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Tools & Programs: SEP-15

Oregon Innovative Partnerships Program (OIPP)

Work Plan for Initial Projects Under the Oregon Innovative Partnerships Program (Oregon Department of Transportation Application for SEP-15 Approval)

  1. INTRODUCTION

    This work plan is submitted by the Oregon Department of Transportation ("ODOT") for review and approval by FHWA under Special Experimental Project No. 15 (SEP-15), with respect to the request(s) for proposals ("RFP") for proposed public-private agreements that ODOT would like to issue under the Oregon Innovative Partnerships Program (the "OIPP Program"). 1

    ODOT has identified various projects that it believes are suitable for the OIPP Program, as described in Exhibit A hereto (the "Projects"). The list of Projects will be presented to the Oregon Transportation Commission in January and may be revised prior to issuance of the RFP. The RFP will solicit proposals for pre-development services, financing and potentially design, construction, maintenance and/or operation of one or more of the Projects. Please refer to Exhibit B for provisions of Oregon statutes and ODOT regulations forming the basis for the planned procurement (collectively, the "Enabling Legislation").

    The work is expected to proceed in phases, each of which may be governed by a separate agreement. The initial phase will include completion of the environmental process and other pre-development services. The second phase (if it proceeds) will include design, construction and other development work. A third phase may include operations and maintenance. Each individual agreement, or the set of agreements, depending on the context, is referred to herein as an "OIPP Agreement."

    The price for pre-development services will be negotiated with the selected proposer(s) based on their proposal(s). The price for design, construction and other services will be negotiated with the selected proposer(s) prior to issuance of a notice to proceed with such services. Please refer to Exhibit C for a description of the process that ODOT plans to use to determine that the price is reasonable.
  2. SCOPE OF SEP-15 REQUEST

    ODOT requests approval of the following experimental features deviating from requirements contained in FHWA's rules applicable to design-build projects:
    • Use of a procurement process for the OIPP Agreements as described herein, notwithstanding any conflict between the process described herein and the provisions of 23 CFR Part636 (including (1) the ability to accept and review proposal modifications requested by ODOT, (2) the ability to enter into negotiations with the selected firm(s) prior to award, and (3) the ability to issue the Request for Proposals and enter into OIPP Agreements without having received final NEPA approval for the Projects).
    • Implementing a modified approach for issuance of project authorization under 23 CFR 635.112, as described herein.
    • Including a general warranty in the OIPP Agreement that exceeds the period specified in 23 CFR635.413(e)(1)(i), and allowing the developer to undertake responsibility for routine maintenance services.

    In addition, ODOT requests FHWA concurrence with the following:

    • That the procurement process described herein, in combination with the proposed process for determining price reasonableness prior to project authorization, constitutes a competitive process for purposes of 23 C.F.R.636.119.
    • That it is permissible for the developer and/or a subconsultant on the developer's team to provide NEPA support services for the Project, with the understanding that (1) a consultant not affiliated with the developer will compile the NEPA documents, (2) all developer and consultant services will be subject to control and direction by ODOT and FHWA, and (3) ODOT and FHWA will be responsible for preparation of the NEPA documents and for determining the content and conclusions thereof.
    • That ODOT may modify Form 1273, Required Contract Provisions For Construction Projects, to strike out the portion of Section VII that requires a specified percentage of work to be self-performed.
  3. SCHEDULE
  4. ODOT has established the following preliminary schedule for the Projects (all future dates are subject to change):
    Project Date

    Request for Information (RFI) issued

    October 13, 2004

    Public-Private Partnership Industry Workshop

    December 2, 2004

    Transportation Commission Approves Projects for Solicitation

    January 20, 2005

    Issuance of Draft Request for Proposals

    February 15, 2005

    Issuance of Final Request for Proposals

    March - April, 2005

    Proposal Due Date

    June 2005

    Selection of proposer(s) for negotiations

    July 2005

    Award/Negotiation/Execution of OIPP Pre-development Agreement(s)

    August 2005

    Supplemental NEPA Approval for Sunrise Project (first segment)

    2004-2005

    Supplemental NEPA Approval for Sunrise Project (second segment)

    2006-2009

    NEPA Approval for Newberg-Dundee Project

    TBD

    Tier 1 NEPA Approval for South I-205 (Bypass) Project

    2004-2005

    Tier 2 NEPA Approval for South I-205 (Bypass) Project

    TBD

    The process of determining a lump sum price for final design and construction for each Project would commence once design has reached an appropriate level, and would be finalized after the date of final NEPA approval. The notice to proceed with final design and construction would be issued after the lump sum price is determined and (for Projects that will be developed using federal-aid funds) after project authorization is received.

  5. GOALS

    The goals that ODOT anticipates will be achieved by the OIPP Agreements described herein are:

    • Accelerating delivery of necessary facilities;
    • Bringing on private partners as early as possible to assist in the planning and development of the Projects;
    • Achieving cost and schedule certainty early in the design phase of each facility;
    • Obtaining innovation in Project financing, design, planning, construction, operation and maintenance;
    • Determining the most appropriate approach to design and construction of each Project, taking into account ODOT's goals of promoting aesthetics and environmental sensitivity, obtaining high quality construction and reducing maintenance requirements while keeping construction costs within budget, minimizing congestion, enhancing safety, and avoiding unnecessary impacts to the traveling public;
    • Obtaining state-of-the art design solutions that respond to environmental concerns, streamlining the environmental and permitting approval process through early assessment of opportunities and constraints, encouraging creative design solutions and integrating resource agency permitting into the NEPA process, and encouraging advance mitigation;
    • Maximizing eligibility for all available forms of financing, allowing a plan of finance to be developed involving a combination of private sector funds (potentially including revenue-based financing), federal, state and other public funds (including both loans and grants), and leveraging scarce public funds to the maximum extent possible.
    • Enabling ODOT to share financial risk with, and assign substantial project risk to, the party best able to manage that risk early in the project development process;
  6. DESCRIPTION OF PROPOSED PROCUREMENT APPROACH AND APPROACH TO PROJECT AUTHORIZATION
    • Procurement Approach

    • The proposed procurement approach for the OIPP Projects is comparable to that approved by FHWA for the Texas Department of Transportation's TTC-35 project, in that (a) the proposers will be offered significant flexibility with regard to their proposals for development of the Projects, (b) final NEPA approvals will not be obtained until after the contract(s) are awarded, and (c) price will be negotiated after award and thus will not be a factor in evaluation of the proposals. However, the individual OIPP Projects are much smaller than the TTC-35 project, and therefore the OIPP Program involves fewer complexities than the TTC-35 project.

      The proposer(s) will be selected using a best value evaluation process, based on considerations that include public need, technical and financial feasibility, transportation efficiency, cost effectiveness, and acceleration of project delivery. The OIPP procurement does not anticipate including a shortlisting step. However, ODOT recognizes the benefits associated with conducting an industry review process, and invited interested firms to attend a workshop in Portland on December 2, 2004 to obtain information about the program. ODOT plans to issue the draft RFP to interested firms (including an OIPP Agreement template) concurrently with delivery of the draft documents to FHWA for review. All pre-RFP communications with industry representatives will conform to the requirements of 23 CFR636.115.

      Proposed experimental features of the OIPP procurement are described below.

      (a) Issuance of RFP. As discussed in more detail in Section F below, the NEPA approvals for the Projects will not be obtained until after the OIPP Agreement has been signed. Any changes in the scope of a Project arising after award of the OIPP Agreement would be addressed through applicable contract provisions.

      (This step of the process deviates from the requirements of FHWA's design-build rule in that the RFP would be issued, and the OIPP Agreement executed and delivered, before receipt of NEPA approval for the Projects.)

      (b) Supplemental Proposal Information. ODOT will have the right to ask the proposers to submit clarifications (limited by the design-build rule to "minor or clerical revisions") to their proposals, and will also have the right to ask proposers to submit supplemental information that ODOT wishes to consider in making the selection decision. Such additional information may be requested through a competitive negotiation process (with discussions and revised proposals), but it is possible that ODOT may determine that certain information is desirable to obtain but does not warrant a formal discussion process. In such event ODOT may request that the information be provided as a supplement to the initial proposal, without discussions. A decision to ask for supplemental information will be made only if ODOT determines that such request will not create an unfair competitive advantage.

      (FHWA's design-build rule states that "communications" may not be used to obtain revisions to proposals. Due to the nature of the Program, ODOT believes it is likely that questions may arise during the course of proposal evaluations requiring a dialog with the proposers, and that ODOT may wish to obtain additional information from one or more proposers for consideration in evaluating the proposals, possibly including minor revisions to proposals, without proceeding with a formal competitive negotiation (discussion/request for final proposals) process. This approach does not appear permissible under a strict reading of the design-build rule.)

      (c) Evaluation of Proposals, Negotiations and Award. The proposals will be evaluated in accordance with the process and evaluation factors described in the Enabling Legislation and RFP. ODOT will determine the value to the public of delivery of the Project as promised in the proposal, as well as evaluating the likelihood that the proposer will be able to successfully deliver the Project. The latter evaluation will include a review of the proposer's qualifications and experience, development plan and financing plan.

      If ODOT receives more than one proposal for the same Project, ODOT will first evaluate those proposals against each other and will then compare the "top" proposal for each Project against the "top" proposals for the others. Proposals that overlap or have certain characteristics in common may be considered as addressing the same Project or different Projects, as ODOT deems appropriate.

      ODOT may authorize, at its option, competitive negotiations with multiple proposers as a means of selecting among proposals for the same Project and among proposals for different Projects. This process would entail discussions and requests for revised proposals in accordance with the requirements of the design-build rule.

      Upon conclusion of the evaluation process, ODOT may proceed with one-on-one negotiations with one or more of the proposers, prior to award, for the purpose of determining the terms and conditions of the OIPP Agreement. Negotiations could include the incorporation of unsuccessful proposers' ideas, and could address any other matters allowed by State law and deemed advisable by ODOT. ODOT would have the right to proceed with negotiations with the next highest rated proposer if negotiations with the apparent best value proposer fail.

      ODOT could select a single proposal or it could select multiple proposals if ODOT decides to develop more than one Project. If more than one proposal is selected, ODOT may proceed sequentially or in parallel. ODOT may reject any and all proposals at any time.

      FHWA will have the opportunity to observe and/or participate in the evaluation, selection and negotiation processes. The request for FHWA's concurrence in the award of the OIPP Agreement will be accompanied by a timetable showing the major steps in the procurement process, a summary of the rationale for the selection, and a description of any material changes made to the OIPP Agreement terms during the negotiations. Following receipt of FHWA concurrence, the OIPP Agreement would be awarded, executed and delivered in accordance with the RFP. ODOT anticipates issuing a notice to proceed with the initial phase of the Project shortly after execution of the OIPP Agreement.

      (This step of the process deviates from FHWA's design-build rule in that (i) the design-build rule does not contemplate a single procurement addressing multiple projects and further contemplates that price will be an element in the selection decision, (ii) ideas submitted by unsuccessful proposers would be disclosed to the successful proposer prior to award, contrary to 23 CFR 636.507, and (iii) the scope of the post-selection, pre-award negotiations will go beyond that permitted under 23 CFR 636.51. With regard to item (i), ODOT wishes to allow the selected proposer to participate in the planning process for the Project, which means that price cannot be a selection factor, and at the same time wishes to obtain the maximum benefit of competition in the procurement, while allowing the proposers maximum flexibility. ODOT believes the process described above will obtain the best results. With regard to items (ii) and (iii), ODOT is concerned regarding the loss of leverage in negotiations that results once a contract is awarded, and wishes to retain the ability to negotiate terms and conditions with the selected proposer, without relinquishing the ability to terminate negotiations at any time and proceed to the next proposer. Please note that FHWA previously approved use of a similar process for the TTC-35 project.)

    • Project Authorization

      In lieu of obtaining project authorization through FHWA's approval of the RFP as contemplated by the design-build rule, ODOT proposes that an alternative procedure for project authorization be established. This would involve FHWA review of the procurement and contract documents associated with the OIPP Agreement, as well as the implementation and financing plans for the facility, and determination that such documents are satisfactory for further processing. Such review and determination would be considered a preliminary action by FHWA for NEPA purposes. Project authorization for each Project would be requested following completion of the NEPA analysis for the facility.

      (This approach deviates from FHWA's design-build rule in that the rule contemplates project authorization prior to issuance of the request for proposals. As a result of the plan to award the OIPP Agreement prior to final NEPA approval, an alternative methodology for project authorization is necessary. The methodology proposed is identical to that approved by FHWA for the TTC-35 project.)

    • Provision of NEPA Support and Additional Services during Pre-Development Phase

      The scope of services to be provided by the developer under the OIPP Agreement may include provision of engineering studies and technical information in support of the NEPA process with regard to the Project(s). These efforts will be subject to management and control by ODOT and FHWA, which will exercise independent review and retain discretion over all of the information in the NEPA document. The developer would also undertake preliminary design efforts for the Project(s) and due diligence activities (such as site conditions and utility investigations) in accordance with the terms and conditions of the OIPP Agreement, prior to final NEPA approval.

      (This step deviates from FHWA's design-build rule in that the design-build rule does not contemplate award of a contract prior to final NEPA approval. Refer to Section F below for a discussion of the benefits associated with this experimental feature. As noted above, FHWA approved a similar process for TTC-35.)

    • Final Design and Construction Phase

      Upon definition of the Project to a level allowing determination of a lump sum price, and following receipt of required deliverables and necessary environmental approvals, the arrangements for design and construction of the facility would be finalized. ODOT anticipates that the price for final design and construction will be negotiated with the developer using an "open book" approach, as described in Section F below, allowing an analysis to be performed to confirm that the price is reasonable.

      If, upon completion of the environmental documentation for a Project, a "no-build" alternative or other alternative that is not compatible with the developer's plan for the Project is selected, or ODOT otherwise decides not to develop the facility, the OIPP Agreement will be terminated. The OIPP Agreement will also be terminated if ODOT and the developer are unable to reach agreement regarding price for and requirements applicable to, final development of the Project. The RFP will state ODOT's intentions regarding compensation (if any) payable to the developer if a termination occurs, and the executed OIPP Agreement will contain the final terms and conditions associated with such a termination.

      As with other federal-aid contracts, any major revisions to the OIPP Agreement will be subject to a determination that the document is satisfactory for further processing or approval (as appropriate) by FHWA.

      (This step deviates from FHWA's design-build rule in that the design-build rule does not contemplate award of a contract prior to final NEPA approval. In addition, the design-build rule generally contemplates that a proposed lump sum price for design-build services will be a factor in contractor selection, thus allowing competing price proposals to be used as the basis for determining price reasonableness. ODOT's proposed procurement approach contemplates negotiation of the price for design-build services and therefore requires an alternative approach to determining price reasonableness. Refer to Section F below for a discussion of the benefits associated with this experimental feature as well as other issues associated with the contract terms and conditions. As noted above, FHWA approved a similar process for TTC-35.)

    • OIPP Agreement Terms and Conditions

      The terms and conditions of the OIPP Agreement (a) will be subject to review and concurrence by FHWA, (b) will incorporate applicable federal-aid contract requirements, (c) will contain terms and conditions relating to performance of work as deemed appropriate by ODOT, (d) will contain provisions enabling ODOT and FHWA to determine price reasonableness in the event that the plan of finance for a Project contemplates state or federal funding, (e) may provide for an extended warranty and/or for the developer to perform routine maintenance work, and (f) may place restrictions on the method of procurement used by the developer in selecting subcontractors, as deemed appropriate by ODOT.

      (Items (e) and (f) deviate from FHWA's design-build rule in certain respects. See additional discussion in Section F below. FHWA approved similar deviations for TTC-35.)

  7. DISCUSSION

     

    • Pricing Issues. The OIPP Agreement will identify the process to be followed in determining the lump sum price for final design and construction of the Project. Exhibit C includes a general description of the process that ODOT anticipates will be followed, and also describes the price reasonableness analysis that will be conducted by ODOT. This approach is necessary in order to obtain the benefits of bringing the developer into the Project planning process. A similar approach was approved for the TTC-35 project.

    • NEPA Compliance
      ODOT anticipates engaging one or more consultants to assist with the NEPA analysis. Any NEPA consultant engaged directly by ODOT will not be permitted to participate on a developer team for the same Project without ODOT's prior written approval. Any decision to allow such participation would be made in conformance with federal requirements relating to organizational conflicts of interest (including 23 CFR Section636.116) as well as applicable state law.

      ODOT anticipates that the developer will provide support to ODOT during the NEPA process, which may include providing preliminary engineering, tests, studies, data, analyses and reports, supplementing the services provided by ODOT's NEPA consultant. The ability to obtain NEPA support from the developer provides a number of advantages, including (a) a quick turnaround time in obtaining technical information, (b) enhancing the ability of ODOT representatives to evaluate the impact of proposed alternatives on the design, construction, operations and maintenance of the Project, and (c) allowing ODOT to obtain innovative ideas from the developer regarding mitigation of impacts. This would also allow ODOT to factor the developer's plans into the environmental analysis, thus avoiding the need to undertake additional reviews during the project development phase to determine whether proposed design concepts result in additional impacts requiring mitigation. In addition, the developer's familiarity with the environmental "drivers" affecting the project and with mitigation requirements would give the developer a better understanding of the environmental solutions, and should result in greater sensitivity by the developer to the concerns of the environmental community during construction than is typically seen for construction contractors or design-builders selected after the NEPA process is completed. Safeguards will be implemented to ensure that services provided by the developer and its affiliates will not prejudice NEPA outcome.

    • ODOT has not yet determined to what extent the successful proposer will be compensated if the NEPA analysis results in a "no-build" determination or in any other decision that is incompatible with the developer's plan for the Project, or other circumstances precluding the Project or a particular facility from going forward. ODOT is considering various approaches, which may include a stipend or cost sharing if the Project does not proceed and/or payment for work product produced by the developer during the environmental review phase of the Project. The RFP will include provisions addressing compensation payable upon such a termination. The OIPP Agreement will indicate that the "no build" option may be selected, and will clearly set forth how the risks associated with the "no build" alternative (or any other alternative that is not consistent with the developer's planned approach to the Project) are allocated between the developer and ODOT.

      ODOT and FHWA will at all times direct and control the NEPA process, in accordance with applicable requirements of NEPA (including requirements relating to organizational conflicts of interest) and the guidelines set forth in FHWA's guidance letter relating to the I-81 project in Virginia.

    • Project Authorization

      FHWA regulations currently provide that project authorization occurs upon FHWA approval of the request for proposals for a design-build project, based on the assumption that final NEPA approval will already have been obtained prior to issuance of the request for proposals. (See 23 CFR 635.112(i)(1) and 635.309(p).) However, that is not the case for the OIPP procurement, and it is not appropriate for FHWA to make a decision authorizing use of federal funds for a project prior to issuance of the final NEPA approval. It is not possible to ascertain the extent to which the plan of finance for a Project will require federal funding, and it is possible that certain Projects may be financeable without federal participation. On the other hand, it is likely that federal funding will be necessary for one or more of the Projects, and it is therefore critical that eligibility for federal funding be maintained for the OIPP Program.

      ODOT proposes, as an alternative process, that the FHWA decision to authorize use of federal funds for each Project be made following a request by ODOT for project authorization. Such request would be submitted only after the final NEPA decision has been issued for the facility in question. During the period prior to project authorization, FHWA would be asked to review procurement and contract documents for the Project, as well as the implementation plan and plan of finance, and to advise ODOT that the documents are in acceptable form for purposes of eligibility for future federal funding. The request for project authorization will include a report regarding the price reasonableness analysis described above.

      These approvals have been previously granted to other agencies, including TxDOT for the TTC-35 project.

    • Warranties

      ODOT wishes to have the flexibility to obtain a general warranty for longer than two years. In addition, this application requests that FHWA waive the prohibition on use of federal funds for routine maintenance, due to the possibility that a long-term warranty may involve routine maintenance work as well as preventive maintenance, and to difficulties in such case of separating the costs of routine maintenance from the costs of preventive maintenance.

      These approvals have been previously granted to other agencies, including TxDOT for the TTC-35 project.

    • Subcontracting Clause

      FHWA's design-build rule modified 23 C.F.R. 635.116 to provide that the self-performance requirements do not apply to design-build contracts, but did not include authorization to allow State Transportation Departments to modify Form 1273 by deleting the conflicting portions of Section VII. ODOT requests approval to make such modification. Such approval has previously been granted to other agencies, including TxDOT for the TTC-35 project.

      In addition, 23 CFR 636.119 provides for the possibility that a developer may be treated as the agent of the awarding agency under certain circumstances, subject to the requirement to follow Federal-aid procurement requirements in selection of its subcontractors. For the OIPP Program, although the initial OIPP Agreement will not contain "price and an assignment of risk," the agreement will be modified to include price and assignment of risk prior to receipt of project authorization. Although ODOT may, under certain circumstances, wish to place restrictions on the process to be followed for subcontractor selection, ODOT would prefer to have flexibility to determine appropriate restrictions on a case-by-case basis. Please note that the OIPP regulations require "Major Subcontractors" (i.e. any subcontractor performing more than 10% of the work) to be identified in the proposal, a concept which is inconsistent with a requirement to competitively bid future work.

      ODOT will include provisions in the OIPP Agreement to ensure that an appropriate approach is taken to subcontracting, and will submit the planned approach to FHWA in advance of execution of the OIPP Agreement for review and a determination that it is satisfactory for further processing. FHWA would therefore have substantive input into the subcontracting requirements included in the OIPP Agreement.

  8. EVALUATION OF PROCUREMENT AND DEVELOPMENT PROCESS
    The Project procurement and development process, with its innovative features, will be evaluated on a range of factors, including:

    Time Savings. ODOT will (1) compare the actual schedule for delivery of the Project with the estimated schedule based on a traditional procurement process, (2) evaluate the effect of the OIPP process on delivery of the Project, and (3) attempt to quantify the value of early completion.

    Innovation in Project Development. ODOT will analyze the type and nature of the Project facilities and the procurement approaches described in this application and compare them with ODOT's other projects.

    Innovation in Financing. ODOT will analyze the financing structures and methods developed in connection with the Project and how those structures and methods compare to ODOT's historical project financing structures and methods. As part of this analysis and comparison, ODOT will particularly focus upon the levels of financing and project risk shifted to the private sector and strategies employed to minimize State and ODOT risk.

    Innovation in Design and Construction. ODOT will analyze innovative design and construction ideas and concepts used by the developer team, which evolve as a byproduct of the OIPP Agreement process.

    Quality and Warranty. A key component of the Project will be the ultimate quality of the work and the strength of any warranties provided.

  9. REPORTING

    ODOT anticipates filing an initial report, periodic updates, a Project acceptance report and post-acceptance reports for each Project, as described below. ODOT may provide separate reports for separate Projects, or may provide consolidated reports regarding multiple Projects.

    • Initial Report: The initial report will be filed within 120 days after the execution of the OIPP Agreement(s) and will include a preliminary analysis of the procurement. This report will:

      • Describe the process used to select the developer team;

      • Identify any reaction by the industry to use of the OIPP concept;

      • Document major innovations contained in the proposals received; and

      • Discuss any major problems or issues that have occurred and how they were resolved.

    • Updates: During the period following submittal of the initial report and prior to submittal of the final report, periodic updates will be submitted as appropriate. ODOT anticipates that updates will be provided semi-annually during the initial phase of the OIPP Agreement(s), describing the progress of the environmental analysis as well as the developer's activities relating to the Project(s).

    • Interim Reports: Interim reports will not be prepared on a regular schedule but will be prepared as significant developments occur, describing (a) the progress of the development of the program/project as of such date, (b) problems encountered and how they have been addressed, (c )how any changes in the project resulting from the NEPA analysis and other permitting processes have been addressed in the OIPP Agreement, and (d) how the time and cost needed to complete the initial development as of the date of the report compares to past experience under design-bid-build procurement procedures. Reports will be provided upon occurrence of the following milestones, among others:

      • Issuance of final NEPA approval.

      • Establishment of a defined scope and price with guaranteed completion deadlines for design and construction of the Project.

      • Completion of each Project.

    • Project Acceptance Report: A Project acceptance report will be submitted within 180 days following ODOT's determination that the development work under the OIPP Agreement is complete. This report will:

      • Provide an overall evaluation of the procurement and development processes;

      • Evaluate the completed Project against the same factors described in Section G above;

      • Describe lessons learned, pitfalls to avoid and suggestions for improvements on future innovative procurements;

      • Document contract complications encountered and claims made during construction;

      • Indicate and evaluate innovations in design or construction; and

      • Emphasize and focus upon the quality and timeliness and how they were affected by the OIPP concept.

    • Post-Acceptance Reports: A post-acceptance report will be submitted at the end of the first two years of any long-term O&M or concession term, and at appropriate intervals thereafter. This report will:

      • Evaluate the overall quality and performance of the Project facilities;

      • Identify and evaluate warranties and document complications encountered during the period;

      • Identify any cost- or time-intensive maintenance items and evaluate the manner and effectiveness of their resolution;

      • Evaluate the overall safety and operation of the Project facilities;

      • Evaluate design requirements in the completed facilities and document any design adjustments that could improve quality; and

      • Evaluate the private sector's responsiveness as operator, maintenance provider and/or concessionaire, as applicable.

  10. CONCLUSION

    ODOT believes the procedures described herein will result in the successful development of the Projects. We look forward to working with FHWA as the development progresses, and to providing you and others with the benefits of our experience.

EXHIBIT A PROJECT DESCRIPTIONS

South I-205 Corridor Improvements: I-5 to OR 213S (Clackamas County)

Description

I-205 is a major north-south freight and commuter route in the Portland metropolitan region. For most of its length, it consists of six through lanes (three in each direction) and auxiliary lanes between interchanges, although the south corridor study area consists primarily of only four lanes (two in each direction). The point of transition in number of lanes (from six lanes to four lanes south of the OR 213S interchange), contributes to significant congestion along the corridor, in the Oregon City/West Linn area. As a statewide freight route, and part of the National Highway System (NHS), traffic volumes have grown significantly with development in the south metro area.

The study area traverses a sizeable area of unincorporated Clackamas County, primarily non-Farm or Forest Lands, including the Stafford Basin, an approximately 3,600 acre parcel north of I-205, between cities of West Linn, Lake Oswego, and Tualatin.

Metro's 2000 Regional Transportation Plan identified the need for at least one additional through lane in each direction on this southern section of I-205. ODOT will soon be initiating preparation of a corridor study of this 10.24 mile section of I-205, I-5 to OR 213S, to assess the corridor's role, function, needs, and to identify transportation improvements. The study will identify corridor issues, opportunities, and constraints. A series of highway improvement alternatives will be developed and analyzed, including widening this section of I-205 to six-lanes; widening the I-205 Abernethy Bridge over the Willamette River; and possible interchange improvements at OR 43 and SW 10th St. in West Linn. Engineering and operational characteristics, project phasing, and financial feasibility will also be evaluated. General purpose and managed-lane approaches (including carpool, peak period priced lanes, and full facility tolling) will be evaluated for the south corridor.

Financials

Preliminary ODOT assessments of a range of possible transportation improvements along the south I-205 corridor include the following:

  • Add one lane in each direction, Stafford Road - OR 99E: $95-$105 million.

  • Willamette River bridge (Abernethy Bridge) full widening: $90-$100 million. (Abernethy Bridge minimal widening: $30 million)

  • SB climbing lane, OR 43 Interchange - SW 10th St. Interchange: $25-$30 million

  • OR 43 (Oswego Hwy) Interchange redesign: ($ unknown)

  • OR 213S x Washington St. grade separation (near I-205 Interchange): $10.4 million

  • ODOT Region 1 has scheduled in 2007 STIP a $35 million Preservation project (I-5 to Willamette River). ODOT has further committed $10 million to this Project to add permanent auxiliary lanes, I-5 to Stafford Road Interchange, which will bring this section of south I-205 corridor to six lanes. Construction is expected in 2006-07.

  • ODOT Region 1 has committed $400,000 to preparation of the I-205 South Corridor Study. Completion of the study is expected in Fall/Winter 2005.

Project Readiness

  • Preliminary ODOT assessment of South Corridor has determined that it is feasible, from a construction and environmental perspective, to widen this section of I-205 to 3 lanes in each direction without undue adverse impacts.

  • It is believed that additional through lanes and/or auxiliary lanes can be accommodated within the existing ODOT corridor right-of-way envelope.

  • Development of an I-205 South Corridor Plan, with public involvement by local jurisdictions and affected stakeholders, will facilitate regional consensus on the function and configuration of the corridor, and position ODOT to pursue needed improvements.

Important Project Risk Factors

  • Public involvement and stakeholder outreach efforts associated with the corridor planning process should address any local jurisdictional concerns that widening of the I-205 corridor may spur the early annexation of Stafford Basin into the regional urban growth boundary, resulting in subsequent development, and associated governance and service provider responsibilities by abutting cities.

Sunrise Project, I-205 - Rock Creek Junction (Clackamas Co.)

Description

The existing OR 212/224 corridor serves a vital local/regional economy. It sustains 24,000 family wage jobs and supports 45 million sq. ft. of industrial and commercial development on 1,000 acres. 75% of all vehicular trips on this corridor stay within the region. The Sunrise Project corridor is a major truck/freight distribution center in the eastern Portland metropolitan area, including facilities operated by Fred Meyer, Safeway, and USF/Reddaway. The western terminus of OR 212/224 at I-205 experiences average daily traffic (ADT) of 58,400 trips, of which 7,000 are truck trips.

The Sunrise Project is needed to fix the problems on OR 212/224. Freight movement is negatively impacted because of safety and congestion problems. Many intersections are failing. The Safety Performance Index System ranks this route in the top 10% of unsafe routes statewide.

The area to the east of Rock Creek Junction is currently undergoing land-use planning review to identify future transportation needs in conjunction with the recent annexation into the Portland metro boundaries of 12,000 acres for urban development. This new area (Damascus) is intended to accommodate a community of 25,000 new dwelling units, 60,000 new residents, and 50,000 new jobs over the next 20 years. Development of this area will contribute to increased traffic volumes and safety issues along the Sunrise Project corridor to the west. The Sunrise Project Corridor is one of 8 projects designated by the Oregon Transportation Commission as a "Project of Statewide Significance".

Financials

  • The Sunrise Project Corridor is being advanced in two project segments. The first segment, the Sunrise Project, is 5 miles in length, from I-205 to Rock Creek Junction, and is estimated to cost $220 million ($160 million in construction; $40 million of ROW and $20 million in PE/CE).

  • The second project segment is 8 miles in length, from Rock Creek Junction to US 26, and is estimated to cost $410 million. The ongoing Damascus/Boring Concept Plan will determine the function, role, and configuration of any extension east of the first Sunrise Project.

Clackamas County has committed $20 million for ROW acquisition.

ODOT Region 1 has proposed $20 million in STIP funding in 2008 ($10 million from OTIA III Projects of Statewide Significance; $10 million from OTIA III Modernization/ Equity Split.) The Oregon Transportation Commission will decide in Fall 2005 on OTIA III funding allocations.

A largely vacant 400 acre site at the eastern terminus of the Sunrise Project (east and south of Rock Creek; north of OR 212, west of SE 172nd Ave.), recently designated and zoned as a Regionally Significant Industrial Area (RSIA), holds potential for development.

Project Readiness

  • ODOT completed a Draft EIS of the entire 13-mile Sunrise Corridor in 1993.

  • ODOT and Clackamas County are currently engaged in a $2.7 million Supplemental DEIS/FEIS on the first Sunrise Project (5-mile), determined by FHWA as having independent utility that can be advanced as a separate project. The schedule for completion of EIS and start of construction is as follows: EIS (2004-2005); ROW and PE (2006-2008); Construction (2008-2011).

  • Clackamas County is currently pursuing acquisition of right-of-way along the corridor from willing sellers.

  • The current schedule for completion of the second segment of the Sunrise Project Corridor, if selected and funded, is as follows: concept planning (2003 - 2005); EIS (2006 - 2009); ROW and PE (2009 - 2011); Construction (2011 - 2013).

Important Project Risk Factors

  • SDEIS process is ongoing. FEIS approval, while anticipated, is uncertain. Significant development in the project area presents difficulties in arriving at consensus on preferred alignment.

  • Planning for 12,000 acre Damascus/Boring Concept area to the east, referenced above, is on-going. Ultimate configuration of this 8-mile segment expansion of Sunrise Corridor, from Rock Creek Junction to US 26, is uncertain.

Newberg-Dundee Transportation Improvement Project (NDTIP) Yamhill Co.

Background

Over the past decade, traffic on 99W in downtown Newberg and Dundee has increased by about 40 percent. Lines of vehicles on 99W often stretch for more than a mile in both directions on weekdays and weekends. This congestion blocks turning movements and access across the highway and creates an unpleasant environment for residents, shoppers, and tourists using the downtown areas. Traffic congestion has reached unacceptable levels for those who live and work in or travel through Newberg, Dundee and the surrounding areas. For these reasons, preliminary steps are underway to plan an alternative route (herein referred to as the "Bypass") to accommodate these increases. Currently, traffic volumes on 99W are between 25,000 - 40,000 VPD, fairly balanced by direction throughout the day. Traffic volumes are expected to increase substantially over the next 20 years to 40,000 - 56,000 VPD without the Bypass. With the Bypass, the future traffic volumes are anticipated to be 5,000 - 30,000 on 99W (depending on location) and 26,500 - 33,000 VPD on the Bypass. Of the traffic on the Bypass, 59% will be through traffic, 34% will have an origin/destination within the project area and 7% entirely local traffic. The Bypass is expected to carry 100 % of the "through" traffic between Rex Hill and Dayton. Finally, the Bypass will offer a significant travel time savings to "through" travelers. Based on 2002 travel time studies, the travel time from Rex Hill to Dayton during an average weekday afternoon peak period was 25 minutes. In the year 2025, it is estimated to take more than 40 minutes for this same trip if a bypass were not constructed. Anecdotal evidence suggests that weekend delays are significantly greater. With the Bypass in-place, it will only take 12 minutes to travel from Rex Hill to Dayton along the Bypass. The purpose of this project is to improve regional and local transportation along the 99W corridor in the Newberg-Dundee area by lessening existing and future traffic congestion. These transportation improvements must satisfy community values and maintain or enhance economic, social, environmental, safety and energy conditions. To accomplish these goals, the NDTIP integrates a balance of related transportation efforts. These include a new highway to bypass downtown Newberg and Dundee; increased opportunities for economic development, transit, bicycles and pedestrians and land use changes.

Project Description

The identified corridor is approximately eleven miles long, starting at the east end of Newberg and ending near Dayton at the junction with OR 18. The new highway will be a high speed facility with two lanes in each direction, divided by a median of varying width. There will be no access for local roads or private property; new frontage roads will collect local approaches. Access to the highway will be provided only at four grade-separated interchanges, including: East Newberg (base of Rex Hill), OR 219, East Dundee and Dayton. The OR 219 Interchange will be a full interchange, i.e., with access in all directions. The Dundee interchange will only access a road connecting to OR 99W, which will also have no connections to local streets or private property.

Financials

Current estimates of project cost are $310 million, including engineering, right of way and construction ($270 million for engineering and construction and $40 million for right of way). This cost estimate is preliminary and is not based on an actual design. ODOT has developed a three-phase concept plan, approved by a standing Project Oversight Team, to be used if sufficient funds to build the entire facility under one construction contract cannot be obtained. The three phases are: 1) Dayton Interchange to OR 99W in Dundee; 2) East Dundee Interchange to OR 219 Interchange; and 3) OR 219 to East Newberg Interchange. Estimated costs by phase are below:

The current project allocation from OTIA III bonds is $4.0 million in addition to $10.5 million previously allocated from federal, state and local funds. That level of funding is sufficient to complete the NEPA environmental impact review process and the acquisition of right of way. To date, no funding has been approved for construction. A financing strategy will be developed as part of the Design Phase of the project that will identify all sources of funding and projected revenues from all sources, including federal, state, local and private. In addition, the financing strategy will include an economic development plan for each of the IAMP areas and studies of tolling, value capture, shadow tolling, right of way donations and tax increment financing for IAMP areas.

Project Readiness

The bypass element of the project has been progressing through the Tier 1, or Location Phase of a two-tiered environmental process conforming to requirements of the National Environmental Policy Act (NEPA). The objective of the Location Phase is to determine a possible corridor for the bypass. The identified corridor has been tentatively approved by a panel of stakeholders including all affected jurisdictions, called the Project Oversight Steering Team (POST). The public involvement in approval of the identified corridor also included numerous public meetings and a formal public hearing on the Draft Location Environmental Impact Statement. A survey conducted by a reputable public opinion firm has validated strong public support for the bypass within Yamhill County and in the 99W corridor from Portland to the coast.

Currently, the bypass element of the project has received all major land use approvals from Newberg, Dundee, Dayton and Yamhill Co. required for final FHWA approval of the Location EIS. This includes exceptions to statewide land use goals (Goal Exceptions) required for a new road alignment outside of urban growth boundaries. An appeal of the Goal Exceptions with the state Land Use Board of Appeals (LUBA) is pending. The Final Location EIS will be submitted for FHWA approval (Record of Decision, or ROD) prior to resolution of the LUBA appeal. The Tier 2, or Design Phase, will be initiated in January 2005, if the ROD is received, as expected, by the end of 2004.

Important Risk Factors

The objective of the Design Phase is to examine environmental impacts of design alternatives within the approved corridor and determine which design alternative will be approved for construction. The Design Phase will also include Interchange Area Management Plans (IAMPs) for each of the interchanges, which will establish permitted land uses and local street connections in order to ensure their functionality for the duration of the planning period, approximately 20 years. Under the two-tier NEPA system, a Design EIS will be required. Final federal approval of the Tier 2 EIS is expected in approximately three years. After approval of the Design EIS, additional specific environmental and land use permits will be required prior to construction, but major environmental and land use issues are expected to have been addressed at that point. Risk to investors should be estimated assuming ODOT will be responsible for preparing and obtaining federal approval of the Design EIS and for acquiring all right of way for the project. Responsibility for preparation of final plans and specifications may be included in a design/build package offered to the private sector, or may be structured differently, depending upon responses to this RFI and other considerations.

EXHIBIT B ENABLING LEGISLATION

OREGON INNOVATIVE PARTNERSHIPS PROGRAM

Note: 367.800 to 367.826 were enacted into law by the Legislative Assembly but were not added to or made a part of ORS chapter 367 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

367.800 Findings. The Legislative Assembly finds that:

(1) Entrepreneurial approaches to the acquisition, design, management and financing of transportation projects will accelerate cost-effective project delivery.

(2) Entrepreneurial approaches can bring substantial benefits to the public in transportation project development and execution.

(3) Risk management is a critical component of partnerships for transportation projects.

(4) Successful implementation of an Oregon innovative partnership program for transportation projects requires that risk in a project be managed and shared by public and private sector participants, with the partner best able to control a risk bearing responsibility for the risk.

(5) The Legislative Assembly and the executive branch of government accept responsibility for providing predictability for partnerships for transportation projects and for allowing negotiated agreements to be implemented.

(6) The development, acquisition and construction of transportation projects creates jobs and furthers economic development in Oregon by, among other things:

(a) Increasing the economy and efficiency of public transportation, improving the flow of commerce into and around the state and the surrounding region, improving the attractiveness of Oregon to new businesses and supporting the operations and prosperity of existing businesses; and

(b) Improving the movement of people into and around the state and the surrounding region, alleviating congestion and crowding and reducing the burdens on existing public transportation systems and transportation facilities. [2003 c.790 §1]

367.802 Definitions. As used in ORS 367.800 to 367.824:

(1) "Agreement" means a written agreement, including but not limited to a contract, for a transportation project that is entered into under ORS 367.806.

(2) "Private entity" means any entity that is not a unit of government, including but not limited to a corporation, partnership, company, nonprofit organization or other legal entity or a natural person.

(3) "Transportation project" or "project" means any proposed or existing undertaking that facilitates any mode of transportation in this state.

(4) "Unit of government" means any department or agency of the federal government, any state or any agency, office or department of a state, any city, county, district, commission, authority, entity, port or other public corporation organized and existing under statutory law or under a voter-approved charter and any intergovernmental entity created under ORS 190.003 to 190.130, 190.410 to 190.440 or 190.480 to 190.490. [2003 c.790 §2]

367.804 Goals of Oregon Innovative Partnerships Program; authority of Department of Transportation; confidentiality; expenses. (1) The Department of Transportation shall establish the Oregon Innovative Partnerships Program for the planning, acquisition, financing, development, design, construction, reconstruction, replacement, improvement, maintenance, management, repair, leasing and operation of transportation projects.

(2) The goals of the program are to:

(a) Develop an expedited project delivery process;

(b) Maximize innovation; and

(c) Develop partnerships with private entities and units of government.

(3) As part of the program established under this section, the department may:

(a) Solicit concepts or proposals for transportation projects from private entities and units of government.

(b) Accept unsolicited concepts or proposals for transportation projects from private entities and units of government.

(c) Evaluate the concepts or proposals received under this subsection and select potential projects based on the concepts or proposals. The evaluation under this paragraph shall include consultation with any appropriate local government, metropolitan planning organization or area commission on transportation.

(d) Charge an administrative fee for the evaluation in an amount determined by the department.

(4) Following an evaluation by the department of concepts or proposals submitted under subsection (3) of this section, and the selection of potential transportation projects, the department may negotiate and enter into the agreements described in ORS 367.806 for implementing the selected transportation projects.

(5) Except as provided in subsection (6) of this section:

(a) Information related to a transportation project proposed under ORS 367.800 to 367.824, including but not limited to the project's design, management, financing and other details, is exempt from disclosure under ORS 192.410 to 192.505 until:

(A) The department shares the information with a local government, metropolitan planning organization or area commission on transportation under subsection (3)(c) of this section; or

(B) The department completes its evaluation of the proposed project and has selected the proposal for negotiation of an agreement.

(b) After the department has either shared the information described in paragraph (a) of this subsection with a local government, metropolitan planning organization or area commission on transportation, or has completed its evaluation of the proposed project, the information is subject to disclosure under ORS 192.410 to 192.505.

(6) Sensitive business, commercial or financial information that is not customarily provided to business competitors that is submitted to the department in connection with a transportation project under ORS 367.800 to 367.824 is exempt from disclosure under ORS 192.410 to 192.505 until the information is submitted to the Oregon Transportation Commission in connection with its review and approval of the transportation project under ORS 367.806.

(7) The department may, in connection with the evaluation of concepts or proposals for transportation projects, consider any financing mechanisms, including but not limited to the imposition and collection of franchise fees or user fees and the development or use of other revenue sources.

(8) The department and any other unit of government may expend, out of any funds available for the purpose, such moneys as may be necessary for the evaluation of concepts or proposals for transportation projects and for negotiating agreements for transportation projects under ORS 367.806. The department or other unit of government may employ engineers, consultants or other experts the department or other unit of government determines are needed for the purposes of doing the evaluation and negotiation. Expenses incurred by the department or other unit of government under this subsection prior to the issuance of transportation project revenue bonds or other financing shall be paid by the department or other unit of government, as applicable, and charged to the appropriate transportation project. The department or other unit of government shall keep records and accounts showing each amount so charged. Upon the sale of transportation project revenue bonds or upon obtaining other financing for any transportation project, the funds expended by the department or other unit of government under this subsection in connection with the project shall be repaid to the department or the unit of government from the proceeds of the bonds or other financing, as allowed by applicable law. [2003 c.790 §3]

367.806 Agreements. (1) As part of the program established under ORS 367.804, the Department of Transportation may:

(a) Enter into any agreement or any configuration of agreements relating to transportation projects with any private entity or unit of government or any configuration of private entities and units of government. The subject of agreements entered into under this section may include, but need not be limited to, planning, acquisition, financing, development, design, construction, reconstruction, replacement, improvement, maintenance, management, repair, leasing and operation of transportation projects.

(b) Include in any agreement entered into under this section any financing mechanisms, including but not limited to the imposition and collection of franchise fees or user fees and the development or use of other revenue sources.

(2) The agreements among the public and private sector partners entered into under this section must specify at least the following:

(a) At what point in the transportation project public and private sector partners will enter the project and which partners will assume responsibility for specific project elements;

(b) How the partners will share management of the risks of the project;

(c) How the partners will share the costs of development of the project;

(d) How the partners will allocate financial responsibility for cost overruns;

(e) The penalties for nonperformance;

(f) The incentives for performance;

(g) The accounting and auditing standards to be used to evaluate work on the project; and

(h) Whether the project is consistent with the plan developed by the Oregon Transportation Commission under ORS 184.618 and any applicable regional transportation plans or local transportation system programs and, if not consistent, how and when the project will become consistent with applicable plans and programs.

(3) The department may, either separately or in combination with any other unit of government, enter into working agreements, coordination agreements or similar implementation agreements to carry out the joint implementation of any transportation project selected under ORS 367.804.

(4) The provisions of ORS 383.003 to 383.027 do not apply to any tollway project entered into under ORS 367.800 to 367.824.

(5) The provisions of ORS chapter 279 do not apply to concepts or proposals submitted under ORS 367.804, or to agreements entered into under this section, except that if public moneys are used to pay any costs of construction of public works that is part of a project, the provisions of ORS 279.348 to 279.380 apply to the public works. In addition, if public moneys are used to pay any costs of construction of public works that is part of a project, the construction contract for the public works must contain provisions that require the payment of workers under the contract in accordance with ORS 279.334 and 279.348 to 279.380.

(6)(a) The department may not enter into an agreement under this section until the agreement is reviewed and approved by the Oregon Transportation Commission.

(b) The department may not enter into, and the commission may not approve, an agreement under this section for the construction of a public improvement as part of a transportation project unless the agreement provides for bonding, financial guarantees, deposits or the posting of other security to secure the payment of laborers, subcontractors and suppliers who perform work or provide materials as part of the project.

(c) Before presenting an agreement to the commission for approval under this subsection, the department must consider whether to implement procedures to promote competition among subcontractors for any subcontracts to be let in connection with the transportation project. As part of its request for approval of the agreement, the department shall report in writing to the commission its conclusions regarding the appropriateness of implementing such procedures.

(7)(a) Except as provided in paragraph (b) of this subsection, documents, communications and information developed, exchanged or compiled in the course of negotiating an agreement with a private entity under this section are exempt from disclosure under ORS 192.410 to 192.505.

(b) The documents, communications or information described in paragraph (a) of this subsection are subject to disclosure under ORS 192.410 to 192.505 when the documents, communications or information are submitted to the commission in connection with its review and approval of a transportation project under subsection (6) of this section.

(8) The terms of a final agreement entered into under this section and the terms of a proposed agreement presented to the commission for review and approval under subsection (6) of this section are subject to disclosure under ORS 192.410 to 192.505.

(9) As used in this section:

(a) "Public improvement" has the meaning given that term in ORS 279.011.

(b) "Public works" has the meaning given that term in ORS 279.348. [2003 c.790 §4]

Note: The foregoing text reflects amendments to 367.806 by section 4b, chapter 790, Oregon Laws 2003, which become operative March 1, 2005. See section 4c, chapter 790, Oregon Laws 2003.

367.808 Evaluation of proposed agreements; role of Attorney General. (1) At the request of the Department of Transportation, the Attorney General may appoint special assistant attorneys general for the purpose of evaluating partnership agreements entered into or to be entered into as part of the program established under ORS 367.804. The special assistant attorneys general shall be under the direction and control of the Attorney General and may:

(a) Advise the Department of Transportation concerning the legality of specific proposed partnerships;

(b) Advise the department on legal procedures and practices related to implementation of specific projects that use a partnership;

(c) Assist the department in negotiating partnership agreements;

(d) Assist the department in preparing any document related to a specific partnership;

(e) Advise the department regarding accounting, investment and tax requirements applicable to specific projects that use a partnership; and

(f) Advise the department regarding any relevant federal securities or other laws and related disclosure requirements.

(2) When the Attorney General, as part of the review under ORS 291.047, reviews an agreement entered into under ORS 367.806, the Attorney General shall:

(a) Recognize that the agreement is the product of a partnership; and

(b) Defer to the business judgment of the department and the Oregon Transportation Commission concerning the assignment of risks and the incentives provided within the agreement. [2003 c.790 §5]

367.810 State Transportation Enterprise Fund. (1) The State Transportation Enterprise Fund is established separate and distinct from the General Fund. Interest earned by the State Transportation Enterprise Fund shall be credited to the fund.

(2) The following moneys shall be deposited into the State Transportation Enterprise Fund:

(a) Proceeds from bonds or other financing instruments issued under the provisions of ORS 367.800 to 367.824;

(b) Revenues received from any transportation project developed under the program established under ORS 367.804; and

(c) Any other moneys that are by donation, grant, contract, law or other means transferred, allocated or appropriated to the fund.

(3) Moneys in the State Transportation Enterprise Fund are continuously appropriated to the Department of Transportation for the purpose of carrying out the provisions of ORS 367.800 to 367.824 and implementing all or portions of any transportation project developed under the program established under ORS 367.804.

(4) Moneys in the State Transportation Enterprise Fund that are transferred from the State Highway Fund or from any one of the sources that comprise the State Highway Fund as specified in ORS 366.505 and that are revenue under section 3a, Article IX of the Oregon Constitution, may be used only for purposes authorized by section 3a, Article IX of the Oregon Constitution.

(5) The department shall establish a separate account in the State Transportation Enterprise Fund for each transportation project that is undertaken under the program established under ORS 367.804. Except as provided in subsection (4) of this section, the department may pledge moneys in the State Transportation Enterprise Fund to secure revenue bonds or any other debt obligations relating to the transportation project for which the account is established.

(6) Moneys in an account established under subsection (5) of this section shall be used as provided in any agreement applicable to the transportation project for which the account is established. [2003 c.790 §6]

367.812 Bonds secured by State Transportation Enterprise Fund; financing of transportation projects. (1) In addition to any authority the Department of Transportation has to issue and sell bonds and other similar obligations, this section establishes continuing authority for the issuance and sale of bonds and other similar obligations in a manner consistent with this section. To finance any transportation project in whole or in part, the department may request that the State Treasurer issue revenue bonds on behalf of the department. Revenue bonds authorized under this section shall be issued in accordance with the applicable provisions of ORS chapters 286 and 288. The bonds shall be secured by a pledge of, and a lien on, and shall be payable only from moneys in the State Transportation Enterprise Fund established by ORS 367.810 and any other revenues specifically pledged to repayment of the bonds. Such a pledge by the department of its revenues creates a lien that is valid and binding from the time the pledge is made as provided in ORS 288.594. Revenue bonds issued pursuant to this section are not general obligations of the state and are not secured by or payable from any funds or assets of the state other than the moneys and revenues specifically pledged to the repayment of such revenue bonds.

(2) Moneys received from the issuance of revenue bonds or other debt obligations, including any investment earnings thereon, may be expended:

(a) For the purpose of financing the costs of the transportation project for which the bonds are issued;

(b) To pay the costs and other administrative expenses of the bonds;

(c) To pay the costs of credit enhancement or to fund any reserves determined to be necessary or advantageous in connection with the revenue bonds; and

(d) To reimburse the department for any costs related to carrying out the purposes of the program established under ORS 367.804.

(3) Any transportation project may be financed in whole or in part with:

(a) The proceeds of grant anticipation revenue bonds authorized by 23 U.S.C. 122 and applicable state law.

(b) Grants, loans, loan guarantees, lines of credit, revolving lines of credit or other financing arrangements available pursuant to the Transportation Infrastructure Finance and Innovation Act under 23 U.S.C. 181 et seq., or any other applicable federal law.

(c) Infrastructure loans or assistance from the Oregon Transportation Infrastructure Fund established by ORS 367.015.

(4) As security for the payment of financing described in subsection (3) of this section, the revenues from the project may be pledged, but no such pledge of revenues constitutes in any manner or to any extent a general obligation of the state. Any financing described in subsection (3) of this section may be structured on a senior, parity or subordinate basis to any other financing. [2003 c.790 §7]

367.814 Moneys from federal government or other sources. (1) The Department of Transportation or a unit of government may accept from the United States or any of its agencies such funds as are available to this state or to the unit of government for carrying out the purposes of ORS 367.800 to 367.824, whether the funds are made available by grant, loan or other financing arrangement. The department or unit of government may enter into such agreements and other arrangements with the United States or any of its agencies as may be necessary, proper and convenient for carrying out the purposes of ORS 367.800 to 367.824.

(2) The department or a unit of government may accept from any source any grant, donation, gift or other form of conveyance of land, money, other real or personal property or other valuable thing made to the State of Oregon, the department or the unit of government for carrying out the purposes of ORS 367.800 to 367.824.

(3) Any transportation project may be financed in whole or in part by contribution of any funds or property made by any private entity or unit of government that is a party to any agreement entered into under ORS 367.806. [2003 c.790 §8]

367.816 Use of moneys in Oregon Transportation Infrastructure Fund for projects. (1) Notwithstanding ORS 367.020, the Department of Transportation may use moneys in the Oregon Transportation Infrastructure Fund established by ORS 367.015 to ensure the repayment of loan guarantees or extensions of credit made to or on behalf of private entities engaged in the planning, acquisition, financing, development, design, construction, reconstruction, replacement, improvement, maintenance, management, repair, leasing or operation of any transportation project that is part of the program established under ORS 367.804.

(2) The lien of a pledge made under this section is subordinate to the lien of a pledge securing bonds payable from moneys in the State Highway Fund described in ORS 366.505, the State Tollway Account established by ORS 383.009 or the State Transportation Enterprise Fund established by ORS 367.810. [2003 c.790 §9]

367.818 Eminent domain powers. The Department of Transportation may exercise the power of eminent domain to acquire property, rights of way or other rights in property for transportation projects that are part of the program established under ORS 367.804, regardless of whether the property will be owned in fee simple by the department. [2003 c.790 §10]

367.820 Creation of district; use of revenues within district. An agreement among the Department of Transportation and other units of government may create a new district, or designate a previously existing district, that includes any or all of the territory within the geographic boundaries of any or all Oregon counties in which a transportation project is located, and may require that all revenues from franchise fees, other user fees or other revenue sources collected within the district in connection with the transportation project be used exclusively for the benefit of the district. [2003 c.790 §11]

367.822 Advisory committees on transportation projects; rules. (1) The Department of Transportation and any unit of government that participates in a transportation project may establish advisory committees to advise the department or the unit of government with respect to transportation projects. An advisory committee shall consist of not fewer than five and not more than nine members, as determined by the department. Members shall be appointed by the department, or in a manner agreed to by the department and any participating unit of government.

(2) At the request of the department, an advisory committee may review concepts or proposals for transportation projects and submit recommendations to the department or the participating unit of government.

(3) An advisory committee shall meet as necessary at times and places fixed by the department or the participating unit of government. The department shall provide personnel services to assist the advisory committee within the limits of available funds. An advisory committee may adopt rules to govern its proceedings and may select officers. [2003 c.790 §12]

367.824 Rules; supremacy of federal law. (1) The Department of Transportation may adopt any rules it considers necessary to implement the provisions of ORS 367.800 to 367.824.

(2) Notwithstanding any provision of ORS 367.800 to 367.824, applicable federal laws, rules and regulations govern in any situation that involves federal funds if the federal laws, rules or regulations:

(a) Conflict with any provision of ORS 367.800 to 367.824;

(b) Require procedures that are additional to or different from those provided in ORS 367.800 to 367.824; or

(c) Require contract provisions not authorized by ORS 367.800 to 367.824. [2003 c.790 §§4a,13]

367.826 Reports to Emergency Board. (1) The Department of Transportation shall report to the Emergency Board at least twice during each interim regarding the transportation projects proposed or agreed to under ORS 367.800 to 367.824.

(2) The report under subsection (1) of this section shall include but need not be limited to information about expenditure of moneys for evaluation of concepts and proposals for transportation projects, agreements entered into, transportation projects that have been agreed to and financing mechanisms being used for transportation projects. [2003 c.790 §16]

DEPARTMENT OF TRANSPORTATION REGULATIONS

DIVISION 70

OREGON INNOVATIVE PARTNERSHIPS PROGRAM

731-070-0005

Purpose and Intent of the Oregon Innovative Partnerships Program

(1) The primary purpose of the Oregon Innovative Partnerships Program is to expedite project delivery and maximize innovation in project financing and delivery by encouraging Public-Private Partnerships.

(2) Public-Private Partnerships are formed when all parties benefit and when the outcome of the partnerships exceeds what any of the parties could accomplish on their own.

(3) When properly designed and implemented, Public-Private Partnerships can supplement limited State transportation revenues with a wide range of other sources.

(4) ODOT will operate the Oregon Innovative Partnerships Program in an environment that encourages cooperative partnerships between and among public and private sectors.

(5) While recognizing that other jurisdictions have undertaken Public-Private Partnerships, ODOT intends to be a leader in its approach to fostering cooperation amongst the parties for the public good.

Stat. Auth.: ORS 184.616, 184.619 & 367.824
Stat. Implemented: ORS 367.800 - 367.824
Hist.: DOT 5-2004, f. & cert. ef. 8-26-04

731-070-0010

Definitions for the Oregon Innovative Partnerships Program

As used in OAR 731-070-0010 to 731-070-0360:

(1) "Agency" means a public agency, as defined in ORS 279.011(7).

(2) "Commission" or "OTC" means the Oregon Transportation Commission created by ORS 184.612 and any person or persons authorized or directed by the Commission to take any action or make any decision authorized by these rules on the Commission's behalf.

(3) "Competing Proposal" means a written submission to the Department that a proposer submits in response to a notice issued by the Department under OAR 731-070-0130.

(4) "Conceptual Proposal" means a written submission to the Department satisfying the requirements set forth in OAR 730-070-0060.

(5) "Department" or "ODOT" means the Oregon Department of Transportation created by ORS 184.615.

(6) "Detailed Proposal" means a written submission to the Department satisfying the requirements set forth in OAR 730-070-0070.

(7) "Director" means the Director of Transportation appointed under ORS 184.620 and any person or persons authorized or directed by the Director to take any action or make any decision authorized by these rules on the Director's behalf.

(8) "Major Partner" means, with respect to a limited liability company or joint venture, each firm, business organization or person that has an ownership interest therein in excess of 5%.

(9) "Major Subcontractor" is any subcontractor designated in the proposal to perform 10% or more of the scope of work for a proposed Project.

(10) "Program" or "OIPP" means the Oregon Innovative Partnerships Program established under Oregon Laws 2003, chapter 790, codified at ORS 367.800 to 367.826.

(11) "Public-Private Partnerships" or "P3" means a nontraditional arrangement between the Department and one or more private or public entities that provides for the implementation of a Transportation Project that may include:

(a) Acceptance of a private contribution to a transportation system project or service in exchange for a public benefit concerning that project or service;

(b) Sharing of resources and the means of providing transportation system projects or services;

(c) Cooperation in researching, developing, and implementing transportation system projects or services;

(d) Use of innovative funding methods; or

(e) Expedited project delivery.

(f) The use of the word "partnership" to describe such an arrangement does not confer on the relationship formed any of the attributes or incidents of a partnership under common law or under ORS chapters 68 and 70.

(12) "Private Contribution" means resources supplied by a private entity to accomplish all or any part of the work on a transportation system project, including funds, financing, income, revenue, cost sharing, technology, staff, materials, equipment, expertise, data, or engineering, construction, or maintenance services, or other items of value.

(13) "Transportation Project" or "Project" has the meaning given that term in ORS 367.802.

(14) Terms not otherwise defined herein shall have the meaning given them in ORS 367.800 to 367.826.

Stat. Auth.: ORS 184.616, 184.619 & 367.824
Stat. Implemented: ORS 367.800 - 367.824
Hist.: DOT 5-2004, f. & cert. ef. 8-26-04

731-070-0020

General Selection Policies

(1) The Department may exercise broad discretion, subject to the ultimate approval of the Commission, in evaluating and selecting proposals in accordance with the criteria stated in OAR 731-070-0010 to 731-070-0360. To conduct a meaningful evaluation of a proposal, ODOT may refine its examination of the proposal so that the features offered by a particular proposal are translated into, or examined in light of, the general criteria identified in section (3) of this rule.

(2) In light of the exemption from the public contracting requirements of ORS Chapter 279 contained in ORS 367.806(5), the selection of proposals must be based on considerations that include public need, technical and financial feasibility, transportation efficiency, cost effectiveness, and acceleration of project delivery. The selection process must appreciate economy and potential savings to the public, but proposal selection will be determined on a best-value basis, taking into account the policies described in this rule and the applicable criteria identified in OAR 731-070-0110 and 731-070-0140, rather than on a lowest responsible bidder determination.

(3) In evaluating unsolicited proposals and in selecting projects for which to solicit proposals under OAR 731-070-0240, ODOT will give precedence to proposals and projects that will satisfy one or more of the following policies:

(a) Projects that will address an urgent or state-identified transportation need in a manner that will materially advance the project delivery time-frame in light of current or anticipated levels of funding and existing transportation plans.

(b) Projects that use primarily rights-of-way and publicly-owned real property that already are owned or under the long-term control of ODOT or other public entities that have authority to put the real property to the use proposed.

(c) Projects for which planning, reliable feasibility determinations, comparable, successful prior projects or case studies demonstrate a strong potential to attract or generate a substantial contribution of non-state or non-tax resources to pay project cost items like capital, operation and maintenance, and provide a reasonable return on that investment in terms of:

(A) A private partner's investment, if any; and

(B) Transportation benefits to the public.

(d) Projects for which planning, reliable feasibility determinations, comparable, successful prior projects or case studies demonstrate a low risk of failure (in terms of the completion of infrastructure improvements and the attraction or generation of a substantial contribution of non-state or non-tax resources), practicable means of mitigating the risk of failure, or a high reward-to-risk ratio (in terms both of the benefits to the public and the private partner's investment incentive).

(e) Proposals that identify specific, reliable, confirmable and economically-viable, non-state or non-traditional sources of funding that will be available to supplement or replace state funding or other state resources for the project.

(f) Projects for which there is a demonstration of clear and substantial public support.

(g) Proposals that identify innovative construction approaches that will result in shorter build time, reduced construction cost or improved function in comparison to conventional approaches.

Stat. Auth.: ORS 184.616, 184.619 & 367.824
Stat. Implemented: ORS 367.800 - 367.824
Hist.: DOT 5-2004, f. & cert. ef. 8-26-04

731-070-0030

Conflict of Interest and Improper Proposer Conduct

(1) By submitting a proposal, the proposer certifies that the proposer, to the best of its knowledge, is not aware of any information bearing on the existence of any potential Organizational Conflict of Interest. If the proposer is aware of information bearing on whether a potential Organizational Conflict of Interest may exist, the proposer shall provide, as an exception to the certification, a disclosure statement describing this information, in a form suitable to ODOT, as part of its proposal. For purposes of this section, "Organizational Conflict of Interest" means that because of other activities or relationships with other persons, a proposer, a principal officer of a proposer, or a prime contractor who is proposed to perform construction or design work on a proposed Transportation Project, is unable or potentially unable to render impartial assistance or advice to ODOT, or the person's objectivity in performing the proposed contract work is or might be otherwise impaired, or a person has an unfair competitive advantage.

(2) Warranty Against Contingent Fees. By submitting a proposal, the proposer warrants that the proposer, except for a bona fide employee or agency working solely for the proposer:

(a) Has not employed or retained any person or agency to solicit or obtain the contract that might result from submission of the proposal; and

(b) Has not paid upon agreement or understanding to any person or agency employed or retained to solicit or obtain a Transportation Project agreement any contingent fee. For breach or violation of this warranty, the Department shall have the right to annul this contract without liability or, in its discretion, to deduct from the contract price or consideration, or otherwise recover, the full amount of the contingent fee.

(c) As used in this rule:

(A) "Bona fide agency" means an established commercial or selling agency, maintained by a proposer for the purpose of securing business, that neither exerts nor proposes to exert improper influence to solicit or obtain federal or state contracts nor holds itself out as being able to obtain any federal or state contract or contracts through improper influence.

(B) "Bona fide employee" means a person or firm employed by a proposer and subject to the proposer's supervision and control as to time, place, and manner of performance, who neither exerts nor proposes to exert improper influence to solicit or obtain federal or state contracts nor holds itself out as being able to obtain any federal or state contract or contracts through improper influence.

(C) "Contingent fee" means any commission, percentage, brokerage, or other fee that is contingent upon the success that a person or concern has in securing a federal or state contract.

(D) "Improper influence" means any influence that induces or intends to induce a federal or state officer or employee to give consideration or to act regarding a federal or state contract on any basis other than the merits of the matter.

(3) By submitting a proposal, the proposer certifies, to the best of its knowledge and belief, that on or after December 23, 1989:

(a) No federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress on his or her behalf in connection with the awarding of any federal contract, the making of any federal grant, the making of any federal loan, the entering into any cooperative agreement, and the extension, continuation, renewal, amendment or modification of any federal contract, grant, loan, or cooperative agreement;

(b) If any funds other than federal appropriated funds (including profit or fee received under a covered federal transaction) have been paid, or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress on his or her behalf in connection with its proposal, the proposer shall complete and submit, with its proposal, OMB standard form LLL, Disclosure of Lobbying Activities, to the Department; and

(c) The proposer shall include the language of this certification in all subcontract awards at any tier and require that all recipients of subcontract awards in excess of $100,000 shall certify and disclose accordingly.

(4) Certification - Debarment, Suspension, Proposed Debarment and Responsibility Factors. By submitting a proposal, the proposer certifies, to the best of its knowledge and belief, that neither the proposer, a Major Partner, a Major Subcontractor, nor any principal officer of a proposer, Major Partner or Major Subcontractor, who is proposed to perform construction or design work on a proposed Transportation Project:

(a) Is presently debarred, suspended, proposed for debarment, or declared ineligible for the award of contracts by any federal agency or agency of the State of Oregon;

(b) Has, within a three-year period preceding the submission of its proposal, been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, state, or local) contract or subcontract; violation of federal or state antitrust statutes relating to the submission of bids or proposals; or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion, or receiving stolen property;

(c) Is presently indicted for, or otherwise criminally or civilly charged by a governmental entity with the commission of any of the offenses enumerated in subsection (b) of this section; or

(d) Has had, within a three-year period preceding the submission of its proposal, one or more contracts terminated for default by any federal, state or local government agency.

(5) For the purposes of this rule, a "principal officer of a proposer, Major Partner or Major Subcontractor," means an officer, director, owner, and partner and any person having primary management or supervisory responsibilities within a business entity (e.g., general manager; plant manager; head of a subsidiary, division, or business segment, and similar positions).

(6) In addition to requiring the certification of compliance with the foregoing provisions of this rule, in any Transportation Project that involves funding provided by or through the federal government, ODOT shall be entitled to require, as a requirement of any contract for a Transportation Project with a proposer, that proposer make such additional certifications, warranties or commitments as may be required by the laws, rules, regulations or policies that govern the funding source or which are conditions of the receipt of such funding.

Stat. Auth.: ORS 184.616, 184.619 & 367.824
Stat. Implemented: ORS 367.800 - 367.824
Hist.: DOT 5-2004, f. & cert. ef. 8-26-04

731-070-0040

Protection of ODOT from Proposer "Monopolization" of Site Claims

(1) By submitting a proposal, a proposer thereby waives and relinquishes any claim, right in or expectation that the proposer may assert against the State of Oregon, the Commission, ODOT, or their members, officers and employees, that the proposer may occupy, use, profit from, or otherwise exercise any prerogative with respect to any route, corridor, right of way or public property identified in the proposal as being involved in or related to the proposed Transportation Project. A proposer may obtain no right to claim exclusivity or the right of use with respect to any such route, corridor, right of way or public property by virtue of having submitted a proposal that proposes to use or otherwise involve or affect it.

(2) By submitting a proposal, a proposer thereby waives and relinquishes, as against the State of Oregon, the Commission, ODOT, and their members, officers and employees, any right, claim, copyright, proprietary interest or other right in any proposed location, site, route, corridor, right of way or alignment or transportation mode or configuration identified in the proposal as being involved in or related to the proposed Transportation Project. This waiver does not apply, however, to a proposer's rights in any documents, designs and other information and records that constitute "sensitive business, commercial or financial information that is not customarily provided to business competitors" as specified in OAR 731-070-0280 and 731-070-0290.

Stat. Auth.: ORS 184.616, 184.619 & 367.824
Stat. Implemented: ORS 367.800 - 367.824
Hist.: DOT 5-2004, f. & cert. ef. 8-26-04

[provisions deleted concerning Unsolicited Proposals]

731-070-0160

Use of a Process that Permits ODOT Feedback and Ability of Proponents to Supplement/Refine Proposals after Initial Submission; ODOT Authority to Elect Competitive Negotiations.

[subsections 1 and 2 concern Unsolicited Proposals]

(3) ODOT Authority to Elect Competitive Negotiations:

(a) In addition to ODOT's ability to exercise any alternative selection or contracting process permitted under this rule or OAR 731-070-0270(2), ODOT may authorize, at its option, competitive negotiations with multiple proposers as a means of selecting from among Competing Proposals solicited under OAR 731-070-0130, or from among Detailed Proposals requested under OAR 731-070-0270(2)(b). Negotiations under this section are part of the proposal evaluation process and do not constitute the negotiation of a Transportation Project agreement.

(b) ODOT may announce its election to conduct competitive negotiations:

(A) In any notice issued for Competing Proposals under OAR 731-070-0130;

(B) In any request for the submission of Detailed Proposals under OAR 731-070-0270(2); or

(C) By written notice, by mail or by electronic means, to the proposers, issued at any time following ODOT's receipt of proposals under OAR 731-070-0130 or 731-070-0270(2).

(c) In any communication under subsection (3)(b) of this rule, or by notice to the proposers issued by mail or by electronic means at any time after the receipt of proposals, ODOT may announce that it will initiate competitive negotiations with all proposers who submitted responsive proposals, or only with proposers who qualify to negotiate because ODOT has determined that their proposals fall within a competitive range.

(d) When ODOT elects to negotiate only with proposers within a competitive range, then after ODOT's evaluation of proposals in accordance with the criteria set forth in the notice or request for proposals, ODOT will determine the proposers in the competitive range.

(A) For purposes of this section (3), the proposers in the competitive range consist of those proposers whose proposals, as determined by ODOT in its discretion, have a reasonable chance of being determined the best proposal as the result of the preliminary evaluation conducted under subsection (3)(d). In determining which proposals fall within the competitive range, ODOT may consider whether its preliminary evaluation of proposals establishes a natural break in the preliminary scores of the proposals that suggests those proposals that are sufficiently competitive to be included in the competitive range.

(B) ODOT will provide written notice to all proposers, by mail or by electronic means, of the proposals ODOT determines to fall within the competitive range. A proposer whose proposal is not within the competitive range may submit a written protest of ODOT's evaluation and determination of the competitive range within 14 calendar days after the date of ODOT's notice. A proposer's written protest must state facts and argument that demonstrate how the competitive range determination was flawed or how ODOT's determination constituted an abuse of discretion. If ODOT receives no written protest concerning the proposed selection listing within the 14 calendar day period, then ODOT will proceed with negotiations with the proposers whose proposals fell within the competitive range.

(C) In response to a timely filed protest, ODOT will issue a written decision that resolves the issues raised in the protest. ODOT will make its written determination available, by mail or by electronic means, to the protesting proposer and to the proposers falling within the competitive range. ODOT's written decision under this subsection shall constitute a final order under ORS 183.484.

(e) The object of competitive negotiations, which ODOT may conduct concurrently with more than one proposer or serially, is to maximize ODOT's ability to obtain best value and to permit proposers to develop revised proposals. Therefore, the negotiations may include, but shall not be limited to:

(A) Informing proposers of deficiencies in their proposals;

(B) Notifying proposers of parts of their proposals for which ODOT would like additional information; and

(C) Otherwise allowing proposers to develop revised proposals that will permit ODOT to obtain the best proposal based on the requirements and evaluation criteria set forth in the notice or request for proposals.

(f) The scope, manner and extent of negotiations with any proposer are subject to the discretion of ODOT. To prevent the disclosure of proposal information to a proposer's competitors, ODOT shall conduct negotiations with proposers before the subject proposals, information about the proposed Transportation Project, or proposal information have been shared with other government entities under ORS 367.804(5)(a). In conducting negotiations, ODOT:

(A) Shall treat all proposers fairly and shall not engage in conduct that favors any proposer over another;

(B) Shall not reveal to another proposer a proposer's unique technology, unique or innovative approaches to Transportation Project design, management or financing, or any information that would compromise the proposer's intellectual property, trade secrets or sensitive business information; or

(C) Shall not reveal to another proposer a proposer's price or pricing information, provided, however, that ODOT may inform a proposer that ODOT considers a proposer's price or pricing information to be too high or too low.

Stat. Auth.: ORS 184.616, 184.619 & 367.824
Stat. Implemented: ORS 367.800 - 367.824
Hist.: DOT 5-2004, f. & cert. ef. 8-26-04

[provisions deleted concerning Unsolicited Proposals]

Agreements for Transportation Projects

731-070-0200

Negotiation of Agreement

(1) A Detailed Proposal selected by the Commission for negotiation of a final agreement shall be referred to a working group appointed by the Director. The working group shall be responsible for negotiating the final agreement with the proposer. Each final agreement will define the rights and obligations of ODOT and the respective proposer with regard to the transportation project. The final agreement must include provisions specifying at least the following:

(a) At what point in the transportation project public and private sector partners will enter the project and which partners will assume responsibility for specific project elements;

(b) How the partners will share management of the risks of the project;

(c) How the partners will share the costs of development of the project;

(d) How the partners will allocate financial responsibility for cost overruns;

(e) The penalties for nonperformance;

(f) The incentives for performance;

(g) The invoicing and payment procedures and schedules to be followed, and the accounting and auditing standards to be used to evaluate work on the project; and

(h) Whether the project is consistent with the plan developed by the Oregon Transportation Commission under ORS 184.618 and any applicable regional transportation plans or local transportation programs and, if not consistent, how and when the project will become consistent with applicable plans and programs.

(2) If public moneys are used to pay any costs of construction of public works that is part of a transportation project, the construction contract shall contain provisions that require payment of workers under the contract in accordance with ORS 279.334 and 279.348 to 279.380.

(3) An agreement for the construction of a public improvement as part of a transportation project shall approved for bonding, financial guarantees, deposits or the posting of other security to secure the payment of laborers, subcontractors and suppliers who perform work or provide materials as part of the project.

(4) The working group shall consider whether to implement procedures to promote competition among subcontractors for any subcontracts to be let in connection with the transportation project. As part of its request for approval of the agreement by the Commission under OAR 731-070-0230, the working group shall report in writing to the Commission its conclusions regarding the appropriateness of implementing such procedures.

Stat. Auth.: ORS 184.616, 184.619 & 367.824
Stat. Implemented: ORS 367.800 - 367.824
Hist.: DOT 5-2004, f. & cert. ef. 8-26-04

731-070-0210

ODOT Objection to Subcontractors

(1) Prior to the execution of any contract with a proposer, the proposer must provide ODOT a list of all Major Subcontractors who will perform work in the construction, operation or maintenance of the Project. All subcontractors must be legally eligible to perform or work on public contracts under federal and Oregon law and regulations. No subcontractor will be accepted who is on the list of contractors ineligible to receive public works contracts under ORS 279.361.

(2) If ODOT has reasonable objection to any proposed subcontractor, ODOT is authorized to require, before the execution of a contract, an apparently successful proposer to submit an acceptable substitute. In such case, the proposer must submit an acceptable substitute, and the contract may, at ODOT's discretion, be modified to equitably account for any difference in cost necessitated by the substitution. ODOT will permit a maximum of fourteen (14) calendar days from the date of ODOT's written demand for substitution which to make an acceptable substitution. A proposer's failure to make an acceptable substitution at the end of the 14-day period will constitute sufficient grounds for ODOT to refuse to execute a contract without incurring any liability for the refusal. However, if the proposer had identified such a Major Subcontractor in its Detailed Proposal as an equity contributor to the Project, or the Major Subcontractor had committed other financial support that had been relied on by the proposer, then the proposer shall be granted a period of sixty (60) business days to identify an acceptable substitute. Following such identification, the proposer shall be granted an additional thirty (30) business days to conclude negotiations of acceptable terms and conditions with that substitute Major Subcontractor.

(3) ODOT will not require any proposer to engage any subcontractor, supplier, other person or organization against whom the proposer has reasonable objection.

Stat. Auth.: ORS 184.616, 184.619 & 367.824
Stat. Implemented: ORS 367.800 - 367.824
Hist.: DOT 5-2004, f. & cert. ef. 8-26-04

731-070-0220

Legal Sufficiency Review of Final Agreement

On completion of a final agreement, the Attorney General will review it for legal sufficiency under ORS 291.047 and OAR chapter 137, division 045. When conducting that review, the Attorney General shall:

(1) Recognize that the agreement is the product of a partnership; and

(2) Defer to the business judgment of the department and the Oregon Transportation Commission concerning the assignment of risks and the incentives provided within the agreement.

Stat. Auth.: ORS 184.616, 184.619 & 367.824
Stat. Implemented: ORS 367.800 - 367.824
Hist.: DOT 5-2004, f. & cert. ef. 8-26-04

731-070-0230

Commission Review of Final Agreement

On completion of the Attorney General's legal sufficiency review of the final agreement, the Commission shall:

(1) Approve the final agreement;

(2) Reject the final agreement; or

(3) Return the final agreement to the working group for further negotiation on issues the Commission specifies.

Stat. Auth.: ORS 184.616, 184.619 & 367.824
Stat. Implemented: ORS 367.800 - 367.824
Hist.: DOT 5-2004, f. & cert. ef. 8-26-04

Solicitation of Proposals for OIPP Projects

731-070-0240

Commission Selection of Projects for Solicitation of Proposals

ODOT may solicit Proposals for a public-private partnership approach to planning, acquiring, financing, developing, designing, managing, constructing, reconstructing, replacing, improving, maintaining, repairing, leasing and/or operating a transportation project if the Commission has determined that such an approach has the potential to accelerate cost-effective delivery of the project or promote innovative approaches to carrying out the project.

Stat. Auth.: ORS 184.616, 184.619 & 367.824
Stat. Implemented: ORS 367.800 - 367.824
Hist.: DOT 5-2004, f. & cert. ef. 8-26-04

731-070-0250

Solicitation Documents

The Request for Proposals for a public-private transportation project approved for solicitation under OAR 731-070-0240 shall include the following:

(1) General Information.

(a) Notice of any pre-proposal conference as follows:

(A) The time, date and location of any pre-proposal conference;

(B) Whether attendance at the conference will be mandatory or voluntary; and

(C) That statements made by ODOT's representatives at the conference are not binding upon ODOT unless confirmed by written addendum.

(b) The deadline for submitting mandatory prequalification applications and the class or classes of work for which proposers must be prequalified if prequalification is a requirement;

(c) The name and title of the authorized agency person designated for receipt of proposals and contact person (if different);

(d) Instructions and information concerning submission requirements including the address of the office to which proposals must be delivered and any other special information, e.g., whether proposals may be submitted by Facsimile or Electronic Data Interchange;

(e) The time, date and place of opening of proposals;

(f) The time and date of closing after which ODOT will not accept proposals, which time shall be not less than five days after the date of the last publication of the advertisement. The interval between the date of issuance of the Solicitation Document and a closing should not be less than 30 days unless ODOT finds a shorter interval is in the public's interest;

(g) The form and submission of proposals and any information required therein;

(h) If the agreement resulting from a solicitation will be a contract for a public work subject to ORS 279.348 to 279.380 or the Davis-Bacon Act (40 U.S.C. sections 3141 to 3148), a statement that no proposal will be received or considered by ODOT unless the proposal contains a statement by the proposer, as a part of its proposal, that proposer agrees to be bound by and will comply with the provisions of ORS 279.350 or 40 USC sections 3141 to 3148;

(i) If the project so requires, a statement that ODOT will not receive or consider a proposal from an entity when the entity is not registered with the Construction Contractors Board or is not licensed by the State Landscape Contractors Board as required by ORS 671.530;

(j) Whether a contractor or a subcontractor under the contract must be licensed under ORS 468A.720;

(k) Contractor's certification of nondiscrimination in obtaining required subcontractors in accordance with ORS 279.111. (See OAR 731-005-0245(3)); and

(l) How ODOT will notify proposers of Addenda and how ODOT will make Addenda available.

(2) Agency Need. A description of the transportation project for which ODOT is requesting proposals for a public-private partnership in such detail as ODOT considers appropriate or feasible under the circumstance.

(3) Evaluation process:

(a) A statement that ODOT may reject any proposal not in compliance with all prescribed procedures and requirements and other applicable laws, and that the rights reserved to ODOT in the consideration of unsolicited and competing proposals under OAR 731-070-0300 to 731-070-0330 apply equally to proposals submitted in response to the Request for Proposal;

(b) The anticipated solicitation schedule, deadlines, protest process, and evaluation process, if any; and

(c) Evaluation criteria that ODOT will use to select a proposal from among those submitted in response to the Request for Proposals.

(4) All contract terms and conditions, including warranties and bonding requirements, ODOT considers necessary, and including contractor's certification that all subcontractors performing work described in ORS 701.005(2) (i.e., construction work) will be registered with the Construction Contractors Board or licensed by the State Landscape Contractors Board in accordance with ORS 701.035 to 701.055 before the subcontractors commence work under the contract.

(5) If federal funds are involved, the federal laws, rules and regulations applicable to the fund requirements shall govern in the event they conflict with a provision required by state law.

(6) Unless otherwise provided in the contract, the contractor shall not assign, sell, dispose of, or transfer rights, nor delegate duties under the contract, either in whole or in part, without ODOT's prior written consent. Unless otherwise agreed by ODOT in writing, such consent shall not relieve the contractor of any obligations under the Contract. Any assignee or transferee shall be considered the agent of the contractor and be bound to abide by all provisions of the contract. If ODOT consents in writing to an assignment, sale, disposal or transfer of the contractor's rights or delegation of contractor's duties, the contractor and its surety, if any, shall remain liable to ODOT for complete performance of the contract as if no such assignment, sale, disposal, transfer or delegation had occurred unless ODOT otherwise agrees in writing.

[Publications: Publications referenced are available from the agency.]

Stat. Auth.: ORS 184.616, 184.619 & 367.824
Stat. Implemented: ORS 367.800 - 367.824
Hist.: DOT 5-2004, f. & cert. ef. 8-26-04

731-070-0260

Public Notice of Solicitation

(1) Notice and Distribution Fee. ODOT shall furnish notice to a sufficient number of entities for the purpose of fostering and promoting competition. The notice shall indicate where, when, how, and for how long the Solicitation Document may be obtained and generally describe the work. The notice may contain any other appropriate information. ODOT may charge a fee or require a deposit for the Solicitation Document. ODOT may furnish notice using any method determined to foster and promote competition, including:

(a) Mail notice of the availability of Solicitation Documents ("notice") to Entities that have expressed an interest in ODOT's procurements;

(b) Place notice on the Oregon the Department of Administrative Services' electronic procurement system known as the Vendor Information Program ("VIP"); or

(c) Place notice on ODOT's internet web site.

(2) Advertising. ODOT shall advertise every solicitation for proposals, unless the Contract Review Authority has exempted the solicitation from the advertisement requirement.

(a) Unless ODOT publishes by Electronic Advertisement as permitted under subsection (b) of this section, ODOT shall publish the advertisement for proposals at least once in at least one newspaper of general circulation in the area where the Contract is to be performed and in as many additional issues and publications as ODOT may determine to be necessary or desirable to foster and promote competition.

(b) ODOT may publish by Electronic Advertisement if:

(A) ODOT has published a notice that it may publish future advertisements for proposals by Electronic Advertisement. ODOT shall publish such notice weekly, for no less than four consecutive weeks, in at least one newspaper of general circulation in the area where the business office of ODOT is located and in as many additional issues and publications as ODOT may determine to be necessary or desirable to provide notice to potential proposers. ODOT notice shall include the World Wide Web location (i.e. Uniform Resource Locator or URL) where ODOT will publish future Electronic Advertisements or alternatively, to the Web location where ODOT will publish information on accessing the Electronic Advertisement via a telnet application;

(B) ODOT posts in its business office a notice that the Department will publish advertisements for proposals by Electronic Advertisement. The notice shall include the World Wide Web location (i.e. Uniform Resource Locator or URL) where ODOT publishes Electronic Advertisements or alternatively, to the Web location where ODOT publishes information on accessing the Electronic Advertisement via telnet; and

(C) DAS determines Electronic Advertisement is less expensive than publishing by newspaper under subsection (a) of this section.

(c) In addition to ODOT's publication required under subsection (a) or (b) of this section, ODOT shall also publish advertisement for proposals in at least one trade newspaper of general statewide circulation if the transportation project includes or contemplates a Public Improvement with an estimated cost in excess of $125,000.

(d) All advertisements for proposals shall set forth:

(A) The scheduled closing, that shall not be less than five days after the date of the last publication of the advertisement;

(B) The date that entities must file applications for prequalification if prequalification is a requirement and the class or classes of work for which entities must be prequalified;

(C) The nature of the work to be performed or the goods to be purchased;

(D) The office where the Solicitation Documents may be reviewed;

(E) The name, title and address of ODOT person authorized to receive proposals;

(F) The scheduled opening; and

(G) If applicable, that the contract is for a public work subject to ORS 279.348 to 279.380 or the Davis-Bacon Act (40 U.S.C. sections 3141 to 3148).

(3) Posting Advertisement for Proposals. ODOT shall post a copy of each advertisement for proposals at the principal business office of ODOT. A proposer may obtain a copy of the advertisement for proposals upon request from Contractor Plans Unit, Transportation Building, 355 Capitol Street NE, Salem, Oregon 97301-3871 or on the Internet at www.odot.state.or.us.

(4) Minority, Women Emerging Small Business. ODOT shall provide timely notice of all solicitations to the Advocate for Minority, Women and Emerging Small Business if the estimated project cost exceeds $5,000.

[Publications: Publications referenced are available from the agency.]

Stat. Auth.: ORS 184.616, 184.619 & 367.824
Stat. Implemented: ORS 367.800 - 367.824
Hist.: DOT 5-2004, f. & cert. ef. 8-26-04

731-070-0270

Evaluation and Selection of Solicited Proposals

(1) Proposals received pursuant to a solicitation under OAR 731-070-0240 to 731-070-0260 shall be evaluated and a proposal selected for development of a Detailed Proposal in the same manner as and under the procedures established under OAR 731-070-0060 to 731-070-0180 for unsolicited proposals, unless and except as otherwise specified in the solicitation. It is provided, however, that the evaluation procedure also will comply with the requirement for consultation with regional and local government under OAR 731-070-0295. The development and evaluation of a Detailed Proposal and the negotiation, execution and approval of a Final Agreement shall be governed by OAR 731-070-0200 to 731-070-0230, unless and except as otherwise specified in the solicitation.

(2) In a solicitation for proposals, when ODOT in its sole discretion deems it appropriate to do so given the nature of the proposal, ODOT may specify requirements for proposal content, and for criteria and procedures under which the proposals will be evaluated and selected, that are in addition to or in lieu of those provided for in OAR 731-070-0060 to 731-070-0230. Any alternative process or processes so specified will comply with the requirements of ORS 367.800 to 367.826. Examples of possible alternative processes include:

(a) Selecting a proposal for development into a final agreement based on a unitary proposal instead of a two-step conceptual/detailed proposal process; and

(b) Evaluating conceptual proposals to rank proposers and select one to perform development services necessary to refine the ultimate character and scope of the project, after which the highly ranked proposers would be asked to submit detailed proposals from which one would be selected for negotiation of a final agreement. These examples are offered for illustrative purposes only, and should not be construed to limit the scope of ODOT's discretion or authority to develop proposal and evaluation criteria and processes for any project as long as those criteria and processes comply with the requirements of ORS 367.800 to 367.826.

Stat. Auth.: ORS 184.616, 184.619 & 367.824
Stat. Implemented: ORS 367.800 - 367.824
Hist.: DOT 5-2004, f. & cert. ef. 8-26-04

Public Records

731-070-0280

Public Records Requests

(1) Upon written request and within a reasonable time, the Director or his designee shall provide records relating to transportation project proposals for inspection in accordance with ORS Chapter 192, ORS 367.804 and these rules.

(2) ODOT may charge fees to cover its reasonable and actual costs in responding to public records requests. Such costs may include but are not limited to costs associated with locating records, separating exempt from nonexempt records, monitoring the requester's inspection of requested records, copying records and delivering copies of requested records. In accordance with OAR 731-001-0025, ODOT may charge fees calculated to reimburse it for its reasonable and actual costs as authorized by the relevant provisions of the Public Records Law.

(3) ODOT may prepare an estimate of the costs of responding to any request for public records, and may require payment of all or a portion of the estimated costs before acting on the request.

(4) Records related to a proposal for a Transportation Project submitted to ODOT under the Oregon Innovative Partnerships Program are exempt from disclosure under the Oregon Public Records Law until:

(a) ODOT shares the records or the information contained in them with a local government, metropolitan planning organization or area commission on transportation as part of the consultation process described in OAR 731-070-0295; or

(b) ODOT completes its evaluation of the proposed project and has selected the proposal for negotiation of an agreement.

(5) Notwithstanding section (4) of this rule, sensitive business, commercial or financial information that is not customarily provided to business competitors that is submitted to the department in connection with a Transportation Project is exempt from disclosure under the Oregon Public Records Law until the records or information contained in them is submitted to the Commission in connection with its review and approval of the transportation project under ORS 367.806(6) and OAR 731-070-0230.

(6) On ODOT's receipt of a request, under the Public Records Law, for the disclosure of records or information that have been submitted to ODOT by a proposer under the program authorized by ORS 367.800 to 367.826, ODOT will notify the proposer of the request and provide the proposer a reasonable opportunity to demonstrate that all or part of the requested records or information are exempt from disclosure under ORS 367.800 to 367.826, the Public Records Law, ORS 192.410 to 192.505, the Uniform Trade Secrets Act, ORS 646.461 to 646.475, or other applicable law recognizing the confidentiality of public records and information. In determining whether the information or records are exempt from disclosure, ODOT will consider the evidence and objections to disclosure presented by the proposer, but as custodian of the records or information, ODOT must make the initial determination of the records that may be withheld from disclosure.

(7) An affected proposer who seeks to demonstrate that public records pertaining to it are exempt from disclosure must respond to ODOT with its evidence and objections within four working days of ODOT's issuance of notice of the request to the proposer. After considering the proposer's evidence and objections, ODOT will inform the proposer of its disclosure decision, giving the proposer no fewer than three working days in which to institute appropriate proceedings in its own behalf to protect the proposer's interests in preventing the disclosure or maintaining the confidentiality of the records or information. The proposer shall be exclusively responsible for all costs, expenses and attorney fees incurred in taking any action to prevent the disclosure of information or records under this section.

Stat. Auth.: ORS 184.616, 184.619 & 367.824
Stat. Implemented: ORS 367.800 - 367.824
Hist.: DOT 5-2004, f. & cert. ef. 8-26-04

731-070-0290

Designation of Sensitive Business, Commercial or Financial Information and Trade Secrets

(1) The following procedure shall be followed by proposers to designate information as "sensitive business, commercial or financial information" under ORS 367.804(6): each individual page of a proposal that contains sensitive business, commercial or financial information must be clearly marked "Sensitive Business, Commercial or Financial Information."

(2) A proposer may desire that certain information be considered "trade secret" information for purposes of applying the public records exemption set out in ORS 192.501(2). To qualify for that exemption, trade secret information must meet the following criteria:

(a) Not the subject of a patent;

(b) Only known to a limited number of individuals within an organization;

(c) Used in a business that the organization conducts;

(d) Of potential or actual commercial value; and

(e) Capable of providing the user with a business advantage over competitors not having the information.

(3) The following procedures shall be followed by the proposer to designate information as trade secret:

(a) Each individual page of a plan or progress report that contains trade secret information must be clearly marked trade secret;

(b) Written substantiation describing what information is considered trade secret and why must accompany the document. The written substantiation shall address the following:

(A) Identify which portions of information are claimed trade secret;

(B) Identify how long confidential treatment is desired for this information;

(C) Identify any pertinent patent information;

(D) Describe to what extent the information has been disclosed to others, who knows about the information, and what measures have been taken to guard against undesired disclosure of the information to others;

(E) Describe the nature of the use of the information in business;

(F) Describe why the information is considered to be commercially valuable;

(G) Describe how the information provides a business advantage over competitors;

(H) If any of the information has been provided to other government agencies, identify which one(s); and

(I) Include any other information that supports a claim of trade secret.

(4) Notwithstanding a proposer's designation of information as constituting "trade secret," and subject to a proposer's opportunity to object to disclosure under OAR 731-070-0280, ODOT will independently assess whether the trade secret exemption applies and whether the public interest requires disclosure when responding to a public records request.

Stat. Auth.: ORS 184.616, 184.619 & 367.824
Stat. Implemented: ORS 367.800 - 367.824
Hist.: DOT 5-2004, f. & cert. ef. 8-26-04

OIPP Program Administration

731-070-0295

Consultation with Local Government, Transportation District, Metropolitan Planning Organization or Area Commission on Transportation

As part of its evaluation of a proposal submitted under these rules, ODOT will consult with appropriate local governments, metropolitan planning organizations and area commissions on transportation. Consultation under this rule will occur in such manner and at such time as ODOT considers appropriate in the particular circumstance, and shall include:

(1) An informal information-sharing opportunity prior to completion of the department's evaluation of the proposal;

(2) Solicitation of comments from the appropriate local governments, transportation district, metropolitan planning organization or area commission on transportation; and

(3) Any additional method(s) of consultation appropriate under the circumstances.

Stat. Auth.: ORS 184.616, 184.619 & 367.824
Stat. Implemented: ORS 367.800 - 367.824
Hist.: DOT 5-2004, f. & cert. ef. 8-26-04

731-070-0300

ODOT Rights Reserved

(1) ODOT reserves all rights available to it by law in administering these rules, including without limitation, the right in its sole discretion to:

(a) Reject any and all proposals at any time.

(b) Terminate evaluation of any and all proposals at any time.

(c) Suspend, discontinue and/or terminate comprehensive agreement negotiations with any proposer at any time prior to the actual authorized execution of such agreement by all parties.

(d) Negotiate with a proposer without being bound by any provision in its proposal.

(e) Request or obtain additional information about any proposals.

(f) Issue addenda to and/or cancel any RFP.

(g) In accordance with the rule-making procedures of ORS chapter 183, revise, supplement or withdraw all or any part of these rules.

(h) Decline to return any and all fees required to be paid by proposers hereunder.

(i) Request revisions to proposals.

(2) Under no circumstances shall the state, the Oregon Transportation Commission or ODOT be liable for, or reimburse, the costs incurred by proposers, whether or not selected for negotiations, in developing proposals or in negotiating agreements. Any and all information ODOT makes available to proposers shall be as a convenience to the proposer and without representation or warranty of any kind. Proposers may not rely upon any oral responses to inquiries. If a proposer has a question regarding application of these rules, the proposer may submit the question in writing to the Director or his designee.

Stat. Auth.: ORS 184.616, 184.619 & 367.824
Stat. Implemented: ORS 367.800 - 367.824
Hist.: DOT 5-2004, f. & cert. ef. 8-26-04

731-070-0310

Extensions of Time: Waivers

(1) ODOT reserves the right to extend any deadline or time within which a proposer or ODOT must take any action required or permitted under OAR chapter 731, division 70 if the affected proposer applies in writing for relief to ODOT and demonstrates in that application that special circumstances warrant the grant of such relief. For the purpose of this subsection, special circumstances that warrant the grant of relief include practical exigencies that reasonably can be regarded as imposing a substantial, practical impediment to the proposer's ability to meet the deadline or achieve the correction of a violation of rules. Special circumstances are circumstances beyond the reasonable control of the proposer organization and include, but are not limited to, the illness or other incapacity of key officers of the organization seeking relief, emergency reorganizations or replacements of the corporate structure, board of directors or executive officers of the organization, acts of God, and comparable practical impediments to a person's or organization's ability to meet a deadline or achieve the correction of a violation of rules. However, no such extension will be afforded to any single proposer for the requirements identified under sections OAR 731-070-0130(2) and (3).

(2) The grant or denial of relief under this rule must be determined by the Director or his designee. ODOT also reserves the right to waive or to permit the correction of minor or technical violations of rules in this Division. ODOT will not grant relief under this section in any case that involves the submission of competitive proposals or competitive responses in which granting the relief would give the entity or person applying for relief a material competitive advantage that is not made available to its competitors.

Stat. Auth.: ORS 184.616, 184.619 & 367.824
Stat. Implemented: ORS 367.800 - 367.824
Hist.: DOT 5-2004, f. & cert. ef. 8-26-04

731-070-0320

ODOT's Authority to Suspend, by "Order," the Acceptance of Specified Categories of Unsolicited Proposals

(1) ODOT may, at any time, suspend its receipt and consideration of all unsolicited proposals, or of any class, category or description of unsolicited proposals, including but not limited to unsolicited Conceptual Proposals. ODOT may suspend its receipt and consideration of all unsolicited proposals, of any class, category or description of unsolicited proposals, or of unsolicited proposals to undertake any class, category or description of Transportation Project (such as, by way of illustration only, proposals to perform the maintenance of existing ODOT transportation facilities, proposals within certain cost categories, proposals that relate to certain geographic areas or proposals to repair state secondary highway surfaces) by issuing a written order that:

(a) Declares that ODOT has suspended the acceptance and consideration of all unsolicited proposals or of unsolicited proposals for certain types of Projects;

(b) Describes the proposals or the class or character of the Projects that are subject to the suspension; and

(c) Specifies either the term of the suspension or that the suspension will continue until recalled by a subsequent order of ODOT.

(2) Commencing on the effective date of the suspension order, ODOT will refuse to accept unsolicited proposals or unsolicited proposals for Transportation Projects of the class, category or description contained in the order, and may, as stated in the order, cease further processing and consideration of any such unsolicited proposals then currently under consideration by ODOT.

(3) By submitting an unsolicited proposal, each proposer thereby waives and relinquishes every claim of right, entitlement or expectation that the processing and consideration of its proposal will not be subject to suspension under this rule.

(4) The State of Oregon, ODOT, the Oregon Transportation Commission, and their officers and employees, shall have no responsibility or liability of any nature for the preservation, confidentiality or safekeeping of any proposal that is subject to a suspension order under this rule and is submitted to ODOT while that suspension order is in effect.

Stat. Auth.: ORS 184.616, 184.619 & 367.824
Stat. Implemented: ORS 367.800 - 367.824
Hist.: DOT 5-2004, f. & cert. ef. 8-26-04

731-070-0330

ODOT's Authority to Prioritize the Processing of Submitted Proposals in Accordance with ODOT's Assessment of Need and Urgency.

(1) ODOT may, at any time, select any class, category or description of proposal or Transportation Project, including any individual proposal or Project, for the purpose of giving priority to the processing and consideration of unsolicited proposals by issuing a written order that declares that ODOT will give priority to the processing and consideration of unsolicited proposals for certain types of Projects (or to a particular proposal), and describes the class or character of the proposals or Projects (or the particular proposal or Project) that are given priority. The priority order may either specify the term of the priority order, identify the submitted proposals (or proposal) that are subject to the priority order, or provide that the priority order will continue in effect until recalled by a subsequent order of ODOT.

(2) Commencing on the effective date of the order giving priority, ODOT may undertake expedited processing and consideration of unsolicited proposals (or a particular unsolicited proposal) for Transportation Projects of the class, category or description contained in the order. The limited resources of the Department, in such cases, will require either the postponement of, or delay in, the processing and consideration of unsolicited proposals for Projects that are not within a class, category or description that is subject to a priority order.

(3) By submitting an unsolicited proposal, each proposer thereby waives and relinquishes every claim of right, entitlement or expectation that:

(a) Its proposal will enjoy the benefit of a priority order; and

(b) The processing and consideration of its proposal will not be subject to postponement or delay arising out of ODOT's issuance of an order that gives priority to another proposal or to proposals for different classes, categories or descriptions of Projects.

Stat. Auth.: ORS 184.616, 184.619 & 367.824
Stat. Implemented: ORS 367.800 - 367.824
Hist.: DOT 5-2004, f. & cert. ef. 8-26-04

731-070-0350

Discretionary Order Requiring the Prequalification of Proposers - Unsolicited Proposals

(1) ODOT may, at any time, issue a written order that requires any entity that wishes to submit an Unsolicited Proposal to apply for prequalification to submit a proposal. The order must describe the character or class of the Project or Projects, and the size of the Projects in terms of estimated implementation or construction cost, that are subject to the prequalification requirement. The order also must provide that each proposer must be prequalified by ODOT in order to submit a proposal for the kind or kinds of Project described in the order, and that ODOT will reject proposals received for the kind or kinds of Projects described in the order from proposers who are not prequalified.

(2) The prequalification order also shall contain:

(a) The location at which interested entities may obtain prequalification applications, information about prequalification criteria and other related documents, if any; and

(b) The name, title, and address of the person designated to receive the prequalification applications.

(3) Each prequalification application shall be in writing and must substantially comply with the instructions given by ODOT in a prequalification application questionnaire or prequalification form issued by ODOT.

(4) ODOT may establish the criteria used to evaluate prequalification applications in light of the features and demands of the kind or kinds of Project for which prequalification is required as a condition of an entity's ability to submit an Unsolicited Proposal. The criteria may include, but shall not be limited to:

(a) The applicant's financial resources, including:

(A) Bonding capacity;

(B) Solvency; and

(C) Past payment history with employees, suppliers and subcontractors;

(b) The applicant's equipment and technology available to perform the Project, including whether the applicant has or reasonably can obtain, either itself, through subcontractors, or otherwise, all licenses and registrations necessary for use and operation of any technology or equipment involved in the Project, and all licenses and permits necessary to the lawful completion of the Project;

(c) The applicant's key personnel available to work on the Project, including:

(A) The specific capabilities of the applicant and its key personnel, as demonstrated by work on past projects which are comparable in size, nature, and technical and managerial complexity to the Project and to the scope of any construction services that may be required by the Project; and

(B) The identity and experience of the key personnel planned to be assigned to the Project;

(d) The applicant's performance history on other projects or contracts, including the applicant's approach to comparable projects and the planning, phasing and scheduling techniques employed by the applicant in those projects in general, and to the extent possible, particularly as applicable to the kind or kinds of Project for which prequalification is required;

(e) The applicant's safety programs and safety record including, where applicable, evidence of the applicant's experience modifier issued by the Department of Consumer and Business Services, Workers' Compensation Division;

(f) The applicant's experience or ability to provide the services of key persons with experience in design-build projects and similar innovative approaches to project completion;

(g) References from owners, architects and engineers with whom the applicant has worked in the past;

(h) The histories of the applicant and its Major Partners concerning their involvement, within the five years immediately preceding the issuance date of the department's prequalification order (or such shorter period as ODOT may specify in the order), in claims and litigation, including mediated or arbitrated construction claims and governmental administrative proceedings, arising out of past projects or under contracts to which they were parties in which the proceedings exceeded $1,000,000 in liability exposure or claim amount;

(i) Information concerning whether the applicant, any Major Partner, and any key person of either has been, within the five years immediately preceding the issuance date of the department's prequalification order (or such shorter period as ODOT may specify in the order):

(A) Convicted of any criminal offense as an incident in obtaining or attempting to obtain a public or private contract or subcontract, or in the performance of such contract or subcontract;

(B) Convicted under state or federal statutes of embezzlement, theft, forgery, bribery, falsification or destruction of records, receiving stolen property, or any other offense indicating a lack of business integrity or business honesty that currently, seriously and directly affects the person's responsibility as a contractor; or

(C) Convicted or determined to be liable under state or federal antitrust statutes.

(5) ODOT will, after receiving a prequalification application submitted in accordance with section (3) of this rule, notify the applicant whether the applicant is qualified to submit an Unsolicited Proposal for a Project of the kind or kinds described in ODOT's order issued under section (1) of this rule.

(6) If ODOT determines that the applicant is not qualified, ODOT shall provide the applicant written notice of that determination that contains a statement of the reason or reasons for that determination.

(7) An entity that ODOT determines not to be qualified may, within five (5) business days after its receipt of ODOT's written notice of that determination, submit to ODOT a written protest of the decision. The protest must state facts and argument to demonstrate that ODOT's decision was incorrect or constituted an abuse of ODOT's discretion.

(8) If an entity timely submits a protest that complies with section (7) of this rule, ODOT will issue a written decision that resolves the issues raised in the protest. ODOT's written decision under this subsection shall constitute a final order under ORS 183.484.

(9) Unless otherwise specified in ODOT's order issued under section (1) of this rule, an ODOT determination that an applicant is prequalified to submit proposals for any particular kind or kinds of Project shall have an effective term of three years from the date of ODOT's written notice of the determination.

(10) Notwithstanding any specification of a term during which an entity's prequalification is effective, ODOT may terminate or revise an entity's prequalified status upon ODOT's discovery of information that adversely reflects on the applicant's prequalified status. Prior to any termination or adverse revision of an applicant's prequalification, ODOT will provide the applicant written notice of that determination that contains a statement of the reason or reasons for that determination and advise that entity that it may protest the proposed action under section (7) of this rule.

(11) On the written request of an entity that previously has been prequalified for a Project or for kinds of Projects similar in size and character to the kind or kinds of Projects described in the order issued under section (1) of this rule (as determined in the discretion of ODOT), or on the written request of a unit of local government, ODOT may waive the requirement that the entity or unit of local government must submit a prequalification application under this rule.

Stat. Auth.: ORS 184.616, 184.619 & 367.824
Stat. Implemented: ORS 367.800 - 367.824
Hist.: DOT 5-2004, f. & cert. ef. 8-26-04

731-070-0360

Discretionary Notice Requiring the Prequalification of Proposers - Competing Proposals

(1) Prior to furnishing public notice of a request for competing proposals, ODOT may issue written notice that any entity that wishes to submit a competing proposal in response to that request must be prequalified by ODOT. The notice must provide that each proposer must be prequalified by ODOT in order to submit a proposal in response to the particular request for competing proposals, and that ODOT will reject proposals received from proposers who are not prequalified.

(2) ODOT must publish each notice that prequalification is required in the same manner that it issues public notice of a solicitation under OAR 731-070-0260(2). Additionally, each notice shall contain:

(a) The location at which interested entities may obtain prequalification applications, information about prequalification criteria and other related documents, if any;

(b) The date and time by which entities must submit their prequalification applications to ODOT, which generally will be a reasonable time prior to ODOT's issuance of the request for competing proposals, and the location at which they must be filed; and

(c) The name, title, and address of the person designated to receive the prequalification applications.

(3) Each prequalification application shall be in writing and must substantially comply with the instructions given by ODOT in a prequalification application questionnaire or prequalification form issued by ODOT.

(4) ODOT shall establish the criteria used to evaluate prequalification applications prior to the advertised notice of required prequalification. The criteria may include, but need not be limited to:

(a) The applicant's financial resources, including:

(A) Bonding capacity;

(B) Solvency; and

(C) Past payment history with employees, suppliers and subcontractors;

(b) The applicant's equipment and technology available to perform the Project, including whether the applicant has or can reasonably obtain, either itself, through subcontractors, or otherwise, all licenses and registrations necessary for use and operation of any technology or equipment involved in the Project, and all licenses and permits necessary to the lawful completion of the Project;

(c) The applicant's key personnel available to work on the Project, including:

(A) The specific capabilities of the applicant and its key personnel, as demonstrated by work on past projects which are comparable in size, nature, and technical and managerial complexity to the Project and the scope of any construction services that may be required by the Project; and

(B) The identity and experience of the key personnel planned to be assigned to the Project;

(d) The applicant's performance history on other projects or contracts, including the applicant's approach to comparable projects and the planning, phasing and scheduling techniques employed by the applicant on those projects in general, and to the extent possible, particularly as applicable to the kind or kinds of Project for which prequalification is required;

(e) The applicant's safety programs and safety record including, where applicable, evidence of the applicant's experience modifier issued by the Department of Consumer and Business Services, Workers' Compensation Division;

(f) The applicant's experience or ability to provide the services of key persons with experience in design-build projects and similar innovative approaches to project completion;

(g) References from owners, architects and engineers with whom the applicant has worked in the past;

(h) The histories of the applicant and its Major Partners concerning their involvement, within the five years immediately preceding the issuance date of the department's prequalification notice (or such shorter period as ODOT may specify in the notice), in claims and litigation, including mediated or arbitrated construction claims and governmental administrative proceedings, arising out of past projects or under contracts to which they were parties in which the proceedings exceeded $1,000,000 in liability exposure or claim amount;

(i) Information concerning whether the applicant, any Major Partner, and any key person of either has been, within the five years immediately preceding the issuance date of the department's prequalification notice (or such shorter period as ODOT may specify in the notice):

(A) Convicted of any criminal offense as an incident in obtaining or attempting to obtain a public or private contract or subcontract, or in the performance of such contract or subcontract;

(B) Convicted under state or federal statutes of embezzlement, theft, forgery, bribery, falsification or destruction of records, receiving stolen property, or any other offense indicating a lack of business integrity or business honesty that currently, seriously and directly affects the person's responsibility as a contractor;

(C) Convicted or determined to be liable under state or federal antitrust statutes.

(5) ODOT will, after receiving a prequalification application submitted in accordance with section (3) of this rule, notify the applicant whether the applicant is qualified to submit a proposal in response to ODOT's request for competing proposals.

(6) If ODOT determines that the applicant is not qualified, ODOT shall provide the applicant written notice of that determination that contains a statement of the reason or reasons for that determination.

(7) An entity whom ODOT determines not to be qualified may, within five (5) business days after its receipt of ODOT's written notice of that determination, submit to ODOT a written protest of the decision. The protest must state facts and argument to demonstrate that ODOT's decision was incorrect or constituted an abuse of ODOT's discretion.

(8) If an entity timely submits a protest that complies with section (7) of this rule, ODOT will issue a written decision that resolves the issues raised in the protest. ODOT's written decision under this subsection shall constitute a final order under ORS 183.484.

(9) Unless otherwise specified in ODOT's notice issued under section (1) of this rule, an ODOT determination that an applicant is prequalified under this section for the Projects or kinds of Projects specified in the notice shall have an effective term of three years from the date of ODOT's written notice of the determination.

(10) Notwithstanding any specification of a term during which an entity's prequalification is effective, ODOT may terminate or revise an entity's prequalified status upon ODOT's discovery of information that adversely reflects on the applicant's prequalified status. Prior to any termination or adverse revision of an applicant's prequalification, ODOT will provide the applicant written notice of that determination that contains a statement of the reason or reasons for that determination and advise that entity that it may protest the proposed action under section (7) of this rule.

(11) On the written request of an entity that previously has been prequalified for a Project or for kinds of Projects similar in size and character to the Project or kinds of Projects described in the notice issued under section (1) of this rule (as determined in the discretion of ODOT), or on the written request of a unit of local government, ODOT may waive the requirement that the entity or unit of local government must submit a prequalification application under this rule.

Stat. Auth.: ORS 184.616, 184.619 & 367.824
Stat. Implemented: ORS 367.800 - 367.824
Hist.: DOT 5-2004, f. & cert. ef. 8-26-04

EXHIBIT C
PRICE REASONABLENESS PROCESS
OREGON INNOVATIVE PARTNERSHIPS PROGRAM

[to be provided at a later date]

1 Please note that ODOT's Oregon Innovative Partnerships Unit (OIPU) has been delegated responsibility for implementing the OIPP Program and that many of the decisions and actions described in this Work Plan as ODOT responsibilities will in fact be undertaken by OIPU.

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