Changes are coming to Oregon’s public contracting code in the form of HB 2769, passed during the Oregon Legislature’s 2019 session.
As those familiar with Oregon’s public contacting rules know, under ORS 279C.110, contracting agencies are required to use a qualification-based selection process when choosing consultants to provide architectural, engineering, photogrammetric mapping, transportation planning, or land surveying services. In other words, public agencies are prohibited (with some exceptions) from factoring in price when evaluating responses to requests for proposals from consultants for the services listed above; proposals must be evaluated on the basis of qualifications alone. This means that a contracting agency has no information about what its chosen consultant will charge for services until contract negotiations between the two parties begin. ORS 279C.110 is an outlier in this regard—Oregon’s public contracting code permits (and in some cases, requires) contracting agencies to consider price when selecting providers of goods, general services, and construction services.
Effective January 1, 2020, however, HB 2769 will amend ORS 279C.110 to ease the restrictions related to pricing information and provide an optional process that contracting agencies may use to evaluate price (the original process, described above, remains if an agency chooses to use it). The new, optional process is available for solicitations advertised on or after January 1, 2020. A contracting agency wishing to consider price may select as many as three top-ranked proposers, based on qualifications. The contracting agency may then request certain pricing information from the top-ranked proposers. If a proposer does not wish to submit pricing information, it may withdraw its proposal. The maximum weight that the pricing information may carry is 15 percent of each proposer’s final evaluation and score.
HB 2769 includes additional requirements for both the solicitation documents and evaluation process should a contracting agency decide to use this new, optional process. The bill also establishes a right to protest contents of a contracting agency’s solicitation documents and the agency’s selection of consultant in accordance with model rules adopted by the Attorney General or, if the agency opts to adopt its own rules, the agency's protest procedures. Public entities and contracting agencies should take the time to carefully read and familiarize themselves with ORS 279C.110’s new requirements. Our attorneys are here to help with any questions along the way.