PSU ISQA 440, Spring, 2012 Governmental

Procurement

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The Structure ofOregon LawLloyd Rain Associateswww.rainassoc.com

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Oregon Law Structure

Oregon law is structured under Federal laws and regulations and the Oregon Constitution

Laws are referred to as statutes In Oregon the laws are entitled Oregon

Revised Statutes (ORS) Rules support and clarify laws In Oregon the rules are entitled Oregon

Administrative Rules (OAR).

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Federal Laws and Regulations

Federal laws and regulations almost always supersede state laws

State laws usually add to federal requirements, but may not conflict with, waive, or challenge federal laws.

Example: Davis Bacon wage laws

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Oregon Constitution

The Oregon Constitution is the highest form of Oregon Law The Constitution consists of a few pages of permanent laws

that are very conceptual All laws of the Legislative Assembly and all decisions of the

courts and public agencies must conform to Federal or Oregon constitutional laws

The Constitution can only be changed by a vote of the people

Statutes can be promulgated and changed by the Oregon legislature

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Oregon Revised Statutes

Laws are passed by the Legislative Assembly --- these laws are more specific than the general laws of the Constitution

The Legislative Administration Committee organizes the statutes into sets of law books

Persons, groups, agencies and companies to which laws pertain must follow these statutes to the "letter of the law."

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Case Law (Common Law) Judges of the appellate courts make these laws Publishers collect them in growing sets of

thousands of indices and law books Oregon courts publish their decisions in a set

called the Oregon Digest Generally, these laws must be followed by all

lower courts until they are revised by appellate decisions or by legislation

These laws are usually interpreted and explained by lawyers

They are a very large part of commercial and contract law

Slide Set #5 Structure of Oregon Law

PSU ISQA 410, Spring, 2011 Governmental Procurement

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Oregon Administrative Rules

After obtaining public input, the Secretary of State publishes the administrative rules

Agencies, authorized by statue, adopt administrative rules (OAR)

The rules expand upon the statutes (ORS) and typically apply to the public, not just state government

Rules provide specific details, terms, conditions, and requirements and are enforced by administrative hearings and by the courts

Like statutes, they must be strictly followed

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Management Directives(Policies, Guidelines)

Management directives are guidelines or rules issued by agencies mostly for internal use only

Policies are issued without public input Policies help apply consistent standards of

operations and public policy within state government

Some include specific procedures to follow For some persons, such as employees, they

carry the weight of a law or administrative rule.

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Internal Agency Guidelines

Internal procedures are those written guidelines that serve the in-house operation of a particular agency, division, section, or other work group

Typically, these procedures describe the approved or most effective ways to operate internally

They affect only the employees in the work group but may affect users of agency transactions

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Oregon’s Public Contracting Code

ORS 279 A“A” for “All”

OAR 125 – 246OAR 137 – 046

ORS 279 B“B” for “Buy”OAR 125 – 247OAR 137 – 047

ORS 279 C“C” for “Construction”

OAR 125 – 248/9OAR 137 – 048/9

Governmental Procurement

Public SectorThat sector of society which is essential for theoperation of a caring and orderly society, usuallyfinanced with public funds; deals with the deliveryof goods and services by and for various governments.

Private SectorThat sector of society which is comparatively unregulated,is usually operated by private entities, is usually financedwith private funds, and is primarily concerned with profit;deals with the delivery of goods and services by and forprivate ownership.

Public vs. Private Sector Procurement

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Oregon’s Public Contracting Code

ORS 279 = Oregon Revised Statute to administer ALL public procurement in the state

OAR 125 = Oregon Administrative Rules governing ALL state agencies through the State Procurement Office (SPO) which is now part of Department of Administrative Services (DAS)

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Oregon’s Public Contracting Code

OAR 137 = Attorney General’s Public Contract Rules governing ALL state agencies through the Department Of Justice (DOJ)

All public agencies except those which write and adopt their own procurement rules

OAR 137 is also (affectionately) known as the

Attorney General’s

Model Public Contracting Rules

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Procurement RulesDesigned To...

Protect taxpayer’s funds from misuse & abuse

Protect governmental agencies from adverse publicity

Protect all governmental agencies from negative audit findings

Conserve funds for maximum efficiency (most bang for buck)

Ensure accountability throughout all processes and agencies

Achieve socioeconomic goals

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Purposes of the Procurement Code

Provide the policies and processes for procurement of all goods, services and construction by public funds in Oregon.

Provide the authority for expenditure of public funds

Provide methodologies for a variety of procurement processes such as Source Selection, Protests, Solicitations, Judicial Review, and many others

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Key Policies in ORS 279

Construct public improvement at the least cost to the public agency

Encourage public contracting competition that supports openness and impartiality to the maximum extent possible

General rule; full, open and fair competition among all interested bidders/proposers

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Key Issues in ORS 279 “B”

Source Selection Methods

Request for Bid (lowest bid)

Request for Proposal (best value)

Request for Qualifications (not cost)

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Key Issues in ORS 279 “B”Source Selection Methods (1)

Small Procurements (not exceeding $5,000

Intermediate Procurements (not exceeding $150,000)

Competitive Sealed Bids (exceeding $150,000)

Competitive Sealed Proposals (exceeding $150,000)

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Key Issues in ORS 279 “B”Source Selection Methods

Sole Source Procurements (goods or services only available from one source)

Emergency Procurements (circumstances which could not have been reasonably foreseen)

Special Procurements (do not require bidding)

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Key Issues in ORS 279 “C”

Most construction remained unchanged Performance and Payment bonds now must

be separated (used to be combined) Some alternative processes for Special

Procurements such as CMGC, Design-Build, BAFOs and Negotiated Construction Contracts are now defined and approved

Use of Competitive Proposals can be authorized for public improvements under certain conditions

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Key Issues in ORS 279 “C”

Definitions and procedural requirements are given for Architects, Engineers, Land Surveyors and Related Services

Qualifications Based Selection processes must be used for A/E/LS by public agencies (State and local)

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Other ORSs of Interest

ORS 192: Public Records ORS 244: Ethics Laws ORS 656: Workers Comp ORS 701: Construction Contracting ORS 839: BOLI (Labor & PWR)