OAR 137-049-0610: Definitions for Alternative Contracting Methods

The following definitions shall apply to these OAR 137-049-0600 to 137-049-0690 rules, unless the context requires otherwise: (1) Affiliate has the meaning set forth in ORS 279C.332(1). (2) Alternative Contracting Methods means innovative techniques for procuring or performing Public Improvement Contracts, utilizing processes other than the traditional methods involved in the design-bid-build construction contracting method (with Award of a Public Improvement Contract based solely on price, in which a final design is issued with formal Bid documents, construction Work is obtained by sealed Bid Awarded to the Responsible Bidder submitting the lowest Responsive Bid, and the project is built in accordance with those documents). In industry practice, such methods commonly include variations of Design-Build contracting, CM/GC forms of contracting and Energy Performance Contracts, which are specifically addressed in these OAR 137-049-0600 to 137-049-0690 rules. These methods also include other developing techniques, which include but are not limited to general "performance contracting," "cost plus time" contracting (as more particularly described in ORS 279C.332(3)(b)(D)(iii)(I)) and “qualifications plus project approach” contracting (as more particularly described in ORS 279C.332(3)(b)(D)(iii)(II)). Procedural requirements for these methods are identified in these OAR 137-049-0600 to 137-049-0690 rules, when a Contracting Agency uses an Alternative Contracting Method in a procurement that requires an exemption from competitive bidding under ORS 279C.335(2) or in an Energy Performance Contract procurement that is excepted from competitive bidding under ORS 279.335(1)(f). (3) Construction Manager/General Contractor (or "CM/GC") has the meaning set forth in ORS 279C.332(2). (4) Construction Manager/General Contractor Method (or “CM/GC Method”) means the Alternative Contracting Method which involves a Contracting Agency’s selection of a CM/GC to perform CM/GC Services for a project or projects. (5) Construction Manager/General Contractor Services (or “CM/GC Services”) has the meaning set forth in ORS 279C.332(3). (6) Design-Build means a form of Procurement that results in a Public Improvement Contract in which the construction Contractor also provides or obtains specified design services, participates on the project team with the Contracting Agency, and manages both design and construction. In this form of Contract, a single Person provides the Contracting Agency with all of the Personal Services and construction Work necessary to both design and construct the project. (7) Early Work means construction services, construction materials and other Work authorized by the parties to be performed under the CM/GC Contract in advance of the establishment of the GMP, fixed price or other maximum, not-to-exceed price for the project. Permissible Early Work shall be limited to early procurement of materials and supplies, early release of bid or proposal packages for site development and related activities, and any other advance Work related to important components of the project for which performance prior to establishment of the GMP will materially and positively affect the development or completion of the project. (8) Energy Conservation Measures (or "ECMs") (also known as "energy efficiency measures") means, as used in an Energy Performance Contract, any fixture, furnishing, or system to be added to or used in an existing building or structure to meet a need or requirement for: providing guaranteed energy savings or performance; reducing energy consumption, greenhouse gas emissions, waste generation or water consumption; reducing costs related to energy usage and storage, water supply or waste disposal; reducing labor costs and materials costs necessary to repair, replace or maintain energy supply and storage systems, water supply systems or plumbing or waste disposal systems; or increasing renewable energy generation and storage, including renewable energy from thermal energy sources. For purposes of these OAR 137-049-0600 to 137-049-0690 rules, use of either or both of the terms "building" or "structure" shall be deemed to include existing energy, water and waste disposal systems connected or related to or otherwise used for the building or structure when such system(s) are included in the project, either as part of the project together with the building or structure, or when such system(s) are the focus of the project. Maintenance services are not Energy Conservation Measures, for purposes of these 137-049-0600 to 137-049-0690 rules. (9) ECM Design and Implementation means the third phase of the project in an Energy Performance Contract, under which the Qualified Energy Service Company completes any plans and Specifications required to implement the ECMs that have been agreed to, and the Qualified Energy Service Company performs all fabrication, construction, assembly or installation of the ECMs, and provides commissioning, construction administration and related Personal Services or Work for such implementation. (10) Energy Performance Contract (or "EPC") means a Public Improvement Contract between a Contracting Agency and a Qualified Energy Service Company, in which the Qualified Energy Service Company: (a) Identifies and assesses a need or requirement in a public improvement for: Providing guaranteed energy savings or performance through an energy conservation measure; Reducing energy consumption, greenhouse gas emissions, waste generation or water consumption;(iii) Reducing costs related to energy usage and storage, water supply or waste disposal; Reducing labor and materials costs necessary to repair, replace or maintain energy supply and storage systems, water supply systems or plumbing or waste disposal systems; or Increasing renewable energy generation and storage, including renewable energy from thermal energy sources; and (b) Recommends and designs and constructs, including fabrication, assembly or installation, as appropriate, a fixture, furnishing, or system that meets the need or requirement identified in subparagraph (a). In this form of Contract, the Qualified Energy Service Company will provide the Contracting Agency with all of the Personal Services and construction Work necessary to identify, assess, and design and construct, including, fabrication, assembly or installation, as appropriate, the fixture, furnishing or system. (11) General Conditions Work (or “GC Work”) means a general grouping of project Work required to support construction operations on the project that is not included within the Contractor’s overhead or fee. (12) Guaranteed Maximum Price (or "GMP") has the meaning set forth in ORS 279C.332(4), pertaining to procurements for CM/GC Services. For Alternative Contracting Methods other than the CM/GC Method, “Guaranteed Maximum Price” or “GMP” means the total maximum price provided to the Contracting Agency by the Contractor and accepted by the Contracting Agency that includes all reimbursable costs and fees for completion of the Contract Work and any particularly identified contingency amounts, as defined by the Public Improvement Contract. (13) Measurement and Verification (or "M & V") means, as used in an EPC, the examination of installed ECMs using the International Performance Measurement and Verification Protocol ("IPMVP"), or any other comparable protocol or process, to monitor and verify the operation of energy-using systems pre-installation and post-installation. (14) Project Development Plan means a secondary phase of the project under an EPC, under which the Qualified Energy Service Company performs more extensive assessment of the agreed-upon ECMs for the project, including preliminary design, and prepares an overall report or plan summarizing the Qualified Energy Service Company’s Work during this secondary phase of the project and otherwise explaining how the agreed-upon ECMs will be implemented during the design and construction phase (ECM Design and Implementation); The term "Project Development Plan" may also refer to the report or plan provided by the Qualified Energy Service Company at the conclusion of this phase of the project. (15) Qualified Energy Service Company (or "ESCO") means, as used in an Energy Performance Contract, a company, firm or other legal Person that has a demonstrated technical, operational, financial and managerial capability for, and a prior record of success in, identifying and assessing needs for and recommending, designing and constructing, fabricating, assembling or installing fixtures, furnishings or systems that meet the requirements of an energy performance contract, and has developed expertise in measuring and verifying energy use and reductions in energy use, expertise in identifying greenhouse gas emissions and methods for reducing greenhouse gas emissions or expertise in methods of providing savings, reductions or other benefits that an Authorized State Agency may seek through an energy performance contract, and is prequalified by the Oregon Department of Energy pursuant to ORS 276.915(3)(g) and ODOE’s implementing regulations under OAR Division 330, Chapter 130, and listed as an approved Contractor by Oregon Department of Energy, or otherwise meets the standards for prequalification specified by an Authorized State Agency, as defined under ORS 276.905(2). (16) Savings has the meaning set forth in ORS 279C.337(4), pertaining to CM/GC Services procurements. For other Alternative Contracting Methods, “Savings” means a positive difference between a Guaranteed Maximum Price or other maximum not-to-exceed price set forth in a Public Improvement Contract and the actual cost of the Contractor’s performance of the Contract Work payable by the Contracting Agency under the terms of the Contract, including costs for which a Contracting Agency reimburses a Contractor and fees, profits or other payments the Contractor earns. (17) Investment Grade Audit means the initial phase of the project under an Energy Performance Contract, under which the Qualified Energy Service Company provides Personal Services that include a detailed evaluation of an existing building or structure, an evaluation of the potential ECMs that could be effectively utilized at the facility, and preparation of a report to the Contracting Agency of the ESCO's findings; the term "Investment Grade Audit" may also refer to the report provided by the ESCO at the conclusion of this phase of the project.