OAR 731-146-0016: Mixed Contracts

(1) Definition. A “Mixed Contract” is a Contract related to a Procurement that will include some combination of Goods, Services, Personal Services, Architectural, Engineering, Photogrammetric Mapping, Transportation Planning, Land Surveying Services or Related Services that is potentially subject to the rules in chapter 731, divisions 147, 148 and 149, which will be classified as a Goods Contract, a Services Contract, a Personal Services Contract, an Architectural, Engineering, Photogrammetric Mapping, Transportation Planning, Land Surveying Services Contract, a Related Services Contract, or other kind of Contract according to the predominant purpose of the Contract. (2) Predominant Purpose. A Mixed Contract’s predominant purpose is determined by whether the majority of the amounts paid or received under the Contract will be for a particular kind of service (Personal Services, Architectural, Engineering, Photogrammetric Mapping, Transportation Planning and Land Surveying Services, Related Services, some other kind of Service) or for Goods. (3) Application of the Mixed Contract Concept. (a) ODOT will process a Mixed Contract using the statutes and rules applicable to the Contract’s predominant purpose. (b) If the majority of the amount to be paid under the Contract is for Architectural, Engineering, Photogrammetric Mapping, Transportation Planning, Land Surveying Services, ODOT shall comply with the requirements of ORS 279C.110 and division 148 of these Rules. If the majority of the amount to be paid under the Contract is for Related Services as defined in ORS 279C.100(8), ODOT shall comply with the requirements of ORS 279C.120 and division 148 of these Rules. (c) Design-build Contracts involve the Procurement of both design and construction services for public improvements under one Contract. Under most circumstances, design-build Contracts are Mixed Contracts with the predominant purpose of construction of the public improvement. If the predominant purpose of the Contract is to obtain Architectural, Engineering, Photogrammetric Mapping, Transportation Planning, Land Surveying Services or Related Services, selection may proceed under ORS 279C.100 through 279C.125 and the OAR 731-148 rules. Otherwise, the selection process will require an exemption from competitive bidding under ORS 279C.335, if non-price factors will be evaluated during the procurement process. If it becomes apparent during the course of a procurement process that a design-build Contract solicited with a predominant purpose to obtain Architectural, Engineering, Photogrammetric Mapping, Transportation Planning, Land Surveying Services or Related Services in fact involves a predominant purpose to obtain construction of a public improvement, ODOT shall cancel the solicitation and proceed using laws and rules applicable to construction of a public improvement.