2019 Oregon Revised Statutes
Volume : 07 - Public Facilities and Finance
Chapter 279B - Public Contracting - Public Procurements
Section 279B.040 - Prohibition on accepting bid or proposal from contractor that advised or assisted contracting agency to develop specifications or solicitation documents; exceptions.
(1) Except as provided in subsection (2) of this section, a state contracting agency that procures personal services for the purpose of advising or assisting the state contracting agency in developing specifications, a scope or statement of work, an invitation to bid, a request for proposals or other solicitation documents and materials related to a procurement may not accept from the contractor, or an affiliate of the contractor, that advised or assisted the state contracting agency a bid or proposal for the goods or services described, specified or identified in the solicitation documents or materials if a reasonable person would believe that, by giving the advice or assistance, the contractor or affiliate would have or would appear to have an advantage in obtaining the public contract that is the subject of the solicitation.
(2)(a) If a state contracting agency anticipates that the state contracting agency will or must seek advice or assistance of the type described in subsection (1) of this section from a contractor that is also engaged in providing goods or services that will be described or identified in the solicitation documents and materials that result from the advice or assistance, and the state contracting agency wishes to accept a bid or proposal from the contractor, the state contracting agency, before awarding a contract for the advice or assistance, shall apply to the Director of the Oregon Department of Administrative Services for an exception to the prohibition set forth in subsection (1) of this section.
(b) The state contracting agency in the application for the exception shall include findings and justifications, along with sufficient facts to support the findings and justifications, that will enable the director to make an independent judgment as to whether:
(A) The state contracting agency needs advice or assistance from a contractor to develop the solicitation documents and materials described in subsection (1) of this section;
(B) Accepting a bid or proposal from the contractor that gives the advice or assistance is the only practicable way in which the state contracting agency can conduct the procurement successfully; and
(C) Approving the exception:
(i) Is unlikely to encourage favoritism in awarding public contracts or to substantially diminish competition for public contracts; and
(ii)(I) Is reasonably expected to result in substantial cost savings to the state contracting agency or the public; or
(II) Otherwise substantially promotes the public interest in a manner that could not be practicably realized by complying with the prohibition described in subsection (1) of this section.
(c)(A) If the director approves the state contracting agency’s application, the director shall prepare written findings and justifications for the approval. The state contracting agency’s findings, justifications and facts and the director’s findings, justifications and approval are public records that are subject to disclosure as provided in ORS 192.311 to 192.478.
(B) If the director disapproves the state contracting agency’s application, the director shall state the director’s reasons for the disapproval in a written notice to the state contracting agency and shall indicate whether the disapproval extends only to the state contracting agency’s acceptance of a bid or proposal from a contractor that gives advice or assistance in preparing solicitation documents and other materials or whether the director also disagrees with the state contracting agency’s stated need for advice or assistance from a contractor.
(C) The director’s approval or disapproval is final.
(3) As used in this section, "affiliate" means a person that, directly or indirectly through one or more intermediaries, controls, is controlled by or is under common control with a contractor described in this section.
(4) This section does not apply to:
(a) The Secretary of State or the State Treasurer; or
(b) A bid or proposal for quality management services, as defined in ORS 276A.223, that a state contracting agency receives from a contractor that provided preliminary quality assurance services, as defined in ORS 276A.223, for the same information technology initiative that is the subject of the state contracting agency’s solicitation for quality management services. [2012 c.53 §2; 2014 c.77 §2]
