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Presented by ODOT Procurement Office - Construction Vera Wicks May 3, 2006

Statewide Local Agency Project Delivery Conference Bid Opening and Award Federally-funded Highway and Bridge Public Improvement Construction/Maintenance Projects. Presented by ODOT Procurement Office - Construction Vera Wicks May 3, 2006. Presentation Topics.

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Presented by ODOT Procurement Office - Construction Vera Wicks May 3, 2006

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  1. Statewide Local Agency Project Delivery ConferenceBid Opening and AwardFederally-funded Highway and Bridge Public Improvement Construction/Maintenance Projects Presented by ODOT Procurement Office - Construction Vera Wicks May 3, 2006

  2. Presentation Topics • Overview of Federal Aid Contract Award Program • ODOT Role • Applicable Laws and rules • Competitive Bidding • Federal Oversight • Bid Opening • Bid Review • Check Points for Responsiveness and Responsibility • Potential Causes of Delay in Award/Notice to Proceed • DBE Requirement Changes ODOT Procurement Office - Construction

  3. Overview–Role of ODOTProcurement Office • Oversee Award of STIP (Statewide Project Delivery Program) Projects by moving project from advertisement to point of commencement of construction. • A project may be in the development stage (including program funding, utilities, railroad, right-of-way, agreements, consultant selection, design, specifications, plans, estimates) for a year or more before proceeding to advertisement and public bid/price opening • At the point of bid opening the project elicits pressure to be awarded as quickly as possible in order for construction to begin. ODOT Procurement Office - Construction

  4. Overview–Role of ODOTProcurement Office (cont) • Ensure compliance with Federal and State laws, and Oregon Administrative Rules. • Ensure competitive and fair bidding process. • Provide assistance or training to ODOT staff, Local Agencies, Contractors, and the public on contracting and prequalification procedures and requirements. ODOT Procurement Office - Construction

  5. Overview - Applicable Laws, Rules, Specifications Federal Requirements & Guidelines: • United States Code • Code of Federal Regulations • FHWA Contract Core Curriculum Participant’s Manual & Reference Guide 2005 State Law • Oregon Revised Statutes (ORS) 279 A, C ODOT Procurement Office - Construction

  6. Overview - Applicable Laws, Rules, Specifications (cont) ODOT Administrative Rules • Oregon Administrative Rule (OAR) 731, Chapters 005 and 007 • OAR 734 Chapter 010 (Prequalification) Oregon Standard Specifications for Construction (2002) • Supplemental Oregon Standard Specifications for Construction (2006) • Special Provisions (project specific) ODOT Procurement Office - Construction

  7. Overview - Federal Oversight • Federal law prevails in instances of conflict with State Law to ORS 279C.870 (Prevailing Wages) (ORS279A.030) • Common Themes found throughout Federal Regulations and Guidelines: • Award on the basis of the lowest responsive bid submitted by a bidder meeting the criteria of responsibility (23 CFR 635.114(a) • Unrestricted Competition • Detection and Prevention of Collusion ODOT Procurement Office - Construction

  8. Overview – Federal Oversight (cont.) • FHWA Concurrence in Award is a prerequisite to Federal participation in construction costs and is considered as authority to proceed with construction. • A Stewardship agreement between ODOT and FHWA allows ODOT to award projects except for predetermined “full-oversight” projects. • Full oversight projects require FHWA approval for award, rejections, protest responses, projects 10% over Engineer’s Estimate, adding anticipated items after Plans, Specs, & Estimate approval, etc. (23 CFR 635.114(b); 23 CFR 635.114(f) ODOT Procurement Office - Construction

  9. Overview – Competitive Bidding • Federal Code - Construction contracts are to be awarded competitively to the contractor submitting the lowest responsive bid (23 U.S.C 112). • State Law - All public improvement contracts shall be based upon competitive bids (ORS 279C.335) • Exceptions to Competitive bidding require FHWA approval and ODOT Director approval. ODOT Procurement Office - Construction

  10. Overview – Competitive Bidding (cont) • Examples of exempted projects are: • Design-Build • Alternative contracting methods where award is based upon other factors besides price, i.e. price + time, price + technical qualifications, technical approach, etc • Emergency Projects • Exempted projects require Findings-of-Fact showing: • Will not substantially diminish competition • Will not encourage favoritism in the award • Will result in substantial cost savings to the agency • Public Hearing required to receive comments on exemption from low competitive bidding. ODOT Procurement Office - Construction

  11. Scheduling of Bid Opening Dates • Careful scheduling of projects is essential to ensure strong competition. • Typically, bid openings have been held on 2nd and 4th Thursdays of the month, with weekly bid openings in months of January through April. • Avoid placing too many projects at one bid opening, or too many projects of the same type (i.e. bridges, paving, etc.). This could result in diluting number of bidders and resulting in poor competition. ODOT Procurement Office - Construction

  12. Bid Opening Day • Federal regulation requires all bids to be opened publicly and announced either item-by-item, or by total amount. (23 CFR 635.113; • Oregon Statute: Bids must be “opened publicly by the contracting agency immediately after the deadline for submission of bids” (ORS 279C.365(2)(c). ORS 279C.365; OAR731-005-0600). ODOT Procurement Office - Construction

  13. Bid Opening Bid / Price Analysis /Review (7 days) Rejection of individual bidder Bids 10% over Engineer’s Estimate. Justification to award / Input from local agency / Regions Confirmation of funding Notice of Intent to Award (3 day Protest Period) Protests, Lawsuits Award Approval (3-4 days) -ODOT Deputy Director, OTC, FHWA Unresolved issues i.e. permits, agreements, personal services, etc. Bonding, Insurance, execution of contract. (1 - 2 weeks) Notice to Proceed Progression from Bid Opening to Notice to Proceed ODOT Procurement Office - Construction

  14. Bid Review Office of Pre-letting • A Cost Analysis is performed to determine if price is best value to public. Factors considered include: • Comparison of prices to historical price data • Current market conditions and workloads to determine fair market value • Number of bids and are prices in range with other bidders • Assessment and identification of any apparent mathematical and/or material unbalancing by the bidders. • Flawed Procurement Identification of issues that may cause the procurement to be considered flawed (i.e. missing, incorrrect, or poorly defined bid items, significant quantity errors,etc.) ODOT Procurement Office - Construction

  15. Bid Review (cont.) ODOT Procurement Office-Construction Review bids for responsiveness and responsibility. • A responsive bid is one that meets all the requirements of the advertisement and proposal. • A responsible bidder is one who is physically organized and equipped to complete the contract (i.e. has available the appropriate financial, material, equipment, facility and personnel resources and expertise). ODOT Procurement Office - Construction

  16. Checkpoints for Responsiveness / Responsibility • Prequalification: • Must be pre-qualified in class of work 10 days prior to bid opening. (ORS 279C.430; OAR 731-005-0450; OAR 734-010; Oregon Standard Specs 00120.00) • Affiliations / ownership: (collusion) • TERO (Tribal Employment Rights Office): • As required by Federal law, contractor must be certified prior to bidding on projects on or near Umatilla Indian Reservation (23 USC 140; 23 CFR 635.117) (http://www.oregon.gov/ODOT/CS/OPO/construction/docs/TEROcontractors2005wo.pdf ODOT Procurement Office - Construction

  17. Checkpoints for Responsiveness / Responsibility (cont) • Construction Contractor Board (CCB) License • Required prior to bid for state funded; prior to execution of contract for federally-funded (23 CFR 635.110(b)(c); ORS 279C.365(1)(k); ORS 701.055; ORS 671.530; Oregon Standard Specs 00130.40 (d)) • Secretary of State Business Registry • Required prior to execution of contract for federally-funded (23 CFR 635.110(b)(c); Oregon Standard Specs 00130.40 (d)) ODOT Procurement Office - Construction

  18. Checkpoints for Responsiveness / Responsibility (cont) • BOLI Ineligible list (ORS279C.860): http://www.boli.state.or.us/BOLI/WHD/PWR/jan06/debar04.12.06.pdf • Excluded Parties Listing - Federal Debar List (49 CFR 29) • Construction Contractors Board Disqualified Contractors Listing • Surety Company is authorized to do business in Oregon (ORS 279C.365; ORS 706.008; 23 CFR 635.110(6)). ODOT Procurement Office - Construction

  19. Checkpoints for Responsiveness / Responsibility (cont) • Bid proposal signed by authorized individual : • Confirmation and agreement to all certifications and statements contained in the booklet including statements of non-collusion, non-involvement in debarment and suspension, lobbying activities) (Oregon Standard Specifications 00120.40). • Line item entries are clear, complete, legible. • On Planholder’s List • $30,000 Public Works Bond (new requirement of Senate Bill 477) ODOT Procurement Office - Construction

  20. Checkpoints for Responsiveness / Responsibility (cont) • Subcontractor Disclosure Form filled out correctly and turned in by 11:00 a.m. on bid opening day. • Bid Bond equal to 10% of bid. • Did contractor attend mandatory pre-bid meeting? • Were DBE goals met? ODOT Procurement Office - Construction

  21. Potential Causes for Delays in Award or Notice to Proceed Rejection Of Bids For Non-responsiveness Or Non-responsibility Most Common Causes for rejection of bidder: • DBE (Disadvantaged Business Enterprise) goal is not met or the DBE subcontractor is not certified by OMWESB (Oregon Minority Women and Emerging Small Business) • Subcontractor Disclosure form is late or incomplete • Not pre-qualified in appropriate class of work • Bid Item entries are blank or indecipherable • Has not submitted properly executed bid security/bond • Bid Proposal not signed by authorized individual • Wrong Bid Sheets ODOT Procurement Office - Construction

  22. Potential Causes for Delays in Award or Notice to Proceed (cont) Protests • An adversely affected Offeror may submit to ODOT a written protest of award within three working days after issuance of Notice of Intent to Award (OAR 731-005-0690) • Most common protest issues include: • DBE Goal • Subcontractor Disclosure form • Unbalancing of bid items • Work Classifications ODOT Procurement Office - Construction

  23. Potential Causes for Delays in Award or Notice to Proceed (cont) Disqualification Under certain circumstances, a company can be disqualified from bidding with ODOT for up to a period of 3 years: • Conviction under state or federal antitrust statutes • Violation of contract provision that is regarded by ODOT to be so serious as to justify disqualification • DBE infractions • Does not carry workers’ compensation or unemployment insurance ODOT Procurement Office - Construction

  24. Potential Causes for Delays in Award or Notice to Proceed (cont) Projects over 10% of Engineer’s Estimate • Assessment is made to determine if price, quality or performance presented by Offeror is too costly to justify acceptance. • Work with Region / Local Agency Liaison / Local Agency in decision to award or reject all bids. • Confirm funding availability if proceeding with award • Provide justification and identify extenuating circumstances that warrant awarding the project at a higher price • i.e. safety issues, unidentified risks, in-water work periods, urgency of completion of project, Geographic location of the bidders or location of the project, reasonable doubt that lower prices could be obtained by re-bidding. ODOT Procurement Office - Construction

  25. Potential Causes for Delays in Award or Notice to Proceed (cont) Insurance Certificate Issues Insurance certificates are checked to ensure coverages are in compliance with specifications. Bond Issues If a company cannot supply the appropriate bid, performance, or payment bonds, then their bid will be rejected. Lawsuits Award of contracts can be halted pending outcome of court decisions. Unresolved Issues: Right-of-way, environmental, agreements, personal services contracts, etc. ODOT Procurement Office - Construction

  26. Notice of Award and Notice to Proceed • After all bids have been reviewed, award is approved by ODOT Deputy Director, or Oregon Transportation Commission. Some projects require concurrence by Federal Highway Administration. • Contract is executed by all parties and a Notice to Proceed with construction is issued to the Contractor. ODOT Procurement Office - Construction

  27. Changes in DBE Goal Requirements • The 9th Circuit Court has ruled that the DBE Program administered by the Washington State Department of Transportation lacked the evidence of discrimination that was needed to justify use race-conscious measures. Consequently, the court found that the Washington State Department of Transportation DBE program was unconstitutional as applied. • Other states in the 9th Circuit Court jurisdiction voluntarily stopped setting hard goals in anticipation of potential lawsuits • Oregon is one of 9 states under jurisdiction of the 9th Circuit Court and was the only state that had not voluntarily ceased setting goals ODOT Procurement Office - Construction

  28. Changes in DBE Goal Requirements • Department of Justice has advised ODOT to change DBE goals to zero for future projects. • Federal Highway Administration issued guidance stating that if recipients of federal funding had DBE programs not based on disparity studies, those programs would not be approved. • Effective 4-19-06 the Office of Civil Rights began setting goals for upcoming projects at zero percent. Projects which would ordinarily be reviewed to identify the DBE goal, will be evaluated for the inclusion of a DBE Aspirational Target. • Contracts already awarded with goals included will not be changed to aspirational targets. ODOT Procurement Office - Construction

  29. Changes in DBE Goal Requirements (cont.) • Meeting the Aspirational Target will be voluntary and will not be a condition of award, but will be tracked. • ODOT Office of Civil Rights will be communicating these changes to the public and requesting comments through the public information process (through public meetings, website, etc) in the next few weeks • ODOT Office of Civil Rights will proceed with reviewing options for conducting a Disparity Study to support using DBE goals. • Questions? Please call ODOT Office of Civil Rights at: • (503) 986-4355. • E-mail: Jill.Miller@ODOT.state.or.us ODOT Procurement Office - Construction

  30. Contact Information Vera Wicks, ODOT Procurement Office-Construction Contracting • (503) 986-6917 • Vera.wicks@odot.state.or.us • Fax: (503) 986-6910 ODOT Procurement Office - Construction

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