Oregon Department of Transportation Statewide Local Agency Project Delivery Conference Bid Opening...

Oregon Department

of Transportation

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 - ConstructionVera WicksMay 3, 2006

5-3-06 ODOT Procurement Office - Construction 2

Oregon Department

of Transportation 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


Oregon Department

of TransportationOverview–Role of ODOT

Procurement 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.


Oregon Department

of Transportation 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.


Oregon Department

of Transportation 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


Oregon Department

of Transportation

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)


Oregon Department

of Transportation 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


Oregon Department

of Transportation 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)


Oregon Department

of TransportationOverview –

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.


Oregon Department

of Transportation

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.


Oregon Department

of Transportation 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.


Oregon Department

of Transportation 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).


Oregon Department

of Transportation Progression from Bid Opening to Notice to Proceed

Bid / Price Analysis /Review (7 days)Notice of Intent to Award (3 day Protest Period) Award Approval (3-4 days) -ODOT Deputy Director, OTC, FHWA

Notice to Proceed

Rejection of individual bidder

Unresolved issues i.e. permits, agreements, personal services, etc.Bonding, Insurance,

execution of contract.(1 - 2 weeks)

Bid Opening

Bids 10% over Engineer’s Estimate. Justification to award / Input from local agency / RegionsConfirmation of funding

Protests, Lawsuits


Oregon Department

of Transportation 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.)


Oregon Department

of Transportation 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).


Oregon Department

of Transportation

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


Oregon Department

of TransportationCheckpoints 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))


Oregon Department



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)).


Oregon Department



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)


Oregon Department

of Transportation

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?


Oregon Department

of Transportation Potential Causes for Delays in Award or Notice to Proceed

Rejection Of Bids For Non-responsiveness OrNon-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


Oregon Department

of Transportation 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


Oregon Department

of Transportation

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

Potential Causes for Delays in Award or Notice to Proceed (cont)


Oregon Department

of TransportationPotential 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.


Oregon Department

of TransportationPotential Causes for Delays in Award

or Notice to Proceed (cont)

Insurance Certificate IssuesInsurance certificates are checked to ensure coverages are in compliance with specifications.

Bond IssuesIf a company cannot supply the appropriate bid, performance, or payment bonds, then their bid will be rejected.

LawsuitsAward of contracts can be halted pending outcome of court decisions.

Unresolved Issues: Right-of-way, environmental, agreements, personal services contracts, etc.


Oregon Department

of TransportationNotice 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.


Oregon Department

of TransportationChanges 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


Oregon Department

of Transportation

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.


Oregon Department

of Transportation 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: [email protected]


Oregon Department

of Transportation Contact Information

Vera Wicks, ODOT Procurement Office-Construction

Contracting (503) 986-6917 [email protected] Fax: (503) 986-6910

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