County's needs, the engineer's design intent, the scope of the
Project, and the operational needs of the Project by participating in the construction document
phase. With the Design -Build Contractor participating in this phase they will be able to offer
suggestions for improvement and make suggestions that will reduce costs. With the benefit of
this knowledge, the Design -Build Contractor will also be able to design the specified project
within the fixed budget to be paid by the County for constructing the Project.
D. VALUE ENGINEERING
a. WITH THE DESIGN -BID -BUILD PROCESS: If the County were to utilize the design -
bid -build method, the contractor would not participate in this evaluation. In conducting value
engineering under the design -bid -build approach, a value engineering consultant is hired to
participate in the design and cost evaluation process. This process adds extra costs and
administrative complications, without providing the same benefits of early and committed
through construction contractor participation.
b. WITH DESIGN -BUILD CONTRACTOR: The Design -Build Contractor process offers a
unique opportunity for value engineering that is not possible through the design -bid -build
process. Value engineering is the means used to determine the best project design that meets
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most effectively by a team consisting of the owner, design team, consultants, and the
contractor. When the contractor participates, the team can render the most comprehensive
evaluation of all factors that affect the cost, quality, and schedule of the project.
i. The Design -Build Contractor method has the benefit of-
0 the ability to best set/anticipate the schedule within these current market conditions;
• the ability to anticipate long lead items and how to best gain subcontractor
commitment to this project,
Through integrated participation, a project's scope and design evolve that has greater
value for the owner, and is not likely to be the same project or product created by the
design -bid -build method.
CONCLUSIONS OF LAW
The above "Findings" show that the Design -Build Contractor process for the Construction of the
Deschutes County Courthouse Expansion-PV Solar Technology System at the Deschutes County Fair and
Expo Center, complies with the requirements of ORS 279C.335(2) for exemption of the project from
competitive bidding.
Page 6 of 6- Order No. 2024-028 ATTACHMENT A
T E S
o �
BOARD OF
* M\ -_
MEETING DATE: July 24, 2024
SUBJECT: Design -Build Findings of Fact for the Courthouse Expansion Project PV Solar
Technology System at the Deschutes County Fair and Expo Center
RECOMMENDED MOTION:
Move approval of Order No. 2024-028 adopting Findings of Fact to Exempt from
Competitive Bidding and Authorize the Use of Design -Build Services of Contracting for the
Courthouse Expansion Project PV Solar Technology System at the Deschutes County Fair
and Expo Center.
BACKGROUND AND POLICY IMPLICATIONS:
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contract price of a public improvement contract for new construction projects $5 million or
greater on green energy technology or an alternative, regardless of finding source. Green
energy technology includes solar technology such as photovoltaic systems.
A photovoltaic (PV) solar technology system is proposed as part of the Courthouse
Expansion project to comply with the 1.5% green energy technology requirement. Due to
limitations of the Courthouse site and roof area the system is proposed to be constructed
at the Deschutes County Fair and Expo Center.
This Findings of Facts establishes the basis for the use of the Design -Build method of
contracting as an alternative method due to current market conditions which include labor
shortages and long -lead items as well as the specialized expertise needed for this type of
project. The Facilities Department is seeking to utilize Design -Build services, an alternative
method of contracting, based on the attached Findings of Fact.
BUDGET IMPACTS:
No budget impact at this time. If approved, this alternative, qualifications -based method
would be used to select a Design -Build Contractor that would lead the project design and
manage and deliver the construction of the project. The expenditure has been budgeted
for FY 2025 in Campus Improvements Fund 463 as part of the Courthouse Expansion
project.
ATTENDANCE:
Lee Randall, Facilities Director
Eric Nielsen, Capital Improvement Manager
Wayne Powderly, Cumming Group