Amity Fire District
Exemption of Public Improvement Project
from Competitive Bidding Requirements
The Findings herein support a resolution authorizing the Local Contract Review Board (LCRB) of the Amity Fire District, to exempt a class of Public Improvement Projects (Projects), from the competitive bid requirements of the Public Contracting Code (Code), herein incorporated by reference, and as defined in ORS 279A.005 and in accordance with the authority granted it by ORS 279C.335(2) and as provided for by The Attorney General’s Model Public Contracting Rules (Model Rules), herein incorporated by reference, and specifically–OAR 137-049-0630 and proceed to advertise, evaluate responses, make awards and administer the Project Contracts through the use of Alternative Contracting Methods as defined in OAR 137-049-0600 through OAR 137-049-0690 and as further defined herein.
B. STATUTORY AUTHORITY
1. Local Contract Review Board- ORS 279A.060– The Amity Fire District Board of Directors (Board) is the LCRB for the Amity Fire District (District) in accordance with ORS 279A.060 and has retained all authority to act in that capacity in accordance with all relevant provisions of the Code.
2. Model Rules Adopted- ORS 279A.065-The Model Rules prepared by the Attorney General as required under ORS 279A.065 are currently the governing Rules of the LCRB for Public Contracting.
3. Projects - ORS 279C.335(2) The Class of Public Improvement Projects to which this proposed exemption may be applied, at the discretion of the LCRB, are Public Works Construction Projects for the Construction of Fire Stations and associated site and off-site construction work identified in the ballot title of the capital improvement bond, measure 36-124, passed by voters on November 4, 2008.
4. Exemption Criteria - ORS 279C.335(2) provides that the LCRB may exempt certain Public Improvement Contracts or a Class of Public Improvement Projects from the competitive bidding requirement upon the following Findings:
a. It is unlikely that such exemption will encourage favoritism in the award of Public Improvement Contracts or substantially diminish competition for Public Improvement Contracts; and
b. The awarding of Public Improvement Contracts pursuant to the exemption will result in substantial cost savings to the public contracting agency. In making such finding, the LCRB may consider the type, cost, amount of the Contract, number of persons available to bid and such other factors as may be deemed appropriate.
5. Exemptions Requirements – ORS 279C.335(4)
a. ORS 279C.335(4)(a) Where appropriate, direct the use of alternate Contracting and purchasing practices that take account of market realities and modern practices and are consistent with the public policy of encouraging competition.
b. ORS 279C.335(4)(b) Require and approve or disapprove written Findings by the Contracting agency that support the awarding of a particular Public Improvement Contract or Class of Projects without the competitive requirements of subsection (1) of this section. The Findings must show that the exemption of a Contract complies with the requirements of subsection (2) of this section.
6. Public Hearing– ORS 279C.335(5)
a. Hearing Required ORS 279C.335(5)(a) - Before final adoption of the Findings required by subsection (2) of this section exempting a Public Improvement Contract from the requirement of competitive bidding, a Contracting agency shall hold a public hearing.
b. Hearing Scheduled – The Public Hearing required in (a) above has been schedule for April 14, 2009; at 7:30 PM; at the Amity Fire District Office; 401 Trade Street Street; Amity, Oregon 97101. All interested persons are invited to attend.
c. Notification Required ORS 279C.335(5)(b) - Notification of the public hearing shall be published in at least one trade newspaper of general statewide circulation a minimum of 14 days prior to the hearing.
d. Notification Publication – The date for publication of this notice is March 25, 2009 on the district web page, in the Daily Journal of Commerce, and in the McMinnville News Register.
e. Public Comment ORS 279C.335(5)(c) - The notice shall state that the public hearing is for the purpose of taking comments on the Contracting agency’s Draft Findings for an exemption from the competitive bidding requirement. At the time of the notice, copies of the Draft Findings shall be made available to the public. At the option of the Contracting agency, the notice may describe the process by which the Findings are finally adopted and may indicate the opportunity for any further public comment.
f. Time For Public Comment ORS 279C.335(5)(d) - At the public hearing, the contracting agency shall offer an opportunity for any interested party to appear and present comment.
7. Included Alternative Contracting Methods – It is the intent of these Findings to provide an exemption for all of the Alternative Contracting Methods listed below, including all possible variations of each, as outlined in the Code, and to provide, through the adoption of a Rule, the authority for the LCRB to direct the use of the Alternative Contracting Method that it, in its’ sole discretion, deems best suited to each individual Project in the Class.
a. Construction Manager/General Contractor (or "CM/GC") as described in OAR 137-049-0690
b. Design-Build as described in OAR 137-049-0670
c. Requests for Proposals (RFP) as described in OAR 137-049-0650
d. Requests for Qualifications (RFQ) as described in OAR 137-049-0629
e. Competitive Proposals as described in OAR 137-049-640
District staff issues the following Findings in support of the exemption and in accordance with the statutory authority described above:
a. Favoritism or Diminished Competition – ORS 279.015(2)(a)
The granting of this exemption will not encourage favoritism or diminish competition for the Class of Projects. Notice of the Request For Proposal (RFP) or Request For Qualification (RFQ) shall be publicly advertised and open to all legally qualified and responsible Contractors. Though the competition may be based on, or partly on, factors other than cost, there will still be competition through the RFP or RFQ in terms of the evaluation criteria and rating system. This competitive model meets the criteria of ORS 279C.335(4)(a) by taking into consideration market realities and modern practices that are consistent with the public policy of encouraging competition.
b. Substantial Cost Savings and Greatest Value
It is an established fact that the acceptance of the lowest bid received for a project under the competitive bidding requirements of the Code does not always result in the lowest cost or greatest value for the Contracting agency at project close out. Use of the Alternative Contracting methods identified in these Findings will help to minimize the cost and produce the greatest value for the Contracting agency by competitively selecting the most qualified Contractor to perform the work. This will be accomplished by permitting consideration of factors including, but not limited to, the organizational and scheduling competencies of the Contractor, the competence and experience of the Contractor’s personnel assigned to perform the work, the financial solvency of the Contractor, the length of time the Contractor has been licensed and bonded to perform similar Contracts, the Contractor’s performance on Contracts of similar scope and complexity, references from other Owners for whom the Contractor has performed work on similar Contracts, the reputation and track record of the Contractor that directly affect the quality and quantity of sub-Contractors willing to provide sub bids to the Contractor or provide priority service to the Contractor, the Contractor’s history of completing similar Contracts on time and on budget, the contractor’s safety record and the Contractor’s history of litigation related to similar Contracts.
c. Other Considerations
The use of these Alternative Contracting Methods will foster a cooperative relationship between The Owner, Contractor and Architect by permitting negotiations, in various forms, dependent on the method selected. The negotiations process will enlist the expertise of the Contractor and combine it with that of the Architect and Owner in reducing costs and completing the work within the established budget through Value Engineering, by providing mechanisms to more closely monitor actual costs and by increasing the understanding of the Project, which is technically complex, subject to market fluctuations and funded through sources that are not flexible at the upper end. This close cooperation in the Value Engineering process is essential to delivering the greatest value to the Owner and the public while maintaining the schedule and budget established for the Project. Merely reducing the construction cost is not sufficient. The Life Cycle Cost, program effectiveness, safety, environmental health, efficiency of operation and sustainability of the facility must be considered.
d. Appropriate Alternate Contracting Practice- ORS 279C.335(4)(a)
The Oregon State Legislature recognized the potential effectiveness of the use of Alternative Contracting Methods as Defined in OAR 137-049-0610 by including provisions in the Code for their adoption and use. The State’s Attorney General, in formulation and adoption of the Model Rules also recognized that the effectiveness of alternative Contracting methods is dependent upon contract administration by knowledgeable individuals. It is the intent of the District to employ or Contract for the services of competent, knowledgeable individuals to supervise all aspects of selected Alternative Contracting Methods and to comply fully with the requirements of the Code and the LCRB’s adopted Rules. For those reasons we find that employment of these Alternative Contracting methods would be “appropriate” in accordance with ORS 279C.335(4)(a) and, therefore, “directing” their use is a required option for the LCRB when conditions of a Public Improvement Contract so indicate.
e. ORS 279.335 Compliance
These Findings are in compliance with the requirements of ORS 279.335 including specifically ORS 279.335(2).
Adopt the Findings of Fact herein contained as a Rule of the Local Contract Review Board permitting the use of the Alternative Contracting Methods herein specified and, at the discretion of the LCRB, direct the use of the most appropriate of those methods for each individual Project.
AMITY FIRE DISTRICT
INTENDED RULE ADOPTION
Notice is hereby given, pursuant to ORS 279.335(5), that a public hearing, conducted by the Local Contract Review Board (LCRB) of the Amity Fire District, on an exemption of a class of Public Improvement Projects from the competitive bidding requirements of the Public Contracting Code, will be held April 14, 2009 at 7:30 PM. The hearing is for the purpose of taking public comments on the District’s Draft Findings. The Hearing will be held at the Amity Fire District Office; 401 Trade Street; Amity, Oregon 97101. Draft Findings, in support of the exemption, are available on the District web page, at the Fire District Office or by calling, (503) 835-2311.
The LCRB may take any of the following actions; continue the Public Hearing which may or may not include extensions of the public comment period, or immediately enter into deliberations and deny the exemption or adopt the Rule.
Publish: Thursday March 25, 2009
Amity Fire District | 401 Trade St., Amity, OR 97101 | Tel. 503-835-2311 Fax. 503-835-3780