OAR 137-046-0252: Personnel Employment Disclosure and Preference — State Agency Contracts for Goods or Services

(1) As authorized by ORS 279B.112, a state contracting agency may state, in its Solicitation Documents for a procurement of goods or services, that the state contracting agency will consider, and award a preference based on, personnel deployment disclosures submitted by bidders or proposers in response to the solicitation. (2) A state contracting agency may not reject a bidder or proposer on the ground that it submitted a non-responsive bid or proposal solely due to the bidder’s or proposer’s failure to submit a personnel employment disclosure. However, the state contracting agency may not apply the preference authorized by ORS 279B.112in favor of a bidder or proposer that fails to submit a complete and accurate personnel disclosure form with its bid or proposal on or before the date and time bids or proposals are due. (3) To qualify for the application of the preference under ORS 279B.112, a bidder’s or proposer’s personnel deployment disclosure form must state: (a) The number of workers the bidder or proposer and the bidder’s or proposer’s subcontractors will, if awarded a contract, deploy to perform the overall contract work described in the Solicitation Documents. (b) The number of workers the bidder or proposer and the bidder’s or proposer’s first-tier subcontractors will, if awarded a contract, employ in this state to perform contract work described in the Solicitation Documents. (c) The number of jobs to be held by workers employed by the bidder or proposer and by the bidder’s or proposer’s subcontractors to perform the contract work described in the Solicitation Documents that will be newly created jobs that result from the award of the contract. (d) The duration of the work of any workers (stated in number of work days) who will be employed in this state to perform contract work described in the Solicitation Documents for all workers (including workers of first-tier subcontractors) for whom the work duration will not be as long as the initial term of the contract. (e) The rates of pay of all reported workers (including workers of first-tier subcontractors), described either individually, by position, or by job classification, who will be employed in this state to perform contract work described in the Solicitation Documents. (4) To qualify for the application of the preference under ORS 279B.112, a bidder or proposer must make a promise in its bid or proposal to ensure that the deployment of workers will comply, in terms of worker positions, duration of the work, and the location of the employment of workers, with the personnel deployment disclosure submitted with its bid or proposal. If awarded a contract, a bidder or proposer must commit, in the contract, to ensure that the deployment of workers will comply, in terms of worker positions, duration of the work, and the location of the employment of workers, with the personnel deployment disclosure submitted with its bid or proposal. In the contract, the contractor must agree to pass this obligation to all first-tier subcontractors. (5) A state contracting agency may require a contractor under a contract awarded with the application of the preference under ORS 279B.112 to submit, on a monthly or other periodic basis, the contractor’s certification of its employment of workers and its first-tier subcontractors’ workers) within this state in accordance with the contractor’s personnel deployment disclosure. (6) A state contracting agency may give a preference of not more than ten percent to a bid or proposal that states that the bidder or proposer (and its first-tier subcontractors) will employ more workers within this state than competing bidders or proposers. In determining the bidder or proposer who will employ more workers within this state, the state contracting agency may take the rates of pay and the duration of the work into account by averaging the rates of pay for all disclosed in-state work positions and averaging the duration of the in-state work positions among all disclosed in-state work positions. Before granting the preference to a bid or proposal, the agency must determine that the competing proposals otherwise suit the state agency’s specifications for the procurement equally well. (7) In applying the preference, a state contracting agency must achieve fairness by assigning a standard work-deployment period for each solicitation that does not exceed the duration of the initial term of any contract awarded with the application of the preference, or in project completion-based contracts, does not exceed the probable duration of the project work exclusive of a contractor’s performance of warranty work and maintenance. (8) Where a state contracting agency determines that a personnel deployment disclosure unreasonably or unrealistically overstates the number of workers a bidder or proposer (and first-tier subcontractors) will employ within this state, the state contracting agency may reject the bid or proposal on grounds of bidder or proposer non-responsibility, or in a proposal situation, may deduct proposal evaluation points.