Excerpts from Oregon Administrative Rules
580-050-0041
(1) The successful bidder or proposer for a public improvement project approved by the Board of Higher Education shall meet the project's goal, if any, for subcontracting with or obtaining materials to be used in performing the contract from emerging small businesses. The goals shall be set out in the specifications that accompany the project's invitation to bid, request for proposal(s) or request for qualifications.
(2) The goal for each project shall be based upon the nature of the project, its size and location, and the availability of emerging small businesses.
(3) Should a bidder or proposer fail to meet the requirements of section (1) of this rule, the bid or proposal shall be disqualified unless the bidder or proposer notifies the contracting officer or designee of the bidder's or proposer's good faith efforts by submitting in writing within 24 hours of the bid or proposal closing date and time:
(a) The identity of each emerging small business enterprise requested to submit bids, proposals and/or quotations;
(b) The amounts of any such bids, proposals and/or quotations;
(c) The identity of each emerging small business enterprise to be engaged as a subcontractor;
(d) The reason for rejection of an emerging small business enterprise whose bid, proposal, or quotation is equal to or lower than that of the subcontractor engaged or projected for that work;
(e) All other evidence of good faith efforts through performance of all of the actions described in section (4) of this rule.
(4) Proof of performance of the following actions will create a rebuttable presumption that the bidder or proposer has made good faith efforts; conversely, failure of proof of such performance shall create a rebuttable presumption of lack of good faith efforts:
(a) The bidder or proposer attended any presolicitation or prebid meetings that were scheduled by the contracting agency to inform emerging small business enterprises of contracting and subcontracting, or material supply or other opportunities available on the project;
(b) The bidder or proposer identified and selected economically feasible units of the project that could be subcontracted to emerging small business enterprises in order to increase the likelihood of participation by such enterprises;
(c) The bidder or proposer advertised once in at least two of the following publications: general circulation, trade association, and trade-oriented, minority and women-focused publications, if any, concerning the subcontracting, material supply or other opportunities;
(d) The bidder or proposer solicited and provided written notice to a reasonable number of emerging small business enterprises identified from certified lists of such business enterprises provided or maintained by the Office of Minority, Women and Emerging Small Business, for the selected subcontractor or material supply or other work in sufficient time to allow the enterprises to participate effectively;
(e) The bidder or proposer followed up initial solicitations by contacting the emerging small business enterprises identified in subsection (d) to determine with certainty whether the enterprises were interested in such subcontracting, material supply or other opportunities;
(f) The bidder or proposer provided interested emerging small business enterprises with adequate information about the plans, specifications and requirements for the selected subcontracting or material supply or other work;
(g) Where applicable, the bidder or proposer advised and made efforts to assist emerging small business enterprises in obtaining bonding, lines of credit or insurance required by the contracting agency or contractor;
(h) The bidder or proposer used the services of community organizations, contractor groups, state, and federal business assistance offices and other organizations identified by the Office of Minority, Women and Emerging Small Business that provide assistance in the recruitment and placement of emerging small business enterprises; and
(i) The bidder or proposer negotiated in good faith with emerging small business enterprises submitting bids, proposals, or quotations and did not, without justifiable reason, reject as unsatisfactory any bids, proposals or quotations prepared by any emerging small business enterprise. "Good faith" negotiating means engaging in good faith discussions with emerging small business enterprises about the nature of the work, scheduling, requirements for special equipment, opportunities for dividing work among the bidders and proposers and various subcontractors and the proposals/bids of the emerging small business enterprises, including sharing with them any cost estimates from the request for proposal or invitation to bid documents, if available.
(5) Should the bidder or proposer not make the good faith effort required in section (4) of this rule, proof of the following facts shall rebut the presumption that good faith efforts as required by OAR 580-050-0040(1) were not made by the bidder or proposer:
(a) The bidder or proposer qualifies as a certified emerging small business enterprise; or
(b) The bidder or proposer has engaged one or more certified emerging small business enterprises as subcontractors which meets or exceeds the goal of the work and discloses in writing with its bid or proposal the identity of those firms so engaged and the amount(s) of the contract to be subcontracted to such entities.
(6) The Vice Chancellor for Finance and Administration or designee shall decide, if necessary, whether good faith efforts have been made, pursuant to the criteria of section (4) of this rule.
(7) Any bidder or proposer whose bid or proposal has been rejected for noncompliance with the requirements of this rule may, within three days of the rejection of the bid or proposal, request the Office of Finance and Administration to reconsider the rejection, citing the error or misinterpretation of the documents that the bidder or proposer believes led to the incorrect rejection of its bid or proposal and providing all necessary documentation. Information received after the three-day period will not be accepted. The Office of Finance and Administration or designee reserves the right to require the bidder or proposer to divulge its records when a dispute occurs, regardless of whether they have been awarded the contract or whether a court action has been filed.
(8) The requirements of the prior sections do not apply if the bidder or proposer certifies that, if awarded the contract, it will not subcontract. As used in this section, "work" does not mean providing materials or supplies.
(9) The Vice Chancellor for Finance and Administration or designee may audit or otherwise inspect the records of contractors to determine compliance by those contractors with commitments made in satisfaction of the requirements of this rule. Any contractor determined to have failed to fulfill such requirements may be subject to penalty, including suspension of any contract or debarment from bidding, proposing or performing work on any contract for the Oregon State Board of Higher Education for a period of up to three years. Before the Board imposes any such sanction, a contractor is entitled to a hearing as provided for in ORS 183.413, et seq.
(10) In the event a request for proposals, request for qualifications or other process other than competitive bidding is used to contract for capital construction work, the contract officer or designee shall require in the solicitation document or shall attempt to negotiate affirmative efforts on behalf of emerging small businesses similar to those outlined in sections (1) or (4) of this rule.
(11) The Board will evaluate annually the effects of this rule.
Stat. Auth.: ORS 351.070
Stats. Implemented: ORS 351.070
Hist.: HEB 14-1990, f. & cert ef. 10-3-90; HEB 5-1992, f. & cert. ef. 4-10-92; HEB 4-1995, f. & cert. ef. 8-1-95; HEB 5-1996, f. & cert. ef. 12-18-96
Minority Business Enterprises and Women Business Enterprises
580-050-0042
(1) The successful bidder or proposer for a public improvement project approved by the Board of Higher Education or its designee shall make a good faith effort to subcontract with or obtain materials to be used in performing the contract from minority and women business enterprises.
(2) Proof of performance of the following actions will create a rebuttable presumption that the bidder or proposer has made good faith efforts; conversely, failure of proof of such performance shall create a rebuttable presumption of lack of good faith efforts:
(a) The bidder or proposer attended any presolicitation or prebid meetings that were scheduled by the contracting agency to inform minority and women business enterprises of contracting and subcontracting, material supply or other opportunities available on the project;
(b) The bidder or proposer identified and selected economically feasible units of the project that could be subcontracted to minority and women small business enterprises in order to increase the likelihood of participation by such enterprises;
(c) The bidder or proposer advertised in general circulation, trade association, and trade-oriented, minority and women-focused publications, if any, concerning the subcontracting, material supply or other opportunities;
(d) The bidder or proposer solicited and provided written notice to a reasonable number of minority and women business enterprises identified from current certified lists of such business enterprises provided or maintained by the state Office of Minority, Women and Emerging Small Business, for the selected subcontracting or material supply, or other work in sufficient time to allow the enterprises to participate effectively;
(e) The bidder or proposer followed up initial solicitations by contacting the enterprises to determine with certainty whether the enterprises were interested in such subcontracting, material supply or other opportunities;
(f) The bidder or proposer provided interested minority and women business enterprises with adequate information about the plans, specifications and requirements for the selected subcontracting or material supply, or other work;
(g) Where applicable, the bidder or proposer advised and made efforts to assist minority and women business enterprises in obtaining bonding, lines of credit or insurance required by the contracting agency or contractor;
(h) The bidder or proposer used the services of community organizations, contractor groups, state and federal business assistance offices and other organizations identified by the Office of Minority, Women and Emerging Small Business that provide assistance in the recruitment and placement of minority and women business enterprises; and
(i) The bidder or proposer negotiated in good faith with minority and women business enterprises submitting bids, proposals, or quotations and did not, without justifiable reason, reject as unsatisfactory any bids, proposals or quotations prepared by any minority or women business. "Good faith" negotiating means engaging in good faith discussions with minority or women businesses about the nature of the work, scheduling, requirements for special equipment, opportunities for dividing of work among the bidders, proposers, and various subcontractors and the proposals/bids of the minority or women businesses, including sharing with them any cost estimates from the request for proposal or invitation to bid documents, if available.
(3) Should a bidder or proposer fail to meet the requirements of section (2) of this rule, the bid or proposal shall be disqualified unless the bidder or proposer notifies the Vice Chancellor for Finance and Administration or designee of the bidder's or proposer's good faith efforts by submitting in writing within 24 hours of the bid or proposal closing date and time:
(a) The identity of each minority and women business enterprise requested to submit bids, proposals, and/or quotations;
(b) The amounts of any such bids, proposals and/or quotations;
(c) The identity of each minority and women business enterprise to be engaged as a subcontractor;
(d) The reason for rejection of a minority and women business enterprise whose bid, proposal, or quotation is equal to or lower than that of the subcontractor engaged or projected for that work;
(e) All other evidence of good faith efforts through performance of all of the actions described in section (2) of this rule.
(4) Should the bidder or proposer not make the good faith effort required in section (2) of this rule, proof of the following facts shall rebut the presumption that good faith efforts as required by OAR 580-050-0040(1) were not made by the bidder or proposer:
(a) The bidder or proposer qualifies as a certified minority or women business enterprise or is an approved joint venture, including but not limited to a mentor-protégé relationship, which includes a minority or women enterprise as a partner in the joint venture; or
(b) The bidder or proposer has engaged one or more certified minority or women business enterprises as subcontractors that meet or exceed the recommended portion of the work and discloses in writing with its bid or proposal the identity of those firms so engaged and the amount(s) of the contract to be subcontracted to such entities: The recommended portion for each project shall be based upon the nature of the project, its size and location, and the availability of minority and women business enterprises.
(5) The Vice Chancellor for Finance and Administration or designee shall decide, if necessary, whether good faith efforts have been made pursuant to the criteria of this rule.
(6) Any bidder or proposer whose bid or proposal has been rejected for noncompliance with the requirements of this rule may, within three days of the rejection of the bid or proposal, request the Vice Chancellor for Finance and Administration to reconsider the rejection, citing the error or misinterpretation of the documents that the bidder or proposer believes led to the incorrect rejection of its bid or proposal and providing all necessary documentation. Information received after the three-day period will not be accepted. The Office of Finance and Administration reserves the right to require the bidders or proposers to divulge their records when a dispute occurs, regardless of whether they have been awarded a contract or whether a court action has been filed.
(7) The requirements of the prior sections do not apply if the bidder or proposer certifies that, if awarded the contract, it will not subcontract. As used in this section, "work" does not mean providing materials or supplies.
(8) The Vice Chancellor for Finance and Administration or designee may audit or otherwise inspect the records of contractors to determine compliance by those contractors with commitments made in satisfaction of the requirements of this rule. Any contractor determined to have failed to fulfill such requirements may be subject to penalty, including suspension of any contract or debarment from bidding, proposing or performing work on any contract for the Oregon State Board of Higher Education for a period of up to three years. Before the Board imposes any such sanction, a contractor is entitled to a hearing as provided for in ORS 183.413, et seq.
(9) In the event a request for proposals, request for qualifications or other process other than competitive bidding is used to contract for capital construction work, the Vice Chancellor for Finance and Administration or designee shall require affirmative efforts in its solicitation documents or shall attempt to negotiate affirmative efforts on behalf of minority and women business enterprises similar to those outlined in this rule.
(10) The Board will evaluate annually the effects of this rule.
Stat. Auth.: ORS 351.070
Stats. Implemented: ORS 351.070
Hist.: HEB 14-1990, f. & cert. ef. 10-3-90; HEB 5-1992, f. & cert. ef. 4-10-92; HEB 4-1995, f. & cert. ef. 8-1-95; HEB 5-1996, f. & cert. ef. 12-18-96 |