OAR Chapter 731 — Department of Transportation

Division 1 PROCEDURAL RULES

Or. Admin. R. 731-001-0000 Notice of Proposed Rulemaking

In accordance with ORS 183.341, to provide a reasonable opportunity for interested persons to be notified of proposed actions, prior to the adoption, amendment or repeal of a permanent rule, the Oregon Department of Transportation shall give notice of the proposed adoption, amendment or repeal:

(1) In the Secretary of State’s Bulletin referred to in ORS 183.360 and in accordance with ORS 183.335.

(2) By electronically mailing or mailing notice to persons on the Oregon Department of Transportation mailing lists for specific interest areas established pursuant to ORS 183.335(8).

(3) By electronically mailing notice to legislators as provided in ORS 183.335(15).

History

Statutory/Other Authority: ORS 183.341, 184.616 & 184.619
Statutes/Other Implemented: ORS 183.335 & 183.341
DOT 1-2013, f. & cert. ef. 5-17-13
DOT 4-2003, f. & cert. ef. 12-11-03
DOT 1-1998, f. & cert. ef. 1-28-98
DOT 1-1996, f. & cert. ef. 8-8-96
DOT 1-1994, f. & cert. ef. 3-17-94
DOT 2-1990, f. & cert. ef. 2-26-90
1OTC 67, f. & ef. 1-9-76

Or. Admin. R. 731-001-0005 Model Rules of Procedure

(1) Pursuant to ORS 183.341, the Oregon Transportation Commission adopts the following portions of Oregon Administrative Rules chapter 137, effective January 31, 2012 as the general administrative procedural rules for the Oregon Transportation Commission and the Oregon Department of Transportation: division 1, division 2, division 3, division 4 and division 5, excluding OAR 137-003-0001 through 137-003-0092, and 137-003-0566(1)(e) as described in section (2) of this rule.

(2) Written interrogatories described under OAR 737-003-0566(1)(e) do not apply to contested cases for: Motor Carrier Transportation Division; Driver and Motor Vehicle Services Division; and Highway Division for Access Management and Right-of-Way Relocation Benefits.

[ED. NOTE: The full text of the Attorney General’s Model Rules of Procedure is available from the office of the Attorney General or the Department of Transportation.]

History

Statutory/Other Authority: ORS 183.341, 184.616 & 184.619
Statutes/Other Implemented: ORS 183.341
DOT 4-2012, f. & cert. ef. 7-19-12
DOT 1-2012(Temp), f. & cert. ef. 2-21-12 thru 8-15-12
DOT 1-2011, f. & cert. ef. 5-27-11
DOT 1-2006, f. & cert. ef. 1-24-06
DOT 2-2004, f. & cert. ef. 2-23-04
DOT 1-2002, f. & cert. ef. 1-17-02
DOT 2-2000, f. & cert. ef. 6-8-00
DOT 2-1997, f. & cert. ef. 12-23-97
DOT 2-1995, f. 11-21-95, cert. ef. 1-1-96
DOT 2-1994, f. & cert. ef. 3-17-94
DOT 1-1992, f. & cert. ef. 5-12-92
DOT 4-1990, f. & cert. ef. 8-14-90
DOT 1-1988, f. & cert. ef. 8-22-88
1OTC 3-1986, f. & cert. ef. 4-28-86
1OTC 1-1984, f. & cert. ef. 1-6-84
1OTC 4-1981, f. & cert. ef. 11-24-81
1OTC 7-1980, f. & cert. ef. 3-28-80
1OTC 3-1980(Temp), f. & cert. ef. 1-16-80
1OTC 3-1978, f. & cert. ef. 3-29-78
1OTC 68, f. & cert. ef. 1-23-76
1OTC 3, f. 10-15-73, cert. ef. 11-25-73
1OTC 2, f. & cert. ef. 9-26-73
1OTC 1(Temp), f. & cert. ef. 7-18-73
HC 1276, f. 3-3-72, cert. ef. 3-15-72
HC 1245, f. & cert. ef. 2-12-71
HC 1207, f. & cert. ef. 10-9-69

Or. Admin. R. 731-001-0007 Definitions Which Apply to OAR 731-001-0009

For purposes of 731-001-0009, the following definitions apply:

(1) “Appointee” means a person who has been appointed to the commission by the Governor and has not yet been confirmed by a vote of the Senate pursuant to Oregon Constitution, Article III, Section 4.

(2) “Commission” means the Oregon Transportation Commission established under ORS 184.612.

(3) “Commissioner” means a person who has been appointed to the commission by the Governor and confirmed by the Senate pursuant to Oregon Constitution, Article III, Section 4.

(4) “Conflict” means an actual conflict of interest as defined in ORS 244.020(1) or any action, decision, or recommendation by a commissioner acting in their official capacity on a matter under consideration by the commission the effect of which would be to the benefit or detriment of a beneficiary to whom the commissioner owes a legally imposed duty to act in the best interests of and to whom the commissioner owes the highest degree of loyalty.

(5) “Direct or Indirect Financial Interest” as used in ORS 184.612 means an identifiable, personal pecuniary interest of an appointee that is directly or conditionally affected by the commission’s performance of its duties. It does not include a hypothetical, remote, or attenuated connection to commission projects, contracts, or funding.

(a) “Direct Financial Interest” is an identifiable, personal pecuniary interest of an appointee that would necessarily and inevitably be affected by action on a matter under consideration by the commission at the time of the appointment by the Governor.

(b) “Indirect Financial Interest” is an identifiable, personal pecuniary interest of an appointee that would be conditionally affected by an action on a matter under consideration by the commission at the time of the appointment by the Governor, subject to the occurrence of a reasonably likely and foreseeable intervening event.

(6) “Direct or Indirect Fiduciary Interest” as used in ORS 184.612 means a personal and unimputed fiduciary duty of an appointee that is directly or conditionally implicated by the commission’s performance of its duties.

(a) “Direct Fiduciary Interest” is a personal and unimputed professional or legal obligation of an appointee to a beneficiary which requires the appointee to devote the utmost good faith, trust, confidence, and loyalty to the beneficiary, and which would necessarily and inevitably create an irreconcilable division of loyalty between the appointee’s obligation to the beneficiary and the appointee’s prospective responsibilities as a member of the commission on a matter under consideration by the commission at the time of appointment by the Governor.

(b) “Indirect Fiduciary Interest” is a personal and unimputed professional or legal obligation of an appointee to a beneficiary which requires the appointee to devote the utmost good faith, trust, confidence, and loyalty to the beneficiary, and which would conditionally create an irreconcilable division of loyalty between the appointee’s obligation to the beneficiary and the appointee’s prospective responsibilities as a member of the commission on a matter under consideration by the commission at the time of appointment by the Governor, subject to the occurrence of a reasonably likely and foreseeable intervening event.

History

Statutory/Other Authority: ORS 184.612(3) & 184.619
Statutes/Other Implemented: ORS 184.612(3)
DOT 10-2018, adopt filed 09/20/2018, effective 09/20/2018
DOT 5-2018, temporary adopt filed 06/27/2018, effective 06/27/2018 through 10/19/2018
DOT 3-2018, temporary adopt filed 04/24/2018, effective 04/24/2018 through 10/19/2018

Or. Admin. R. 731-001-0009 Administrative Rules to Implement ORS 184.612(3)

(1) No appointee may have a direct or indirect financial or fiduciary interest at the time of appointmentbythe Governor. A direct or indirect fiduciary interest may be eliminated prior to the Governor’s appointment by the potential appointee resigning the fiduciary role which creates the direct or indirect fiduciary interest, by modifying the scope of the fiduciary role so that it no longer creates a direct or indirect fiduciary interest, or by other action by the appointee.

(2) When a commissioner is met with a conflict, the commissioner shall declare the conflict on the record at a public meeting of the commission and abstain from participating in the commission’s deliberations or voting on the matter giving rise to the conflict.

(3) A commissioner is not required to announce a conflict more than once on the occasion giving rise to the conflict.

(4) The commission may divide an agenda item into separate matters in order to enable a commissioner with a declared conflict to deliberate and vote on those matters for which the commissioner does not have a conflict.

(5) Commission public meeting minutes must record all declarations of conflict made by members of the commission.

(6) The obligations imposed by this rule are in addition to, not in lieu of, obligations that apply to commissioners under the Oregon Government Ethics Law, ORS 244.010 to 244.400.

History

Statutory/Other Authority: ORS 184.612(3) & 184.619
Statutes/Other Implemented: ORS 184.612(3)
DOT 10-2018, adopt filed 09/20/2018, effective 09/20/2018
DOT 5-2018, temporary adopt filed 06/27/2018, effective 06/27/2018 through 10/19/2018
DOT 3-2018, temporary adopt filed 04/24/2018, effective 04/24/2018 through 10/19/2018

Or. Admin. R. 731-001-0025 Public Records Request Requirements and Fees

(1) The Oregon Department of Transportation will disclose all information in its custody unless such information is exempt from disclosure under Chapter 192 of the Oregon Revised Statutes.

(2) As used in this rule, the term “public record” is defined in ORS 192.311(5)(a).

(3) Persons wishing to request public records from the Department shall:

(a) Establish a customer account using the Department’s public records portal found online at https://www.oregon.gov/ODOT/Get-Involved/Pages/Public-Records.aspx and submit their request online; or

(b) Make their request in writing and either mail or hand deliver a written request to PRR Coordinator MS 11, 355 Capitol Street NE, Salem OR 97301.

(4) At a minimum the request must:

(a) Include name and address of the person requesting the public record;

(b) Include the requester’s email address and telephone number; and

(5) Within five business days the Department will acknowledge receipt of a request and state:

(a) Whether the Department believes it has responsive records;

(b) The estimated number of days necessary to provide any responsive records; and

(6) The Department adopts DAS statewide policy 107-001-030 (dated 2-15-17) to calculate fees and to determine whether a request for a fee waiver or reduction meets the public interest thresholds.

(7) Pre-payment of any fees associated with a request may be required by the Department before work begins or, if work has begun, before records are released. The Department shall close any public records request if a requester fails to pay the actual, estimated or reduced fee within 60 days of the date on which the Department informed the requester of the requirement for pre-payment of fees.

(8) Fee waivers or reductions. A request to waive or reduce fees must be submitted along with the request on a separate form provided online by the Department at https://www.oregon.gov/ODOT/Get-Involved/Pages/Public-Records.aspx or mailed along with the request as described in section (3).

(9) Within ten business days after the acknowledgement period or receipt of the estimated fees, when applicable, or upon granting a fee waiver, the Department shall complete the public records request or provide a written statement that the Department is processing the request and a reasonable estimated date by which the Department expects to complete its response based on the information currently available, except as provided in section (10).

(10) Where the time periods in section (5) and section (9) would be impracticable, the Department shall acknowledge a public records request and complete the response to the request as soon as practicable and without unreasonable delay. The time periods in sections (5) and (9) are impracticable when:

(a) The staff necessary to complete a response to the public records request are on leave or are not scheduled to work; or

(b) Compliance would demonstratively impede the Department’s ability to perform other necessary services; or

(11) Electronic Records. Copies of requested electronic records may be provided in the format or manner maintained by the Department. The Department will perform all downloading, reproducing, formatting and manipulating of records.

(12) A requester who believes there has been an unreasonable delay or denial of access to a public record, or unreasonable denial of a fee waiver or fee reduction may petition the Attorney General to review the record to determine if the agency acted appropriately. Petitions may be filed online at https://www.doj.state.or.us/oregon-department-of-justice/public-records/petition-for-public-records-order/.

(13) Provisions in this rule do not apply to records held by the Driver and Motor Vehicle Services Division of the Department of Transportation. DMV public records rules are in OAR chapter 735, division 10.

History

Statutory/Other Authority: ORS 184.619 & 192.318
Statutes/Other Implemented: ORS 192.314 - 192.338
DOT 1-2025, amend filed 01/16/2025, effective 01/16/2025
DOT 11-2018, minor correction filed 11/05/2018, effective 11/05/2018
DOT 3-2017, amend filed 11/17/2017, effective 11/17/2017
DOT 1-2017(Temp), f. & cert. ef. 5-25-17 thru 11-17-17
DOT 6-2007, f. & cert. ef. 12-24-07
DOT 2-2006, f. & cert. ef. 1-24-06
DOT 1-1995, f. & cert. ef. 1-6-95

Or. Admin. R. 731-001-0720 Confidentiality and Inadmissibility of Mediation Communications

Pursuant to ORS 36.224, the Department of Transportation adopts by reference OAR 137-005-0052, as adopted by the Attorney General of the State of Oregon, effective October 3, 2023.

History

Statutory/Other Authority: ORS 36.224 & 184.619
Statutes/Other Implemented: ORS 36.224, 36.228, 36.230 & 36.232
DOT 3-2023, amend filed 10/03/2023, effective 10/03/2023
DOT 2-2023, amend filed 10/03/2023, effective 10/03/2023
DOT 3-2007, f. & cert. ef. 3-26-07

Or. Admin. R. 731-001-0730 Confidentiality and Inadmissibility of Workplace Interpersonal Dispute Mediation Communications

(1) This rule applies to workplace interpersonal disputes, which are disputes involving the interpersonal relationships between this agency's employees, officials or employees and officials. This rule does not apply to disputes involving the negotiation of labor contracts or matters about which a formal grievance under a labor contract, a tort claim notice or a lawsuit has been filed.

(2) The words and phrases used in this rule have the same meaning as given to them in ORS 36.110 and 36.234.

(3) Nothing in this rule affects any confidentiality created by other law.

(4) To the extent mediation communications would otherwise be compromise negotiations under ORS 40.190 (OEC Rule 408), those mediation communications are not admissible as provided in ORS 40.190 (OEC Rule 408), notwithstanding any provisions to the contrary in section (9) of this rule.

(5) Disclosures by Mediator. A mediator may not disclose or be compelled to disclose mediation communications in a mediation and, if disclosed, such communications may not be introduced into evidence in any subsequent administrative, judicial or arbitration proceeding unless:

(a) All the parties to the mediation and the mediator agree in writing to the disclosure; or

(b) The mediation communication may be disclosed or introduced into evidence in a subsequent proceeding as provided in subsections (c) or (h)–(j) of section (7) of this rule.

(6) Confidentiality and Inadmissibility of Mediation Communications. Except as provided in section (7) of this rule, mediation communications in mediations involving workplace interpersonal disputes are confidential and may not be disclosed to any other person, are not admissible in any subsequent administrative, judicial or arbitration proceeding and may not be disclosed during testimony in, or during any discovery conducted as part of a subsequent proceeding, or introduced into evidence by the parties or the mediator in any subsequent proceeding so long as:

(a) The parties to the mediation and the agency have agreed in writing to the confidentiality of the mediation; and

(b) The person agreeing to the confidentiality of the mediation on behalf of the agency:

(A) Is neither a party to the dispute nor the mediator; and

(B) Is designated by the agency to authorize confidentiality for the mediation; and

(C) Is at the same or higher level in the agency than any of the parties to the mediation or who is a person with responsibility for human resources or personnel matters in the agency, unless the agency head or member of the governing board is one of the persons involved in the interpersonal dispute, in which case the Governor or the Governor's designee.

(7) Exceptions to confidentiality and inadmissibility.

(a) Any statements, memoranda, work products, documents and other materials, otherwise subject to discovery that were not prepared specifically for use in the mediation are not confidential and may be disclosed or introduced into evidence in a subsequent proceeding;

(b) Any mediation communications that are public records, as defined in ORS 192.410(4), and were not specifically prepared for use in the mediation are not confidential and may be disclosed or introduced into evidence in a subsequent proceeding unless the substance of the communication is confidential or privileged under state or federal law;

(c) A mediation communication is not confidential and may be disclosed by any person receiving the communication to the extent that person reasonably believes that disclosing the communication is necessary to prevent the commission of a crime that is likely to result in death or bodily injury to any person. A mediation communication is not confidential and may be disclosed in a subsequent proceeding to the extent its disclosure may further the investigation or prosecution of a felony crime involving physical violence to a person;

(d) The parties to the mediation may agree in writing that all or part of the mediation communications are not confidential or that all or part of the mediation communications may be disclosed and may be introduced into evidence in a subsequent proceeding unless the substance of the communication is confidential, privileged or otherwise prohibited from disclosure under state or federal law;

(e) A party to the mediation may disclose confidential mediation communications to a person if the party's communication with that person is privileged under ORS Chapter 40 or other provision of law. A party to the mediation may disclose confidential mediation communications to a person for the purpose of obtaining advice concerning the subject matter of the mediation, if all the parties agree;

(f) A written mediation communication may be disclosed or introduced as evidence in a subsequent proceeding at the discretion of the party who prepared the communication so long as the communication is not otherwise confidential under state or federal law and does not contain confidential information from the mediator or another party who does not agree to the disclosure;

(g) In any proceeding to enforce, modify or set aside a mediation agreement, a party to the mediation may disclose mediation communications and such communications may be introduced as evidence to the extent necessary to prosecute or defend the matter. At the request of a party, the court may seal any part of the record of the proceeding to prevent further disclosure of mediation communications or agreements to persons other than the parties to the agreement;

(h) In an action for damages or other relief between a party to the mediation and a mediator or mediation program, mediation communications are not confidential and may be disclosed and may be introduced as evidence to the extent necessary to prosecute or defend the matter. At the request of a party, the court may seal any part of the record of the proceeding to prevent further disclosure of the mediation communications or agreements;

(i) To the extent a mediation communication contains information the substance of which is required to be disclosed by Oregon statute, other than ORS 192.410 to 192.505, that portion of the communication may be disclosed as required by statute;

(j) The mediator may report the disposition of a mediation to the agency at the conclusion of the mediation so long as the report does not disclose specific confidential mediation communications. The agency or the mediator may use or disclose confidential mediation communications for research, training or educational purposes, subject to the provisions of ORS 36.232(4).

(8) The terms of any agreement arising out of the mediation of a workplace interpersonal dispute are confidential so long as the parties and the agency so agree in writing. Any term of an agreement that requires an expenditure of public funds, other than expenditures of $1,000 or less for employee training, employee counseling or purchases of equipment that remain the property of the agency, may not be made confidential.

(9) When a mediation is subject to section (6) of this rule, the agency will provide to all parties to the mediation and to the mediator a copy of this rule or an explanation of where a copy of the rule may be obtained. Violation of this provision does not waive confidentiality or inadmissibility.

History

Statutory/Other Authority: ORS 36.224, 184.616 & 184.619
Statutes/Other Implemented: ORS 36.230(4)
DOT 3-2007, f. & cert. ef. 3-26-07

Division 3 INTERAGENCY SERVICES

Or. Admin. R. 731-003-0005 Provision of Business Services to Department of Aviation

(1) Oregon Laws 2011, chapter 630, requires the Department of Transportation to provide the following services to the Department of Aviation, and requires the Department of Aviation to abide by all rules adopted by the Department of Transportation related to the following services:

(a) Budget preparation services;

(b) Daily processing for accounts payable, accounts receivable, payroll, receipts and disbursements;

(d) Financial management reports and revenue and expenditure projections;

(e) Purchasing, leasing and contracting services;

(f) Internal audit services;

(g) Computer and information system services; and

(h) Human resource services.

(2) The most current Department of Transportation administrative rules related to the services identified in section (1) apply to the Department of Aviation, including but not limited to OAR Chapter 731, Divisions 146, 147, 148 and 149.

(3) The most current Department of Transportation policies and procedures related to the services identified in section (1) apply to the Department of Aviation.

(4) The Financial Administration and Standards Manual applies to the Department of Aviation.

(5) For purposes of providing the services identified in section (1) the Department of Aviation shall be treated the same as a division of the Department of Transportation in applying applicable rules, policies and procedures.

(6) The Department of Transportation and Department of Aviation shall enter into an interagency agreement to address additional administration and implementation issues related to providing the services identified in section (1), and to establish the fee for providing those services and payment thereof.

History

Statutory/Other Authority: ORS 184.616, 184.619 & Ch. 630 & OL 2011
Statutes/Other Implemented: Ch. 630 & OL 2011
DOT 2-2012, f. & cert. ef. 3-21-12
DOT 2-2011(Temp), f. & cert. ef. 9-30-11 thru 3-21-12

Division 5 PUBLIC CONTRACT RULES; HIGHWAY AND BRIDGE PROJECTS

Or. Admin. R. 731-005-0420 Applicability

(1) OAR 731-005-0410 through 731-005-0770 apply to Highway Construction Contracts, , unless an exemption to use an Alternative Contracting Delivery and Selection Method has been granted in accordance with 279C.335. Highway Construction Contracts delivered through an Alternative Contracting Delivery and Selection Method are subject to (2) below.

(2) Alternative Contracting Delivery and Selection Methods: OAR 137-049-0610 through 137-049-0690 related to Alternative Contracting Methods for Public Improvement Contracts are adopted to apply to Highway Construction Contracts subject to an Alternative Contracting Delivery and Selection Method exemption. Per ORS 279C.337, construction manager/general contractor services shall be procured in accordance with the model rules the Attorney General adopts under ORS 279A.065 (3) as may be updated from time to time (see OAR 137-049-0690 et al); therefore, OAR 137-049-0610 through 137-049-0690 applicable to procurements of construction manager/general contractor services adopted pursuant to ORS 279A.065(3) and ORS 279C.337(1), are directly applicable to the Oregon Department of Transportation and are not separately adopted herein.

(3) All other ODOT Public Improvement Contracts not included in (1) or (2) above are governed by OAR chapter 731, division 149, and are exempt from these OAR chapter 731, division 5 and division 7 rules.

(4) The Oregon Department of Transportation adopts DOJ Model Rule 137-049-0360 First-Tier Subcontractors; Disclosure and Substitution.

History

Statutory/Other Authority: ORS 184.619, 279A.050 & 279A.065
Statutes/Other Implemented: ORS 279A & 279C
DOT 1-2024, amend filed 05/09/2024, effective 06/01/2024
DOT 6-2022, amend filed 05/24/2022, effective 05/24/2022
DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

Or. Admin. R. 731-005-0430 Definitions

(1) Addendum or Addenda: An addition or deletion to, a material change in, or general interest explanation of the Solicitation Document. Addenda shall be labeled as such and distributed to all interested entities in accordance with these rules.

(2) Alternative Contracting Delivery and Selection Method: A delivery method other than the conventional method of design-bid-build, such as variations of Design/Build, CM/GC, ID/IQ and similar and forms of contracting. The use of an Alternative Contracting Method is an exception to ORS 279C.300 and is subject to the exemption process as set forth in ORS 279C.335 and OAR 137-049-0620 and related rules.

(3) Bid: A competitive Offer, binding on the Bidder and submitted in response to an Invitation to Bid (ITB):

(a) Lump Sum Bid: A Bid that is the total completed project price;

(b) Unit Price Bid: A Bid that provides unit prices based upon estimated quantities.

(4) Bidder: An Entity that submits a Bid in response to an ITB.

(5) Closing: The date and time announced in the Solicitation Document as the deadline for submitting Offers.

(6) Certified Firm: A company that possess one or more current, valid certification(s) from the Oregon Certification Office for Business Inclusion and Diversity.

(7) Conduct Disqualification: A Disqualification pursuant to ORS 279C.440.

(8) Contract: The Written agreement, resulting from the Solicitation Document that defines the Work to be completed and sets forth the rights and obligations of the parties.

(9) Contract Amount: Sum of the amounts computed by multiplying the Bid item quantities by the unit price in the schedule of Contract prices of the Contract as awarded.

(10) Contract Price: The total of the awarded Bid amount, including any approved alternates, and any fully executed change orders or amendments.

(11) Contract Review Authority: The Director of the Oregon Department of Transportation.

(12) Contractor: The Entity awarded the Contract in response to the Solicitation Document.

(13) DAS: Oregon Department of Administrative Services.

(14) Days: Calendar days unless otherwise specified by these rules.

(15) DBE Disqualification: A Disqualification pursuant to ORS 200.065, 200.075 or 279A.110.

(16) Descriptive Literature: The Offeror's materials submitted to provide information concerning the products and/or services available in response to the Solicitation Document.

(17) Disqualification: The preclusion of an Entity from contracting with ODOT for a period of time. Disqualification may be a Conduct Disqualification as defined above, performance disqualification for failure to meet standards listed in OAR 734-010-0290(4), DBE Disqualification or disqualification for lack of specific demonstrated experience (special prequalification as described in OAR 731-007-0520(2)). ODOT is authorized to disqualify an Entity in accordance with OAR 731-005-0710.

(18) Electronic Advertisement: ODOT’s Solicitation Document, or other document inviting participation in ODOT’s procurements made available over the Internet via:

(a) The World Wide Web or some other Internet protocol; or

(b) ODOT’s Electronic Procurement System.

(19) Electronic Data Interchange Operating Agreement or EDI Operating Agreement: A series of standards that provide computer to computer exchange of business documents between organizations over telephone lines or computer networks. An EDI document is a document that has been transmitted pursuant to an EDI Operating Agreement.

(20) Electronic Offer: A response to ODOT’s Solicitation Document submitted to ODOT via:

(a) The World Wide Web or some other Internet protocol; or

(b) ODOT’s Electronic Procurement System.

(21) Electronic Procurement System or Electronic Procurement: An information system that persons may access through the Internet using the World Wide Web or some other Internet protocol or that persons may otherwise remotely access using a computer, that enables persons to send Electronic Offers and ODOT to post Electronic Advertisements, receive Electronic Offers, and conduct other activities related to a procurement.

(22) Emergency: Circumstances that could not have been reasonably foreseen, and that create a substantial risk of loss, damage, interruption of services, or threat to public health or safety with regard to a public improvement.

(23) Entity: A natural person capable of being legally bound, sole proprietorship, limited liability company, corporation, partnership, limited liability partnership, limited partnership, profit and nonprofit unincorporated association, business trust, two or more persons having a joint or common economic interest, or any other person with legal capacity to contract, or a government or governmental subdivision.

(24) Exempted Selection Method: A selection method other than the Low Bid method, such as cost plus multiparameter (time, qualifications, approach, and/or means and methods) and other similar forms of selection. Use of an Exempted Selection Method does not result in an Alternative Contracting Delivery Method. The use of an Exempted Selection Method is an exception to ORS 279C.300 and is subject to the exemption process as set forth in ORS 279C.335.

(25) Highway Construction Contract. A Public Improvement Contract governed by OAR 731, divisions 5 and 7, and that is approved by the Oregon Transportation Commission in the Statewide Transportation Improvement Program.

(26) Invitation to Bid or ITB: A notice to Contractors disseminating information pertaining to bidding of Public Improvement projects including availability of Solicitation Documents.

(27) Non-Resident Contractor: A Contractor that is not domiciled in or registered to do business in the State of Oregon. See OAR 731-005-0750.

(28) Non-Road Diesel Equipment: Equipment used in the course of performing a public improvement contract, powered by a compression ignition diesel engine of 25 horsepower or more that is not designed primarily to propel a motor vehicle on public highways.

(29) ODOT: The Oregon Department of Transportation.

(30) Offer: A Bid.

(31) Offeror: A Bidder.

(32) Opening: The date, time and place announced in the Solicitation Document for the public Opening of Written sealed Offers or Electronic Offers.

(33) Product Sample: A representative specimen of the item offered by the Offeror in response to the Solicitation Document. Unless otherwise provided in the Solicitation Document, the Product Sample shall be the exact product or a representative portion of that product offered by the Offeror.

(34) Project Site: The geographic dimensions of the real property, not including any improvements or fixtures, on which the Work is to be performed, including designated contiguous staging areas.

(35) Public Improvement: Projects relating to maintenance or construction of highways, bridges, parks or other transportation facilities by or for ODOT. "Public improvement" does not include emergency Work, minor alteration, ordinary repair or maintenance necessary in order to preserve a Public Improvement.

(36) Region Construction Contract: Public Improvement Contract not governed by OAR chapter 731, divisions 5 and 7. Region Construction Contracts are governed by chapter 731, division 149. Region Construction Contracts also include procurements in support of Highway Construction Contracts.

(37) Responsible Offeror (also, Responsible Bidder): Is an Entity that has submitted an Offer and meets the standards set forth in OAR 731-005-0670(1)(c)(H) and that has not been disqualified by ODOT under OAR 731-005-0710.

(38) Responsive Offer (also, Responsive Bid): An Offer that substantially complies with applicable solicitation procedures and requirements and the Solicitation Document.

(39) Signed or Signature: Any mark, word or symbol executed or adopted by an Entity evidencing intent to be bound, which may include electronic or digital signature.

(40) Solicitation Document: Documents that define the procurement of a Public Improvement project including but not limited to Bid booklet, plans, Specifications, requirements, provisions and includes all documents incorporated by reference.

(41) Specification: Any description of the physical or functional characteristics, or of the nature of a supply, service or construction item, including any requirement for inspecting, testing, or preparing a supply, service, or construction item for delivery and the quantities or qualities of materials to be furnished under the Contract. Specifications generally will state the result to be obtained and may, on occasion, describe the method and manner of doing the Work to be performed.

(42) Tie Offers: Tie Offers shall have the meaning set forth in OAR 731-005-0660.

(43) Tier 4 Exhaust Emission Standard: The Tier 4 compression ignition diesel engine emission standard established by the United States Environmental Protection Agency in 40 CFR 89.112.

(44) Verified Diesel Oxidation Catalyst: A diesel oxidation catalyst verified by the United States Environmental Protection Agency under 40 CFR 89.112 for Non-Road Diesel Equipment.

(45) Verified Diesel Particulate Filter: A diesel particulate filter verified by the United States Environmental Protection Agency under 40 CFR 89.112 for Non-Road Diesel Equipment.

(46) Work: The furnishing of all materials, equipment, labor, and incidentals necessary for the successful completion of any individual item or the entire Contract and for the successful completion of all duties and obligations imposed by the Contract.

(47) Written or Writing: Conventional paper documents either manuscript or printed, in contrast to spoken words. It includes electronic transmissions if the Solicitation Document or Contract permits.

History

Statutory/Other Authority: ORS 184.619, 279A.050 & 279A.065
Statutes/Other Implemented: ORS 279A & 279C
DOT 1-2024, amend filed 05/09/2024, effective 06/01/2024
DOT 6-2022, amend filed 05/24/2022, effective 05/24/2022
DOT 2-2022, amend filed 01/25/2022, effective 01/25/2022
DOT 4-2018, amend filed 04/26/2018, effective 04/26/2018
DOT 4-2007, f. & cert. ef. 5-23-07
DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

Or. Admin. R. 731-005-0440 Competitive Procurement

(1) Generally. In accordance with ORS 279C.300, ODOT shall procure its Public Improvements by an ITB except as otherwise allowed or required in ORS 279A.025, 279A.100, 279A.105, 279A.120(2), 279A.125, 279C.335, or 282.210. It is the policy of the State of Oregon to encourage open and impartial competition in public contracting. ODOT must make every effort to construct Public Improvements at the least cost to ODOT.

(2) Exempted Selection Method. ORS Chapter 279C requires a competitive bidding process for Highway Construction Contracts unless a statutory exception applies, a class of Contracts has been exempted or an individual Contract has been exempted in accordance with ORS 279C.335 and any applicable DAS rules. If Agency has received an Exemption from competitive bidding in accordance with ORS 279C.335, Agency shall procure that Public Improvement in accordance with the approved Exempted Selection Method as set forth in the Exemption Order and its Findings in lieu of the requirements set forth in OAR 731-005-0650 OAR 731-005-0659. The Exempted Selection Method requirements set forth in this Division 5 is not applicable to selection and delivery of Alternative Contracting projects, which is governed by 731-005-0420(2).

(a) OAR Chapter 731, Division 7 Prequalification requirements and any associated OAR Chapter 731, Division 5 rules implementing Prequalification requirements do not apply to projects procured pursuant to an Exempted Selection Method.

(b) Post-Project Evaluation. In accordance with ORS 279C355, ODOT shall complete the required post-project evaluation of public improvement projects not contracted by competitive bidding.

(3) Federal Provisions. If federal funds are involved, in accordance with ORS 279A.030, federal laws, rules and regulations shall govern the provisions of these rules in the event of conflict.

History

Statutory/Other Authority: ORS 184.619, 279A.050 & 279A.065
Statutes/Other Implemented: ORS 279A.065 & 279C.335
DOT 1-2024, amend filed 05/09/2024, effective 06/01/2024
DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

Or. Admin. R. 731-005-0460 Eligibility to Bid on Construction or Landscape Contracts

(1) Construction Contracts. ODOT shall not consider an Entity's Offer to do Work as a Contractor, as defined in ORS 701.005(2), unless the Entity has a current, valid certificate of registration issued by the Construction Contractors Board. Registration is not a requirement of bidding on federal funded projects.

(2) Landscape Contracts. ODOT shall not consider an Entity's Offer to do Work as a landscape Contractor as defined in ORS 671.520(2), unless the Entity has a current, valid landscape Contractor's license issued pursuant to ORS 671.560 by the State Landscape Contractors Board. Registration is not a requirement of bidding on federal funded projects.

(3) Noncomplying Entities. ODOT shall deem an Offer received from an Entity that fails to comply with this rule nonresponsive and shall reject the Offer, unless contrary to federal law.

History

Statutory/Other Authority: ORS 184.619, 279A.050 & 279A.065
Statutes/Other Implemented: ORS 279C.365, 671.530 & 701.055
DOT 1-2024, amend filed 05/09/2024, effective 06/01/2024
DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

Or. Admin. R. 731-005-0470 Solicitation Documents

The Solicitation Documents shall include the following:

(1) General Information:

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

(A) The time, date and location of any pre-Bid 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 Offerors must be prequalified if prequalification is a requirement;

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

(d) Instructions and information concerning submission requirements including the address of the office to which Bids must be delivered and any other special information, e.g., whether Bids may be submitted by Electronic Data Interchange or Electronic Procurement (See OAR 731-005-0500, 731-005-0505 and 731-005-0510 for required provisions for Electronic Data Interchange or Electronic Procurement);

(e) The time, date and place of Opening;

(f) The time and date of Closing after which ODOT will not accept Bids, which time shall be not less than 5 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 14 Days for an ITB unless ODOT finds a shorter interval is in the public’s interest. If ODOT is issuing an ITB that may result in a Contract for a Public Improvement with a value in excess of $75,000, ODOT shall not designate a time of Closing that falls when ODOT is closed to the public or after 12:00 p.m. on Friday; for timing issues relating to Addenda see OAR 731-005-0580(3);

(g) The form and submission of Bids and any information required therein, including Bid security, if any;

(h) The office where the plans and Specifications for the Work or goods may be reviewed;

(i) A statement that each Bidder must identify whether the Bidder is a Resident bidder, as defined in ORS 279A.120;

(j) If the Contract resulting from a Solicitation will be a Contract for a Public Work subject to ORS 279C.800 to 279C.870 or the Davis-Bacon Act (40 U.S.C. 276a), a statement that no Bid will be received or considered by ODOT unless the Bid contains a statement by the Bid as a part of its Offer that “Contractor agrees to be bound by and will comply with the provisions of ORS 279C.830 or 40 U.S.C. 276a;”

(k) If the Work so requires, a statement that ODOT will not receive or consider a Bid from a Bidder that is not registered with the Construction Contractors Board or is not licensed by the State Landscape Contractors Board as required by ORS 671.530;

(L) Whether a Contractor or a subcontractor under the Contract must be licensed for asbestos abatement by the Department of Environmental Quality under ORS 468A.720;

(m) Contractor’s certification of nondiscrimination in obtaining required subcontractors in accordance with ORS 279A.110. (See OAR 731-005-0670(3));

(n) How ODOT will notify Bidders of Addenda and how ODOT will make Addenda available. See OAR 731-005-0580.

(o) A statement that the contracting agency may reject a Bid that does not comply with prescribed public contracting procedures and requirements, including the requirement to demonstrate the bidder’s responsibility under ORS 279C.375 (3)(b), and that the contracting agency may reject for good cause all bids after finding that doing so is in the public interest;

(p) As applicable, the advertisement must comply the domestic preference (Buy America) requirements set forth in ORS 279C.303; and

(q) If designated a Community Benefit Contract, the advertisement must contain the requirements set forth in ORS 279C.308 and OAR 731-005-0900.

(2) Agency Need. The character of the Work or goods ODOT is purchasing including, if applicable, a description of the acquisition, Specifications, delivery or performance schedule, inspection and acceptance requirements;

(3) Terms and Conditions. ODOT shall include all Contract terms and conditions, including warranties and bonding requirements, ODOT considers necessary. Without limiting the preceding sentence, ODOT must include all applicable Contract provisions required by ORS 279C.500 through 279C.870 as follows:

(a) Payment of all Persons furnishing labor or material, contributions to Industrial Accident Fund, liens and withholding taxes (ORS 279C.505);

(b) If the Contract is for a Public Improvement, a condition that the Contractor shall demonstrate it has established a drug-testing program for its employees;

(c) If the Contract calls for demolition Work described in ORS 279C.510, a condition requiring the Contractor to salvage or recycle construction and demolition debris, if feasible and cost-effective;

(d) If the Contract calls for lawn or landscape maintenance, a condition requiring the Contractor to compost or mulch yard waste material at an approved site, if feasible and cost effective (ORS 279C.510);

(e) Payment of claims by public officers (ORS 279C.515);

(f) Contractor and first-tier subcontractor liability for late payment on Public Improvement Contracts pursuant to ORS 279C.515;

(g) A Person’s right to file a complaint with the Construction Contractors Board for all Contracts related to a Public Improvement Contract (ORS 279C.515);

(h) Hours of labor in compliance with ORS 279C.520 and 279C.540;

(i) Environmental and natural resources regulations (ORS 279C.525);

(j) Payment for medical care and providing workers’ compensation (ORS 279C.530);

(k) Maximum hours and overtime (ORS 279C.540);

(L) Claims for overtime (ORS 279C.545);

(m) Prevailing wage rates (ORS 279C.800 to 279C.870);

(n) Retainage (ORS 279C.550 through 279C.570);

(o) Prompt payment policy (ORS 279C.570);

(p) Contractor’s relations with subcontractors (ORS 279C.580);

(q) Notice of claim (ORS 279C.605);

(r) With respect to state Agencies, provisions regarding use of recovered resources and recycled materials and to the extent economically feasible, use of recycled paper and PETE products (ORS 279A.150 and 279A.155);

(s) Contractor’s certification of compliance with the Oregon tax laws in accordance with ORS 305.385;

(t) A Contract provision substantially as follows: “All employers, including Contractor, that employ subject workers who work under this Contract in the State of Oregon shall comply with ORS 656.017 and provide the required Workers’ Compensation coverage, unless such employers are exempt under ORS 656.126. Contractor shall ensure that each of its subcontractors complies with these requirements.” (ORS 279C.530);

(u) Contractor’s certification that all subcontractors performing Work described in ORS 701.005 (i.e., construction Work) will be registered with the Construction Contractors Board or licensed by the State Landscape Contractors Board (as applicable) before the subcontractors commence Work under the Contract;

(v) Price escalation and de-escalation Contract Provision relating to steel materials. As used in this paragraph, steel material includes any steel products used for and permanently incorporated in the construction, reconstruction or major renovation of a road or highway. Escalation and de-escalation relate to and shall be applied to the raw steel in the steel materials listed in the Contract Provision.

(w) As applicable, comply with the requirements set forth in ORS 279C.303 regarding domestic preference (Buy America);

(x) For any designated Community Benefit Contracts, the contractual provisions required by ORS 279C.308 and OAR 731-005-0900;

(y) 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 ORS 279A.120 to 279A.155;

(z) Unless otherwise provided in the Contract, the Contractor shall not assign, sell, dispose of, transfer rights, or 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;

(aa) As applicable, provisions that meet the requirements of ORS 279C.533 for apprenticeship employment, aspirational targets, and outreach, recruitment and retention planning; and

(bb) As applicable, comply with the requirements for submission of an Environmental Product Declaration required by ORS 184.879 and OAR 731-005-0910.

History

Statutory/Other Authority: ORS 184.619, 279A.050 & 279A.065
Statutes/Other Implemented: ORS 184.879, 279A.030, 279A.120, 279C.300, 279C.345, 279C.365, 279C.375, 279C.390, 279C.500 - 279C.870, 305.385, 701.005 & 701.055
DOT 8-2024, amend filed 12/05/2024, effective 12/05/2024
DOT 1-2024, amend filed 05/09/2024, effective 06/01/2024
DOT 6-2022, amend filed 05/24/2022, effective 05/24/2022
DOT 4-2018, amend filed 04/26/2018, effective 04/26/2018
DOT 1-2010, f. & cert. ef. 5-18-10
DOT 5-2009(Temp), f. 12-22-09, cert. ef. 1-1-10 thru 6-30-10
DOT 4-2007, f. & cert. ef. 5-23-07
DOT 4-2006, f. & cert. ef. 2-16-06
DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

Or. Admin. R. 731-005-0480 Brand Name Products

(1) Generally. ODOT's Solicitation Document shall not expressly or implicitly require any product by brand name or mark, nor shall it require the product of any particular manufacturer or seller, except pursuant to an exemption granted under ORS 279C.345.

(2) Equivalents. ODOT may identify products by brand names as long as the following language: "approved equal," "or equal," "approved equivalent," "or equivalent" or similar language is included in the Solicitation Document. ODOT shall determine, at its sole discretion, whether an Offeror's alternate product is "equal" or "equivalent."

History

Statutory/Other Authority: ORS 184.619, 279A.050 & 279A.065
Statutes/Other Implemented: ORS 279C.345
DOT 4-2018, amend filed 04/26/2018, effective 04/26/2018
DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

Or. Admin. R. 731-005-0490 Bids Are Offers

(1) Offer and Acceptance. The Bid is the Bidder's Offer to enter into a Contract. The Offer is a "Firm Offer," i.e., the Offer shall be held open by the Offeror for ODOT's acceptance for the period specified in OAR 731-005-0630. ODOT's award of the Contract constitutes acceptance of the Offer and binds the Offeror to the Contract.

(2) Responsive Offer. ODOT may award a Contract only to a Responsible Offeror with a Responsive Offer.

(3) Contingent Offers. Except to the extent the Offeror is authorized to propose certain terms and conditions pursuant to OAR 731-005-0470 and 731-005-0650, an Offeror shall not make its Offer contingent upon ODOT's acceptance of any terms or conditions (including Specifications) other than those contained in the Solicitation Document.

(4) Offeror's Acknowledgement. By signing and returning the Offer, the Offeror acknowledges it has read and understands the terms and conditions contained in the Solicitation Document and that it accepts and agrees to be bound by the terms and conditions of the Solicitation Document.

History

Statutory/Other Authority: ORS 184.619, 279A.050 & 279A.065
Statutes/Other Implemented: ORS 279C.375, 279C.395 & 279C.440
DOT 1-2024, amend filed 05/09/2024, effective 06/01/2024
DOT 4-2018, amend filed 04/26/2018, effective 04/26/2018
DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

Or. Admin. R. 731-005-0505 Electronic Procurement

(1) General. ODOT may use Electronic Advertisement of Highway Construction Contracts in accordance with ORS 279C.360, provided that advertisements of such Contracts with an estimated Contract Price in excess of $125,000 are also published in a trade newspaper of general statewide circulation. ODOT may post notices of intent to award electronically as provided by ORS 279C.410.

(2) Alternative Procedures. In the event that ODOT desires to direct or permit the submission and receipt of Offers for a Public Improvement Contract by electronic means, as allowed under ORS 279C.365, it shall first promulgate supporting procedures substantially in conformance with OAR chapter 731 division 5, taking into account ORS Chapter 279C requirements for Written Bids, opening Bids publicly, Bid security, first-tier subcontractor disclosure and inclusion of prevailing wage rates.

(3) Interpretation. Nothing in this rule shall be construed as prohibiting ODOT from making procurement documents for Highway Construction Contracts available in electronic format as well as in hard copy when Bids are to be submitted only in hard copy.

(4) Electronic Procurement Authorized:

(a) ODOT may conduct all phases of a Procurement, including without limitation the posting of Electronic Advertisements and the receipt of Electronic Offers, by electronic methods if and to the extent ODOT specifies in a Solicitation Document, or any other Written instructions on how to participate in the Procurement;

(b) ODOT shall open an Electronic Offer in accordance with electronic security measures in effect at ODOT at the time of its receipt of the Electronic Offer. Unless ODOT provides procedures for the secure receipt of Electronic Offers, the Person submitting the Electronic Offer assumes the risk of premature disclosure due to submission in unsealed form;

(c) ODOT’s use of electronic or digital Signatures shall be consistent with applicable statutes and rules. ODOT may limit the use of electronic methods of conducting a procurement as advantageous to the contracting agency;

(d) If ODOT determines that Bid security is or will be required, ODOT shall not authorize Electronic Offers unless it has established methods for receipt of such security.

(5) Rules Governing Electronic Procurements. ODOT shall conduct all portions of an Electronic Procurement in accordance with OAR chapter 731 division 5, unless otherwise set forth in this rule.

(6) Preliminary Matters. As a condition of participation in an Electronic Procurement ODOT may require potential Contractors to:

(a) Register with ODOT before the date and time on which ODOT will first accept Offers;

(b) Agree to the terms, conditions, or other requirements of a Solicitation Document; or

(c) Agree to terms and conditions governing the procurement, such as procedures that ODOT may use to attribute, authenticate or verify the accuracy of an Electronic Offer, or the actions that constitute an electronic or digital Signature.

(7) Offer Process. ODOT may specify that persons must submit an Electronic Offer by a particular date and time.

(8) Receipt of Electronic Offers:

(a) If ODOT permits Electronic Offers in the Solicitation Document, the Offeror may submit Electronic Offers in accordance with the Solicitation Document. ODOT shall not consider Electronic Offers unless authorized by the Solicitation Document;

(b) When ODOT conducts an Electronic Procurement that provides that all Electronic Offers must be submitted by a particular date and time, ODOT shall receive the Electronic Offers in accordance with OAR chapter 731 division 5;

(c) A person may withdraw an Electronic Offer at any time prior to the specified date and time in accordance with Solicitation Documents.

(9) Failure of the Electronic Procurement System. In the event of a failure of ODOT’s Electronic Procurement System that interferes with the ability of Persons to submit Electronic Offers, protest or to otherwise participate in the procurement, the contracting agency may cancel the procurement in accordance with OAR 731-005-0730, or may extend the date and time for receipt of Electronic Offers by providing notice of the extension immediately after the Electronic Procurement System becomes available.

History

Statutory/Other Authority: ORS 184.619 & 279A.065
Statutes/Other Implemented: ORS 279A.065 & ORS 279C.365
DOT 1-2024, amend filed 05/09/2024, effective 06/01/2024
DOT 6-2022, amend filed 05/24/2022, effective 05/24/2022
DOT 4-2007, f. & cert. ef. 5-23-07

Or. Admin. R. 731-005-0510 Use of Electronic Data Interchange

(1) Agency Authorization. ODOT may authorize Offerors to submit EDI Offers. If ODOT determines that Bid security is or will be required, ODOT should not authorize EDI Offers unless ODOT has a method for receipt of such security. Prior to authorizing EDI Offers, ODOT must:

(a) Establish administrative procedures and controls for receiving, identifying, recording, and safeguarding EDI Offers, to ensure timely delivery of the Offers to the Opening location and to preserve the sealed requirement of competitive procurement;

(b) Determine whether ODOT's procedures, controls, equipment and personnel are capable of receiving the size and volume of anticipated EDI Offers within a short period of time; and

(2) EDI Operating Agreement. An EDI Operating Agreement must address the basic legal issues required to formalize an EDI relationship. The EDI Operating Agreement shall include the following:

(a) Selection of EDI standards and methods of communication;

(b) Allocation of responsibilities for ensuring that the equipment, software and services are operated and maintained effectively;

(d) Required security and authentication procedures and services;

(e) The method for establishing receipt of Offers and for evidencing the Offeror is bound to its Offer;

(f) The need , if any, for maintaining confidentiality;

(g) The allocation of liabilities for failure to meet requirements under the EDI Operating Agreement;

(h) Methods for resolving any disputes under the EDI Operating Agreement; and

(i) Document backup and replacement procedures.

(3) Provisions to be included in Solicitation. In addition to all other requirements, if ODOT authorizes an EDI Offer, ODOT will include in the Solicitation Document provisions substantially similar to the following:

(a) An EDI Offer, as used in this solicitation, means an Offer, modification of an Offer, or withdrawal of an Offer that is transmitted to and received by ODOT in accordance with the EDI Operating Agreement between ODOT and Offeror.

(b) An Offeror may submit an EDI Offer in response to this solicitation provided the Offeror has an effective EDI Operating Agreement with ODOT. The EDI Offer must be received as specified in the Solicitation Document.

(d) ODOT reserves the right to award the Contract based solely on the EDI Offer. Unless otherwise provided under the EDI Operating Agreement, the Offeror shall promptly submit conformed Signed documents upon ODOT's request.

(e) Unless otherwise expressly agreed upon under the EDI Operating Agreement, ODOT is not responsible for any failure attributable to the transmission or receipt of the EDI Offer including, but not limited to the following:

(A) Receipt of garbled or incomplete documents.

(B) Availability or condition of the receiving equipment.

(D) Delay in transmission or receipt of documents.

(E) Failure of the Offeror to properly identify the Offer documents.

(F) Illegibility of Offer documents.

(G) Security and confidentiality of data.

History

Statutory/Other Authority: ORS 184.619, 279A.050 & 279A.065
Statutes/Other Implemented: ORS 279A.065 & 279C.365
DOT 1-2024, amend filed 05/09/2024, effective 06/01/2024
DOT 6-2022, amend filed 05/24/2022, effective 05/24/2022
DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

Or. Admin. R. 731-005-0520 Notice and Advertising Requirements; Posting

(1) Notice. ODOT shall furnish notice as set forth in subsections (a) through (c) of this section, to a number of Persons sufficient 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 furnish notice using any method determined to foster and promote competition, including:

(a) Mailing notice of the availability of Solicitation documents to Persons that have expressed an interest in ODOT's procurements;

(b) Placing notice on ODOT’s Electronic Procurement System; or

(2) Advertising. Pursuant to ORS 279C.360 and this rule, ODOT shall advertise every Solicitation for a Public Improvement Contract, unless ODOT has exempted the Solicitation from the advertisement requirement as part of a competitive Bidding exemption under ORS 279C.335:

(a) Unless ODOT publishes by Electronic Advertisement as permitted under subsection (b) of this section, ODOT shall publish the advertisement for Offers 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;

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

(d) All advertisements for Offers shall set forth:

(A) The Public Improvement project;

(B) The scheduled Closing, that shall not be less than five Days after the date of the last publication of the advertisement or in the case of electronic advertisement, the scheduled closing shall not be less than five Days after the date ODOT uploads and posts the electronic advertisement to be viewable by the public;

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

(D) The nature of the Work to be performed or the goods to be purchased;

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

(F) The name, title and address of ODOT contact authorized to receive Offers;

(G) The scheduled Opening; and

(H) If applicable, that the Contract is for a Public Work subject to ORS 279C.800 to 279C.870 or the Davis-Bacon Act (40 U.S.C. 276(a)).

(3) Equity Notice. ODOT shall provide timely notice of all solicitations to the Director for Diversity, Equity and Inclusion, Governor’s Office , in accordance with contract price stated in ORS 200.035.

History

Statutory/Other Authority: ORS 184.619, 279A.050 & 279A.065
Statutes/Other Implemented: ORS 200.035 & 279C.360
DOT 1-2024, amend filed 05/09/2024, effective 06/01/2024
DOT 6-2022, amend filed 05/24/2022, effective 05/24/2022
DOT 4-2018, amend filed 04/26/2018, effective 04/26/2018
DOT 4-2007, f. & cert. ef. 5-23-07
DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

Or. Admin. R. 731-005-0530 Offer Preparation

(1) Instructions. An Offeror shall submit and Sign its Offer in accordance with the Solicitation Document. An Offeror shall initial and submit any correction or erasure to its Offer prior to the Opening in accordance with the requirements for submitting an Offer under the Solicitation Document.

(2) Forms. An Offeror shall submit its Offer on the form(s) provided in the Solicitation Document, unless an Offeror is otherwise instructed in the Solicitation Document.

(3) Documents. An Offeror shall provide ODOT with all documents and Descriptive Literature required under the Solicitation Document.

(4) EDI or Electronic Submissions. If the Solicitation Document permitted EDI or Electronic Offers under OAR 731-005-0470(3)(a)(D), an Offeror may submit its Offer by EDI or Electronic submissions. ODOT shall not consider EDI or Electronic Offers unless authorized by the Solicitation Document.

History

Statutory/Other Authority: ORS 184.619, 279A.050 & 279A.065
Statutes/Other Implemented: ORS 279C.365
DOT 1-2024, amend filed 05/09/2024, effective 06/01/2024
DOT 4-2007, f. & cert. ef. 5-23-07
DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

Or. Admin. R. 731-005-0540 Offeror Submissions

(1) Product Samples and Descriptive Literature. ODOT may require Product Samples or Descriptive Literature if it is necessary or desirable to evaluate the quality, features or characteristics of the offered items. ODOT will dispose of Product Samples, or return or make available for return Product Samples to the Offeror in accordance with the Solicitation Document.

(2) Identification of Offers:

(a) To ensure proper identification and handling, Offers shall be submitted in a sealed envelope appropriately marked. If ODOT permits Electronic Offers in the Solicitation Document, the Offeror may submit and identify Electronic Offers in accordance with the Solicitation Document;

(b) ODOT is not responsible for Offers submitted in any manner, format or to any delivery point other than as required in the Solicitation Document.

(3) Receipt of Offers. The Offeror is responsible for ensuring ODOT receives its Offer at the required delivery point prior to the Closing, regardless of the method used to submit or transmit the Offer.

History

Statutory/Other Authority: ORS 184.619, 279A.050 & 279A.065
Statutes/Other Implemented: ORS 279C.365
DOT 1-2024, amend filed 05/09/2024, effective 06/01/2024
DOT 4-2007, f. & cert. ef. 5-23-07
DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

Or. Admin. R. 731-005-0550 Bid Security

(1) Security Amount. If ODOT requires Bid security, it shall be 10% of the Offeror's Bid. ODOT shall not use Bid security to discourage competition. ODOT shall clearly state any Bid security requirements in its Solicitation Document. The Offeror shall forfeit Bid security after Award if the Offeror fails to execute the Contract and promptly return it with any required performance bond, payment bond and any required proof of insurance. See ORS 279C.365(5) and 279C.385.

(2) Requirement for Bid Security. Unless ODOT has otherwise exempted a solicitation or class of solicitations from Bid security pursuant to ORS 279C.390, ODOT shall require Bid security for its solicitation of Bids for Public Improvements. This requirement applies only to Highway Construction Contracts with a value, estimated by ODOT, of more than $50,000. See ORS 279C.365(6). ODOT may require Bid security even if it has exempted a class of solicitations from Bid security.

(3) Form of Bid Security. ODOT may accept only the following forms of Bid Security:

(a) A surety bond from a surety company authorized to do business in the State of Oregon. If a surety bond is submitted, ODOT’s standard Bid bond form must be used, which is included with the Bid booklet. The original bond must be submitted with the surety company’s seal affixed, or in the case of an Electronic Offer, an electronic version of the bid bond may be submitted.

(b) An irrevocable letter of credit issued by an insured institution as defined in ORS 706.008; or

(4) Return of Security. ODOT shall return or release the Bid security of all unsuccessful Offerors after a Contract has been fully executed and all required bonds and insurance have been provided, or after all Offers have been rejected. ODOT may return the Bid security of unsuccessful Offerors prior to Award if the return does not prejudice Contract Award and the security of at least the Bidders with the three lowest Bids is retained pending execution of a Contract.

History

Statutory/Other Authority: ORS 184.619, 279A.050 & 279A.065
Statutes/Other Implemented: ORS 279C.365, 279C.380, 279C.385, 279C.390 & 279C.400
DOT 1-2024, amend filed 05/09/2024, effective 06/01/2024
DOT 3-2008, f. & cert. ef. 5-19-08
DOT 7-2007(Temp), f. & cert. ef. 12-24-07 thru 6-9-08
DOT 4-2007, f. & cert. ef. 5-23-07
DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

Or. Admin. R. 731-005-0560 Pre-Bid Conferences

(1) Purpose. ODOT may hold pre-Bid conferences with prospective Offerors prior to Closing, to explain the procurement requirements, obtain information, or to conduct site inspections.

(2) Required Attendance. ODOT may require attendance at the pre-Bid conference as a condition for making an Offer.

(3) Scheduled Time. If ODOT holds a pre-Bid conference, it shall be held within a reasonable time after the Solicitation Document has been issued, but sufficiently before the Closing to allow Offerors to consider information provided at that conference.

(4) Statements Not Binding. Statements made by ODOT's representative at the pre-Bid conference do not change the Solicitation Document unless ODOT confirms such statements with a Written Addendum to the Solicitation Document.

(5) Agency Announcement. ODOT must set forth notice of any pre-Bid conference in the Solicitation Document in accordance with OAR 731-005-0470(3)(a)(A).

History

Statutory/Other Authority: ORS 184.619, 279A.050 & 279A.065
Statutes/Other Implemented: ORS 279C.365
DOT 1-2024, amend filed 05/09/2024, effective 06/01/2024
DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

Or. Admin. R. 731-005-0570 Solicitation Protest; Request for Change; Request for Clarification

(1) Protest.

(a) Delivery. An Offeror may protest Specifications or Contract terms and conditions. Unless otherwise specified in the Solicitation Document, an Offeror must deliver a Written protest to ODOT not less than 10 Days prior to Closing.

(b) Content of Protest.

(A) An Offeror's Written protest shall include:

(i) A detailed statement of the legal and factual grounds for the protest;

(ii) A description of the resulting prejudice to the Offeror; and

(iii) A statement of the desired changes to the Contract terms and conditions, including Specifications.

(B) An Offeror shall mark its protest as follows:

(i) Solicitation Specification or Contract Provision Protest; and

(ii) Solicitation Document Number (or Other Identification as specified in the Solicitation Document).

(2) Request for Change.

(a) Delivery. An Offeror may request in Writing a change to the Specifications or Contract terms and conditions. Unless otherwise specified in the Solicitation Document, an Offeror must deliver the Written request for change to ODOT not less than 10 Days prior to Closing;

(b) Content of Request or Change.

(A) An Offeror's Written request for change shall include a statement of the requested changes to the Contract terms and conditions, including Specifications together with the reason for the requested change.

(B) An Offeror shall mark its request for change as follows:

(i) Solicitation Specification or Contract Provision Request for Change; and

(ii) Solicitation Document Number (or Other Identification as specified in the Solicitation Document).

(3) Agency response. ODOT is not required to consider an Offeror's request for change or protest after the deadline established for submitting such request or protest. ODOT shall provide notice to the applicable Entity if it entirely rejects a protest. If ODOT agrees with the Entity's request or protest, in whole or in part, ODOT shall either issue an Addendum reflecting its determination under OAR 731-005-0580 or cancel the Solicitation under OAR 731-005-0720.

(4) Extension of Closing. If ODOT receives a Written request for change or protest from an Offeror in accordance with this rule, ODOT may extend Closing if ODOT determines an extension is necessary to consider the request or protest and to issue an Addendum, if any, to the Solicitation Document.

(5) Clarification. Prior to the deadline for submitting a Written request for change or protest, an Offeror may request that ODOT clarify any provision of the Solicitation Document. ODOT's clarification to an Offeror, whether orally or in Writing, does not change the Solicitation Document and is not binding on ODOT unless ODOT amends the Solicitation Document by Addendum.

History

Statutory/Other Authority: ORS 184.616, 184.619, 279A.050 & 279A.065
Statutes/Other Implemented: ORS 279C.305, 279C.345, 279C.365 & 279C.460
DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

Or. Admin. R. 731-005-0580 Addenda to a Solicitation Document

(1) Issuance; Receipt. ODOT may change a Solicitation Document only by Written Addenda.

(2) Notice and Distribution. ODOT shall notify prospective Offerors of Addenda consistent with the standards of notice set forth in OAR 731-005-0520(1). The Solicitation Document shall specify how ODOT will provide notice of Addenda and how ODOT will make the Addenda available as required by OAR 731-005-0470(3)(a)(N).

(3) Timelines; Extensions. ODOT shall issue Addenda within a reasonable time to allow prospective Offerors to consider the Addenda in preparing their Offers. ODOT should extend the Closing if ODOT determines prospective Offerors need additional time to review and respond to Addenda. Except to the extent required by public interest, ODOT shall not issue Addenda less than 48 hours before the Closing unless the Addendum also extends the Closing.

(4) Request for Change or Protest. Unless a different deadline is set forth in the Addendum, an Offeror may submit a Written request for change or protest to the Addendum as provided in OAR 731-005-0570(2) through (5), within 24 hours following issuance of the Addendum, or up to the last day allowed to submit a request for change or protest under OAR 731-005-0570, whichever date is later. ODOT shall consider only an Offeror's request for change or protest to the Addendum; ODOT shall not consider a request for change or protest to matters not added or modified by the Addendum.

History

Statutory/Other Authority: 184.619, 279A.050 & 279A.065
Statutes/Other Implemented: ORS 279A.065 & 279C.395
DOT 6-2022, amend filed 05/24/2022, effective 05/24/2022
DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

Or. Admin. R. 731-005-0590 Pre-Opening Modification or Withdrawal of Offers

(1) Electronic Offers: Modifications or Withdrawals of Electronic Offers. Offeror may modify or withdraw an offer prior to closing time as instructed in the Solicitation documents. The most recent Offer will be the final Offer.

(2) Paper Offers:

(a) Modifications: An Offeror may modify its Offer in Writing prior to the Closing. An Offeror shall prepare and submit any modification to its Offer to ODOT in accordance with OAR 731-005-0530 and 731-005-0540, unless otherwise specified in the Solicitation Document. Any modification must include the Offeror's statement that the modification amends and supersedes the prior Offer. The Offeror shall mark the submitted modification as follows:

(A) Bid Modification; and

(B) Solicitation Number (or Other Identification as specified in the Solicitation Document).

(b) Withdrawals:

(A) An Offeror may withdraw its Offer by Written notice submitted on the Offeror's letterhead, including the Offeror's Bid document number if one has been assigned, Signed by an individual who is authorized to sign the Offer, delivered to the location specified in the Solicitation Document (or the place of Closing if no location is specified), and received by ODOT prior to the Closing. Proof of authorization to sign the Offer must accompany the withdrawal request. The Offeror or authorized representative of the Offeror may also withdraw its Offer in person prior to the Closing, upon presentation of appropriate identification and satisfactory evidence of authority;

(B) ODOT may release an unopened Offer, withdrawn under paragraph (A) of this subsection, to the Offeror or its authorized representative, after voiding any date and time stamp mark;

(i) Bid Withdrawal; and

(ii) Solicitation Number (or Other Identification as specified in the Solicitation Document).

(3) Documentation. ODOT shall include all documents relating to the modification or withdrawal of Offers in the appropriate solicitation file.

History

Statutory/Other Authority: ORS 184.619, 279A.050 & 279A.065
Statutes/Other Implemented: ORS 279A.065, 279C.360, 279C.365, 279C.375 & 279C.395
DOT 1-2024, amend filed 05/09/2024, effective 06/01/2024
DOT 4-2007, f. & cert. ef. 5-23-07
DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

Or. Admin. R. 731-005-0600 Receipt, Opening, and Recording of Offers

(1) Receipt. ODOT shall electronically or mechanically time-stamp or hand-mark each Offer and any modification upon receipt, or provide a self-time-stamping device for use by Offerors for these purposes. ODOT shall not open the Bid Price Offer or modification upon receipt, but shall maintain it as confidential and secure until Opening. If ODOT inadvertently opens a Bid or a modification prior to the Opening, ODOT shall return the Bid or modification to its secure and confidential state until Opening. ODOT shall document the resealing for the procurement file (e.g. "Contracting Agency inadvertently opened the Offer due to improper identification of the Offer").

(2) Opening and recording. ODOT shall publicly open Bid including any modifications made to the Offer pursuant to OAR 731-005-0590. To the extent practicable, ODOT shall read aloud the name of each Bidder, the total of each Bid, and such other information as ODOT considers appropriate.

(3) Availability. After Opening, ODOT shall make Bids available for public inspection. In any event, ODOT may withhold from disclosure those portions of an Offer that the Offeror designates as trade secrets or as confidential proprietary data in accordance with applicable law. See ORS 192.345(2); 646.461 to 646.475. To the extent ODOT determines such designation is not in accordance with applicable law, ODOT shall make those portions available for public inspection. The Offeror shall separate information designated as confidential from other non-confidential information at the time of submitting its Offer. Prices, makes, model or catalog numbers of items offered, scheduled delivery dates, and terms of payment are not confidential, and shall be publicly available regardless of an Offeror's designation to the contrary.

History

Statutory/Other Authority: ORS 184.619, 279A.050 & 279A.065
Statutes/Other Implemented: ORS 279C.365 & 279C.410
DOT 1-2024, amend filed 05/09/2024, effective 06/01/2024
DOT 6-2022, amend filed 05/24/2022, effective 05/24/2022
DOT 4-2018, amend filed 04/26/2018, effective 04/26/2018
DOT 2-2007, f. & cert. ef. 1-24-07
DOT 6-2006(Temp), f. 7-31-06, cert. ef. 8-1-06 thru 1-27-07
DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

Or. Admin. R. 731-005-0610 Late Offers, Late Withdrawals and Late Modifications

Any Offer received after Closing is late. An Offeror's request for withdrawal or modification of an Offer received after Closing is late. ODOT shall not consider late Offers, withdrawals or modifications except as permitted in OAR 731-005-0620 or 731-005-0650.

History

Statutory/Other Authority: ORS 184.616, 184.619, 279A.050 & 279A.065
Statutes/Other Implemented: ORS 279C.365 & 279C.395
DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

Or. Admin. R. 731-005-0620 Mistakes

(1) General. To protect the integrity of the competitive solicitation process and to assure fair treatment of Offerors, ODOT shall carefully consider whether to permit waiver, correction or withdrawal for certain mistakes.

(2) Agency Treatment of Mistakes. ODOT shall not allow an Offeror to correct or withdraw an Offer for an error in judgment. If ODOT discovers certain mistakes in an Offer after Opening, but before award of the Contract, ODOT may take the following action:

(a) ODOT may waive, or permit an Offeror to correct, a minor informality. A minor informality is a matter of form rather than substance that is evident on the face of the Offer, or an insignificant mistake that can be waived or corrected without prejudice to other Offerors. Examples of minor informalities include an Offeror's failure to:

(A) Return the correct number of Signed Offers or the correct number of other documents required by the Solicitation Document;

(B) Sign the Offer in the designated block, provided a Signature appears elsewhere in the Offer, evidencing an intent to be bound; and

(b) ODOT may correct a clerical error if the intended Offer and the error are evident on the face of the Offer, or other documents submitted with the Offer, and the Offeror confirms ODOT's correction in Writing. A clerical error is an Offeror's error in transcribing its Offer. Examples include typographical mistakes, errors in extending unit prices, transposition errors, arithmetical errors, instances in which the intended correct unit or amount is evident by simple arithmetic calculations (for example, a missing unit price may be established by dividing the total price for the units by the quantity of units for that item, or incorrect total price for an item may be established by multiplying the unit price by the quantity when those figures are available in the Offer). In the event of a discrepancy, unit prices shall prevail over extended prices.

(c) ODOT may permit an Offeror to withdraw an Offer based on other errors only if the Offeror shows by clear and convincing evidence to the satisfaction of ODOT:

(A) The nature of the error on the face of the Offer or documents submitted with the Offer, pursuant to the solicitation requirements; and

(B) That the error is not a judgment error, minor informality or clerical error.

(3) Rejection for Mistakes. ODOT shall reject any Offer in which a mistake is evident on the face of the Offer and the intended correct Offer is not evident or cannot be substantiated from documents submitted with the Offer, pursuant to solicitation requirements.

History

Statutory/Other Authority: ORS 184.619, 279A.050 & 279A.065
Statutes/Other Implemented: ORS 279C.375 & 279C.395
DOT 1-2024, amend filed 05/09/2024, effective 06/01/2024
DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

Or. Admin. R. 731-005-0630 Time for Agency Acceptance

An Offeror's Offer is a Firm Offer, irrevocable, valid and binding on the Offeror for not less than 30 Days from Closing unless otherwise specified in the Solicitation Document.

History

Statutory/Other Authority: ORS 184.616, 184.619, 279A.050 & 279A.065
Statutes/Other Implemented: ORS 279C.375
DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

Or. Admin. R. 731-005-0640 Extension of Time for Acceptance of Offer

ODOT may request, orally or in Writing, that Offerors extend, in Writing, the time during which ODOT may consider their Offer(s). If an Offeror agrees to such extension, the Offer shall continue as a Firm Offer, irrevocable, valid and binding on the Offeror for the agreed-upon extension period.

History

Statutory/Other Authority: ORS 184.616, 184.619, 279A.050 & 279A.065
Statutes/Other Implemented: ORS 279C.375
DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

Or. Admin. R. 731-005-0650 Offer Evaluation and Award

(1) General. A Highway Construction Contract, if awarded, shall be awarded to the Responsible Bidder submitting the lowest Responsive Bid, provided that such Entity is not listed by the Construction Contractors Board as disqualified to hold a Contract for a Public Improvement. ODOT shall evaluate an Offer only as set forth in the Solicitation Document and in accordance with applicable law. ODOT shall not evaluate an Offer using any other requirement or criterion. This OAR 731-005-0650 does not apply to projects procured pursuant to an Exempted Selection Method.

(2) Bid Evaluation Criteria. Invitations to Bid may solicit lump-sum Offers, unit-price Offers, or a combination of the two:

(a) If the ITB requires a lump-sum Bid, without additive or deductive alternates, or if ODOT elects not to award additive or deductive alternates, Bids shall be compared on the basis of lump-sum prices, or lump-sum base Bid prices, as applicable. If the ITB calls for a lump-sum base Bid, plus additive or deductive alternates, the Solicitation Documents shall provide the criteria for selection; and

(b) If the Bid includes unit pricing for estimated quantities, the total Bid price shall be calculated by multiplying the estimated quantities by the unit prices submitted by the Bidder, and adjusting for any additive or deductive alternates selected by ODOT, for the purpose of comparing Bids. In the event of mathematical discrepancies between unit price and any extended price calculations submitted by the Bidder, the unit price shall govern. See OAR 731-005-0620(2)(b).

(3) Offeror Submissions.

(a) ODOT may require an Offeror to submit product samples, descriptive literature, technical data, or other material and may also require any of the following prior to award:

(A) Demonstration, inspection or testing of a product prior to award for characteristics such as quality or workmanship;

(B) Examination of such elements as appearance, finish, taste, or feel; or

(b) ODOT shall evaluate product acceptability only in accordance with the criteria disclosed in the Solicitation Document to determine that a product is acceptable. ODOT shall reject an Offer providing any product that does not meet the Solicitation Document requirements. ODOT's rejection of an Offer because it offers nonconforming Work or goods is not Disqualification and is not appealable under ORS 279C.445.

(4) Evaluation of Bids. ODOT shall use only objective criteria to evaluate Bids as set forth in the ITB. ODOT shall evaluate Bids to determine which Responsible Offeror offers the lowest Responsive Bid. In determining the lowest Responsive Bid, ODOT shall add a percentage increase to the Bid of a nonresident Bidder equal to the percentage, if any, of the preference given to that Bidder in the state in which the Bidder resides unless prohibited by federal requirements. ODOT shall not negotiate scope of Work or other terms or conditions under an Invitation to Bid process.

History

Statutory/Other Authority: ORS 184.619, 279A.050 & 279A.065
Statutes/Other Implemented: ORS 279C.300, 279C.335, 279C.365, 279C.375 & 279C.395
DOT 1-2024, amend filed 05/09/2024, effective 06/01/2024
DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

Or. Admin. R. 731-005-0660 Tie Offers

(1) Definition. Tie Offers are low tie Responsive Bids from Responsible Bidders.

(2) Award. If a Contract arising out of Tie Offers is awarded, ODOT shall award the Contract based on the following order of precedence:

(a) For projects not involving federal funds ODOT shall prefer the Offer of the Offeror whose principal offices or headquarters are located in Oregon;

(b) If a Tie Offer remains after ODOT applies subsection (a) of this section, ODOT shall award the Contract by drawing lots among any tied Oregon Offerors if no federal funds are a part of the project. Such Offerors shall be given notice and an opportunity to be present when the lots are drawn; or

(c) If a Tie Offer remains after ODOT applies subsection (b) of this section and none of the tied Offerors are located in Oregon or the project has federal funding, ODOT shall award the Contract by drawing lots among any tied Offerors. Such Offerors shall be given notice and an opportunity to be present when the lots are drawn.

History

Statutory/Other Authority: ORS 184.619, 279A.050 & 279A.065
Statutes/Other Implemented: ORS 279A.120 & 279C.375
DOT 1-2024, amend filed 05/09/2024, effective 06/01/2024
DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

Or. Admin. R. 731-005-0670 Rejection of an Offer

(1) Rejection of an Offer.

(a) ODOT may reject any Offer upon finding that to accept the Offer may impair the integrity of the procurement process or that rejecting the Offer is in the public interest.

(b) ODOT shall reject an Offer upon ODOT’s finding that the Offer:

(A) Is contingent upon ODOT’s acceptance of terms and conditions (including Specifications) that differ from the Solicitation Document;

(B) Takes exception to terms and conditions (including Specifications);

(C) Attempts to prevent public disclosure of matters in contravention of the terms and conditions of Solicitation Document or in contravention of applicable law;

(D) Offers Work or goods that fail to meet the Specifications of the Solicitation Document;

(E) Is late;

(F) Is not in substantial compliance with the Solicitation Documents; or

(G) Is not in substantial compliance with all prescribed public solicitation procedures.

(A) Has not been prequalified as required as set forth in OAR Chapter 731, Division 7, the Offeror's prequalification application is not received at ODOT's address shown in the prequalification application at least 10 days prior to bid opening, the Offeror is not prequalified in the class(es) of work designated in the special provisions, or the Offeror's prequalification is not otherwise approved by ODOT;

(B) Has been Disqualified;

(C) Has been declared ineligible under ORS 279C.860 by the Commissioner of Bureau of Labor and Industries has declared and the Contract is for a Public Work;

(D) Is listed as not qualified by the Construction Contractors Board;

(E) Has not met the requirements of ORS 279A.105 if required by the Solicitation Document;

(F) Has not submitted properly executed Bid security as required by the Solicitation Document;

(G) Has failed to provide the certification required under section (3) of this rule; or

(H) Is nonresponsible. Offerors are required to demonstrate their ability to perform satisfactorily under a Contract. Before awarding a Contract, ODOT must have information that indicates that the Offeror meets the applicable standards of responsibility. To be a Responsible Offeror, ODOT must determine that the Offeror:

(i) Has available the appropriate financial, material, equipment, facility and personnel resources and expertise, or ability to obtain the resources and expertise, necessary to demonstrate the capability of the Offeror to meet all contractual responsibilities;

(ii) Has completed previous contracts of a similar nature with a satisfactory record of performance. A satisfactory record of performance means that to the extent the costs associated with and time available to perform a previous contract were within the Offeror’s control, the Offeror stayed within the time and budget allotted for the procurement and otherwise performed the contract in a satisfactory manner. ODOT should carefully scrutinize an Offeror’s record of Contract performance if the Offeror is or recently has been materially deficient in Contract performance. In reviewing the Offeror’s performance, ODOT should determine whether the Offeror’s deficient performance was expressly excused under the terms of Contract, or whether the Offeror took appropriate corrective action. ODOT may review the Offeror’s performance on both private and public Contracts in determining the Offeror’s record of Contract performance. ODOT shall make its basis for determining an Offeror nonresponsible under this paragraph part of the solicitation file;

(iii) Has a satisfactory record of integrity. An Offeror may lack integrity if ODOT determines the Offeror demonstrates a lack of business ethics such as violation of state environmental laws or false certifications made to ODOT. ODOT may find an Offeror nonresponsible based on the lack of integrity of any Entity having influence or control over the Offeror (such as a key employee of the Offeror that has the authority to significantly influence the Offeror’s performance of the Contract or a parent company, predecessor or successor Entity). ODOT may find an Offeror nonresponsible based on previous convictions of offenses related to obtaining or attempting to obtain a Contract or subcontract or in connection with the Offeror’s performance of a contract or subcontract. The standards for Conduct Disqualification under OAR 731-005-0710 may be used to determine an Offeror’s integrity. ODOT shall make its basis for determining that an Offeror is nonresponsible under this paragraph part of the solicitation file;

(iv) Is legally qualified to Contract with ODOT; and

(v) Has supplied all necessary information in connection with the inquiry concerning responsibility. If the Offeror fails to promptly supply information requested by ODOT concerning responsibility, ODOT shall base the determination of responsibility upon any available information, or may find the Offeror nonresponsible.

(2) Form of Business Entity. For purposes of this rule, ODOT may investigate any Entity submitting an Offer. The investigation may include that Entity’s officers, directors, owners, affiliates, or any other Entity acquiring ownership of the Entity to determine application of this rule or to apply the disqualification provisions of ORS 279C.440 to 279C.450 and OAR 731-005-0710.

(3) Certification of Non-Discrimination. The Offeror shall certify and deliver to ODOT Written certification, as part of the Offer, that the Offeror has not discriminated against minority, women or emerging small business enterprises or against a business enterprise that is owned or controlled by or that employs a disabled veteran as defined in ORS 408.225 in obtaining any required subcontracts.

History

Statutory/Other Authority: ORS 184.619, 279A.050 & 279A.065
Statutes/Other Implemented: ORS 279A.105, 279A.110, 279C.375 & 279C.395
DOT 1-2024, amend filed 05/09/2024, effective 06/01/2024
DOT 4-2018, amend filed 04/26/2018, effective 04/26/2018
DOT 1-2010, f. & cert. ef. 5-18-10
DOT 5-2009(Temp), f. 12-22-09, cert. ef. 1-1-10 thru 6-30-10
DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

Or. Admin. R. 731-005-0680 Rejection of All Offers

(1) Rejection. ODOT may reject all Offers for good cause upon ODOT's Written finding it is in the public interest to do so. ODOT shall notify all Offerors of the rejection of all Offers, along with the good cause justification and finding.

(2) Criteria. ODOT may reject all Offers upon a Written finding that:

(a) The content of or an error in the Solicitation Document, or the solicitation process unnecessarily restricted competition for the Contract;

(b) The price, quality or performance presented by the Offerors is too costly or of insufficient quality to justify acceptance of the Offer;

(c) Misconduct, error, or ambiguous or misleading provisions in the Solicitation Document threaten the fairness and integrity of the competitive process;

(d) Causes other than legitimate market forces threaten the integrity of the competitive procurement process. These causes include, but are not limited to, those that tend to limit competition such as restrictions on competition, collusion, corruption, unlawful anti-competitive conduct, and inadvertent or intentional errors in the Solicitation Document;

(e) ODOT cancels the solicitation in accordance with OAR 731-005-0720; or

(f) Any other circumstance indicating that awarding the Contract would not be in the public interest.

History

Statutory/Other Authority: ORS 184.616, 184.619, 279A.050 & 279A.065
Statutes/Other Implemented: ORS 279C.395
DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

Or. Admin. R. 731-005-0690 Protest of Contractor Selection, Contract Award

(1) Purpose. An adversely affected Offeror must exhaust all avenues of administrative review and relief before seeking judicial review of ODOT's Contractor selection or Contract award decision.

(2) Notice of Intent to Award. Unless otherwise provided in the Solicitation Document, ODOT shall provide Notice of Intent to Award on the ODOT website. ODOT's award shall not be final until the later of the following:

(a) Three working days after the date of the notice, unless the Solicitation Document provided a different period for protest; or

(b) ODOT provides a Written response to all timely-filed protests that denies the protest and affirms the award.

(3) Right to Protest Award.

(a) An adversely affected Offeror may submit to ODOT a Written protest of ODOT's Notice of Intent to Award within three working days after issuance of the Notice of Intent to Award, unless a different protest period is provided under the Solicitation Document.

(b) The Offeror's protest must specify the grounds upon which the protest is based.

(d) ODOT shall not consider a protest submitted after the time period established in this rule or such different period as may be provided in the Solicitation Document.

(4) Authority to Resolve Protests. The ODOT Chief Procurement Officer, or designee, has the authority to settle or resolve a Written protest submitted in accordance with the requirements of this rule.

(5) Decision. If a protest is not settled, the ODOT Chief Procurement Officer or designee, shall promptly issue a Written decision on the protest. Judicial review of this decision will be available if provided by statute.

(6) Contract Execution. The successful Offeror shall promptly execute the Contract after the award is final. ODOT shall execute the Contract only after it has obtained all applicable required documents and approvals.

History

Statutory/Other Authority: ORS 184.619, 279A.050 & 279A.065
Statutes/Other Implemented: ORS 279C.375, 279C.385 & 279C.460
DOT 1-2024, amend filed 05/09/2024, effective 06/01/2024
DOT 6-2022, amend filed 05/24/2022, effective 05/24/2022
DOT 4-2018, amend filed 04/26/2018, effective 04/26/2018
DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

Or. Admin. R. 731-005-0700 Negotiation with Bidders

ODOT shall not negotiate with any Bidder prior to award of Contract. After award of the Contract, ODOT and Contractor may only modify the Contract as specified in the Contract.

History

Statutory/Other Authority: ORS 184.619, 279A.050 & 279A.065
Statutes/Other Implemented: ORS 279C.300, 279C.305, 279C.335, 279C.365 & 279C.375
DOT 1-2024, amend filed 05/09/2024, effective 06/01/2024
DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

Or. Admin. R. 731-005-0710 Disqualification of an Entity

(1) Authority. ODOT may disqualify an Entity from consideration of award of ODOT's Contracts after providing the Entity with notice and a reasonable opportunity to be heard in accordance with section (3) of this rule.

(a) Standards for Conduct Disqualification. As provided in ORS 279C.440, ODOT may disqualify an Entity for:

(A) Conviction for the commission of a 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) Conviction 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 Entity's responsibility as a Contractor;

(D) Violation of a public or private Contract provision that is regarded by ODOT to be so serious as to justify Disqualification under ORS 279C.440(2)(d).

(E) The Entity does not carry workers’ compensation or unemployment insurance in compliance with statutory and contractual requirements.

(b) Standards for DBE Disqualification. As provided in ORS 200.065, 200.075 or 279A.110, ODOT may disqualify an Entity's right to submit an Offer or to participate in a Contract (e.g. subcontractors) as follows:

(A) For a DBE Disqualification under ORS 200.065, ODOT may disqualify an Entity upon finding that:

(i) The Entity fraudulently obtained or retained or attempted to obtain or retain or aided another person to fraudulently obtain or retain certification as a disadvantaged business enterprise, a minority-owned business, a woman-owned business, a business that a veteran owns, or an emerging small business;

(ii) The Entity knowingly made a false claim that any person is qualified for certification or is certified under ORS 200.055 for the purpose of gaining a Contract or subcontract or other benefit; or

(iii) The Entity has been disqualified by another Agency pursuant to ORS 200.065.

(B) For a DBE Disqualification under ORS 200.075, ODOT may disqualify an Entity upon finding that:

(i) The Entity has entered into an agreement representing that a disadvantaged business enterprise, a minority-owned business, a woman-owned business, a business that a veteran owns, or an emerging small business pursuant to ORS 200.055 certified enterprise, will perform services or supply materials under a Contract without the knowledge and consent of the certified enterprise;

(ii) The Entity exercises management and decision-making control over the internal operations, as defined by ORS 200.075(1)(b), of any certified enterprise;

(iii) The Entity uses a disadvantaged business enterprise (“DBE”), a minority-owned business (“MBE”), a woman-owned business (“WBE”), a business that a veteran owns, or an emerging small business (“ESB”) to perform services under a Contract or to provide supplies under a Contract to meet an established DBE/MBE/WBE/ESB goal, and such enterprise does not perform a commercially useful function, as defined by ORS 200.075(4), in performing its obligations under the Contract; or

(iv) If an Entity is disqualified for a DBE Disqualification under ORS 200.075, ODOT shall not permit such Entity to participate in ODOT's Contracts.

(C) For a DBE Disqualification under ORS 279A.110, ODOT may disqualify an Entity if ODOT finds that the Entity discriminated against a disadvantaged business enterprise, a minority-owned business, a woman-owned business, a business that a veteran owns, or an emerging small business in awarding a subcontract under a prior Contract with ODOT.

(2) Notice of Intent to Disqualify. ODOT shall notify the Entity in Writing of a proposed Disqualification under subsection (1) above, personally or in writing. This notice shall:

(a) State that ODOT intends to disqualify the Entity;

(b) Set forth the reasons for the Disqualification;

(c) Include a statement of the Entity's right to a hearing if requested in Writing within the time stated in the notice and that if ODOT does not receive the Entity's Written request for a hearing within the time stated, the Entity shall have waived its right to a hearing;

(d) Include a statement of the authority and jurisdiction under which the hearing will be held;

(e) Include a reference to the particular sections of the statutes and rules involved;

(f) State the proposed Disqualification period; and

(g) State that the Entity may be represented by legal counsel.

(3) Hearing. ODOT shall schedule a hearing upon ODOT receipt of the Entity's timely request. ODOT shall notify the Entity of the time and place of the hearing and provide information on the procedures, right of representation and other rights related to the conduct of the hearing prior to hearing.

(4) Notice of Disqualification. ODOT will notify the Entity in Writing of its Disqualification under subsection (1) above, personally or by registered or certified mail, return receipt requested. The notice shall contain:

(a) The effective date and period of Disqualification;

(b) The grounds for Disqualification; and

(c) A statement of the Entity's appeal rights and applicable appeal deadlines. For a Conduct Disqualification or a DBE Disqualification under ORS 279A.110, the disqualified Entity must notify ODOT in Writing within three business days after receipt of ODOT's notice of Disqualification if the Entity intends to appeal ODOT's decision.

History

Statutory/Other Authority: ORS 184.619, 279A.050 & 279A.065
Statutes/Other Implemented: ORS 200.065, 200.075, 279A.110, 279C.440, 279C.445 & 279C.450
DOT 1-2024, amend filed 05/09/2024, effective 06/01/2024
DOT 6-2022, amend filed 05/24/2022, effective 05/24/2022
DOT 4-2018, amend filed 04/26/2018, effective 04/26/2018
DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

Or. Admin. R. 731-005-0720 Cancellation of Solicitation

(1) Cancellation in the Public Interest. ODOT may cancel a Solicitation for good cause if ODOT finds that cancellation is in the public interest. ODOT's reasons for cancellation shall be made part of the solicitation file.

(2) Notice of Cancellation. If ODOT cancels a solicitation prior to Opening, ODOT shall provide notice of cancellation. Such notice of cancellation shall:

(a) Identify the Solicitation; and

(b) If appropriate, explain that an opportunity will be given to compete on any re-solicitation.

History

Statutory/Other Authority: ORS 184.616, 184.619, 279A.050 & 279A.065
Statutes/Other Implemented: ORS 279C.395
DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

Or. Admin. R. 731-005-0730 Disposition of Offers if Solicitation Canceled

(1) Prior to Opening. If ODOT cancels a Solicitation prior to Opening, ODOT will return each Offer it received to the Offeror unopened, provided the Offeror submitted its Offer in a hard copy format with a clearly visible return address. If there is no return address on the envelope, ODOT will open the Offer to determine the source and then return it to the Offeror.

(2) After Opening. If ODOT rejects all Offers, ODOT will retain all such Offers as part of ODOT's solicitation file.

(3) Cancellation of Award. Without liability to ODOT, ODOT may cancel award of Contract at any time before the Contract agreement is executed by all parties to the Contract, upon finding it is in the public interest to do so.

History

Statutory/Other Authority: ORS 184.616, 184.619, 279A.050 & 279A.065
Statutes/Other Implemented: ORS 279C.395
DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

Or. Admin. R. 731-005-0740 Documentation of Award

(1) Basis of Award. After award, ODOT shall make a record showing the basis for determining the successful Offeror part of ODOT's solicitation file.

(2) Contents of Award Record. ODOT's record shall include:

(a) Bids.

(b) Completed Bid tabulation sheet; and

History

Statutory/Other Authority: ORS 184.619, 279A.050 & 279A.065
Statutes/Other Implemented: ORS 279C.430
DOT 1-2024, amend filed 05/09/2024, effective 06/01/2024
DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

Or. Admin. R. 731-005-0750 Non-Resident Contractor

If the Contract Amount exceeds $10,000 and the Contractor is a Non-Resident Contractor, the Contractor shall promptly report to the Oregon Department of Revenue on forms provided by the Department of Revenue, the Contract Amount, terms of payment, Contract duration and such other information as the Department of Revenue may require before final payment can be made on the Contract. A copy of the report shall be forwarded to ODOT. ODOT, upon awarding the Contract, shall satisfy itself that the above requirements have been complied with before it issues final payment on the Contract.

History

Statutory/Other Authority: ORS 184.616, 184.619, 279A.050 & 279A.065
Statutes/Other Implemented: ORS 279A.120
DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

Or. Admin. R. 731-005-0760 Availability of Award Decisions

(1) Contract Documents. To the extent required, ODOT shall deliver to the successful Offeror, a Signed Contract document(s).

(2) Notification to Unsuccessful Offerors. All contract award information, including tabulations of Bids awarded, are available on-line through the ODOT web page.

(3) Availability of Solicitation Files. ODOT shall make completed solicitation files available for public review.

(4) Copies from Solicitation Files. Any Entity may obtain copies of material from solicitation files upon payment of a reasonable copying charge through ODOT's public records request procedure.

History

Statutory/Other Authority: ORS 184.619, 279A.050 & 279A.065
Statutes/Other Implemented: ORS 279C.365
DOT 1-2024, amend filed 05/09/2024, effective 06/01/2024
DOT 4-2018, amend filed 04/26/2018, effective 04/26/2018
DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

Or. Admin. R. 731-005-0770 Performance Security

(1) Public Improvement Contracts. Unless ODOT waives the required performance and payment bonds under ORS 279C.380(4), or the director of the Department of Transportation exempts a Contract or classes of Contracts from the required performance bond pursuant to ORS 279C.390, the Contractor shall execute and deliver to ODOT a performance bond and a payment bond.

(2) Requirement for Surety Bond. The Contractor shall use ODOT's standard forms that are found in the Contract booklet. The amount of each bond shall be equal to the Contract Amount. The surety company's authorized attorney in fact shall sign the performance bond and the payment bond. The surety company's seal shall be affixed to each bond. A power of attorney for the attorney in fact shall be attached to the bonds in the Contract booklet. Include performance/payment bond number. Bonds cannot be canceled by the Contractor or the surety, nor can they be released by ODOT due to possible claims.

(3) Time for Submission. The apparent successful Offeror must furnish the performance/payment security as required by the Solicitation Document. If the Offeror fails to furnish the security as requested, ODOT may reject the Offer and award the Contract to the Responsible Bidder with the next lowest Responsive Bid, the Offeror shall forfeit its Bid security.

History

Statutory/Other Authority: ORS 184.619, 279A.050 & 279A.065
Statutes/Other Implemented: ORS 279C.375 & 279C.390
DOT 1-2024, amend filed 05/09/2024, effective 06/01/2024
DOT 4-2018, amend filed 04/26/2018, effective 04/26/2018
DOT 2-2005, f. 2-16-05, cert. ef. 3-1-05

Or. Admin. R. 731-005-0800 Clean Diesel Construction Standard

(1) The Oregon Department of Transportation does not adopt any Oregon Department of Justice Division 049 rule related to diesel engine requirements pursuant to ORS 279C.537. The Oregon Department of Transportation has adopted OAR 731-005-0800 and OAR 731-149-0020 to implement ORS 279C.537.

(2) The definitions provided in OAR 731-005-0430 apply to sections (3) through (12) of this rule.

(3) For a Public Improvement Contract where the majority of the project site is located within Clackamas, Multnomah, or Washington County, the Public Improvement Contract is subject to the following requirements:

(a) For a Public Improvement Contract with a Solicitation Document advertisement date on or after January 1, 2022 but before January 1, 2025, when the Public Improvement Contract will have an awarded Contract Amount of $20 million or more, 60 percent of the total Non-Road Diesel Equipment used on the Project Site during the performance of the Public Improvement Contract must meet or exceed United States Environmental Protection Agency Tier 4 Exhaust Emission Standards for non-road compression ignition diesel engines; or if not equipped with a Tier 4 compression ignition diesel engine, must be retrofit with a Verified Diesel Oxidation Catalyst or Verified Diesel Particulate Filter;

(b) For a Public Improvement Contract with a Solicitation Document advertisement date on or after January 1, 2025 but before January 1, 2029, when the Public Improvement Contract will have an awarded Contract Amount of $15 million or more, 70 percent of the total Non-Road Diesel Equipment used on the Project Site during the performance of the Public Improvement Contract must meet or exceed United States Environmental Protection Agency Tier 4 Exhaust Emission Standards for non-road compression ignition diesel engines; or if not equipped with a Tier 4 compression ignition diesel engine, must be retrofit with a Verified Diesel Oxidation Catalyst or Verified Diesel Particulate Filter;

(c) For a Public Improvement Contract with a Solicitation Document advertisement date on or after January 1, 2029, when the Public Improvement Contract will have an awarded Contract Amount of $10 million or more, 80 percent of the total Non-Road Diesel Equipment used on the Project Site during the performance of the Public Improvement Contract must meet or exceed United States Environmental Protection Agency Tier 4 Exhaust Emission Standards for non-road compression ignition diesel engines; or if not equipped with a Tier 4 compression ignition diesel engine, must be retrofit with a Verified Diesel Oxidation Catalyst or Verified Diesel Particulate Filter.

(4) Notwithstanding the requirements of section (3) of this rule, 80 percent of the total Non-Road Diesel Equipment used on the Project Site during the performance of the Public Improvement Contract must meet or exceed United States Environmental Protection Agency Tier 4 Exhaust Emission Standards for non-road compression ignition diesel engines; or if not equipped with a Tier 4 compression ignition diesel engine, be retrofit with a Verified Diesel Oxidation Catalyst or Verified Diesel Particulate Filter, for the following projects:

(a) The Interstate 5 Rose Quarter Project;

(b) The Interstate 205 Abernethy Bridge Project;

(d) The State Highway 217 Northbound Project; and

(e) The State Highway 217 Southbound Project.

(5) The following categories of Non-Road Diesel Equipment are exempt from sections (3) and (4) of this rule:

(a) Non-Road Diesel Equipment required for an Emergency, as determined by the Contracting Agency responsible for administering the Public Improvement Contract; and

(b) For a Public Improvement Contract with a Solicitation Document advertisement date before January 1, 2029, Non-Road Diesel Equipment owned and operated by a Certified Firm. For a Public Improvement Contract with an advertisement date before January 1, 2029, Non-Road Diesel Equipment that is owned and operated by a Certified Firm, and is otherwise compliant with the requirements of sections (3) and (4) of this rule, may be counted as compliant equipment for purposes of the calculation under section (7).

(6) To verify compliance with sections (3) and (4) of this rule, the Contractor must submit all required or necessary data to the Contracting Agency, according to the specifications of the Public Improvement Contract.

(7) Contractor compliance with sections (3) and (4) of this rule will be determined by the following calculation:

(a) Total pieces of Non-Road Diesel Equipment used on the Project Site =_______

(b) Multiply the answer to (7)(a) by the required percentage under sections (3) or (4) of this rule (round to the nearest whole number) = _______

(c) Total pieces of Non-Road Diesel Equipment that qualify for an exemption under sections (5)(a) and (5)(b) of this rule =_______

(d) Subtract the number under section (7)(c) from the number under (7)(b) =_______

(e) Total pieces of Non-Road Diesel Equipment used on the Project Site that must meet or exceed United States Environmental Protection Agency Tier 4 Exhaust Emission Standards for non-road compression ignition diesel engines; or if not equipped with a Tier 4 compression ignition diesel engine, be retrofit with a Verified Diesel Oxidation Catalyst or Verified Diesel Particulate Filter (equal to 7(d)) =_______

(8) For a Public Improvement Contract where the majority of the Project Site is located within Clackamas, Multnomah, or Washington County, the Public Improvement Contract is subject to the following requirements:

(a) For a Public Improvement Contract with a Solicitation Document advertisement date on or after January 1, 2022 but before January 1, 2025, when the Public Improvement Contract will have an awarded Contract Amount of $20 million or more, and for the Interstate 5 Rose Quarter Project, the Interstate 205 Abernethy Bridge Project, the Interstate 205 Freeway Widening Project, the State Highway 217 Northbound Project, and the State Highway 217 Southbound Project; 50 percent of the total on-road concrete mixer trucks and on-road dump trucks powered by compression ignition diesel engines, used on the Project Site during the performance of the Public Improvement Contract must be powered by a model year 2010 or newer engine;

(b) For a Public Improvement Contract with a Solicitation Document advertisement date on or after January 1, 2025 but before January 1, 2029, when the Public Improvement Contract will have an awarded Contract Amount of $15 million or more, 75 percent of the total on-road concrete mixer trucks and on-road dump trucks, powered by compression ignition diesel engines, used on the Project Site during the performance of the Public Improvement Contract must be powered by a model year 2010 or newer engine;

(c) For a Public Improvement Contract with a Solicitation Document advertisement date on or after January 1, 2029, when the Public Improvement Contract will have an awarded Contract Amount of $10 million or more, 100 percent of the total concrete mixer trucks and dump trucks, powered by compression ignition diesel engines, used on the Project Site during the performance of the contract must be powered by a model year 2010 or newer engine.

(9) The requirements of section (8) of this rule apply to on-road concrete mixer trucks and on-road dump trucks, powered by compression ignition diesel engines that are owned or operated by Contractors, subcontractors, and those operated under trucking services agreements.

(10) The requirements of section (8) of this rule do not apply to the following:

(a) Concrete mixer trucks or dump trucks powered by compression ignition diesel engines that are owned and operated by a Certified Firm under a Public Improvement Contract with a Solicitation Document advertisement date before January 1, 2029; and

(b) Concrete mixer trucks or dump trucks powered by compression ignition diesel engines that are owned and operated by suppliers or vendors delivering materials to a Project Site, that are not operated under a trucking services agreement or subcontract.

(11) The Contracting Agency may at any time suspend, extend, or otherwise modify the timeline provided in sections (5)(b) and (10)(a) of this rule related to exemptions provided to Certified Firms, if the Contracting Agency finds that market conditions, or other factors, exist that would render the expiration of the exemption unreasonable, or would inflict undue burden on Certified Firms.

History

Statutory/Other Authority: ORS 184.619 & ORS 279C
Statutes/Other Implemented: ORS 279C
DOT 1-2024, amend filed 05/09/2024, effective 06/01/2024
DOT 3-2022, minor correction filed 03/08/2022, effective 03/08/2022
DOT 2-2022, adopt filed 01/25/2022, effective 01/25/2022

Or. Admin. R. 731-005-0900 Community Benefit Program

(1) In addition to the definitions in ORS 279C.308, the following definitions apply to OAR 731-005-0900:

(a) “Community workforce agreement” means an agreement executed by the ODOT Director or the Director’s designee and one or more labor organizations to establish material terms that ODOT may include in a community benefit contract.

(b) “Economically distressed zip code” or “EDZ” means a geographic area identified by a United States Postal Service zip code, and identified by ODOT as having a high concentration of the following factors:

(A) Low-income households;

(B) Unemployed individuals; and

(d) “Minority” has the meaning set forth in 41 CFR § 60-4.3 for purposes of implementing Presidential Executive Order 11246, as amended.

(e) “Trade” means a specific trade or occupation for which the Oregon Bureau of Labor and Industries has determined the prevailing wage rate pursuant to ORS 279C.815.

(2) This rule, OAR 731-005-0900, establishes the Community Benefit Program. The ODOT Director or the Director’s designee may designate a public improvement contract as a community benefit contract, in accordance with ORS 279C.308, if:

(a) The project is administered by ODOT and is in the Statewide Transportation Improvement Program;

(b) The proposed community benefit contract is partially or completely funded by the Infrastructure Investment and Jobs Act, Public Law 117-58 (2021);

(d) After consideration of factors listed by the Federal Highway Administration for the approval of a community workforce agreement that would be included in a community benefit project, the ODOT Director or the Director’s designee determines the project complies with the factors and any guidance from the Federal Highway Administration.

(3) In furtherance of the Community Benefit Program, the ODOT Director or the Director’s designee may enter into community workforce agreements with labor organizations to develop material provisions that ODOT may include in a community benefit contract, including, but not limited to, material provisions that ensure labor peace, set forth protocols for hiring and dispatch of union labor in support of ODOT’s goals and targets for apprenticeship and hiring.

(4) In addition to the material provisions listed in ORS 279C.308(3)(b) and any applicable provisions of the Oregon Public Contracting Code, a community benefit contract may include as material provisions of the community benefit contract terms and conditions that require the contractor to:

(a) Meet minimum qualifications for contractor and subcontractor participation in a community benefit contract.

(b) Employ apprentices and trainees from ODOT-approved programs to perform a specified percentage of work hours that workers in apprenticeable occupations perform on the community benefit project.

(c) Provide for payment of wages at or above the prevailing rate of wage in accordance with applicable state or federal laws or in accordance with the applicable trade’s collective bargaining agreement, whichever is highest.

(d) Provide employer-paid retirement benefits.

(e) Comply with hiring goals for EDZ resident workers and goals for apprenticeship and training, as established by ODOT for each community benefit contract.

(f) Provide a plan to increase participation of minority and women workers in furtherance of workforce diversity and ODOT’s aspirational targets, as described in each community benefit contract, and comply with the provided plan.

(g) Participate in a pre-job conference to discuss requirements for the Community Benefit Program and require the contractor’s subcontractors to participate in a pre-job conference.

(h) Meet periodic reporting requirements established for each community benefit contract that may include, but are not limited to, the following information:

(A) The number of apprentices and journey workers and the percentage of total workforce hours worked by apprentices and journey workers;

(B) The number of minority and women workers and the percentage of total workforce hours worked by minorities and women workers;

(D) Safety incidents; and

(E) Any other workforce-related information required by ODOT.

(i) Provide minimum worksite conditions and safety requirements, including:

(A) Respectful worksites;

(B) Drug and alcohol testing, access to personal protective equipment, worker facilities, appropriate bathroom facilities and security measures; and

(j) Execute a letter of assent binding a contractor and all of contractor’s subcontractors on the community benefit contract to one or more of the requirements described in a community workforce agreement.

(5) Notwithstanding the contractor’s execution of a letter of assent as described in section (4)(j) of this rule, the following terms apply to a community benefit contract:

(a) All disputes between ODOT and contractor are governed by and resolved under the terms of the community benefit contract.

(b) Any conflict or discrepancy between the community workforce agreement and any applicable collective bargaining agreement is governed by and resolved under the terms of the applicable community workforce agreement.

(6) The material provisions of a community benefit contract, including any requirement incorporated into a community benefit contract from a community workforce agreement, must comply with applicable local, state and federal laws, and the requirements for the following federal programs: the Disadvantaged Business Enterprise Program, the Equal Employment Opportunity Program, the On-The-Job Training Program, the Tribal Employment Rights Ordinance, and any other federal programs applicable to the community benefit contract.

History

Statutory/Other Authority: ORS 184.619
Statutes/Other Implemented: ORS 279C.308
DOT 1-2023, adopt filed 01/12/2023, effective 01/12/2023

Or. Admin. R. 731-005-0910 Environmental Product Declarations

(1) This rule describes ODOT’s requirements for environmental product declarations for covered materials permanently incorporated into ODOT’s construction or maintenance projects for the state’s transportation system, in accordance with ORS 184.879.

(2) In addition to the definitions in ORS 184.879, the following definitions apply to section (4) of this rule:

(a) “Covered materials” has the meaning set forth in ORS 184.879(1)(b)(A)-(C).

(b) “Permanently incorporated” means any covered material that is required to be affixed to the project at the completion of the contract.

(3) A contractor must submit an environmental product declaration for covered materials in accordance with the requirements in the contract for the project.

(4) Except as provided in ORS 184.879(3)(a)-(b), a procurement for covered materials for a construction or maintenance project must require an environmental product declaration if:

(a) The project includes a highway construction contract, as defined in OAR 731-005-0430(25), administered by ODOT or a maintenance project estimated at or above $3 million, but does not include a public improvement or maintenance project administered by ODOT on behalf of a local government agency;

(b) For a highway construction contract, the Engineer’s Estimate has an estimated project cost of $3 million or more at the date of advertisement;

(c) The $3 million threshold for a highway construction contract or maintenance project does not include additional work added after the advertised date stated in the procurement, such as construction engineering, change orders, indirect or force account items; and

(d) The covered materials will be permanently incorporated into the project.

(5) If the criteria in section (4) of this rule are met, a contractor must provide an environmental product declaration to ODOT for each covered material permanently incorporated into the project that is equal to or greater than the following thresholds:

(a) Ready-Mix Concrete: 50 cubic yards or more.

(b) Asphalt Paving Mixtures: 2,500 tons or more.

(d) Structural Steel: 5,000 pounds or more.

(6) For a highway construction contract and maintenance project, ODOT will determine specific bid items for covered materials that are subject to the Environmental Product Declaration submittal requirement. The selected bid items and required product declaration requirements will be described in the project procurement.

History

Statutory/Other Authority: ORS 184.619
Statutes/Other Implemented: ORS 184.879
DOT 8-2024, adopt filed 12/05/2024, effective 12/05/2024

Division 7 PUBLIC IMPROVEMENT CONTRACTS; HIGHWAY AND BRIDGE CONSTRUCTION

Or. Admin. R. 731-007-0500 Mandatory Contractor Prequalification

(1) All bidders on public improvement projects procured pursuant to OAR, Chapter 731 Division 5, except for those that are procured through an Exempted Selection Method as set forth in OAR 731-005-0440(2), must be prequalified.

(2) OAR, Chapter 731 Division 7 is not applicable to the procurement of projects utilizing an Alternative Contracting Method.

(3) Bidders must be prequalified in the class(es) of work designated in the special provisions for the specific project on which the Bidder desires to bid.

History

Statutory/Other Authority: ORS 184.619, 279A.050 & 279A.065
Statutes/Other Implemented: ORS 279C.430
DOT 1-2024, amend filed 05/09/2024, effective 06/01/2024
DOT 2-2016, f. & cert. ef. 4-29-16

Or. Admin. R. 731-007-0520 Special Prequalification

ODOT may require special prequalification of contractor in addition to the mandatory prequalification when the elements of a particular Public Improvement project require specialized knowledge or expertise. When contractor special prequalification is required, notice of the request for contractor special prequalification will be advertised through ODOT’s electronic procurement system, and in at least one trade newspaper of general statewide circulation.

History

Statutory/Other Authority: ORS 184.619, 279A.050, 279A.065 & 279C.430
Statutes/Other Implemented: ORS 279C.430
DOT 1-2024, amend filed 05/09/2024, effective 06/01/2024
DOT 6-2022, amend filed 05/24/2022, effective 05/24/2022
DOT 2-2016, f. & cert. ef. 4-29-16

Or. Admin. R. 731-007-0530 Prequalification Requirements

(1) Prospective bidders who wish to become prequalified must apply and follow the application procedures set forth herein. Prequalification applications must be received at ODOT's address shown in the prequalification application at least 10 calendar days before the bid opening in which the applicant wishes to participate.

(2) All applicants desiring to prequalify shall complete and submit the prequalification application, in accordance with the directions contained therein, setting forth their qualifications to satisfactorily carry out the work to be performed. Applicants must sign a sworn affidavit that the information they provide in the prequalification application is true.

(3) If an applicant fails to complete the application as required, ODOT will return the material submitted. Any changes or additional information required by ODOT must be submitted and signed by a person authorized to sign the original application. The changes and additional information must be attested to by a sworn affidavit. The applicant may send a new application that includes the changes or additional information required by ODOT.

(4) The date on which all required information has been received by ODOT as required will be considered the receipt date of the prequalification application.

(5) Each member of a joint venture must be prequalified, with at least one of the joint venture members prequalified in each of the project's designated class(es) of work as defined in section (1) of this rule. A joint venture may be required to submit a joint venture agreement prior to award of the contract.

(6) Subcontractors are not required to be, but may be, prequalified.

(7) Any applicant for prequalification who willfully makes, or causes to be made, any false, deceptive or fraudulent statements in any questionnaire or statement required to be submitted under this rule, shall be denied prequalification (or the applicant’s current prequalification shall be revoked).

(8) Applicants must renew their prequalifications as directed by ODOT’s prequalification application procedures.

(9) Applicants shall update their prequalification application with ODOT when information changes. Any change to an applicant prequalification application must be received at ODOT's address shown in the prequalification application at least 10 days prior to bid opening if that information affects the bid submitted. Any changes requested by the applicant must be submitted and signed by a person authorized to sign the original application. The changes must be attested to by sworn affidavit. There is no charge to update an existing prequalification for minor changes such as changing an address, or adding or deleting class(es) of work. Major changes must be submitted by a new prequalification application.

(10) Sections (1) through (9) of this rule also apply to applicants who use ODOT's prequalification system to prequalify for local agency projects.

History

Statutory/Other Authority: ORS 184.619, 279A.050, 279A.065 & 279C.430
Statutes/Other Implemented: ORS 279C.430
DOT 1-2024, amend filed 05/09/2024, effective 06/01/2024
DOT 7-2022, amend filed 07/18/2022, effective 07/18/2022
DOT 6-2022, amend filed 05/24/2022, effective 05/24/2022
DOT 2-2016, f. & cert. ef. 4-29-16

Or. Admin. R. 731-007-0540 Prequalification Approval

If ODOT finds that the applicant is qualified, ODOT will issue a notice stating the nature and type of contracts for which the prospective contractor may submit a bid and the period of time for which the qualification is valid. Applicants shall be considered prequalified on the date set forth in the notice.

History

Statutory/Other Authority: ORS 184.619, 279A.050, 279A.065 & 279C.430
Statutes/Other Implemented: ORS 279C.430
DOT 1-2024, amend filed 05/09/2024, effective 06/01/2024
DOT 2-2016, f. & cert. ef. 4-29-16

Or. Admin. R. 731-007-0550 Waiving Prequalification Requirements

Prequalification requirements for contracts may be waived by the Highway Division Administrator or Chief Engineer under the following circumstances:

(1) In the case of an emergency;

(2) If finding that special circumstances exist so that prequalification is not necessary.

History

Statutory/Other Authority: ORS 184.616, 184.619, 279A.050, 279A.065 & 279C.430
Statutes/Other Implemented: ORS 279C.430
DOT 2-2016, f. & cert. ef. 4-29-16

Or. Admin. R. 731-007-0560 Disqualification, Revocation or Suspension

(1) If ODOT disqualifies, revokes, or suspends a prequalification, ODOT shall issue a written decision to disqualify which shall:

(a) State the reasons for the action taken; and

(b) Inform the disqualified person of the appeal right of the person under ORS 279C.445 and 279C.450.

(2) A copy of the decision to disqualify must be mailed or otherwise furnished immediately to the disqualified person.

History

Statutory/Other Authority: ORS 184.619, 279A.050, 279A.065 & 279C.430
Statutes/Other Implemented: ORS 279C.430
DOT 1-2024, amend filed 05/09/2024, effective 06/01/2024
DOT 2-2016, f. & cert. ef. 4-29-16

Or. Admin. R. 731-007-0570 Denial of Prequalification Application

(1) If ODOT finds the applicant is not qualified, ODOT will issue a notice specifying the reasons found under ORS 279C.375 (3)(b) for not prequalifying the applicant and informing the applicant of the right to a hearing under ORS 279C.450. If the applicant wishes to appeal, the applicant must, within three business days after receipt of notice of disqualification, notify the Construction Contracting Manager in writing.

(2) Upon receipt of such notice of appeal, the Construction Contracting Manager will immediately notify the Director of DAS.

History

Statutory/Other Authority: ORS 184.619, 279A.050, 279A.065 & 279C.430
Statutes/Other Implemented: ORS 279C.430
DOT 1-2024, amend filed 05/09/2024, effective 06/01/2024
DOT 2-2016, f. & cert. ef. 4-29-16

Division 12 REDUCTION OF VEHICLE-CARRYING CAPACITY

Or. Admin. R. 731-012-0010 Purpose

This division implements ORS 366.215. The purpose of this division is to define terms, identify a review process and facilitate communication and development of consensus during this review process.

History

Statutory/Other Authority: ORS 184.616, 184.619 & 366.205
Statutes/Other Implemented: ORS 366.215
DOT 4-2013, f. & cert. ef. 8-26-13

Or. Admin. R. 731-012-0020 Definitions

For the purposes of Division 12 rules, the following terms have the following definitions, unless the context clearly indicates otherwise:

(1) “Access Considerations” means activities regulated under OAR 734-051, and ORS 374.300 to 374.360

(2) “Chief Engineer” means the Chief Engineer of the Oregon Department of Transportation.

(3) “Commission” means Oregon Transportation Commission.

(4) “Department” means Oregon Department of Transportation.

(5) “Director” means the Director of the Oregon Department of Transportation.

(6) “Engineer” means a professional engineer licensed by the State of Oregon.

(7) “Mobility Policy Committee” means a committee of the Director, Chief of Staff, Motor Carrier Division Administrator, Highway Division Administrator, and the Transportation Development Division Administrator of the Oregon Department of Transportation that oversees Department policies related to the statewide traffic mobility program.

(8) “Oregon Highway Plan (OHP)” means the Oregon Highway Plan adopted by the Oregon Transportation Commission, pursuant to ORS 184.618.

(9) “Permanent Reduction” means a reduction subject to this rule will be considered permanent if the reduction is intended to be permanently left in place after installation and is not easily removable for short-term expansion of Vehicle-Carrying Capacity. (Permanent structures could include, but are not limited to, traffic signals, signposts, stationary bollards, curbs, trees, raised or depressed medians, roundabouts, streetlights and overhead wiring.) If there is uncertainty as to whether or not a structure is permanent, the Department will provide an opportunity for Stakeholder Forum input.

(10) “Proposed Action” means any activity that will alter, relocate, change or realign a state highway including those proposed in planning documents approved by a public agency.

(11) “Reduction of Vehicle-Carrying Capacity” means a permanent reduction in the horizontal or vertical clearance of a highway section, by a permanent physical obstruction to motor vehicles located on useable right-of-way subject to Commission jurisdiction, unless such changes are supported by the Stakeholder Forum. Street markings such as bike lane striping or on street parking are not considered a reduction of vehicle-carrying capacity.

(12) “Reduction Review Routes” means identified state highways that require a review under this rule prior to a Reduction of Vehicle-Carrying Capacity. For the purposes of this rule, the Reduction Review Routes will be the routes subject to ORS 366.215.

(13) “Safety” means the condition of reduced risk of death or bodily injury associated with any mode of transportation as determined by established engineering practice.

(14) “Safety Consideration” means a consideration for determining when the Department will reduce Vehicle-Carrying Capacity. This can occur when an Engineer, after evaluating pertinent information and applying appropriate principles, decides that a safety countermeasure is required for reducing certain types of crashes that are occurring or, in the judgment of the Engineer, have a high risk of occurring and are of the type that would produce severe injuries (i.e., injuries involving pedestrians and/or bicyclists).

(15) “Stakeholder Forum” means a group of stakeholders with open membership that meets on an as-needed basis to advise the Department regarding the affect of Proposed Actions on the ability to move motor vehicles through a section of highway. Statewide transportation stakeholders and local agency(ies) affected by a proposed action will be invited to participate in the Stakeholder Forum meetings. At a minimum, the Department will invite to each Stakeholder Forum; a bicycle representative, pedestrian representative, a trucking industry representative, a mobile home manufacturing representative, an oversize load freight representative, a representative of automobile users, and a representative from any affected city, county or Metropolitan Planning Organization. In the case of a development review (ODOT staff review of a proposed land use action), a representative of the affected development will also be invited to participate in the meeting.

(16) “Vehicle-Carrying Capacity” means the horizontal or vertical clearance of a highway section that can physically carry motor vehicles.

History

Statutory/Other Authority: ORS 184.616, 184.619 & 366.205
Statutes/Other Implemented: ORS 366.215
DOT 4-2013, f. & cert. ef. 8-26-13

Or. Admin. R. 731-012-0030 Reduction Review Routes

(1) The Department will establish a system of Reduction Review Routes for the purposes of the implementation of ORS 366.215. The Reduction Review Routes will consist of the routes listed below. Reduction Review Routes include all parts of the state highway(s) that must be travelled to complete the prescribed route and/or connect with other state highways. This includes couplets and on and off ramps. [Table not included. See ED. NOTE.]

(2) The Reduction Review Routes will be added to the OHP policy section. After the Commission adopts this amendment, the OHP Reduction Review Routes subject to Commission jurisdiction will be used to implement this rule.

[ED. NOTE: Tables referenced are available from the agency.]

[ED. NOTE: To view attachments referenced in rule text, click here to view rule.]

History

Statutory/Other Authority: ORS 184.616, 184.619 & 366.205
Statutes/Other Implemented: ORS 366.215
DOT 2-2014, f. & cert. ef. 7-10-14
DOT 1-2014, f. & cert. ef. 4-23-14
DOT 4-2013, f. & cert. ef. 8-26-13

Or. Admin. R. 731-012-0040 Application of the Rule

(1) A review of potential permanent Reduction of Vehicle-Carrying Capacity is required for all Proposed Actions located on a Reduction Review Route. Proposed Actions that are not located on a Reduction Review Route are not subject to Division 12.

(2) Department staff will determine if a Proposed Action is located on a Reduction Review Route.

(3) If Department staff determine that the Proposed Action is not on a Reduction Review Route, no further Division 12 review is required. The Department may continue with the Proposed Action using Department processes including other appropriate reviews not covered by this division.

(4) If a Proposed Action is on a Reduction Review Route, Department staff will notify the affected local agencies, and in the case of a development review, the affected applicant prior to proceeding with the determination of a potential Reduction of Vehicle-Carrying Capacity.

History

Statutory/Other Authority: ORS 184.616, 184.619 & 366.205
Statutes/Other Implemented: ORS 366.215
DOT 4-2013, f. & cert. ef. 8-26-13

Or. Admin. R. 731-012-0050 Determination of a Potential Reduction of Vehicle-Carrying Capacity

(1) Department staff is responsible for identifying if the Proposed Action has the potential for a Reduction of Vehicle-Carrying Capacity.

(2) When identifying the potential for a Reduction of Vehicle-Carrying Capacity, Department staff will employ an appropriate level of analysis of the Proposed Action. During this analysis Department staff may review plans and designs, and consult with technical experts outside the Department. In making this identification, the Department will involve staff from the appropriate Department Divisions. (For example, the addition of a raised median may involve staff from the Highway Division and the Motor Carrier Transportation Division.)

(3) If the Department determines that a Proposed Action would not result in a Reduction of Vehicle-Carrying Capacity, no further Division 12 review is required. The Department may continue with the Proposed Action using Department processes including other appropriate reviews not covered by this division.

(4) If a Proposed Action has the potential for a Reduction of Vehicle-Carrying Capacity, Department staff will notify the affected local agencies, and in the case of a development review, the affected applicant prior to proceeding with a Stakeholder Forum review.

History

Statutory/Other Authority: ORS 184.616, 184.619 & 366.205
Statutes/Other Implemented: ORS 366.215
DOT 4-2013, f. & cert. ef. 8-26-13

Or. Admin. R. 731-012-0060 Stakeholder Forum

(1) If Department staff identify that the Proposed Action has the potential for a Reduction of Vehicle-Carrying Capacity, a Stakeholder Forum will be convened.

(2) In preparation for a Stakeholder Forum meeting, Department staff will prepare a project description including any anticipated Safety Considerations and Access Considerations.

(3) Department staff will ask the Stakeholder Forum to review the project description of a Proposed Action and provide advice to the Director regarding whether or not the Proposed Action meets the definition of Reduction of Vehicle-Carrying Capacity. The Stakeholder Forum may advise the Department that a Proposed Action will not result in a Reduction of Vehicle-Carrying. Pursuant to 731-012-0020(10) the Stakeholder Forum may also record support for a Proposed Action regardless of any changes to horizontal or vertical clearance.

(4) Department staff will prepare documentation of Stakeholder Forum advice and recommendations. Documentation will include which elements of the Reduction of Vehicle-Carrying Capacity definition 731-012-0020(10) the Stakeholder Forum feels will result in the reduction.

(5) If agreement is reached by the Stakeholder Forum on a design that avoids any actual Reduction of Vehicle-Carrying Capacity or is supported by the Stakeholder Forum no further division 12 review is required.” The Department may continue with the Proposed Action using Department processes including other appropriate reviews not covered by this division.

History

Statutory/Other Authority: ORS 184.616, 184.619 & 366.205
Statutes/Other Implemented: ORS 366.215
DOT 4-2013, f. & cert. ef. 8-26-13

Or. Admin. R. 731-012-0070 Stakeholder Forum Planning Input

(1) Planning documents that include Proposed Actions on Reduction Review Routes, and are subject to Commission adoption, approval, or acceptance must be presented to the Stakeholder Forum. The Stakeholder Forum presentation must include an opportunity for identification of the Vehicle-Carrying Capacity needs from the prospective of the members of the forum.

(2) In some cases, a Proposed Action may be located within a planning document such as a transportation system plan or facility plan. Depending on the time period covered by the planning document, and the scheduled start date of the conceptual Proposed Actions, the planning document may not contain sufficient detail to determine if a Reduction of Capacity will result from the Proposed Actions.

(3) If a planning document includes proposed actions on a Reduction Review Route, but does not contain sufficient detail to determine if a Reduction of Capacity will result from such actions, then the plan must include a record of all Reduction Review Routes in the area subject to the plan, and the document must indicate that proposed roadway dimensions (such as total road width, lane widths, median widths, bike lane widths, shoulder widths, etc) are subject to review of Vehicle-Carrying Capacity during future design.

(4) Planning documents that include documenting Stakeholder Forum comments and identification of the need for future Vehicle-Carrying Capacity review may be finalized without the Commission approving a reduction of capacity at the time of plan completion.

History

Statutory/Other Authority: ORS 184.616, 184.619 & 366.205
Statutes/Other Implemented: ORS 366.215
DOT 4-2013, f. & cert. ef. 8-26-13

Or. Admin. R. 731-012-0080 Proposed Actions for Access

After consultation with the Stakeholder Forum, Department staff will identify if the Proposed Action is subject to OAR 734, division 51 (Access Management). All activities that are required for the Department’s administration of OAR 734, division 51 or implementation of ORS 374.300 to 374.360, and §27, ch. 330, OL 2011 are not subject to this rule. The Department may continue with the Proposed Action using Department processes proscribed in OAR 734, division 51.

History

Statutory/Other Authority: ORS 184.616, 184.619 & 366.205
Statutes/Other Implemented: ORS 366.215
DOT 4-2013, f. & cert. ef. 8-26-13

Or. Admin. R. 731-012-0090 Proposed Actions for Safety

(1) After reviewing the Safety Considerations of a Proposed Action that has the potential to result in a Reduction of Vehicle-Carrying Capacity, Department staff may recommend a determination that the reduction is required by the Department for Safety purposes.

(2) Department staff will use engineering judgment supported by the documented record of Safety Consideration to determine if the Proposed Action is required for Safety.

(3) Any Department staff recommendation that a Proposed Action is required by the Department for Safety purposes will be forwarded to the Director and the Chief Engineer prior to Director Determination of Reduction of Vehicle-Carrying Capacity.

History

Statutory/Other Authority: ORS 184.616, 184.619 & 366.205
Statutes/Other Implemented: ORS 366.215
DOT 4-2013, f. & cert. ef. 8-26-13

Or. Admin. R. 731-012-0100 Director Determination of Reduction of Vehicle-Carrying Capacity

(1) If a Proposed Action has a potential for a Reduction of Vehicle-Carrying Capacity that cannot be resolved through the Stakeholder Forum, including affected local agencies, and is not needed for Access Considerations (731-012-0080) then the Director will determine if the Proposed Action would be a Reduction of Vehicle-Carrying Capacity.

(2) The Director will review the Department staff record for a Proposed Action (including potential Safety Considerations) and make a determination on whether or not the Proposed Action is a Reduction of Vehicle-Carrying Capacity.

(3) In making such determinations the Director may consider such information as:

(a) The existing and proposed highway design and plans;

(b) Previously approved Reduction of Vehicle-Carrying Capacity documented for the highway segment of the Proposed Action;

(c) Existing limited Vehicle-Carrying Capacity at other locations within the highway system that limit the ability of a vehicle to get to the highway segment of the Proposed Action;

(d) Stakeholder Forum meeting comments from stakeholders, affected local agencies and the public;

(e) Function of roadway for all transportation modes including freight, vehicle, transit, pedestrian, and bicycle;

(f) Reasonable alternate routes on the state highway system; and

(g) Consultation with Department staff, such as the Mobility Policy Committee, Traffic Engineer and Chief Engineer.

(4) The Director may determine that a Proposed Action will or will not be a Reduction of Vehicle-Carrying Capacity, or may direct Department staff to revise the Proposed Action and hold another Stakeholder Forum meeting pursuant to 731-012-0060. Department staff will provide notification of the Director’s determination to the affected local agencies, stakeholder forum and in the case of a development review, the affected applicant. If the Director determines that the Proposed Action will result in a Reduction of Capacity, the Department will inform the affected local agency(ies) about their right to request an exemption of ORS 366.215 under 731-012-0120.

(5) If the Director determines the Proposed Action will not result in a Reduction of Vehicle-Carrying Capacity then the Department may continue with the Proposed Action using Department processes including other appropriate reviews not covered by this division.

History

Statutory/Other Authority: ORS 184.616, 184.619 & 366.205
Statutes/Other Implemented: ORS 366.215
DOT 4-2013, f. & cert. ef. 8-26-13

Or. Admin. R. 731-012-0110 Chief Engineer Certification

(1) If the Department staff has recommended that a Proposed Action should be required by the Department for Safety purposes and the Director determines there is a reduction of vehicle-carrying capacity, then the Chief Engineer will review the Proposed Action and certify (through a memo) that the Proposed Action will be required by the Department for Safety purposes. Prior to certifying the reduction, the Chief Engineer will review the documented Safety Considerations of the Proposed Action.

(2) Proposed Actions certified by the Chief Engineer required for Safety purposes will be presented to the Commission for approval.

History

Statutory/Other Authority: ORS 184.616, 184.619 & 366.205
Statutes/Other Implemented: ORS 366.215
DOT 4-2013, f. & cert. ef. 8-26-13

Or. Admin. R. 731-012-0120 Local Agency Exemption from Restrictions Prohibiting Reduction of Vehicle-Carrying Capacity

(1) At the request of an affected local agency, the Department region manager must direct Department staff to prepare a Commission agenda item for an exemption request. The local agency is responsible for providing analysis that documents the reason for the request and for demonstrating that the Proposed Action will not unreasonably impede the movement of freight.

(2) The local agency analysis may include, as appropriate to the proposed action, information such as:

(a) Safety;

(b) Access;

(d) Approved plans covering the area of the Proposed Action;

(e) Input from the Stakeholder Forum regarding the potential of the Proposed Action to unreasonably impede the movement of freight;

(f) The assurance of alternative routes consisting of local streets and state and local highways; and

(g) Function of roadway for all transportation modes, including freight, vehicle, transit, pedestrian, and bicycle.

History

Statutory/Other Authority: ORS 184.616, 184.619 & 366.205
Statutes/Other Implemented: ORS 366.215
DOT 4-2013, f. & cert. ef. 8-26-13

Or. Admin. R. 731-012-0130 Commission Decision

(1) When there has been a determination by the Director that a Proposed Action results in a Reduction of Vehicle-Carrying Capacity, and there has been a determination that the Proposed Action is needed or required for Safety Considerations, or a local government requests and exemption under ORS 366.215(3), the Commission will make the final determination and may authorize proceeding with the Proposed Action or granting the exemption.

(2) The Department staff will prepare meeting materials for the Commission that include a record of any Safety Considerations, Access Considerations, Stakeholder Forum advice, or Chief Engineer determination.

(3) Any Commission approval of an exemption will include a determination that the exemption is in the best interest of the state and that the movement of freight will not be unreasonably impeded.

History

Statutory/Other Authority: ORS 184.616, 184.619 & 366.205
Statutes/Other Implemented: ORS 366.215
DOT 4-2013, f. & cert. ef. 8-26-13

Or. Admin. R. 731-012-0140 Record Keeping

(1) The Department will publish on a website and maintain for least ten years, a record of all Department, Director and Commission determinations regarding a Reduction of Vehicle-Carrying Capacity and of all Commission approved Reductions of Vehicle-Carrying Capacity.

(2) The Department record of determinations will include the following information:

(a) The route number and Department highway number, mile-point range, (roadway 1 or 2);

(b) Brief description of project;

(d) The approved minimum horizontal clearance;

(e) The approved minimum vertical clearance;

(f) Any other site-specific requirements identified in the determination;

(g) If a subsequent review is required prior to construction;

(h) Any Commission determination based on the best interest of the state; and

(i) Any Commission determination that the movement of freight will not be unreasonably impeded.

(3) The Department will publish on a website and maintain for least ten years, a record of all Reduction of Vehicle-Carrying Capacity Stakeholder Forum discussions regarding proposed potential Reductions of Vehicle-Carrying Capacity. The Department record of Stakeholder Forum meetings will include the following information:

(a) Stakeholders present;

(b) Stakeholders invited to participate;

(d) Date of discussion;

(e) The signed route number and Department highway number, mile-point range (roadway 1 or 2);

(f) Any site specific conditions identified by stakeholders including the identification of a potential for a permanent reduction in the horizontal or vertical clearance of a highway section;

(g) Formal support of a Proposed Action despite any proposed changes to the horizontal or vertical clearance of a highway section;

(h) Any recommendation that the Proposed Action would not result in a Reduction of Vehicle-Carrying Capacity; and

(i) Any requests for additional information.

History

Statutory/Other Authority: ORS 184.616, 184.619 & 366.205
Statutes/Other Implemented: ORS 366.215
DOT 4-2013, f. & cert. ef. 8-26-13

Division 15 COORDINATION RULES

Or. Admin. R. 731-015-0005 Purpose

The purpose of this division is to establish the procedures used by the Department of Transportation to implement the provisions of its State Agency Coordination Program which assure that Department land use programs are carried out in compliance with the statewide planning goals and in a manner compatible with acknowledged comprehensive plans, as required by ORS 197.180 and OAR 660, divisions 30 and 31.

History

Statutory/Other Authority: ORS 184 & 197
Statutes/Other Implemented: ORS 197.180
DOT 5-1990, f. & cert. ef. 9-26-90

Or. Admin. R. 731-015-0015 Definitions

For the purposes of OAR 731-015-0005 through 731-015-0135:

(1) “Accessory Facility” means a facility which assists the Department in administering, managing, maintaining and operating a transportation facility. Examples include office buildings, weigh stations, maintenance yards, equipment repair shops and quarries.

(2) “Affected City or County” means a city or county that has comprehensive planning authority over a site or area which is directly impacted by a proposed Commission or Department action.

(3) “Affected State and Federal Agencies” means state and federal agencies identified in the Department’s state agency coordination program.

(4) “Class 1 Projects” means projects meeting federal criteria for Class 1 Projects under the National Environmental Policy Act (NEPA) and federal agency regulations which carry out NEPA requirements.

(5) “Class 2 Projects” means projects meeting federal criteria for Class 2 Projects under NEPA and federal agency regulations which carry out NEPA requirements.

(6) “Class 3 Projects” means projects meeting federal criteria for Class 3 Projects under NEPA and federal agency regulations which carry out NEPA requirements.

(7) “Commission” means the Transportation Commission.

(8) “Department” means the Department of Transportation.

(9) “DLCD” means the Department of Land Conservation and Development.

(10) “Facility Plan” means a plan for a transportation facility such as a highway corridor plan and an airport master plan.

(11) “Metropolitan Planning Organization” means the organization designated by the Governor to coordinate transportation planning in an urbanized area of the state.

(12) “Modal Systems Plan” means a plan for a statewide system of one or more transportation modes that includes identification of system needs, classification of facilities, and establishment of policies.

(13) “New Transportation Facility” means a transportation facility that does not currently exist. It does not mean the realignment or expansion of an existing transportation facility.

(14) “Transportation Facility” means a facility and all of its parts which are used for conveying and managing the transportation of people and goods. It includes all associated structures and alterations that are necessary to protect public safety and mitigate the environmental effects of a transportation facility.

(15) “Transportation Policy Plan” means the policy plan for the state transportation system encompassing all modes of transportation.

History

Statutory/Other Authority: ORS 184 & 197
Statutes/Other Implemented: ORS 197.180
DOT 5-1990, f. & cert. ef. 9-26-90

Or. Admin. R. 731-015-0025 Applicability

The provisions of OAR 731-015-0005 through 731-015-0135 apply the following programs and activities:

(1) Adoption of the Transportation Policy Plan.

(2) Adoption of modal systems plans.

(3) Adoption of transportation facility plans.

(4) Adoption of project plans for Class 1 and Class 3 projects.

(5) Adoption of project plans for Class 2 projects which would involve any of the activities listed OAR 731-015-0035.

(6) Carrying out operations, maintenance and modernization activities, except for repair of damaged highways as authorized by ORS 366.445, which would involve any of the activities listed OAR 731-015-0035.

(7) Issuing any of the following permits or licenses:

(a) Road Approach Permits;

(b) Airport Site Approval and License;

(d) Permits for Utility Use of Right of Way.

(8) Renewing permits or licenses in the following circumstances:

(a) Proposed expansion of a licensed airport to permit service to a larger class of aircraft;

(b) Proposed enlargement of a sign.

History

Statutory/Other Authority: ORS 184 & 197
Statutes/Other Implemented: ORS 197.180
DOT 5-1990, f. & cert. ef. 9-26-90

Or. Admin. R. 731-015-0035 Activities Which Significantly Affect Land Use

The following activities undertaken by the Department significantly affect land use:

(1) Enlarging an existing transportation facility to increase the level of transportation service provided, relocating an existing transportation facility, or constructing a new transportation facility.

(2) Constructing a new accessory facility, enlarging an existing accessory facility, or significantly changing the use of an existing accessory facility.

(3) Changing the size of land parcels through the sale of property.

(4) Altering land or structures in a way that significantly affects resources or areas protected by the statewide planning goals or acknowledged comprehensive plans. Examples include:

(a) Placing or disposing of materials in wetlands, waterways or floodplains;

(b) Structurally stabilizing shore lands by placing riprap or by other means;

(d) Demolishing or altering a historic bridge or other historic structure;

(e) Removing riparian vegetation.

History

Statutory/Other Authority: ORS 184 & 197
Statutes/Other Implemented: ORS 197.180
DOT 5-1990, f. & cert. ef. 9-26-90

Or. Admin. R. 731-015-0045 Coordination Procedures for Adopting the Final Transportation Policy Plan

(1) Except in the case of minor amendments, the Department shall involve DLCD, metropolitan planning organizations, and interested cities, counties, state and federal agencies, special districts, and other interested parties in the development or amendment of the transportation policy plan. This involvement may take the form of mailings, meetings, or other means that the Department determines are appropriate for the circumstances. The Department shall hold at least one public meeting on the plan prior to adoption.

(2) The Department shall evaluate and write draft findings of compliance with all applicable statewide planning goals.

(3) The Department shall present to the Transportation Commission the draft plan and findings of compliance with all applicable statewide planning goals.

(4) The Transportation Commission shall adopt findings of compliance with all applicable statewide planning goals when it adopts the final transportation policy plan.

(5) The Department shall provide copies of the adopted final transportation policy plan and findings to DLCD, the metropolitan planning organizations, and others who request to receive a copy.

History

Statutory/Other Authority: ORS 184 & 197
Statutes/Other Implemented: ORS 197.180
DOT 5-1990, f. & cert. ef. 9-26-90

Or. Admin. R. 731-015-0055 Coordination Procedures for Adopting Final Modal Systems Plans

(1) Except in the case of minor amendments, the Department shall involve DLCD, metropolitan planning organizations, and interested cities, counties, state and federal agencies, special districts and other parties in the development or amendment of a modal systems plan. This involvement may take the form of mailings, meeting, or other means that the Department determines are appropriate for the circumstances. The Department shall hold at least one public meeting on the plan prior to adoption.

(2) The Department shall evaluate and write draft findings of compliance with all applicable statewide planning goals.

(3) If the draft plan identifies new facilities which would affect identifiable geographic areas, the Department shall meet with the planning representatives of affected cities, counties and metropolitan planning organization to identify compatibility issues and the means of resolving them. These may include:

(a) Changing the draft plan to eliminate the conflicts;

(b) Working with the affected local governments to amend their comprehensive plans to eliminate the conflicts; or

(c) Identifying the new facilities as proposals which are contingent on the resolution of the conflicts prior to the completion of the transportation planning program for the proposed new facilities.

(4) The Department shall present to the Transportation Commission the draft plan, findings of compatibility for new facilities affecting identifiable geographic areas, and findings of compliance with all applicable statewide planning goals.

(5) The Transportation Commission, when it adopts a final modal systems plan, shall adopt findings of compatibility for new facilities affecting identifiable geographic areas and findings of compliance with all applicable statewide planning goals.

(6) The Department shall provide copies of the adopted final modal systems plan and findings to DLCD, the metropolitan planning organizations, and others who request to receive a copy.

History

Statutory/Other Authority: ORS 184 & 197
Statutes/Other Implemented: ORS 197.180
DOT 5-1990, f. & cert. ef. 9-26-90

Or. Admin. R. 731-015-0065 Coordination Procedures for Adopting Final Facility Plans

(1) Except in the case of minor amendments, the Department shall involve DLCD and affected metropolitan planning organizations, cities, counties, state and federal agencies, special districts and other interested parties in the development or amendment of a facility plan. This involvement may take the form of mailings, meetings or other means that the Department determines are appropriate for the circumstances. The Department shall hold at least one public meeting on the plan prior to adoption.

(2) The Department shall provide a draft of the proposed facility plan to planning representatives of all affected cities, counties and metropolitan planning organization and shall request that they identify any specific plan requirements which apply, any general plan requirements which apply and whether the draft facility plan is compatible with the acknowledged comprehensive plan. If no reply is received from an affected city, county or metropolitan planning organization within 30 days of the Department’s request for a compatibility determination, the Department shall deem that the draft plan is compatible with that jurisdiction’s acknowledged comprehensive plan. The Department may extend the reply time if requested to do so by an affected city, county or metropolitan planning organization.

(3) If any statewide goal or comprehensive plan conflicts are identified, the Department shall meet with the local government planning representatives to discuss ways to resolve the conflicts. These may include:

(a) Changing the draft facility plan to eliminate the conflicts;

(b) Working with the local governments to amend the local comprehensive plans to eliminate the conflicts; or

(c) Identifying the conflicts in the draft facility plan and including policies that commit the Department to resolving the conflicts prior to the conclusion of the transportation planning program for the affected portions of the transportation facility.

(4) The Department shall evaluate and write draft findings of compatibility with acknowledged comprehensive plans of affected cities and counties, findings of compliance with any statewide planning goals which specifically apply as determined by OAR 660-030-0065(3)(d), and findings of compliance with all provisions of other statewide planning goals that can be clearly defined if the comprehensive plan of an affected city or county contains no conditions specifically applicable or any general provisions, purposes or objectives that would be substantially affected by the facility plan.

(5) The Department shall present to the Transportation Commission the draft plan, findings of compatibility with the acknowledged comprehensive plans of affecting cities and counties and findings of compliance with applicable statewide planning goals.

(6) The Transportation Commission shall adopt findings of compatibility with the acknowledged comprehensive plans of affected cities and counties and findings of compliance with applicable statewide planning goals when it adopts the final facility plan.

(7) The Department shall provide copies of the adopted final facility plan and findings to DLCD, to affected metropolitan planning organizations, cities, counties, state and federal agencies, special districts and to others who request to receive a copy.

History

Statutory/Other Authority: ORS 184 & 197
Statutes/Other Implemented: ORS 197.180
DOT 5-1990, f. & cert. ef. 9-26-90

Or. Admin. R. 731-015-0075 Coordination Procedures for Adopting Plans for Class 1 and 3 Projects

(1) The Department shall involve affected cities, counties, metropolitan planning organizations, state and federal agencies, special districts and other interested parties in the development of project plans. The Department shall include planning officials of the affected cities, counties and metropolitan planning organization on the project technical advisory committee.

(2) Goal compliance and plan compatibility shall be analyzed in conjunction with the development of the Draft Environmental Impact Statement or Environmental Assessment. The environmental analysis shall identify and address relevant land use requirements in sufficient detail to support subsequent land use decisions necessary to authorize the project.

(3) Except as otherwise set forth in section (4) of this rule, the Department shall rely on affected cities and counties to make all plan amendments and zone changes necessary to achieve compliance with the statewide planning goals and compatibility with local comprehensive plans after completion of the Draft Environmental Impact Statement or Environmental Assessment and before completion of the Final Environmental Impact Statement or Revised Environmental Assessment. These shall include the adoption of general and specific plan provisions necessary to address applicable statewide planning goals.

(4) The Department may complete a Final Environmental Impact Statement or Revised Environmental Assessment before the affected cities and counties make necessary plan amendments and zone changes in the following case:

(a) The Final Environmental Impact Statement or Revised Environmental Assessment identifies that the project be constructed in phases; and

(b) The Department finds:

(A) There is an immediate need to construct one or more phases of the project. Immediate need may include, but is not limited to, the facility to be improved or replaced currently exceeds or is expected to exceed within five years the level of service identified in the Oregon Highway Plan; and

(B) The project phase to be constructed meets a transportation need independent of the overall project, is consistent with the purpose and need of the overall project as identified in the FEIS, and will benefit the surrounding transportation system even if no further phases of the project are granted land use approval.

(5) If a Final Environmental Impact Statement or Revised Environmental Assessment is completed pursuant to section (4) of this rule, all necessary plan amendments and zone changes associated with the particular phase of the project to be constructed shall be made by the city or county prior to constructing that phase of the project.

(6) If compatibility with a city or county comprehensive plan cannot be achieved, the Department may modify one or more project alternatives to achieve compatibility or discontinue the project.

(7) The Commission or its designee shall adopt findings of compatibility with the acknowledged comprehensive plans of affected cities and counties when it grants design approval for the project. Notice of the decision shall be mailed out to all interested parties.

(8) The Department shall obtain all other land use approvals and planning permits prior to construction of the project.

History

Statutory/Other Authority: ORS 184.616, 184.619 & 197.180
Statutes/Other Implemented: ORS 197.180
DOT 3-1998, f. & cert. ef. 12-18-98
DOT 5-1990, f. & cert. ef. 9-26-90

Or. Admin. R. 731-015-0085 Coordination Procedures for Adopting Plans for Class 2 Projects Determined to Significantly Affect Land Use

The procedures in this section shall be followed when the Department determines that a Class 2 project would significantly affect land use in accordance with OAR 731-015-0035.

(1) Planning officials of affected cities and counties shall be contacted at the start of project planning to identify any possible compliance or compatibility conflicts and ways to avoiding conflicts.

(2) The Department shall attempt to avoid any identified compliance or compatibility conflicts as it develops its plans.

(3) Planning officials of affected cities and counties shall be requested to review preliminary final plans to identify whether any local land use approvals are needed and whether any of the acknowledged comprehensive plan’s general provisions would be substantially affected. If no local planning approvals are required and if the plan’s general provisions would not be substantially affected the Department shall conclude that the project is compatible. If no comments are received from an affected local jurisdiction within 15 days of the Department’s request for a compatibility determination, the Department shall deem that the preliminary project plans are compatible with the acknowledged comprehensive plan for that jurisdiction. The Department may extend the reply time if requested to do so by an affected city or county.

(4) If any local planning approvals are required the Department shall either modify its project plans so as to not require approvals, or shall apply for the necessary approvals.

(5) If the affected city or county does not grant approval, the Department may:

(a) Modify the project plans so as to not require approval;

(b) Discontinue further work on the project; or

(6) The Department shall obtain local planning approvals prior to construction of the project.

History

Statutory/Other Authority: ORS 184 & 197
Statutes/Other Implemented: ORS 197.180
DOT 5-1990, f. & cert. ef. 9-26-90

Or. Admin. R. 731-015-0095 Coordination Procedures for Constructing or Improving Buildings in Salem Area

The Department shall satisfy its goal compliance and plan compatibility responsibilities for constructing or improving buildings in areas subject to the jurisdiction of the Capitol Planning Commission by adhering to the Capitol Planning Commission’s land use coordination rules in OAR chapter 110, division 10, and the procedure contained in the Capitol Planning Commission’s certified State Agency Coordination Program.

History

Statutory/Other Authority: ORS 184 & 197
Statutes/Other Implemented: ORS 197.180
DOT 5-1990, f. & cert. ef. 9-26-90

Or. Admin. R. 731-015-0105 Coordination Procedures for Operations, Maintenance and Modernization Activities

The procedures in this section shall be followed when the Department determines that an operations, maintenance or modernization activity would significantly affect land use in accordance with OAR 731-015-0035 unless compliance with the statewide planning goals and compatibility with acknowledged comprehensive plans has been established through application of OAR 731-015-0075 or 731-015-0085.

(1) The Department shall consult planning officials of the affected city or county to determine whether any local land use approvals are required to carry out the proposed activity.

(2) If any local planning approvals are required, the Department shall either modify the proposed activity so as to not require approval, or shall apply for the necessary approvals.

(3) If the approvals are not granted the Department may:

(a) Modify the proposed activity so as to not require permits;

(b) Not do the proposed activity; or

History

Statutory/Other Authority: ORS 184 & 197
Statutes/Other Implemented: ORS 197.180
DOT 5-1990, f. & cert. ef. 9-26-90

Or. Admin. R. 731-015-0110 Coordination Procedures for the Disposal of Surplus Right of Way

(1) The Department shall apply LCDC Goal 17 implementation requirement number 6 as well as applicable statutes when determining whether to declare right of way as surplus.

(2) The Department shall notify potential buyers of their responsibility to establish compliance and compatibility.

(3) The Department shall obtain a written statement from a planning official of the affected city or county that all land use planning approvals have been obtained or that the planned sale complies with the acknowledged comprehensive plan but no local land use approvals are needed.

History

Statutory/Other Authority: ORS 184 & 197
Statutes/Other Implemented: ORS 197.180
DOT 5-1990, f. & cert. ef. 9-26-90

Or. Admin. R. 731-015-0115 Permit Program Procedures

(1) The Department shall notify applicants for permits or licenses or renewals of permits or licenses listed in OAR 731-015-0025 of their responsibility to demonstrate compliance and compatibility.

(2) The Department shall not issue a permit unless certification of compatibility is demonstrated by the applicant. The Department may deny, condition or further restrict a permit that is compatible as necessary to carry out applicable Department rules and statutes.

(3) Certification shall be documentation that all local land use planning approvals have been obtained or a written statement by a planning official of the affected city or county that the application complies with the acknowledged comprehensive plan but no local land use approvals are needed.

History

Statutory/Other Authority: ORS 184 & 197
Statutes/Other Implemented: ORS 197.180
DOT 5-1990, f. & cert. ef. 9-26-90

Or. Admin. R. 731-015-0125 Referral of Compatibility Disputes to the Land Conservation and Development Commission

If a compatibility conflict persists after pursuing the compatibility procedures listed in OAR 731-015-0045 through 731-015-0115, the Department shall request that the Land Conservation and Development Commission make a compatibility determination in accordance with OAR 660-030-0070(7) through (12).

History

Statutory/Other Authority: ORS 184 & 197
Statutes/Other Implemented: ORS 197.180
DOT 5-1990, f. & cert. ef. 9-26-90

Or. Admin. R. 731-015-0135 Statewide Goal Compliance and Acknowledged Plan Com-paibility for New or Amended Rules and Programs Significantly Affecting Land Use

(1) The Commission and Department shall follow the procedures in OAR 660-030-0075 to assure that new or amended rules and programs comply with the requirements of ORS 197.180 and OAR chapter 660, division 30.

(2) The Department shall determine whether new or amended rules and programs affect land use pursuant to OAR 660-030-0005(2) and 731-015-0035.

(3) This section shall not apply to the adoption of temporary rules or programs.

History

Statutory/Other Authority: ORS 184 & 197
Statutes/Other Implemented: ORS 197.180
DOT 5-1990, f. & cert. ef. 9-26-90

Division 17 ECONOMIC DEVELOPMENT PROJECTS UNABLE TO MEET TPR REQUIREMENTS FOR STATE HIGHWAYS

Or. Admin. R. 731-017-0005 Purpose

This division is intended to carry out the state policy outlined in ORS 367.850 to facilitate projects that support local economic development and job creation but cannot meet the funding or timing requirements of the Land Conservation and Development Commission’s Transportation Planning Rule related to state highways. This division is not intended to supersede any requirements of the Transportation Planning Rule; rather, it is intended to encourage innovation and flexibility in the application of traffic performance measures, timing and funding requirements adopted pursuant to the Transportation Planning Rule associated with amendments to comprehensive plans and land use regulations, including zone changes. This innovation and flexibility extends beyond that already permitted under OAR 660-012-0060(2) and through existing applications of Oregon Highway Plan alternate mobility standard processes.

History

Statutory/Other Authority: ORS 184.616, 184.619 & 367.850
Statutes/Other Implemented: ORS 367.850
DOT 3-2010, f. & cert. ef. 12-22-10

Or. Admin. R. 731-017-0010 Definitions

For the purposes of this division, the following definitions shall apply:

(1) “Amendment” means a proposed amendment to a comprehensive plan, transportation system plan or land use regulation.

(2) “Commission” means the Oregon Transportation Commission.

(3) “Director” means the Director of the Oregon Department of Transportation or the designee thereof.

(4) “Economic development projects” means those projects that demonstrate the direct benefits in terms of “primary” jobs created or retained by the development opportunity. Primary jobs are those in such areas as manufacturing, production, warehousing, distribution, or others that create new wealth for the Oregon economy.

(5) “Funding requirements” means the requirements set out in the Transportation Planning Rule that require a funding plan for transportation facilities or improvements needed to avoid a significant effect on existing or planned transportation facilities (OAR 660-012-0060(2)(b)); a written statement from ODOT that the proposed funding and timing for identified mitigation improvements or measures are, at a minimum, sufficient to avoid further degradation to the performance of an affected state highway (660-012-0060(3)(c)); a written statement from ODOT that improvements to state highways that are included as planned improvements in a regional or local transportation system plan or comprehensive plan are reasonably likely to be provided by the end of the planning period (660-012-0060(4)(b)); or a written statement from ODOT that the proposed funding and timing of mitigation measures are sufficient to avoid a significant adverse impact on the Interstate Highway system (660-012-0060(4)(c)).

(6) “Interim period” means the period, not to exceed 20 years, between when construction of an economic development project begins and construction of the project ends.

(7) “Local government” means any city, county or metropolitan service district formed under ORS Chapter 268, or an association of local governments performing land use planning functions under ORS 195.025.

(8) “Long-term economic benefits” means the net economic benefits anticipated to occur from an economic development project following completion of construction.

(9) “ODOT” means the Oregon Department of Transportation.

(10) “ODOT Region” refers to the five regions operated by ODOT. For the purposes of this division the ODOT Regions are defined as follows: Region One consists of Clackamas, Columbia, Hood River, Multnomah and Washington Counties. Region Two consists of Benton, Clatsop, Lane, Lincoln, Linn, Marion, Polk, Tillamook and Yamhill Counties. Region Three consists of Coos, Curry, Douglas, Jackson and Josephine Counties. Region Four consists of Crook, Deschutes, Gilliam, Jefferson, Klamath, Lake, Sherman, Wasco and Wheeler Counties. Region Five consists of Baker, Grant, Harney, Malheur, Morrow, Umatilla, Union and Wallowa Counties.

(11) “Oregon Highway Plan (OHP)” means the 1999 Oregon Highway Plan, as adopted and amended by the Oregon Transportation Commission, which serves as ODOT’s modal system plan for highways as set forth in OAR chapter 731, division 15, consistent with OAR 660-012-0015(1).

(12) “Planning period” means the planning horizon identified in an adopted local or regional transportation system plan.

(13) “Reasonably likely” means a determination by ODOT pursuant to OAR 660-012-0060 that funding to construct a planned improvement to a state highway included in a regional or local transportation system plan or comprehensive plan is likely to be available by the end of the planning period.

(14) “Significantly affect” is as defined in OAR 660-012-0060(1).

(15) “State Agency Coordination Agreement (or Program) (SAC)” means the agreement adopted by the Commission in September 1990 as part of the Unified Transportation Plan required by ORS 184.618 and certified by the Land Conservation and Development Commission in December 1990 as being in compliance with ORS 197.180 and OAR chapter 660, divisions 30 and 31. The SAC describes what ODOT will do to meet its obligation under ORS 197.180 to carry out its programs affecting land use in compliance with the statewide planning goals and in a manner compatible with acknowledged comprehensive plans.

(16) “State highways” means highways under the jurisdiction and/or control and management of ODOT, including interstate highways within the State of Oregon.

(17) “Traffic performance measures” means the minimum acceptable standards of performance for highway facilities identified in an adopted state, regional or local transportation system plan or comprehensive plan. For state highways, traffic performance is measured by volume to capacity (“v/c”) ratios as defined in the Oregon Highway Plan. Modifications to traffic performance measures for state highways require amendments to the OHP.

(18) “Transportation Planning Rule” means the Land Conservation and Development Commission’s administrative rule governing transportation planning, set out at OAR chapter 660, division 12.

(19) “Transportation System Plan” means a plan for one or more transportation facilities adopted in accordance with the Transportation Planning Rule that are planned, developed, operated and maintained in a coordinated manner to supply continuity of movement between modes, and within and between geographic and jurisdictional areas.

(20) “Volume to capacity ratio” is a measure of roadway congestion, calculated by dividing the number of vehicles passing through a section of highway during the peak hour by the capacity of the section as described and defined in the Oregon Highway Plan.

History

Statutory/Other Authority: ORS 184.616, 184.619 & 367.850
Statutes/Other Implemented: ORS 367.850
DOT 3-2010, f. & cert. ef. 12-22-10

Or. Admin. R. 731-017-0015 Applications for Time Extensions, Alternative Funding Plans, or Adjustments or Alternatives to Traffic Performance Measures

(1) When a local government amendment needed to authorize an economic development project cannot meet the funding requirements of the Transportation Planning Rule as they relate to state highways, the local government may apply for:

(a) An extension of time to meet the requirements of OAR 660-012-0060(2)(b), 660-012-0060(4)(b)(D) or 660-012-0060(4)(c)(A);

(b) Approval of a plan proposing alternative methods of funding that meets the provisions in this division;

(c) An adjustment to existing traffic performance measures or allowance to use an alternative traffic performance measure other than a volume to capacity ratio with a proposed acceptable level of performance during an interim period prior to completion of construction of an economic development project for a period of no more than 20 years; or

(d) An adjustment to existing traffic performance measures or allowance to use an alternative traffic performance measure other than a volume to capacity ratio with a proposed acceptable level of performance that address the specific traffic impacts of an economic development project.

(2) Applications under subsection (1) of this Section shall be filed with ODOT for Commission review and approval. The Commission may approve up to four applications in each ODOT Region in a calendar year.

(3) The provisions of this rule do not apply to Commission approval of alternate mobility standards authorized and processed pursuant to OHP Policy 1F Action 1F.3 in system or facility planning processes.

History

Statutory/Other Authority: ORS 184.616, 184.619 & 367.850
Statutes/Other Implemented: ORS 367.850
DOT 3-2010, f. & cert. ef. 12-22-10

Or. Admin. R. 731-017-0020 Application Submittal Requirements

(1) An application submitted pursuant to section 0015 of this division shall be filed with the Region Manager or designee of the ODOT Region within which the economic development project would be located.

(2) Prior to filing an application with ODOT pursuant to this division, the local government shall seek input from the public and affected local governments and agencies regarding the proposed application. Informal coordination with ODOT is encouraged at the earliest point possible to streamline the application process.

(3) Prior to filing an application, a pre-application meeting shall be held between the local government, the applicant for the amendment and the ODOT Region Manager or designee to determine the nature of the application and identify the applicable submittal requirements and review criteria. ODOT shall notify and provide opportunity for representatives from Business Oregon and/or the Department of Land Conservation and Development to submit comments and attend the meeting.

(4) All applications shall:

(a) Be accompanied by any appropriate forms provided by ODOT;

(b) Indicate the nature of the application request;

(A) Identifies the economic development project for which an amendment to a comprehensive plan or land use regulation is being proposed;

(B) Identifies the state highways that would be significantly affected by the proposed amendment, their functional classifications and traffic performance measures, and the extent of non-compliance with the traffic performance measures;

(C) Identifies the basis for the determination that improvements to state highways are not reasonably likely to be provided by the end of the planning period or that the funding or timing for mitigation measures are insufficient to avoid adverse impacts;

(D) Demonstrates the net long-term economic development benefits of the proposed economic development project, including:

(i) An estimate of the number of net new primary jobs the amendment is likely to create within the community and their associated average salary.

(ii) A statement of reasons why the proposal merits approval by the Commission under this division.

(E) Addresses how the application meets the specific criteria in sections 0025 through 0035 of this division, as appropriate, and the review criteria in section 0040 of this division.

(F) Explains why compliance with OAR 660-012-0060(1) cannot otherwise reasonably be accomplished through one or a combination of the measures in 660-012-0060(2), including the phasing of development over time, access management measures, or the use of trip caps.

(G) Addresses how the project will impact traffic safety along the state highway corridor.

(H) Addresses how the project will impact the movement of freight along an affected state highway that is a freight route.

(I) Identifies the public involvement and local government coordination opportunities that have been provided with respect to the application.

(d) Be accompanied by attachments that provide background information supporting the application and proposed amendment, such as a copy of the amendment application filed with the local government, a description of the proposed economic development project, a map showing the affected area and the location of affected state highways, any transportation analyses and studies submitted with the amendment application, a copy of any reasonably likely determination provided by ODOT, and other relevant information.

(5) Applications affecting lands within one-half mile of an interstate interchange area as defined in OAR 660-012-0060(4)(d)(C) also shall address how the application is consistent with the following:

(a) An adopted Interchange Area Management Plan, if one exists.

(b) The function of the interchange.

(6) Within 14 days following receipt of an application, the Region Manager or designee shall notify a local government whether the application is complete. If notified that the application is incomplete, the local government may choose to provide the missing information or to present it as written. If presented as written, the extent of incompleteness shall be noted in the Director’s report prepared pursuant to section 0040 of this division. Where incomplete information impedes the Director’s review for compliance with criteria, the Director shall so note in the Director’s report and may recommend denial of the application.

(7) A local government shall not have more than one application approved by the Commission pursuant to this division within a calendar year.

(8) Where a local government application filed pursuant to this division has been approved by the Commission within the previous three calendar years, the same local government shall not file any additional applications pursuant to this division for property located within the identified traffic impact area of the economic development project that was the subject of the previously approved application.

History

Statutory/Other Authority: ORS 184.616, 184.619 & 367.850
Statutes/Other Implemented: ORS 367.850
DOT 3-2010, f. & cert. ef. 12-22-10

Or. Admin. R. 731-017-0025 Additional Requirements for Time Extensions to Meet Funding Requirements

(1) In addition to the requirements of section 0020 of this division, an application requesting an extension of time to meet the requirements of OAR 660-012-0060(4)(b)(D) or 660-012-0060(4)(c)(A) shall include the following additional information:

(a) The additional time period being requested from the OTC, up to a maximum of 20 years from the date of application.

(b) If applying for an extension of the time requirement in OAR 660-012-0060(4)(c)(A), the identified mitigation improvements or measures for which a time extension is needed to avoid a significant adverse impact on the Interstate Highway system.

(d) An explanation of what will be accomplished during the additional time period that makes compliance with OAR 660-012-0060(1) likely by its conclusion.

(e) A discussion of whether and how an extension of time might adversely impact other existing uses in the community or along a corridor.

(2) Applications for time extensions beyond what is authorized in the OHP require OHP amendments and must be approved by the Commission. Pursuant to ODOT’s State Agency Coordination Agreement, any such amendment must comply with the coordination procedures in OAR 731-015-0065.

History

Statutory/Other Authority: ORS 184.616, 184.619 & 367.850
Statutes/Other Implemented: ORS 367.850
DOT 3-2010, f. & cert. ef. 12-22-10

Or. Admin. R. 731-017-0030 Additional Requirements for Alternative Funding Plans

(1) In addition to the requirements of section 0020 of this division, an application requesting approval of an alternative funding plan shall include the following additional information:

(a) An estimate of the additional funds required to construct needed state highway facilities or improvements or provide identified mitigation improvements or measures.

(b) A description of the proposed alternative funding method and an explanation how it would be adequate to alleviate the funding shortfall.

(d) If the proposed alternative method requires participation by other public or private entities, such as contributions from employers or other parties directly benefitting from an economic development project, a demonstration of commitment by such other entities to participate in the funding method.

(2) Applications for alternative funding plans must be approved by the Commission.

History

Statutory/Other Authority: ORS 184.616, 184.619 & 367.850
Statutes/Other Implemented: ORS 367.850
DOT 3-2010, f. & cert. ef. 12-22-10

Or. Admin. R. 731-017-0035 Additional Requirements for Adjustments or Alternatives to ODOT Traffic Performance Measures

(1) In addition to the requirements of section 0020 of this division, an application to adjust traffic performance measures or to allow use of alternative traffic performance measures including measures other than a volume to capacity ratio shall include the following additional information:

(a) Identification of the existing traffic performance measures and a description of the adjusted or alternative traffic performance measures being requested to accommodate the economic development project, including the geographic boundaries of the requested adjustment or alternative measures.

(b) An explanation how the proposed adjusted or alternative traffic performance measures protect the function of affected state highway facilities.

(c) Methodologies and procedures for applying the adjusted or alternative traffic performance measures, including the level of performance being sought under the new measure.

(d) If the proposal is to adjust existing traffic performance measures or allow use of alternative traffic performance measures during an interim period prior to completion of construction of the development:

(A) The proposed length of the interim period and what will be achieved during that interim period.

(B) An explanation of what will need to occur for the significantly affected transportation facility to be brought up to the current traffic performance measure by the end of the interim period.

(e) An explanation how Commission approval of the requested adjustment or use of alternative traffic performance measures would impact affected state highway corridors and the local government’s ability to implement its adopted transportation system plan or comprehensive plan.

(2) Applications to adjust or allow alternative traffic performance measures for state highways require OHP amendments and must be approved by the Commission. Pursuant to ODOT’s State Agency Coordination Agreement, any such modification must comply with the coordination procedures in OAR 731-015-0065.

History

Statutory/Other Authority: ORS 184.616, 184.619 & 367.850
Statutes/Other Implemented: ORS 367.850
DOT 3-2010, f. & cert. ef. 12-22-10

Or. Admin. R. 731-017-0040 ODOT Review and Report to Commission

(1) Within 30 days following receipt of a complete application or an incomplete application presented as written, the Director shall submit to the Commission a report and recommendation on the application.

(2) The Director’s report shall:

(a) Identify the applicant and the nature of the application.

(b) Identify the ODOT Region from which the application originated and the number of applications within that Region that have already been approved under this division during the current calendar year.

(c) Address consistency with the applicable submittal criteria in section 0020 of this division and with the review criteria in this section.

(d) Include ODOT’s recommendation on the application and the reasons for that recommendation.

(3) In evaluating applications submitted pursuant to this division, the Director shall consider the following:

(a) Whether the economic development project for which amendments are needed can reasonably comply with the requirements in OAR 660-012-0060 without having to apply for a time extension or alternative funding plan or a proposal to adjust or allow use of alternative traffic performance measures under this division.

(b) Based on consultation with Business Oregon, the net long-term primary job creation benefits of the proposed economic development project. Any written materials from Business Oregon will be attached to the ODOT Director’s report.

(c) The adverse impacts approval of the proposed project would have on state transportation facilities, measured in terms of the degree of divergence from existing state highway traffic performance measures, the length of time the divergence would remain in effect, the scale of short and long-term impacts on existing users of the facilities, the safety of users of the facilities, and impacts on neighboring communities.

(d) Local government and private sector commitments to contribute financially to needed state highway and local road improvements that will mitigate state highway impacts.

(e) Local government and private sector commitments to employ interim measures where appropriate, including but not limited to phasing of development or trip caps.

(f) Local government and private sector commitments to employ techniques that reduce vehicle trips on the system as appropriate for the scale and location of the development, including but not limited to transportation demand management, carpooling, transit and land use management methods.

(g) The level of public review and local government coordination associated with an application filed pursuant to this division.

(4) In addition to the conditions of approval required under section 0045 of this division, the Director may recommend conditions of approval for the Commission to attach to a decision approving an application filed pursuant to this division.

History

Statutory/Other Authority: ORS 184.616, 184.619 & 367.850
Statutes/Other Implemented: ORS 367.850
DOT 3-2010, f. & cert. ef. 12-22-10

Or. Admin. R. 731-017-0045 Commission Review and Decision on Applications

(1) Within 45 days following receipt of the Director’s report, the Commission shall review the Director’s report and issue a written decision approving or denying the application. Commission approval or denial of an application shall be accompanied by findings of fact and a statement of reasons explaining how the decision relates to the applicable review standards. If a public hearing is required on the application, the Commission shall schedule the public hearing and allow for the required public review period. The Commission may approve up to four applications in each ODOT Region in a calendar year. The Commission may attach such conditions to its approval as it deems necessary or appropriate to protect the function or ensure the safe operation of state highways or to protect the state’s substantial financial investment in its state highway system.

(2) Once the Commission has approved four applications within an ODOT Region within a calendar year, it may continue its consideration of one or more applications within that ODOT Region to the following calendar year. Continuation of an application to the following calendar year shall not imply any preference or priority for that application.

(3) A Commission decision to approve an application shall be conditioned to limit the allowed uses on the property that is the subject of the proposed amendment to only those uses specifically identified in the proposed economic development project. A local government may achieve this result through application of a limited use overlay zone, the creation of a new zoning district, or other similar method.

(4) A Commission decision to approve an application to adjust traffic performance measures or allow use of alternative traffic performance measures other than a volume to capacity ratio shall be conditioned to apply only to the facility impact area that is the subject of the proposed local government amendment.

History

Statutory/Other Authority: ORS 184.616, 184.619 & 367.850
Statutes/Other Implemented: ORS 367.850
DOT 3-2010, f. & cert. ef. 12-22-10

Or. Admin. R. 731-017-0050 Land Use Decisions

(1) Commission determinations made pursuant to this division concerning the financing of transportation facilities and improvements are not considered land use decisions.

(2) Commission actions made pursuant to this division to extend the time beyond the maximum planning horizon established in the OHP and to adjust or allow alternative traffic performance measures are considered land use decisions and require OHP amendments.

History

Statutory/Other Authority: ORS 184.616, 184.619 & 367.850
Statutes/Other Implemented: ORS 367.850
DOT 3-2010, f. & cert. ef. 12-22-10

Or. Admin. R. 731-017-0055 Review and Update

Beginning two years following the adoption of this division, the Commission shall commence a review to evaluate implementation of and consider possible modifications to this division. This evaluation shall include considerations of the cumulative effects from applications that have been approved.

History

Statutory/Other Authority: ORS 184.616, 184.619 & 367.850
Statutes/Other Implemented: ORS 367.850
DOT 3-2010, f. & cert. ef. 12-22-10

Division 20 METHODS OF ESTABLISHING GROSS WEIGHTS OF TRUCKS

Or. Admin. R. 731-020-0000 Purpose and Scope

Establishing methods of determining gross weights for the Oregon Vehicle Code.

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

History

Statutory/Other Authority: ORS 184.616, 184.619 & 801.055
Statutes/Other Implemented: ORS 801.055
DOT 3-1992, f. & cert. ef. 11-25-92
DOT 2-1992(Temp), f. & cert. ef. 9-1-92

Or. Admin. R. 731-020-0010 Weighing of Vehicles

(1) For the purpose of determining any gross weight, actual scale weights shall govern. In the absence of information as to scale weights or of convenient facilities for ascertaining scale weights, the weights furnished by dealers, manufactures or their agents, as to the weights of vehicles and parts of vehicles, and bills of lading or cargo manifests as to weights of loads, may be accepted as the weights thereof, but such weights shall be subject at all times to verification by actual weights subsequently ascertained.

(2) For any of the purposes of the Oregon Vehicle Code, any gross weight may be measured and determined as follows:

(a) The gross weight of any wheel may be ascertained by placing a portable wheel weigher underneath the wheel and raising it off the surface of the ground, or by placing any wheel on a platform scale in a position so that the other wheels of the vehicle do not bear upon the platform of the scale;

(b) The gross axle weight of any axle may be ascertained by placing a portable wheel weigher underneath the outer wheels at both ends of the axle and raising all the wheels of the axle off the surface of the ground so as to weigh the entire axle at one time, or otherwise in the usual manner of the use of weighing devices, or may be ascertained by placing all the wheels of any axle on a platform scale in a position so that the other wheels of the vehicle do not bear upon the platform of the scale;

(c) The gross weight of any tandem axles and the gross weight of any group of axles shall be the sum of the gross axle weights of all the axles comprising the tandem axles or the group of axles, or may be ascertained by placing all the wheels of the tandem axles or the group of axles on a platform scale in a position so that the other wheels of the vehicle or combination of vehicles do not bear upon the platform of the scale. If it is not practical to place only the wheels of the tandem axles or groups of axles in a position so that other wheels of the vehicle or combination of vehicles do not bear upon the platform of the scale, other wheels of the vehicle or combination of vehicles may be placed on the platform of the scale and the gross weight of the tandem axles or the gross weight of the group of axles shall be determined by subtracting from the gross weight of all the wheels upon the platform of the scale the gross weight of the wheels not comprising the tandem axles or the groups of axles;

(d) The gross weight of any vehicle or combination of vehicles shall be the sum of the gross axle weights of all the axles of the vehicle or combination of vehicles, or may be ascertained by placing all the wheels of a vehicle or combination of vehicles on a platform scale.

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

History

Statutory/Other Authority: ORS 184.616, 184.619 & 801.055
Statutes/Other Implemented: ORS 801.055
DOT 3-1992, f. & cert. ef. 11-25-92
DOT 2-1992(Temp), f. & cert. ef. 9-1-92

Division 30 OREGON TRANSPORTATION INFRASTRUCTURE FUND

Or. Admin. R. 731-030-0010 Purpose of the Rules

OAR 731-030-0010 to 731-030-0170 establish the procedures and requirements for the administration of the Oregon Transportation Infrastructure Fund and for the creation and operation of the Oregon Transportation Infrastructure Bank.

History

Statutory/Other Authority: ORS 184.616, 184.619, 367.015 & 367.020
Statutes/Other Implemented: ORS 367.010 - 367.060 & US Code, PL 104-59 & Sect. 350
DOT 3-2012, f. & cert. ef. 6-27-12
DOT 7-2004, f. & cert. ef. 11-17-04
DOT 1-1997, f. & cert. ef. 1-17-97

Or. Admin. R. 731-030-0020 Statutory Authority

Oregon Revised Statutes (ORS) 367.010 to 367.060 provide authority for the Department to operate the Oregon Transportation Infrastructure Fund.

History

Statutory/Other Authority: ORS 184.616, 184.619, 367.015 & 367.020
Statutes/Other Implemented: ORS 367.010 - 367.060 & US Code, PL 104-59 & Sect. 350
DOT 7-2004, f. & cert. ef. 11-17-04
DOT 1-1997, f. & cert. ef. 1-17-97

Or. Admin. R. 731-030-0030 Definitions

For the purposes of OAR 731-030-0010 through 731-030-0170, the following definitions apply, unless the context clearly indicates otherwise:

(1) “Applicant” means a Municipality or any other entity authorized by law to obtain an Infrastructure Loan or Infrastructure Assistance including an Agency or the Department.

(2) “Application” means the form, prescribed by the Department, and all supplemental attachments, exhibits and other supporting papers that the Applicant completes and provides to the Department to request an Infrastructure Loan or Infrastructure Assistance through the Oregon Transportation Infrastructure Bank.

(3) “Agency” has the meaning given in ORS 367.010(1).

(4) “Agency Contract” means an inter-agency agreement between the Department and an Agency or intra-agency agreement between the Department and a Department Borrower, that is intended to be binding on the State of Oregon and the Agency or the Department Borrower, respectively, as provided in ORS 367.040.

(5) “Agreement” means a legally binding contract between the Department and a Recipient that sets out the terms and conditions under which the Department is providing an Infrastructure Loan or Infrastructure Assistance.

(6) “Bond” has the meaning given in ORS 367.010(2).

(7) “Bond Counsel” means a law firm having knowledge and expertise in the field of municipal law and whose opinions are generally accepted by purchasers of municipal bonds.

(8) “Bond Debt Service” has the meaning given in ORS 367.010(3).

(9) “OTIF Manager” means the Department employee designated by the Commission, through a delegation order, to administer the OTIB and OTIF.

(10) “Collateral” means any real or personal property, including but not limited to intangibles, bonds, revenues or other money, that is or may be pledged, or subject to a lien or security interest to secure the repayment of an Infrastructure Loan, and includes any property included in the definition of collateral in ORS 79.0102(1).

(11) “Commission” means the Oregon Transportation Commission.

(12) “Credit Enhancement” has the meaning given in ORS 367.010(4).

(13) “Debt Service Reserve” means any moneys reserved for debt service for, or used to secure payment of, Infrastructure Bonds. A Debt Service Reserve may be held in a segregated account in the Infrastructure Fund or by a trustee.

(14) “Department” or “ODOT” means the Oregon Department of Transportation.

(15) “Department Borrower” means a division or other organizational unit in the Department that applies for or receives an Infrastructure Loan or Infrastructure Assistance from the Oregon Transportation Infrastructure Fund.

(16) “Director” means the director of the Department.

(17) “Financial Advisor” means a consultant providing the Department with information and advice relative to the structure, timing, marketing, pricing, terms and bond ratings for the sale of Infrastructure Bonds.

(18) “Infrastructure” means any construction project, facility, property or program that provides the foundation or basic framework by which an entity provides transportation services to the public.

(19) “Infrastructure Assistance” has the meaning given in ORS 367.010(6).

(20) “Infrastructure Bonds” has the meaning given in ORS 367.010(7).

(21) “Infrastructure Loan” has the meaning given in ORS 367.010(9).

(22) “Municipality” has the meaning given in ORS 367.010(10).

(23) “Oregon Transportation Infrastructure Bank” or “OTIB” means the program authorized by Section 350 of the National Highway System Designation Act of 1995, 23 U.S.C. 101 note, Public Law 104-59, and a cooperative agreement between the U.S. Department of Transportation and the Department dated August 26, 1996.

(24) “Oregon Transportation Infrastructure Fund” or “OTIF” means the fund established in ORS 367.015.

(25) “Public Transit Division Administrator” means the administrative head of the Transit Division or their designee.

(26) “Private Entity” means a natural person capable of being legally bound, a sole proprietorship, a corporation, a partnership, a limited liability company or partnership, a limited partnership, a for-profit or non-profit unincorporated association, a business trust, or any other entity with legal capacity to contract which is not a Government, as defined by ORS 165.075, or a Local Government as defined by ORS 174.116.

(27) “Recipient” means an Applicant that has received an Infrastructure Loan or Infrastructure Assistance or a combination thereof.

(28) “Region” means one of the geographic areas established by the Department to administer transportation programs.

(29) “Region Manager” means the administrative head of a Region or their designee.

(30) “Transportation Project” has the meaning given in ORS 367.010(11).

History

Statutory/Other Authority: ORS 184.619, 367.015 & 367.020
Statutes/Other Implemented: ORS 367.010 - 367.060 & US Code, PL 104-59 & Sect. 350
DOT 9-2022, amend filed 09/22/2022, effective 09/22/2022
DOT 3-2012, f. & cert. ef. 6-27-12
DOT 7-2004, f. & cert. ef. 11-17-04
DOT 1-1997, f. & cert. ef. 1-17-97

Or. Admin. R. 731-030-0040 Purpose of the Oregon Transportation Infrastructure Fund

(1) The purpose of the Oregon Transportation Infrastructure Fund is to fund transportation solutions, leverage additional funds into Infrastructure, and encourage innovative financing techniques in order to further Oregon’s livability and economic competitiveness. In accomplishing this purpose, all Transportation Projects funded by the Oregon Transportation Infrastructure Fund will be required to satisfy all appropriate federal, state and local planning and programming requirements.

(2) To achieve the objectives of the Oregon Transportation Infrastructure Fund, the Department has established the Oregon Transportation Infrastructure Bank.

History

Statutory/Other Authority: ORS 184.616, 184.619, 367.015 & 367.020
Statutes/Other Implemented: ORS 367.010 - 367.060 & US Code, PL 104-59 & Sect. 350
DOT 3-2012, f. & cert. ef. 6-27-12
DOT 7-2004, f. & cert. ef. 11-17-04
DOT 1-1997, f. & cert. ef. 1-17-97

Or. Admin. R. 731-030-0050 Administration of Funds

(1) Authority for administration of the OTIB and the OTIF may be delegated to the OTIF Manager by the Director.

(2) The Department may expend funds from the Infrastructure Fund for the purposes set forth in ORS 367.015.

History

Statutory/Other Authority: ORS 184.619, 367.015 & 367.020
Statutes/Other Implemented: ORS 367.010 - 367.060 & US Code, PL 104-59 & Sect. 350
DOT 9-2022, amend filed 09/22/2022, effective 09/22/2022
DOT 3-2012, f. & cert. ef. 6-27-12
DOT 7-2004, f. & cert. ef. 11-17-04
DOT 1-1997, f. & cert. ef. 1-17-97

Or. Admin. R. 731-030-0090 Application Procedures

(1) An Applicant may submit an Application for an Infrastructure Loan or Infrastructure Assistance at any time, subject to deadlines, if any, established by the Department.

(2) An Application must be submitted in the manner and form approved by the Department. In addition to the information required by the Application, the Applicant may be required to provide such additional information and supporting documentation concerning the Applicant and the proposed Transportation Project as the Department deems necessary or appropriate in order to enable the Application to be properly evaluated.

History

Statutory/Other Authority: ORS 184.616, 184.619, 367.015 & 367.020
Statutes/Other Implemented: ORS 367.010 - 367.060 & US Code, PL 104-59 & Sect. 350
DOT 3-2012, f. & cert. ef. 6-27-12
DOT 7-2004, f. & cert. ef. 11-17-04
DOT 1-1997, f. & cert. ef. 1-17-97

Or. Admin. R. 731-030-0100 Application Evaluation Procedures

(1) Evaluation of an Application will include an examination to determine the extent to which an Applicant and the proposed Transportation Project meet the following criteria:

(a) The Transportation Project complies with the local transportation plan and with state land use laws and satisfies all appropriate federal, state and local planning and programming requirements.

(b) The Transportation Project meets all applicable design standards.

(c) The requested Infrastructure Loan or Infrastructure Assistance will result in the Transportation Project being constructed on a shorter schedule than conventional funding would allow, or the Infrastructure Loan or Infrastructure Assistance will complete the required project financing and allow the Transportation Project to proceed to construction.

(d) The Transportation Project will further the goal of safety in transportation.

(e) The Transportation Project will help manage traffic growth and improve livability.

(f) The Application identifies a revenue stream adequate to repay an Infrastructure Loan or meets the terms of any Infrastructure Assistance that is provided.

(g) The Application identifies Collateral adequate to secure repayment of the Infrastructure Loan.

(h) The Transportation Project will attract new or less conventional capital to Infrastructure funding.

(i) The Infrastructure Loan, if any, has a term acceptable to the Department.

(j) The Transportation Project will support the community’s economic development.

(k) The Transportation Project will enhance the quality of life in the community.

(2) Unless the Department finds that financial factors warrant otherwise, if the Applicant is a Private Entity:

(a) The Applicant must provide adequate security;

(b) An Infrastructure Loan or Infrastructure Assistance will be limited to fifty percent (50%) of the fair market value of the real property Collateral on which the Department has a first lien or twenty-five percent (25%) of the fair market value of the real property Collateral if the Department has a junior lien;

(c) The Applicant must have made a profit after taxes for a minimum of two consecutive fiscal years immediately preceding the Application;

(d) The Applicant must have had a positive cash flow from operating activities (earnings before interest and taxes plus depreciation less taxes) for a minimum of two of the last three fiscal years immediately preceding the Application; and

(e) The Applicant must have a ratio of current assets to current liabilities of at least 1.75 to 1, a ratio of current assets less inventories to current liabilities of at least 1 to 1, and a ratio of total debt to owner’s equity of no more than 2 to 1 for a minimum of two of the last three fiscal years immediately preceding the Application.

History

Statutory/Other Authority: ORS 184.619, 367.015 & 367.020
Statutes/Other Implemented: ORS 367.010 - 367.060 & US Code, PL 104-59 & Sect. 350
DOT 9-2022, amend filed 09/22/2022, effective 09/22/2022
DOT 3-2012, f. & cert. ef. 6-27-12
DOT 7-2004, f. & cert. ef. 11-17-04
DOT 1-1997, f. & cert. ef. 1-17-97

Or. Admin. R. 731-030-0110 Approval Procedures

(1) The Department will evaluate the application for conformity with all applicable laws, rules, and regulations; as well as the established criteria under OAR 731-030-0100(1), and appropriate technical, engineering, and planning criteria. While an Application is pending or under review, the Department may require the Applicant to provide additional information with respect to, or clarification of, any matter pertaining to the Application, the Applicant, the proposed Transportation Project, or the financing thereof as the Department determines in its sole discretion to be reasonably necessary or appropriate.

(2) To either approve an Application under Section 3(a) of this Rule or recommend approval of an Application to the Commission under Section 3(b) of this Rule, the Department must find all of the following:

(a) The Applicant and the Transportation Project qualify for assistance from the Infrastructure Fund according to the criteria established under OAR 731-030-0100(1).

(b) The proposed Transportation Project is feasible and a reasonable risk from practical and economic standpoints, and the proposed Infrastructure Loan has a reasonable prospect of repayment according to its terms.

(c) The Applicant’s financial resources and management capability appear to be adequate to assure the successful completion and operation of the Transportation Project.

(d) As reflected by the Applicant’s credit history and capacity to repay the Infrastructure Loan, the Applicant is creditworthy.

(e) The Applicant can provide good and sufficient Collateral when necessary to mitigate risk to the Infrastructure Fund.

(3) After review, and subject to the availability of moneys in the Infrastructure Fund, the Department may:

(a) For an Application for an Infrastructure Loan or Infrastructure Assistance for an amount less than or equal to $5 million:

(A) Approve the request;

(B) Deny the request; or

(b) For any Application greater than $5 million:

(A) Deny the request; or

(B) Forward a recommendation for action to the Commission.

(4) The Commission will consider the recommendation by the Department on any Application forwarded to it for action and may:

(a) Approve the request; or

(b) Deny the request.

(5) Upon approval of an Application, the Department will present the Applicant with a commitment letter detailing:

(a) The amount and type of financing to award.

(b) The interest rate (if applicable). In determining the interest rate for an Infrastructure Loan, the Department may set the rate to reflect the evaluation of the Transportation Project, the effect of the rate upon the Applicant’s ability to finance the Transportation Project, the term of the Infrastructure Loan, creditworthiness of the Applicant, the financial need of the Applicant, and the special circumstances of the Transportation Project.

(6) Upon receipt of the commitment letter, the Applicant may:

(a) Accept the terms of the commitment letter;

(b) Request that the Department engage in negotiations to reach terms different than those proposed in the commitment letter; or

(7) If the Applicant requests that the Department engage in negotiations under Section 6(b), and the parties fail to agree to terms within 30 days of the Applicant’s request, the Department may in its sole discretion terminate the negotiations and the Application.

(8) The Department may suspend or alter any requirements under this rule for Applications to refinance existing debt by an Applicant the Department has deemed creditworthy as part of the Applicant’s original financing award.

History

Statutory/Other Authority: ORS 184.619, 367.015 & 367.020
Statutes/Other Implemented: ORS 367.010 - 367.060 & US Code, PL 104-59 & Sect. 350
DOT 9-2022, amend filed 09/22/2022, effective 09/22/2022
DOT 3-2012, f. & cert. ef. 6-27-12
DOT 7-2004, f. & cert. ef. 11-17-04
DOT 1-1997, f. & cert. ef. 1-17-97

Or. Admin. R. 731-030-0120 Project Agreements, Interest Rates and Charges

(1) For an Application approved under OAR 731-030-0110, and for which a commitment letter has been accepted under OAR 731-030-0110(6)(a), the Department will make an Infrastructure Loan or provide Infrastructure Assistance from the Infrastructure Fund by entering into an Agreement with the Recipient.

(2) An agreement for an Infrastructure Loan or Infrastructure Assistance will include the final determination of the amount and type of financing awarded, interest rate (if applicable), value and types of Collateral (if required), and schedule of payments. All Agreements must include the financed amount, any fees or charges, and any other provisions that the Department requires in its sole discretion.

(3) The Department will consider the financial status of the Infrastructure Fund and may delay final award of funds to any Recipient until sufficient funds are available in the Infrastructure Fund. The Department may recommend other sources of funds for all or part of a proposed Transportation Project.

(4) Eligible uses of moneys obtained from or through the assistance of the Infrastructure Fund include, but are not limited to, the cost of acquiring, designing, building and installing any Transportation Project.

(5) A Recipient may request a modification or amendment to an executed Agreement. The request must be made in writing to the Department. The Recipient will be responsible for all costs related to any modification or amendment of the Agreement.

History

Statutory/Other Authority: ORS 184.619, 367.015 & 367.020
Statutes/Other Implemented: ORS 367.010 - 367.060 & US Code, PL 104-59 & Sect. 350
DOT 9-2022, amend filed 09/22/2022, effective 09/22/2022
DOT 3-2012, f. & cert. ef. 6-27-12
DOT 7-2004, f. & cert. ef. 11-17-04
DOT 1-1997, f. & cert. ef. 1-17-97

Or. Admin. R. 731-030-0130 Accounting, Reporting and Auditing Requirements

(1) The Department will maintain an accounting system for the Infrastructure Fund that complies with generally accepted accounting principles and practices.

(2) A Recipient must separately account for all moneys received from the Infrastructure Fund in project accounts in accordance with generally accepted accounting standards. The Department reserves the right to audit, monitor or otherwise review all project records.

(3) The Department will compile an annual report on the OTIB and make it available to Recipients no later than 90 days after the end of the federal fiscal year. The report will identify that year’s Recipients, the amounts, terms and conditions of the Infrastructure Loans and Infrastructure Assistance awarded and project categories.

(4) A Recipient must observe the requirements of state law, if applicable, for retaining and disposing of records.

History

Statutory/Other Authority: ORS 184.619, 367.015 & 367.020
Statutes/Other Implemented: ORS 367.010 - 367.060 & US Code, PL 104-59 & Sect. 350
DOT 9-2022, amend filed 09/22/2022, effective 09/22/2022
DOT 3-2012, f. & cert. ef. 6-27-12
DOT 7-2004, f. & cert. ef. 11-17-04
DOT 1-1997, f. & cert. ef. 1-17-97

Or. Admin. R. 731-030-0160 Protests

(1) If the Chief Financial Officer denies an Application for an Infrastructure Loan or Infrastructure Assistance, the Applicant may protest the decision to the Director. The protest must be in writing and must be filed within 30 calendar days of notification of the denial. The Director will notify the Applicant of the Director’s decision within 30 days of the receipt of the protest.

(2) If the Director affirms the denial of the Application, the Applicant may protest the Director’s decision to the Commission. The protest to the Commission must be in writing and must be filed within 30 calendar days of notification of the Director’s decision. The Commission will consider the protest at the earliest practical regular meeting of the Commission. The Applicant may appear before the Commission to present additional factual information in support of the Application.

(3) A Commission decision to deny an Application as described in OAR 731-030-0110(5) will not be subject to further administrative review.

History

Statutory/Other Authority: ORS 184.616, 184.619, 367.015 & 367.020
Statutes/Other Implemented: ORS 367.010 - 367.060 & US Code, PL 104-59 & Sect. 350
DOT 3-2012, f. & cert. ef. 6-27-12
DOT 7-2004, f. & cert. ef. 11-17-04
DOT 1-1997, f. & cert. ef. 1-17-97

Or. Admin. R. 731-030-0170 Interagency and Intra-agency Loans

(1) For purposes of OAR 731-030-0170, capitalized terms shall have the respective meanings given in ORS Chapter 367 and OAR 731-030-0030, unless the context clearly indicates otherwise.

(2) An Agency may apply for an Infrastructure Loan or Infrastructure Assistance by following the same procedures as an Applicant and submitting an Application as set forth in 731-030-0090. The Department will evaluate the Agency’s Application in the same manner provided in OAR 731-030-0100 and 731-030-0110; as well as giving due consideration, to differences in funding sources and available Collateral.

(3) A Department Borrower may request an Infrastructure Loan or Infrastructure Assistance by submitting an Application as described under OAR 731-030-0090. The Department will evaluate the Application in the same manner provided in OAR 731-030-0100 and 731-030-0110, giving due consideration to differences in funding sources and available Collateral.

(4) For an Application approved under this OAR 731-030-0170, the Department will enter into an Agency Contract setting forth the amount of the Infrastructure Loan or Infrastructure Assistance and such additional terms and conditions as the Department considers necessary including, but not limited to:

(a) For an Infrastructure Loan, the interest rate, installment payment amount and schedule, maturity date, and any revenues or other moneys pledged or dedicated to repayment of the Infrastructure Loan; and

(b) For an Infrastructure Loan or Infrastructure Assistance, the allowable purposes on which the moneys provided may be spent and the remedies available to the Department in the event the moneys are misspent.

(5) The Department may charge an Agency or Department Borrower for costs to review, process, and service an Application or the Infrastructure Loan or Infrastructure Assistance. Charges described under this section include, but are not limited to:

(a) A loan fee of one percent of the amount of the Infrastructure Loan upon disbursement of Infrastructure Loan proceeds;

(b) Charges for credit reports, expert advice, legal fees, construction inspections, disbursement fees, loan servicing fees, Uniform Commercial Code - 1 fees and appraisals; and

History

Statutory/Other Authority: ORS 184.619, 367.015 & 367.020
Statutes/Other Implemented: ORS 367.010-367.060 & US Code, PL 104-59 & Sect. 350
DOT 9-2022, amend filed 09/22/2022, effective 09/22/2022
DOT 3-2012, f. & cert. ef. 6-27-12

Division 35 STANDARDS TO DETERMINE PROJECT ELIGIBILITY AND APPLICATION PROCEDURES FOR GRANTS UNDER THE CONNECT OREGON FUND PROGRAM

Or. Admin. R. 731-035-0010 Competitive Grant Application Purpose

ORS 367.080 to 367.086 creates the Connect Oregon Fund, established for the purpose of financing grants to fund Transportation Projects that involve air, marine and rail modes. The purpose of OAR 731-035-0010 through OAR 731-035-0080 is to establish the grant selection and administration process for Competitive Grant Applications through the Connect Oregon Fund.

History

Statutory/Other Authority: ORS 184.619, 367.082 & Ch. 816 OL 2005
Statutes/Other Implemented: ORS 367.080 – 367.086, Ch. 816 OL 2005 & Ch. 750 OL 2017
DOT 2-2025, amend filed 05/08/2025, effective 05/08/2025
DOT 5-2024, temporary amend filed 12/04/2024, effective 12/04/2024 through 06/01/2025
DOT 2-2018, amend filed 03/20/2018, effective 03/20/2018
DOT 2-2017, temporary amend filed 09/27/2017, effective 10/06/2017 through 04/04/2018
DOT 3-2015, f. & cert. ef. 12-17-15
DOT 6-2013, f. & cert. ef. 12-20-13
DOT 5-2007, f. & cert. ef. 11-15-07
DOT 3-2006, f. & cert. ef. 1-24-06
DOT 8-2005(Temp), f. 11-17-05, cert. ef. 11-21-05 thru 5-19-06

Or. Admin. R. 731-035-0020 Definitions

For the purposes of division 35 rules, the following terms have the following definitions, unless the context clearly indicates otherwise:

(1) “Agreement” means a legally binding contract between the Department and Recipient that contains the terms and conditions under which the Department is providing funds from the ConnectOregonFund for an Approved Project.

(2) “Applicant” means a Person or Public Body that applies for funds from the ConnectOregon Fund.

(3) “Approved Project” means a project that the Commission has approved to receive funding through a grant from the ConnectOregonFund.

(4) “Area Commissions on Transportation” means advisory bodies chartered by the Oregon Transportation Commission.

(5) “Aviation” is defined in ORS 836.005(5).

(6) “Commission” means the Oregon Transportation Commission.

(7) “Competitive Grant Application” means an application submitted by the submission date established by the Department that does not require an award of a federal grant to fund the project.

(8) “Connect Oregon Fund” means the fund created in ORS 367.080.

(9) “Dedicated Project” means a project listed Chapter 491, 2019 Oregon Laws, Section 10.

(10) “Department” means the Oregon Department of Transportation.

(11) “Director” means the Director of the Oregon Department of Transportation.

(12) “Oregon Department of Aviation (ODA)” means the Oregon Department of Aviation (ODA) defined in ORS 836.005(7).

(13) “Final Project Acceptance” means the Department’s written acceptance of a project as complete following an on-site review of the completed project.

(14) “Freight Advisory Committee” means the committee created in ORS 366.212.

(15) “Federal Grant Match Application” means an application submitted by the submission date established by the Department that requires an award of a federal grant to fund the project.

(16) “Limited Land Use Decision” has the meaning given in ORS 197.015(12).

(17) “Land Use Decision” has the meaning given in ORS 197.015(10).

(18) “Oregon Business Development Department” means the department defined in ORS 285A.070.

(19) “Person” has the meaning given in ORS 174.100(6), limited to those Persons that are registered with the Oregon Secretary of State to conduct business within the State of Oregon.

(20) “Program” means the ConnectOregonFund Program established by division 35 rules to administer the ConnectOregonFund.

(21) “Program Funds” means the money appropriated by the Legislature to the ConnectOregonFund and includes funds that become available due to loan repayment from a previous project, unappropriated project funds from Approved Projects, earnings on moneys held in the ConnectOregonFund, and funds from sanctions as prescribed in 731-035-0080(5) of an Approved Project.

(22) “Project Sponsor” means a Person or a Public Body seeking funds to develop and implement a Dedicated Project.

(23) “Public Body” is defined in ORS 174.109.

(24) “Rail Advisory Committee” means a committee appointed by the Director and approved by the Commission to advise the Department on issues, policies and programs that affect rail freight and rail passenger facilities and services in Oregon.

(25) “Recipient” means an eligible Person or Public Body that enters into an Agreement with the Department to receive funds from the ConnectOregonFund.

(26) “Recipient’s Total Project Costs” means the funds received from the ConnectOregonProgramFundsplus the matching funds required under Oregon Administrative Rule 731-035-0070(3)(a)(B) and any additional funds, if applicable.

(27) “Regional Solutions Team” means the teams created in ORS 284.754.

(28) “State Aviation Board” means the board created in ORS 835.102.

(29) “Transportation project” is defined in ORS 367.080(1)(c) and means a project or undertaking for rail, marine, and aviation capital infrastructure, including bridges, or a project that facilitates the transportation of materials, animals or people. A transportation project does not include costs associated with operating expenses.

History

Statutory/Other Authority: ORS 184.619, 367.082 & Ch. 816 OL 2005
Statutes/Other Implemented: ORS 367.080 – 367.086, Ch. 816 OL 2005 & Ch. 750 OL 2017
DOT 2-2025, amend filed 05/08/2025, effective 05/08/2025
DOT 5-2024, temporary amend filed 12/04/2024, effective 12/04/2024 through 06/01/2025
DOT 1-2020, amend filed 01/24/2020, effective 01/24/2020
DOT 2-2018, amend filed 03/20/2018, effective 03/20/2018
DOT 2-2017, temporary amend filed 09/27/2017, effective 10/06/2017 through 04/04/2018
DOT 3-2015, f. & cert. ef. 12-17-15
DOT 6-2013, f. & cert. ef. 12-20-13
DOT 5-2011, f. & cert. ef. 12-22-11
DOT 2-2010, f. & cert. ef. 7-30-10
DOT 3-2009, f. & cert. ef. 11-17-09
DOT 5-2007, f. & cert. ef. 11-15-07
DOT 3-2006, f. & cert. ef. 1-24-06
DOT 8-2005(Temp), f. 11-17-05, cert. ef. 11-21-05 thru 5-19-06

Or. Admin. R. 731-035-0030 Competitive Grant Application Submission Periods

(1) The Department will announce time periods for submitting applications for funding from the ConnectOregonFund. Announcements for submitting applications shall denote if the Department is taking applications for the Competitive Grant Application or for the Federal Grant Match Application.

(2) The Department will consider applications for grants for transportation projects only if the Department determines that $50 million or more will be available in the Connect Oregon Fund for the biennium in which the grants are provided.

(a) The Department may use up to one percent of the amounts available within the Connect Oregon Fund to pay administrative costs incurred by the Department in carrying out the provisions of ORS 367.080 to 367.089

(b) Each time there is a deposit into the Connect Oregon Fund, the department shall transfer seven percent of the moneys deposited into Connect Oregon Fund to the Multimodal Active Transportation Fund as administered by OAR Chapter 731, Division 36.

(3) Project applications will be reviewed for compliance with the requirements in OAR 731-035-0040 and as prescribed in 731-035-0050.

(4) Applications not funded may be resubmitted during subsequent application submission periods announced by the Department.

History

Statutory/Other Authority: ORS 184.619, 367.082 & Ch. 816 OL 2005
Statutes/Other Implemented: ORS 367.080 – 367.086, Ch. 816 OL 2005 & Ch. 750 OL 2017
DOT 2-2025, amend filed 05/08/2025, effective 05/08/2025
DOT 5-2024, temporary amend filed 12/04/2024, effective 12/04/2024 through 06/01/2025
DOT 1-2020, amend filed 01/24/2020, effective 01/24/2020
DOT 2-2018, amend filed 03/20/2018, effective 03/20/2018
DOT 2-2017, temporary amend filed 09/27/2017, effective 10/06/2017 through 04/04/2018
DOT 3-2015, f. & cert. ef. 12-17-15
DOT 3-2006, f. & cert. ef. 1-24-06
DOT 8-2005(Temp), f. 11-17-05, cert. ef. 11-21-05 thru 5-19-06

Or. Admin. R. 731-035-0040 Competitive Grant Application Requirements

Applicants interested in receiving funds from the ConnectOregonFund must submit a written application to the Department. The application must be in a format prescribed by the Department and contain or be accompanied by such information as the Department may require, including the expected results from the proposed Project for each of the considerations as prescribed in 731-035-0060, documented desire for and support of the Project from the businesses and entities to be served by the Project, and documentation to validate the Project schedule and costs.

History

Statutory/Other Authority: ORS 184.619, 367.082 & Ch. 816 OL 2005
Statutes/Other Implemented: ORS 367.080 – 367.086, Ch. 816 OL 2005 & Ch. 750 OL 2017
DOT 2-2025, amend filed 05/08/2025, effective 05/08/2025
DOT 5-2024, temporary amend filed 12/04/2024, effective 12/04/2024 through 06/01/2025
DOT 2-2018, amend filed 03/20/2018, effective 03/20/2018
DOT 2-2017, temporary amend filed 09/27/2017, effective 10/06/2017 through 04/04/2018
DOT 3-2015, f. & cert. ef. 12-17-15
DOT 5-2011, f. & cert. ef. 12-22-11
DOT 2-2010, f. & cert. ef. 7-30-10
DOT 5-2007, f. & cert. ef. 11-15-07
DOT 3-2006, f. & cert. ef. 1-24-06
DOT 8-2005(Temp), f. 11-17-05, cert. ef. 11-21-05 thru 5-19-06

Or. Admin. R. 731-035-0050 Competitive Grant Application Review

(1) The Department will review applications received to determine whether the application is complete and whether the Applicant and the Transportation Project are eligible for Program Funds.

(2) Applicants that meet all of the following criteria are eligible:

(a) The Applicant is a Public Body or Person within the state of Oregon.

(b) The Applicant, if applicable, is current on all state and local taxes, fees and assessments.

(c) The Applicant has sufficient management and financial capacity to complete the project including, without limitation, the ability to contribute 30 percent of the Recipient’s Total Project Cost for Applicants other than a Class I railroad, and 50 percent of the Recipient’s Total Project Cost for Class I railroads.

(3) Projects that meet all of the following criteria are eligible:

(a) The project is a Transportation Project.

(b) The project will assist in developing a multimodal transportation system that supports state and local government efforts to attract new businesses to Oregon or that keeps and encourages expansion of existing businesses.

(c) The project is eligible for funding with lottery bond proceeds under the Oregon Constitution and laws of the state of Oregon.

(d) The project will not require or rely upon subsidies from the Department for ongoing operations.

(e) The project is not a public road or other project that is eligible for funding from revenues described in section 3a, Article IX of the Oregon Constitution, i.e. the State Highway Trust Fund.

(f) The project is feasible, including the estimated cost of the project, the expected results from the proposed project for each of the considerations as prescribed in 731-035-0060, the project schedule, and all applicable and required permits may be obtained within the project schedule.

(4) If an Applicant or project is deemed to be ineligible for Program Funds, the Department will, within 15 calendar days of that determination:

(a) Notify the Applicant that the application request is ineligible, and

(b) Where the finding of ineligibility is the result of an incomplete application, specify the additional information the Applicant must provide to establish eligibility.

(5) The Department may deem an application ineligible if the Applicant fails to meet eligibility requirements of subsections (2) and (3) of this rule, or fails to provide requested information in writing by the date required by the Department, or if the application contains false or misleading information.

(6) The Director will consider protests of the eligibility determination for the project. Only the Applicant may protest. Protests must be submitted in writing to the Director within 15 calendar days of the event or action that is being protested. The Director’s decision is final.

(7) The Department will make all eligible applications available for review, as applicable under OAR 731-035-0060, to the State Aviation Board, the Freight Advisory Committee, the Rail Advisory Committee, the Oregon Business Development Department, ACTs and any other transportation stakeholder and advocate entities identified by the Commission to provide recommendations on project funding.

History

Statutory/Other Authority: ORS 184.619, 367.082 & Ch. 816 OL 2005
Statutes/Other Implemented: ORS 367.080 – 367.086, Ch. 816 OL 2005, Ch. 723, Ch. 765 & Ch. 786 OL 2013
DOT 2-2025, amend filed 05/08/2025, effective 05/08/2025
DOT 5-2024, temporary amend filed 12/04/2024, effective 12/04/2024 through 06/01/2025
DOT 1-2020, amend filed 01/24/2020, effective 01/24/2020
DOT 3-2015, f. & cert. ef. 12-17-15
DOT 5-2011, f. & cert. ef. 12-22-11
DOT 3-2009, f. & cert. ef. 11-17-09
DOT 5-2007, f. & cert. ef. 11-15-07
DOT 3-2006, f. & cert. ef. 1-24-06
DOT 8-2005(Temp), f. 11-17-05, cert. ef. 11-21-05 thru 5-19-06

Or. Admin. R. 731-035-0060 Competitive Grant Project Selection

(1) The Commission will approve projects to be funded through a grant Agreement with moneys in the ConnectOregonFund.

(2) To the extent that proposed Projects meet the qualifications established in OAR 731-035-0050 and 731-035-0060, the Commission may consider the distribution of funds among the five ODOT regions. The regions consist of the following counties:

(a) Region one consists of Clackamas, Hood River, Multnomah and Washington Counties;

(b) Region two consists of Benton, Clatsop, Columbia, Lane, Lincoln, Linn, Marion, Polk, Tillamook and Yamhill Counties;

(d) Region four consists of Crook, Deschutes, Gilliam, Jefferson, Klamath, Lake, Sherman, Wasco and Wheeler Counties; and

(e) Region five consists of Baker, Grant, Harney, Malheur, Morrow, Umatilla, Union and Wallowa Counties.

(3) Prior to selecting projects to be funded with moneys in the ConnectOregonFund, the Commission shall solicit recommendations from:

(a) The State Aviation Board for Aviation Transportation Projects.

(b) The Freight Advisory Committee for freight Transportation Projects.

(d) The Oregon Business Development Department for marine transportation projects.

(e) Area Commissions on Transportation.

(f) Regional Solutions Teams, as required in ORS 284.753.

(4) Prior to selecting projects to be funded with moneys in the ConnectOregonFund, the Commission may solicit recommendations from transportation stakeholder and advocate entities not otherwise specified in section (3) of this rule.

(5) On behalf of the Commission, the Department shall solicit recommendations from the committees and entities in section (3) of this rule concurrently.

(6) The Director, in consultation with committees and entities in section (3) of this rule, shall appoint a Final Review Committee that includes representatives from each of the committees and entities in section (2) of this rule.

(a) Persons are not eligible for Final Review Committee membership if the person:

(A) represents an entity that submitted an application for a ConnectOregon Fund grant that is being considered for funding by the Final Review Committee; or

(B) has a direct financial interest in an application that is being considered for funding by the Final Review Committee.

(b) Following the receipt of recommendations from the entities in section (3) of this rule and prior to selecting projects to be funded with moneys in the ConnectOregonFund, the Commission shall solicit a Final Recommendation Report from the Final Review Committee. The Department shall provide the Final Review Committee a list of recommendations from all committees and entities in section (3) of this rule. The list shall include the evaluation results and recommendations from each of the committees and entities in section (2) of this rule. The Final Review Committee shall provide the Commission its Final Recommendation Report of projects to be funded with moneys in the ConnectOregonFund listing in priority order eligible projects together with a reasonable number of alternate projects in priority order.

(c) After the Final Review Committee makes its recommendation to the Commission, the Department shall validate project information that meets program criteria in each project application that will be used in an Agreement.

(A) Project Applicants shall be required to provide any additional information requested by the Department within five business days of the request.

(B) Validation shall include:

(i) Evidence of matching funds available for the project.

(ii) Evidence of site ownership or control including but not limited to evidence of a land sales agreement, option for purchase or governing body resolution of condemnation action.

(iii) Confirmed project delivery schedule that meets Program requirements.

(iv) Other information as identified by the Department needed to enter into an Agreement.

(C) The Department shall identify those projects that do not meet Program criteria prior to the Commission’s final action to select projects.

(7) The Department shall determine the organizational guidance for the committees’ and entities’ processes and protocols.

(8) The committees and entities in section (3) of this rule shall follow the organizational guidance determined by the Department under section (7) of this rule.

(9) The Commission will consider all of the following factors in making its decision to award funding for eligible projects from the ConnectOregonFund:

(a) Whether a proposed project reduces transportation costs for Oregon businesses or improves access to jobs and sources of labor;

(b) Whether a proposed transportation project results in an economic benefit to this state;

(c) Whether a proposed project is a critical link connecting elements of Oregon’s transportation system that will measurably improve utilization and efficiency of the system; and

(d) The proportion of the cost of a proposed project that is borne by the Applicant or contributed from any other source other than the Connect Oregon Fund.

(e) Whether a proposed transportation project is ready for construction. A project will be considered ready for construction if the Applicant can demonstrate that:

(A) Community engagement/outreach has occurred prior to or at the time of application submission.

(B) Project completion can be achieved within 3 years of the award of the grant by submitting a project schedule that includes project stages and dates of major milestones;

(D) Site ownership or control is secured 30 calendar days before the Commission’s decision to award funds;

(E) Final land use actions necessary to support the proposed project have been approved by the local government 60 calendar days before the Commission’s decision to award funds.

(F) Limited Land Use Decision rendered by the appropriate local government received within six months of execution of Agreement.

(G) Securing all permits needed for construction within nine months of execution of an Agreement;

(f) Whether a proposed transportation project has a useful life expectancy that offers maximum benefit to the state; and

(g) Whether a proposed transportation project is located near operations conducted for mining aggregate or processing aggregate as described in ORS 215.213 (2)(d) or 215.283 (2)(b).

(10) The Commission shall award funds for projects in accordance with ORS 367.084 solely, notwithstanding any other provision of division 35.

History

Statutory/Other Authority: ORS 184.619, 367.082 & Ch. 816 OL 2005
Statutes/Other Implemented: ORS 367.080 – 367.086, Ch. 816 OL 2005 & Ch. 750 OL 2017
DOT 2-2025, amend filed 05/08/2025, effective 05/08/2025
DOT 5-2024, temporary amend filed 12/04/2024, effective 12/04/2024 through 06/01/2025
DOT 1-2020, amend filed 01/24/2020, effective 01/24/2020
DOT 2-2018, amend filed 03/20/2018, effective 03/20/2018
DOT 2-2017, temporary amend filed 09/27/2017, effective 10/06/2017 through 04/04/2018
DOT 3-2015, f. & cert. ef. 12-17-15
DOT 6-2013, f. & cert. ef. 12-20-13
DOT 5-2011, f. & cert. ef. 12-22-11
DOT 2-2010, f. & cert. ef. 7-30-10
DOT 3-2009, f. & cert. ef. 11-17-09
DOT 5-2007, f. & cert. ef. 11-15-07
DOT 3-2006, f. & cert. ef. 1-24-06
DOT 8-2005(Temp), f. 11-17-05, cert. ef. 11-21-05 thru 5-19-06

Or. Admin. R. 731-035-0065 Dedicated Projects

(1) Dedicated Projects and the maximum funds to be distributed to those Dedicated Projects are:

(a) Mid-Willamette Valley Intermodal Facility, $25 million;

(b) Treasure Valley Intermodal Facility, $26 million;

(d) Extend rail siding along the Amtrak Cascade line in Oregon south of the City of Portland, $2.6 million.

(2) The Department will enter into an Agreement with Project Sponsors for Dedicated Projects (1)(c) and (1)(d) prior to the Project Sponsor beginning work on the project plan. The Agreement shall identify the terms, expectations, schedule and maximum funding available to complete the project plan.

(3) Project Sponsors must prepare and submit a project plan to the Department in order to be considered for funding to develop a Dedicated Project.

(a) A project plan for Dedicated Projects (1)(a) and (1)(b) shall include:

(A) Detailed site location selection analysis;

(B) Project scope of work, purpose and need;

(D) Feasibility Analysis which includes at a minimum:

(i) An assessment of commodities and products likely to be served and their typical market destinations;

(ii) An assessment of the anticipated market area the facility would serve;

(iii) An assessment of the market share in the area that would use the facility;

(iv) An assessment of the anticipated transportation cost savings that use of the proposed facility may generate, such as project savings realized by shipping freight via rail in lieu of trucking;

(v) An assessment of the size and scale of the buildings, equipment, and storage areas, etc. necessary to support operation of the facility;

(vi) Documentation sufficient to perform a financial review of the Project Sponsor’s ability to deliver project, cover project construction costs until reimbursements are made, and ability to support continuous operation of the facility. Documentation necessary to conduct a financial review includes, but not limited to:

(I) Tax filings;

(II) CPA compiled or reviewed financial statements;

(III) Interim financial statements;

(IV) Debt schedule;

(V) Pro formas with assumptions;

(VI) Sources and uses of capital sufficient to fund the project.

(E) An estimate of the design and capital construction costs necessary to build the facility necessary to support its operation;

(F) A Return on Investment Analysis which must include the following:

(i) Anticipated annual revenue from operating the facility;

(ii) Number of jobs anticipated to operate the facility;

(iii) Anticipated indirect job and economic growth in the area supported by facility construction and operation.

(G) Written concurrence from an authorized agent from the relevant rail entity(s) indicating agreement with the project plan and proposal associated with its concurrence;

(H) Identify anticipated and/or potential impacts the proposed project may have to nearby transportation facilities and any anticipated needed transportation investments required to support its successful operation;

(I) Expected useful life of the project;

(J) Project schedule including design and construction, acquisition of necessary permits and other key milestones, including how the Project Sponsor will be able to begin construction no later than January 1, 2020.

(K) Written demonstration of project support from public agencies that must approve the project.

(b) A project plan for Dedicated Projects (1)(c) and (1)(d) shall include:

(A) Project scope of work, purpose and need;

(B) Anticipated project benefits including transportation connections;

(D) Project schedule including design and construction, acquisition of necessary permits and other key milestones, including how the Project Sponsor will be able to begin construction no later than January 1, 2020;

(E) Expected useful life of the project;

(F) An estimate of the design and capital construction costs necessary to build the facility necessary to support its operation;

(G) Written concurrence from an authorized agent from the relevant rail entity(s) indicating agreement with the project plan and Proposal associated with its concurrence;

(H) Evidence of necessary site ownership or control.

(4) The Department will reimburse Project Sponsors of Dedicated Projects for the eligible costs for preparing a project plan upon receipt of invoices documented in the manner agreed to in the Agreement.

(5) The Department will begin the review of project plans once all Project Sponsors who have signed Agreements to prepare project plans for one of the Dedicated Projects, or who have notified the Department of their intent to submit a project plan not eligible for reimbursement have submitted complete project plans. Review will begin no later than 60 calendar days from the receipt of the first complete Plan with total review period not to exceed 120 calendar days from the receipt of the last Plan. Project plans shall be reviewed by the Department in the following manner:

(a) The Department shall review each project plan for completeness within 30 calendar days of initial submission. If Department determines Plan materials are not complete, Department may request additional information from Project Sponsor.

(b) The Department shall forward the project plans and neutral third party entity(s) summary report(s) (if applicable) to a Dedicated Project Review Committee of individuals with freight and economic development expertise and no direct or indirect conflicts of interest in any of the Dedicated Projects. The Dedicated Project Review Committee shall review and evaluate the project plans. Where more than one project plan is submitted for a Dedicated Project, the Dedicated Project Review Committee will rank the Plan proposals.

(c) The Department shall forward the project plans, neutral third party entity(s) summary report(s), rankings, and recommendations (if applicable), and Dedicated Project Review Committee rankings to the director of OBDD. The director of OBDD shall review and evaluate the project plans. Where there is more than one project plan for an individual Dedicated Project, the director of OBDD will rank the project plans. The director of OBDD shall provide a letter to the Commission recommending which Project Sponsor the Commission should enter into an Agreement, if any.

(d) The Department shall forward the project plans and neutral third party entity(s) summary report(s), rankings, and recommendations (if applicable), and Dedicated Project Review Committee rankings to the Director. The Director shall review and evaluate the project plans. Where there is more than one project plan for an individual Dedicated Project, the Director will rank the project plans. The Director shall provide a letter to the Commission recommending which Project Sponsor the Commission should enter into an Agreement, if any.

(e) The Department shall present the project plans, products from neutral third party entity(s) (if applicable), recommendations and ranking of Dedicated Project Review Committee, and letters of recommendation from Department and OBDD director to the Commission for consideration.

(6) For project plans approved by the Commission, the Department shall enter into an Agreement with the Project Sponsor prior to the disbursal of Connect Oregon Funds and shall include change management expectations related to the Dedicated project scope, schedule and budget. Entering into this Agreement does not preclude Project Sponsor from complying with any required federal, state and local permits, requirements or approvals. The Project Sponsor will not be reimbursed for any project costs expended prior to the execution of the Agreement. Reimbursement of project costs will occur only when there are sufficient funds available in the Connect OregonFund to cover the project costs. Total reimbursable project costs for each Dedicated Project shall not exceed amount included in the Agreement unless Agreement is revised by the Department. At no time will the total reimbursable project costs including Plan reimbursement costs exceed the amount identified in section (1).

(7) The Department shall administer each Dedicated Project consistent with OAR 731-035-0080. Dedicated Projects are expressly exempt from all match requirements in OAR 731-035-0070.

History

Statutory/Other Authority: ORS 184.619, 367.082 & Ch. 816 OL 2005
Statutes/Other Implemented: ORS 367.080 - 367.086, Ch. 816 OL 2005 & Ch. 750 OL 2017
DOT 1-2020, amend filed 01/24/2020, effective 01/24/2020
DOT 2-2018, adopt filed 03/20/2018, effective 03/20/2018
DOT 2-2017, temporary adopt filed 09/27/2017, effective 10/06/2017 through 04/04/2018

Or. Admin. R. 731-035-0070 Competitive Grant Application Awards and Match

(1) Once the Commission makes a decision to award funding for an eligible project under 731-035-0060 the amount of the grant award is considered allocated from Program Funds. If an Agreement with a Recipient has not been executed within 180 days from the Commission’s decision to award funding for an eligible project, the allocation is withdrawn, and those funds may be awarded by the Commission to other eligible projects in a manner consistent with this rule.

(2) Grants will be awarded only when there are sufficient funds available in the ConnectOregon Fund to meet the grant obligation.

(a) Grant awards may not exceed 70 percent of the total eligible Project costs or for Class I railroads, 50 percent of the total eligible Project costs.

(b) Matching funds must be provided by the grant recipient in the form of cash on hand, or through monetary outlay for eligible capital project costs that are reasonable, necessary and directly related to the project. Eligible costs may include costs to acquire, construct, or improve property (land, buildings, and fixed equipment) or to adapt the property to a new or different use consistent with the improvements described in the application.

(A) Monetary outlays for subsection (b) above must have been made within 10 years of the application deadline for Connect Oregon grant fund submittals in order to qualify as eligible matching funds. Monetary outlays for land purchases occurring more than 10 years before the application submission deadline may be considered as matching funds only if the extension of time further serves the goals and objectives of the Program and is approved by the Director consistent with OAR 731-035-0080 (8).

(B) The acquisition cost of land for a project may only be counted as 50% of the required project match.

(C) Land acquisition costs for the same parcel or parcels of land may not be considered project match for more than one awarded Connect Oregon project.

(D) All project match sources must be identified at the time of application is submitted. All match sources must be secured in accordance with the timelines identified in OAR 731-035-0060(8)(e) except for match sources from Federal Aviation Administration grants. Federal Aviation Administrative grants that are used as a match for an eligible project must be awarded within one year of the Commission decision to award funds to eligible projects.

History

Statutory/Other Authority: ORS 184.619, 367.082 & Ch. 816 OL 2005
Statutes/Other Implemented: ORS 367.080 – 367.086, Ch. 816 OL 2005 & Ch. 750 OL 2017
DOT 2-2025, amend filed 05/08/2025, effective 05/08/2025
DOT 5-2024, temporary amend filed 12/04/2024, effective 12/04/2024 through 06/01/2025
DOT 1-2020, amend filed 01/24/2020, effective 01/24/2020
DOT 2-2018, amend filed 03/20/2018, effective 03/20/2018
DOT 2-2017, temporary amend filed 09/27/2017, effective 10/06/2017 through 04/04/2018
DOT 3-2015, f. & cert. ef. 12-17-15
DOT 5-2011, f. & cert. ef. 12-22-11
DOT 4-2010, f. & cert. ef. 12-22-10
DOT 2-2010, f. & cert. ef. 7-30-10
DOT 3-2009, f. & cert. ef. 11-17-09
DOT 5-2007, f. & cert. ef. 11-15-07
DOT 3-2006, f. & cert. ef. 1-24-06
DOT 8-2005(Temp), f. 11-17-05, cert. ef. 11-21-05 thru 5-19-06

Or. Admin. R. 731-035-0080 Project Administration

(1) The Department will administer all projects.

(2) The Department and a grant recipient of an Approved Project will execute an Agreement prior to the disbursal of Program Funds for an Approved Project. The Agreement is effective on the date all required signatures are obtained or at such later date as specified in the Agreement.

(3) The Agreement will contain provisions and requirements, including but not limited to:

(a) Project costs incurred on or after the effective date of the Agreement are eligible for grant funds. Project costs incurred prior to the effective date of the Agreement are not eligible for grant funds.

(b) Disbursal of Program Funds for grants will be paid on a reimbursement basis and will not exceed one disbursal per month.

(c) Five percent (5%) of funds awarded from the ConnectOregonFund will be withheld from each reimbursement request and shall be released to Recipient as the following conditions are met:

(A) Eighty percent (80%) of the withheld funds shall be released to Recipient upon Final Project Acceptance by the Department.

(B) Twenty percent (20%) of the withheld funds shall be released to Recipient upon Department approval of a report submitted by Recipient that, at a minimum, describes project performance measures and jobs retained or created as a result of the project within 18 months of Final Project Acceptance by the Department.

(d) Upon request, a Recipient must provide the Department with a copy of documents, studies, reports and materials developed during the project, including a written report on the activities or results of the project and any other information that may be reasonably requested by the Department.

(e) Recipients must separately account for all moneys received from the ConnectOregonFund in project accounts in accordance with Generally Accepted Accounting Principles.

(f) Any Program Funds disbursed but not used for an Approved Project, including eligible project costs, must be returned to the Department.

(g) Amendments to Agreements are required to change an Approved Project's cost, scope, objectives or timeframe.

(h) Recipients must covenant, represent and agree to use project funds in a manner that will not adversely affect the tax-exempt status of any bonds issued under the Program.

(i) Recipients, if applicable, must covenant, represent and agree to remain current on all state and local taxes, fees and assessments for the useful life of the project as prescribed in the Agreement.

(4) The Department may invoke sanctions against a Recipient that fails to comply with the requirements governing the Program as specified in this rule, statute or Program guidelines. The Department will not impose sanctions until the Recipient has been notified in writing of such failure to comply and has been given a reasonable time to respond and correct the deficiencies noted. The following circumstances may warrant sanctions:

(a) Work on the Approved Project has not been substantially initiated within six months of the effective date of the Agreement;

(b) State statutory requirements have not been met;

(d) The Department finds that significant corrective actions are necessary to protect the integrity of the Program Funds for the Approved Project and those corrective actions are not, or will not be, made within a reasonable time.

(e) Recipient fails to submit a project report as described in OAR 731-035-0080(3)(e).

(f) The Department finds that a Recipient is not current on all applicable state and local taxes, fees and assessments during the term of the Agreement.

(5) The Department may impose one or more of the following sanctions:

(a) Revoke an existing award.

(b) Withhold unexpended Program Funds.

(d) Bar the Recipient from applying for future Connect Oregon Funds.

(e) Other remedies that may be incorporated into Grant Agreements.

(6) The remedies set forth in this rule are cumulative, are not exclusive, and are in addition to any other rights and remedies provided by law or under the Agreement.

(7) The Director will consider protests of the funding and project administration decisions for the Program. Only the Recipient may protest. Protests must be submitted in writing to the Director within 15 days of the event or action that is being protested. The Director's decision is final. Jurisdiction for review of the Director's decision is in the circuit court for Marion County pursuant to ORS 183.484.

(8) The Director may waive non-statutory requirements of this Program if it is demonstrated such a waiver would serve to further the goals and objectives of the Program.

History

Statutory/Other Authority: ORS 184.619, 367.082 & Ch. 816 OL 2005
Statutes/Other Implemented: ORS 367.080 – 367.086, Ch. 816 OL 2005 & Ch. 750 OL 2017
DOT 1-2020, amend filed 01/24/2020, effective 01/24/2020
DOT 2-2018, amend filed 03/20/2018, effective 03/20/2018
DOT 2-2017, temporary amend filed 09/27/2017, effective 10/06/2017 through 04/04/2018
DOT 3-2015, f. & cert. ef. 12-17-15
DOT 6-2013, f. & cert. ef. 12-20-13
DOT 5-2011, f. & cert. ef. 12-22-11
DOT 2-2010, f. & cert. ef. 7-30-10
DOT 5-2007, f. & cert. ef. 11-15-07
DOT 3-2006, f. & cert. ef. 1-24-06
DOT 8-2005(Temp), f. 11-17-05, cert. ef. 11-21-05 thru 5-19-06

Or. Admin. R. 731-035-0110 Federal Grant Match Application Purpose

ORS 367.080 to 367.086 creates the Connect Oregon Fund, established for the purpose of financing grants to fund Transportation Projects that involve air, marine and rail modes. The purpose of OAR 731-035-0110 through OAR 731-035-0180 rules is to establish the grant selection and administration process for Federal Grant Match Applications through the Connect Oregon Fund.

History

Statutory/Other Authority: ORS 184.619, 367.082 & Ch. 816 OL 2005
Statutes/Other Implemented: ORS 367.080 - 367.086, Ch. 750 OL 2017 & Ch. 816 OL 2005
DOT 2-2025, adopt filed 05/08/2025, effective 05/08/2025
DOT 5-2024, temporary adopt filed 12/04/2024, effective 12/04/2024 through 06/01/2025

Or. Admin. R. 731-035-0120 Definitions

The terms as defined in OAR 731-035-0020 apply to OAR 731-035-0110 through OAR 731-035-0180.

History

Statutory/Other Authority: ORS 184.619, 367.082 & Ch. 816 OL 2005
Statutes/Other Implemented: ORS 367.080 – 367.086, Ch. 750 OL 2017 & Ch. 816 OL 2005
DOT 2-2025, adopt filed 05/08/2025, effective 05/08/2025
DOT 5-2024, temporary adopt filed 12/04/2024, effective 12/04/2024 through 06/01/2025

Or. Admin. R. 731-035-0130 Federal Grant Match Application Submission Periods

(1) The Department will announce time periods for submitting applications for funding from the ConnectOregonFund. The announcements will state if the Department is taking applications for the Competitive Grant Application or for the Federal Grant Match Application. The Department will consider the anticipated date for federal Notices of Funding Opportunity in selecting the submission deadlines for Federal Grant Match Applications.

(2) Each biennium the Department shall make available a portion of the Connect Oregon Fund for Federal Grant Match Applications that meet the eligibility requirements of these rules.

(3) Project applications will be reviewed for compliance with the requirements in OAR 731-035-0140 and as prescribed in 731-035-0150.

(4) Applications not funded may be resubmitted during subsequent application submission periods announced by the Department.

History

Statutory/Other Authority: ORS 184.619, 367.082 & Ch. 816 OL 2005
Statutes/Other Implemented: ORS 367.080 – 367.086, Ch. 816 OL 2005 & Ch. 750 OL 2017
DOT 2-2025, adopt filed 05/08/2025, effective 05/08/2025
DOT 5-2024, temporary adopt filed 12/04/2024, effective 12/04/2024 through 06/01/2025

Or. Admin. R. 731-035-0140 Federal Grant Match Application Requirements

Applicants interested in receiving funds from the ConnectOregonFund must submit a written application to the Department. The application must be in a format prescribed by the Department and contain or be accompanied by such information as the Department may require, including the expected results from the proposed Project for each of the considerations as prescribed in 731-035-0160, documented desire for and support of the Project from the businesses and entities to be served by the Project, and documentation to validate the Project schedule and costs.

History

Statutory/Other Authority: ORS 184.619, 367.082 & Ch. 816 OL 2005
Statutes/Other Implemented: ORS 367.080 - 367.086, Ch. 750 OL 2017 & Ch. 816 OL 2005
DOT 2-2025, adopt filed 05/08/2025, effective 05/08/2025
DOT 5-2024, temporary adopt filed 12/04/2024, effective 12/04/2024 through 06/01/2025

Or. Admin. R. 731-035-0150 Federal Grant Match Application Eligibility Review

(1) The Department will review applications received to determine whether the application is complete and whether the Applicant and the Transportation Project are eligible for Program Funds.

(2) Applicants that meet all of the following criteria are eligible:

(a) The Applicant is a Public Body or Person within the state of Oregon.

(b) The Applicant, if applicable, is current on all state and local taxes, fees and assessments.

(3) Projects that meet all of the following criteria are eligible:

(a) The project is a Transportation Project.

(c) The project is eligible for funding with lottery bond proceeds under the Oregon Constitution and laws of the state of Oregon.

(d) The project will not require or rely upon subsidies from the Department for ongoing operations.

(e) The project is not a public road or other project that is eligible for funding from revenues described in section 3a, Article IX of the Oregon Constitution, i.e. the State Highway Trust Fund.

(f) The project is feasible, including the estimated cost of the project, the expected results from the proposed project for each of the considerations as prescribed in 731-035-0160, the project schedule, and all applicable and required permits may be obtained within the project schedule.

(g) The Federal Grant Match Application identifies:

(A) the federal grant that will be used to fund the Project and

(B) an estimated date for when the Notice of Funding Opportunity for the federal grant will be announced.

(4) If an Applicant or project is deemed to be ineligible for Program Funds, the Department will, within 15 calendar days of that determination:

(a) Notify the Applicant that the application request is ineligible, and

(b) Where the finding of ineligibility is the result of an incomplete application, specify the additional information the Applicant must provide to establish eligibility.

History

Statutory/Other Authority: ORS 184.619, 367.082 & Ch. 816 OL 2005
Statutes/Other Implemented: ORS 367.080 – 367.086, Ch. 723 OL 2013, Ch. 765 OL 2013, Ch. 786 OL 2013 & Ch. 816 OL 2005
DOT 2-2025, adopt filed 05/08/2025, effective 05/08/2025
DOT 5-2024, temporary adopt filed 12/04/2024, effective 12/04/2024 through 06/01/2025

Or. Admin. R. 731-035-0160 Federal Grant Match Project Selection

(1) The Commission will approve projects to be funded through a grant Agreement with moneys in the ConnectOregonFund.

(2) Prior to selecting projects to be funded with moneys in the ConnectOregonFund, the Commission shall solicit recommendations from the applicable entities below based upon the location and mode of the project:

(a) The State Aviation Board for Aviation Transportation Projects.

(b) The Freight Advisory Committee for freight Transportation Projects.

(d) The Oregon Business Development Department for marine transportation projects.

(e) Area Commissions on Transportation.

(f) Regional Solutions Teams, as required in ORS 284.753.

(3) The Director, or their designee, in consultation with the entities identified in section (2) of this rule shall appoint a Federal Grant Match Recommendation Panel that includes at a minimum, representatives from the applicable Area Commission on Transportation and modal committee(s) identified in section (2) of this rule.

(a) Additional members may be appointed to the Federal Grant Match Recommendation Panel from other committees and entities in section (2) of this rule.

(b) The Director, or their designee, may appoint members of the Federal Grant Match Recommendation Panel not otherwise specified in section (2) of this rule who can evaluate the effectiveness of a proposed project’s effectiveness in advancing the decision considerations in section (5) of this rule.

(A) represents an entity that submitted an application for a ConnectOregon Fund grant that is being considered for funding by the Federal Grant Match Recommendation Panel; or

(B) has a direct financial interest in an application that is being considered for funding by the Federal Grant Match Recommendation Panel.

(4) The Director or designee shall summarize and present to the Commission the recommendations of (i) the committees and entities in section (2) of this rule and (ii) the Federal Grant Match Recommendation Panel.

(5) The Commission will consider all of the following factors in making its decision to award funding for eligible projects from the ConnectOregonFund:

(a) Whether a proposed project reduces transportation costs for Oregon businesses or improves access to jobs and sources of labor;

(b) Whether a proposed transportation project results in an economic benefit to this state;

(c) Whether a proposed project is a critical link connecting elements of Oregon’s transportation system that will measurably improve utilization and efficiency of the system; and

(d) The proportion of the cost of a proposed project that is borne by the Applicant or contributed from any other source other than the Connect Oregon Fund.

(e) Whether a proposed transportation project is ready for construction

(f) Whether a proposed transportation project has a useful life expectancy that offers maximum benefit to the state; and

(g) Whether a proposed transportation project is located near operations conducted for mining aggregate or processing aggregate as described in ORS 215.213 (2)(d) or 215.283 (2)(b).

(6) The Commission shall award funds for projects in accordance with ORS 367.084 solely, notwithstanding any other provision of division 35.

(7) All awards for Federal Grant Match Applications are provisional and are contingent upon the Recipient securing the federal grant identified in their application.

History

Statutory/Other Authority: ORS 184.619, 367.082 & Ch. 816 OL 2005
Statutes/Other Implemented: ORS 367.080 – 367.086, Ch. 750 OL 2017 & Ch. 816 OL 2005
DOT 2-2025, adopt filed 05/08/2025, effective 05/08/2025
DOT 5-2024, temporary adopt filed 12/04/2024, effective 12/04/2024 through 06/01/2025

Or. Admin. R. 731-035-0170 Federal Grant Match Application Awards and Match

(1) Once the Commission decides to award funding for an eligible project under OAR 731-035-0160, the amount of the grant award is considered allocated from Program Funds.

(a)(A) If the federal agency that administers the federal grant applied for by the Recipient announces a Notice of Grant Award and the Approved Project is not selected, then the Commission’s grant award is rescinded without further act of the Commission and the amount of the Commission’s grant award is no longer allocated from Program Funds.

(B) The Department shall notify the Recipient of this change in Approved Project status within 15 days of the announcement of the relevant federal grant project selection.

(b) If an Agreement with a Recipient has not been executed within 365 days from a federal grant Notice of Grant Award for the Approved Project, the allocation is withdrawn, and those funds may be awarded by the Commission to other eligible projects in a manner consistent with this rule.

(2) Grants will be awarded only when there are sufficient funds available in the ConnectOregon Fund to meet the grant obligation.

(a) Grant awards may not exceed 70 percent of the total eligible Project costs or for Class I railroads, 50 percent of the total eligible Project costs.

(b) Matching funds must be provided by the Recipient in the form of cash on hand, awarded federal grants for Federal Grant Match Applications, or through monetary outlay for eligible capital project costs that are reasonable, necessary and directly related to the project. Eligible costs may include costs to acquire, construct, or improve property (land, buildings, and fixed equipment) or to adapt the property to a new or different use consistent with the improvements described in the application.

(B) The acquisition cost of land for a project may only be counted as 50% of the required project match.

(C) Land acquisition costs for the same parcel or parcels of land may not be considered project match for more than one awarded Connect Oregon project.

(D) All project match sources must be identified at the time of application is submitted.

History

Statutory/Other Authority: ORS 184.619, 367.082 & Ch. 816 OL 2005
Statutes/Other Implemented: ORS 367.080 – 367.086, Ch. 750 OL 2017 & Ch. 816 OL 2005
DOT 2-2025, adopt filed 05/08/2025, effective 05/08/2025
DOT 5-2024, temporary adopt filed 12/04/2024, effective 12/04/2024 through 06/01/2025

Or. Admin. R. 731-035-0180 Federal Grant Match Application Project Administration

If the federal agency that administers the federal grant applied for by the Recipient announces a Notice of Grant Award and the Approved Project is selected upon notification the Department will administer all projects in accordance with OAR 731-035-0080.

History

Statutory/Other Authority: ORS 184.619, 367.082 & Ch. 816 OL 2005
Statutes/Other Implemented: ORS 367.080 – 367.086, Ch. 750 OL 2017 & Ch. 816 OL 2005
DOT 2-2025, adopt filed 05/08/2025, effective 05/08/2025
DOT 5-2024, temporary adopt filed 12/04/2024, effective 12/04/2024 through 06/01/2025

Division 36 MULTIMODAL ACTIVE TRANSPORTATION FUND

Or. Admin. R. 731-036-0010 Purpose of the Rules

ORS 367.081 establishes the Multimodal Active Transportation Fund for the purpose of providing grants for bicycle and pedestrian transportation projects. The purpose of the rules in Division 36 is to establish the criteria used in awarding grants from the Multimodal Active Transportation Fund.

History

Statutory/Other Authority: ORS 184.619
Statutes/Other Implemented: ORS 367.081
DOT 2-2020, adopt filed 01/24/2020, effective 01/24/2020

Or. Admin. R. 731-036-0020 Definitions and Acronyms

For the purposes of Division 36 rules, the following terms have the following definitions, unless the context clearly indicates otherwise:

(2) “Applicant” means a Public Body or Private Entity that applies for funds from the Multimodal Active Transportation Fund.

(3) “Approved Project” means a project that the Commission has selected to receive funding through a grant from the Multimodal Active Transportation Fund.

(4) “Bicycle” has the meaning given a bicycle as defined in ORS 801.150 or an electric assisted bicycle as defined in ORS 801.258.

(5) “Bicycle path” means a way that is open to the public and designated for use by persons bicycling, including, but not limited to, bicycle paths as defined in ORS 801.160 and bicycle trails as defined in ORS 366.514 (5). Bicycle paths may be located on or off of road, street, or highway right of way.

(6) “Critical link” means a multiuse path, bicycle trail, or footpath, in an area that meets one or more of the following criteria:

(a) Improves walking and bicycling access to high need locations (i.e. transportation disadvantaged areas, schools, shopping or employment centers, medical services, connections to transit and regional paths, and downtowns); or

(b) Improves walking and bicycling access in areas where no connections exist, transportation options are limited, or significant safety concerns are addressed by the improvement.

(7) “Commission” means the Oregon Transportation Commission.

(8) “Department” means the Oregon Department of Transportation.

(9) “Director” means the Director of the Oregon Department of Transportation.

(10) “Final Project Acceptance” means the department’s written acceptance of a transportation project as complete following an on-site review of the completed project.

(11) “Footpath” means an accessible way that is open to the public and designated for use by persons walking, or as otherwise specifically provided by law or a governing body. Footpaths may be located on or off of road, street, or highway right-of-way.

(12) “Multiuse path” or “Multiuse trail” means an accessible way that is open to the public and designated for use by persons walking, bicycling, and using other forms of non-motorized transportation, or as otherwise specifically provided by law or a governing body. Multiuse paths may be located on or off of road, street, or highway right-of-way.

(13) “Oregon Bicycle and Pedestrian Advisory Committee” means the committee created in ORS 366.112.

(14) “Pedestrian” has the meaning given in ORS 801.385

(15) “Private Entity” has the meaning given in ORS 367.802

(16) “Program” means the Multimodal Active Transportation Fund Program established by Division 36 rules to administer the Multimodal Active Transportation Fund.

(17) “Program Funds” means the money appropriated by the Legislature to the Multimodal Active Transportation Fund. These funds may be used as grants to eligible projects.

(18) “Project Sponsor” means a public body or private entity seeking funds to develop and implement a dedicated project.

(19) “Public Body” has the meaning given in ORS 174.109.

(20) “Recipient” means a public body or private entity that enters into Agreement with the Department to receive funds from the Multimodal Active Transportation Fund.

(21) “Recipient’s Total Project Costs” means the funds received from the Multimodal Active Transportation Fund program plus the matching funds required under Oregon Administrative Rule 731-036-0110(2)(b) and any additional funds, if applicable.

(22) “Regional path” means a multiuse path or trail, including bicycle trails and footpaths, that meets the following criteria for Regional Path designation:

(a) Is a continuous path made up of one or more connected segments that is primarily physically separated from the roadway;

(b) Connects two or more communities, with each community no more than 15 miles apart, or traverses through a single large community with a path that is 10 miles or longer;

(c) Will serve as a connection point for people commuting between communities, or is a part of an officially designated walking and bicycling route; and

(d) Is endorsed by elected bodies along path alignment.

(23) “Transportation Project” is defined in ORS 367.080(1)(e).

(24) “Walking” means use of human-powered forms of transportation, including, but not limited to travel to a destination by foot or wheelchair.

History

Statutory/Other Authority: ORS 184.619
Statutes/Other Implemented: ORS 367.081
DOT 2-2020, adopt filed 01/24/2020, effective 01/24/2020

Or. Admin. R. 731-036-0030 Multimodal Active Transportation Fund Purpose

(1) The Multimodal Active Transportation Fund was established by ORS 367.081 to provide grants for pedestrian and bicycle transportation projects. Pedestrian and bicycle transportation projects include the development, construction, reconstruction, resurfacing, or other capital improvement of multiuse paths, bicycle paths, and footpaths that improve access and safety for people walking and bicycling.

(2) Funding for transportation projects that comes from the money directed into the Multimodal Active Transportation Fund under ORS 367.081 must be used in accordance with the Oregon Constitution. Transportation projects must be for a public purpose and have a minimum useful life expectancy of at least twenty years.

History

Statutory/Other Authority: ORS 184.619
Statutes/Other Implemented: ORS 367.081
DOT 2-2020, adopt filed 01/24/2020, effective 01/24/2020

Or. Admin. R. 731-036-0040 Grant Application Procedure and Application Submission Periods

(1) The Department will announce periods for submitting applications for funding from the Multimodal Active Transportation Fund by July 1 of each year.

(2) Project applications will be reviewed for compliance with the requirements in OAR 731-036-0050, 731-036-0060, and 731-036-0070.

(3) Applications not funded may be resubmitted during subsequent application submission periods announced by the Department.

History

Statutory/Other Authority: ORS 184.619
Statutes/Other Implemented: ORS 367.081
DOT 2-2020, adopt filed 01/24/2020, effective 01/24/2020

Or. Admin. R. 731-036-0050 Who May Apply for Multimodal Active Transportation Fund Grants

(1) Eligible applicants for the Multimodal Active Transportation Fund include:

(a) A city, county, state, regional government body, tribe, transit district, school district, special government body, or other unit of local government. If the project is located on public property or right of way, the application must include appropriate letters of support from any affected public agencies or road authorities stating the agency or authority’s endorsement, as applicable to the project;

(b) A non-profit organization or other private entity with documented support from one of the governmental bodies identified in section (1) of this rule. The application must include appropriate letters of support from the affected governing bodies.

(2) Eligible applicants must also meet the following criteria:

(a) The Applicant, if applicable, is current on all state and local taxes, fees and assessments.

(b) The Applicant must commit to provide sufficient management and financial capacity to complete the Project including, without limitation, the ability to contribute 30 percent of the Recipient’s Total Project Cost.

History

Statutory/Other Authority: ORS 184.619
Statutes/Other Implemented: ORS 367.081
DOT 2-2020, adopt filed 01/24/2020, effective 01/24/2020

Or. Admin. R. 731-036-0060 Eligible Projects and Activities for Multimodal Active Transportation Fund Grants

Projects that meet all of the following criteria are eligible:

(1) The project is a Transportation Project that is open for public use;

(2) The Project will assist in developing a multimodal transportation system that will improve safety and access for people walking or bicycling. Eligible projects, include, but are not limited to: development, construction, reconstruction, major resurfacing, or other capital improvements of multiuse paths, bicycle paths, and footpaths;

(3) The Project will improve a critical link; regional path; or path crossing to reduce barriers and hazards for people walking and biking;

(4) The Project is eligible for funding with lottery bond proceeds under the Oregon Constitution and laws of the state of Oregon;

(5) The Project will not require or rely upon subsidies from the Department for ongoing operations;

(6) If the project is located on public property or within a public road right of way, the project must be approved by the appropriate public agency or roadway authority (governing body);

(7) Provide a match of at least 30 percent of the total project’s costs; and

(8) The Applicant must commit to deliver the project within 5 years from the effective date of the Agreement.

History

Statutory/Other Authority: ORS 184.619
Statutes/Other Implemented: ORS 367.081
DOT 2-2020, adopt filed 01/24/2020, effective 01/24/2020

Or. Admin. R. 731-036-0070 Grant Application Requirements

(1) Applicants interested in receiving funds from the Multimodal Active Transportation Fund must submit an application to the Department. The application must be in a format prescribed by the Department and contain or be accompanied by such information as the Department may require, including:

(a) The expected results from the proposed Project for each of the considerations as prescribed in 731-036-0080,

(b) Documented desire for and support of the Project from the entities to be served by the Project, and

(2) Incomplete applications may be deemed ineligible by the Department as prescribed in 731-036-0090.

History

Statutory/Other Authority: ORS 184.619
Statutes/Other Implemented: ORS 367.081
DOT 2-2020, adopt filed 01/24/2020, effective 01/24/2020

Or. Admin. R. 731-036-0080 Project Selection Criteria

The following criteria may be used to select projects for receipt of funds from the Multimodal Active Transportation Fund:

(1) Technical merit.

(a) Conformance with adopted plans, state land use laws, and applicable federal, state, and local planning and programming requirements;

(b) Application of appropriate design standards;

(d) Ability of Applicant to provide at least the minimum required match.

(2) Project readiness. A project may be considered ready for construction if the Applicant can demonstrate:

(a) Evidence of community engagement/outreach prior to application submission and plan for continued community engagement related to project. This may include consistency with adopted plans, demonstration of community support, documentation of known or potential opposition, and/or letters of support from impacted property owners and other stakeholders (e.g. Area Commission on Transportation, Metropolitan Planning Organization;

(b) Support from the appropriate public agency or road authority (if project is located on public property or right of way) and governing body for the project as demonstrated by a letter of support and endorsement;

(c) Submission of a project development timeline that includes a proposed start date, the duration of each development stage and dates of major milestones to reflect project completion within 5 years of the effective date of the Project Agreement;

(d) Submission of a letter of commitment to provide matching funds in concordance with the project timeline;

(e) Proof of site ownership or control, such a recorded deed, irrevocable option for sale, resolution of condemnation action, or schedule to obtain site ownership or control within the project development timeline;

(f) Submission of a schedule to demonstrate that environmental and land use decisions, including appeals can be completed within the project development timeline; and

(g) Submission of a schedule to demonstrate that all permits needed for construction can be obtained within the project development timeline, if not obtainable within nine months of the effective date of the project agreement.

(3) Benefit. A Project will be considered to be a public benefit if the Applicant can demonstrate that the Project can meet one or more of the following objectives:

(a) Project improves transportation system connectivity and the ability of people to walk and bicycle to work, school, and other destinations;

(b) Project improves public health and safety;

(d) Project improves equity outcomes;

(e) Project maximizes community benefits relative to project costs.

(4) Project Characteristics.

(a) Project establishes or improves a critical link or improves a regional path;

(b) Project is near high need locations as defined in Oregon Bicycle and Pedestrian Plan;

History

Statutory/Other Authority: ORS 184.619
Statutes/Other Implemented: ORS 367.081
DOT 2-2020, adopt filed 01/24/2020, effective 01/24/2020

Or. Admin. R. 731-036-0090 Application Review

(1) The Department will review applications received to determine:

(a) Whether the application is complete per the requirements of OAR 731-036-0070, and

(b) Whether the Applicant and the Project are eligible for Program Funds per the requirements of OAR 731-036-0050 or 731-036-0060.

(2) If the Department determines that an Application is not complete or that the Applicant or Project is not eligible for Program Funds, the Department will notify the Applicant that the application request is incomplete or ineligible within 15 business days of the determination.

(a) The Department may deem an application ineligible if the Applicant fails to meet eligibility requirements of OAR 731-036-0050 or 731-036-0060 or if the application contains false or misleading information.

(b) The Department may deem an application incomplete if it is not in the format prescribed by the Department or is not accompanied by information required by the Department per OAR 731-036-0070.

(3) The Director will consider protests of the eligibility or completeness determination for the Project. Only the Applicant may protest. Protests must be submitted in writing to the Director within 15 days of the event or action that is being protested. The Director’s decision is final.

(4) The Department will make all eligible applications available for review to the Oregon Bicycle and Pedestrian Advisory Committee

History

Statutory/Other Authority: ORS 184.619
Statutes/Other Implemented: ORS 367.081
DOT 2-2020, adopt filed 01/24/2020, effective 01/24/2020

Or. Admin. R. 731-036-0100 Project Selection and Award

(1) The Commission will select Projects to be funded through a grant with moneys in the Multimodal Active Transportation Fund.

(2) Prior to selecting Projects to be funded with moneys in the Multimodal Active Transportation Fund, the Commission shall solicit a Final Recommendation Report from the Oregon Bicycle and Pedestrian Advisory Committee (OBPAC). OBPAC will evaluate the eligible applications and submit a Final Recommendation Report to ODOT and the OTC that will include:

(a) Recommendations from the committee,

(b) A list of projects recommended to be funded with moneys in the Multimodal Active Transportation Fund in priority order, and

(3) After receipt of the Final Recommendation Report from OBPAC, ODOT will confirm Applicant’s proof of availability of matching funds for the project.

(4) The Department shall determine the organizational guidance for the committees’ processes and protocols.

History

Statutory/Other Authority: ORS 184.619
Statutes/Other Implemented: ORS 367.081
DOT 2-2020, adopt filed 01/24/2020, effective 01/24/2020

Or. Admin. R. 731-036-0110 Grant Awards and Match

(1) Once a project is selected by the Commission under 731-036-0100 the amount of monies identified by the Commission is considered allocated from Program Funds to a Recipient for an Awarded Project.

(2) Grants will be awarded only when there are sufficient funds available in the Multimodal Active Transportation Fund to cover the costs of the grants.

(3) Grant awards may not exceed 70 percent of the total eligible Project costs.

(a) Applicant matching funds must be provided by the Applicant in the form of cash on hand, or through monetary outlay for eligible capital project costs that are reasonable, necessary and directly related to the project. Eligible costs may include, but are not limited to the costs to acquire property, costs to hire staff or consultants to conduct outreach, design, engineer, permit, and administer project, and costs to construct improvements described in the Awarded Project. Donated property, materials, and labor may not be counted towards match.

(b) Monetary outlays for (a) above must have been made within ten years of the application deadline for Multimodal Active Transportation grant fund submittals in order to qualify as eligible matching funds.

(4) If an Agreement with a Recipient has not been executed within 180 days from the commission’s selection of the project, allocation may be withdrawn, and the funds may be reassigned by the Commission as prescribed in 731-036-0100.

History

Statutory/Other Authority: ORS 184.619
Statutes/Other Implemented: ORS 367.081
DOT 2-2020, adopt filed 01/24/2020, effective 01/24/2020

Or. Admin. R. 731-036-0120 Project Administration

(1) The Department will administer all grants.

(2) The Department and an Applicant of an Approved Project will execute an Agreement prior to the disbursal of Program Funds for an Approved Project. The Agreement is effective on the date all required signatures are obtained or at such later date as specified in the Agreement.

(3) The Agreement will contain terms including but not limited to:

(a) A requirement that a written estimate of project costs for an Approved Project be submitted to the Department prior to the disbursal of any Program Funds.

(b) Only Project costs incurred on or after the effective date of the Agreement are eligible for reimbursement.

(c) Disbursal of Program Funds for grants will be paid on a reimbursement basis and will not exceed one disbursal per month.

(d) Five percent (5%) of reimbursed expenditures will be withheld and shall be released to grant Recipient upon final project acceptance by the Department.

(e) Upon request, a Recipient must provide the Department with a copy of documents, studies, reports and materials developed during the Project, including a written report on the activities or results of the Project and any other information that may be reasonably requested by the Department.

(f) Recipients must separately account for all moneys received from the Multimodal Active Transportation Fund in Project accounts in accordance with Generally Accepted Accounting Principles.

(g) Program Funds disbursed but not used for an Approved Project must be returned to the Department.

(h) A change to the cost, scope, objectives or timeframe will require an amendment to the Agreement.

(i) Department and Recipient will meet to discuss changes to scope due to reasonable unforeseen circumstances.

(j) Recipients are responsible for any cost overages that occur during project delivery.

(k) Recipients must covenant, represent and agree to use Project funds in a manner that will not adversely affect the tax-exempt status of any bonds issued under the Program.

(L) Recipients, if applicable, must covenant, represent and agree to remain current on all state and local taxes, fees and assessments for the useful life of the Project as prescribed in the Agreement.

(4) The Department may invoke sanctions against a Recipient that fails to comply with the requirements governing the Program as specified in this rule, statute or program guidelines. The Department will not impose sanctions until the Recipient has been notified in writing of such failure to comply and has been given a reasonable time to respond and correct the deficiencies noted. The following circumstances may warrant sanctions:

(a) Work on the Approved Project has not been substantially initiated within 180 days of the effective date of the Agreement;

(b) State statutory requirements have not been met;

(e) The Department finds that a Recipient is not current on all applicable state and local taxes, fees and assessments during the term of the Agreement.

(5) The Department may impose one or more of the following sanctions if items in OAR 731-036-0110 and 731-036-0120 are not met:

(a) Revoke the Grant Award and terminate the Agreement.

(b) Withhold unexpended Program Funds.

(d) Bar the Applicant from applying for future Multimodal Active Transportation funds.

(e) Other remedies that may be incorporated into grant Agreements.

(6) The remedies set forth in this rule are cumulative, are not exclusive, and are in addition to any other rights and remedies provided by law or under the agreement.

(7) The Director will consider protests of the funding and Project administration decisions for the Program. Only the Recipient may protest. Protests must be submitted in writing to the Director within 15 days of the event or action that is being protested. The Director's decision is final. Jurisdiction for review of the Director's decision is in the circuit court for Marion County pursuant to ORS 183.484.

(8) The Director may waive non-statutory requirements of this Program if it is demonstrated such a waiver would serve to further the goals and objectives of the Program.

History

Statutory/Other Authority: ORS 184.619
Statutes/Other Implemented: ORS 367.081
DOT 2-2020, adopt filed 01/24/2020, effective 01/24/2020

Division 40 TOLLWAY PROJECTS

Or. Admin. R. 731-040-0010 Purpose

(1) OAR 731, division 40, describe the process for initiating, evaluating, authorizing and administering tollway projects on state right of way proposed by private entities, local or regional governments and the Oregon Department of Transportation and combinations thereof.

(2) OAR 731, division 40 includes requirements for submitting project proposals; guidelines for considering financial and other issues; and requirements for consistency with other local, state and federal policies and processes; and the establishment and adjustment of toll rates by the Oregon Transportation Commission.

History

Statutory/Other Authority: ORS 184.619, 383.004 & 383.015
Statutes/Other Implemented: ORS 383
DOT 6-2024, amend filed 12/04/2024, effective 12/05/2024
DOT 5-2012, f. & cert. ef. 7-19-12
DOT 3-1997, f. & cert. ef. 12-29-97

Or. Admin. R. 731-040-0020 Definitions

As used in OAR 731, division 40 rules:

(1) “Commission” means the Oregon Transportation Commission.

(2) “Department” means the Department of Transportation.

(3) “Director” means the Director of the Oregon Department of Transportation or the designee thereof.

(4) “Interstate bridge” means a bridge over both a waterway that contains a boundary line with another state and the boundary line.

(5) “OIPP Partnership Agreement” means a public-private partnership under the Oregon Innovative Partnership Program, as defined in OAR 731-070-0010.

(6) “Outcome equity” means acknowledging existing inequities and striving to prevent historically excluded and underserved communities identified at the project-level from bearing a disproportionate burden of negative effects that directly result from the project, and seeking to improve transportation accessibility, options for travel, community health, and affordability for the identified community or communities.

(7) “Private entity” has the meaning given in ORS 383.003.

(8) “Process equity plan” means a plan for implementing a Tollway Project, from design to post-implementation monitoring and evaluation, that encourages the meaningful participation of individuals and groups from historically excluded and underserved communities, as identified for the Tollway Project.

(9) “Related facility” has the meaning given in ORS 383.003.

(10) “Toll” has the meaning given in ORS 383.003.

(11) “Tollway operator” has the meaning given in ORS 383.003.

(12) “Tollway project” has the meaning given in ORS 383.003.

(13) "Tollway Concept Proposal” or “TCP” means an unsolicited preliminary proposal for a tollway project that is used to investigate the project’s feasibility and potential impacts and benefits.

(14) “Unit of government” has the meaning given in ORS 383.003.

History

Statutory/Other Authority: ORS 184.619, 383.003, 383.004, 383.014 & 383.015
Statutes/Other Implemented: ORS 383
DOT 6-2024, amend filed 12/04/2024, effective 12/05/2024
DOT 5-2012, f. & cert. ef. 7-19-12
DOT 3-1997, f. & cert. ef. 12-29-97

Or. Admin. R. 731-040-0030 Initiation by Public and Private Entities and Administrative Fee

A private entity, individual or unit of government may submit an application for review of an unsolicited Tollway Concept Proposal at any time. A private entity or individual must pay an administrative fee of $5,000 to the Department for the Department’s review of an unsolicited TCP. The fee to submit a revised Tollway Concept Proposal for Department review is $2,500. Administrative fees are due and payable at the time of application submission. Applications submitted without the fee will not be reviewed by the Department.  A unit of government is not required to pay an administrative fee for the review of an unsolicited TCP.

History

Statutory/Other Authority: ORS 184.619 & 383.015
Statutes/Other Implemented: ORS 383
DOT 6-2024, amend filed 12/04/2024, effective 12/05/2024
DOT 5-2012, f. & cert. ef. 7-19-12
DOT 3-1997, f. & cert. ef. 12-29-97

Or. Admin. R. 731-040-0031 Initiation Process for Unsolicited Tollway Concept Proposals

(1) This rule applies to unsolicited TCPs from private entities, individuals and units of government, pursuant to ORS 383.015.

(2) Any administrative fees described in OAR 731-040-0030 must accompany the application. The Department will publish the requirements for content and format of a TCP application on the Department’s website. Requirements include but are not limited to:

(a) Information about the applicant entity or consortium of entities (private, public or a combination) including financial information, experience in transportation infrastructure development, public-private partnerships, or federal-aid highway construction.

(b) A description of the proposed Tollway Project scope, location, and all proposed interconnections with other transportation facilities; the key risks and assumptions associated with the Project.

(c) A description of any work completed to develop the Tollway Project, including planning, environmental analysis, or preliminary engineering.

(d) A discussion of support or opposition from local governments and communities impacted by the project, the significant social and economic benefits and burdens of the project.

(e) A discussion of project financing, including secured or pledged funds, and their source, anticipated public funding, including funds sought from the Department.

(3) The Department will review the TCP and make a recommendation to the Commission based on the criteria in ORS 383.015.

(4) Based on the agency recommendation, the Commission may:

(a) Approve the proposed concept for further development into a full tollway project through a competitive solicitation for an OIPP project or a Department-initiated tollway project; or

(b) Reject the proposal.

(5) A Tollway Concept Proposal may be revised and re-submitted by the proposer for Department reconsideration and recommendation to the Commission once, unless otherwise directed by the Commission or Department. The resubmittal fee described in 731-040-0030 must accompany the resubmitted proposal.

History

Statutory/Other Authority: ORS 184.619 & 383.015
Statutes/Other Implemented: ORS 383.015
DOT 6-2024, adopt filed 12/04/2024, effective 12/05/2024

Or. Admin. R. 731-040-0039 Authorization of Tollway Projects

(1) This rule applies to all proposed tollway projects.

(2) The Department will evaluate a proposed tollway project and provide findings and a recommendation to the Commission. The Department may not recommend authorization of a tollway project unless the Department makes one of the findings described in ORS 383.004.

(3) The Commission will review the proposed tollway project, the Department’s findings and recommendations, the factors identified in ORS 383.0004, and consider the following:

(a) How the proposed tollway project will coordinate tolling with existing and potential new transportation services or investments to address congestion on the tollway.

(b) How the proposed tollway project will incorporate process equity and outcome equity into the project’s design, implementation, and operations.

(c) The effects of tollway implementation on community and local traffic, their magnitude and expected impacts to livability.

(4) Upon review of the proposed tollway project, the Commission will authorize, authorize with conditions, or reject the proposal. A Commission decision is issued in writing.

(5) A proposal may be revised and re-submitted by the proposer for Department reconsideration and recommendation to the Commission once, unless otherwise directed by the Commission or Department.

History

Statutory/Other Authority: ORS 184.619 & 383.015
Statutes/Other Implemented: ORS 383
DOT 6-2024, adopt filed 12/04/2024, effective 12/05/2024

Or. Admin. R. 731-040-0041 Authorization of Tollway Projects on Interstate Bridges

(1) This rule applies to all proposed tollway projects to establish tolls on an interstate bridge that is or will be a state highway under the Department’s jurisdiction, including proposals submitted by the Department and proposals submitted jointly with the Department under the authority of ORS 381.010 (Columbia River bridges) or ORS 381.098 (Snake River bridges). These tollway projects are also subject to the requirements of OAR 731-040-0039.

(2) The Department will consider the factors identified in OAR 731-040-0039 in evaluating the proposal and provide findings and a recommendation to the Commission. The Department may not recommend authorization of a tollway project unless the Department makes one of the findings described in ORS 383.004.

(3) The Commission will consider the tollway project proposal, the Department’s findings and recommendations, and all of the following:

(a) Whether another state has any authority over the bridge.

(b) Whether the proposal has been authorized, or is expected to be authorized, by the governing body with jurisdiction over the proposal in the other state linked to Oregon by the bridge.

(c) Whether the proposal is consistent with any conditions imposed by the governing body with jurisdiction over the proposal in the other state, if any.

(d) Whether the proposer has legal authority to implement the project in the other state, and if not, the level of coordination between the proposer and the entity having such authority.

(4) The Commission will authorize, authorize with conditions, or reject the proposal. A Commission decision is issued in writing.

(5) A proposal may be revised and re-submitted by the proposer for Department reconsideration and recommendation to the Commission once, unless otherwise directed by the Commission or Department.

History

Statutory/Other Authority: ORS 184.619, 383.004, 383.015 & 383.075
Statutes/Other Implemented: ORS 383
DOT 6-2024, adopt filed 12/04/2024, effective 12/05/2024

Or. Admin. R. 731-040-0050 Evaluation and Authorization

(1) This rule applies to all proposals to approve initial toll rates on an authorized tollway project, including proposals submitted jointly with the Department under an OIPP agreement.

(2) The operator must create a process equity plan prior to submitting a proposal for initial rates and the rate proposal must include feedback on the proposed rate obtained by engaging with communities identified in the process equity plan.

(3) The toll rate proposal must include an evaluation of how outcome equity has informed the design of the proposal and plans for how it will inform the implementation and operation of the tolled facility.

(4) The Department will evaluate the toll rate proposal and provide a recommendation to the Commission.

(5) When establishing initial toll rates, the Commission must consider the Department’s recommendations and the factors described in ORS 383.004 and set rates to address the following:

(a) The cost of toll operations and improvements, preservation, and maintenance of the tollway project, tollway, and related facilities, including paying any debt service issued to finance tollway projects.

(b) Management of congestion to desired thresholds, as established for the tollway and adjacent roadways, including but not limited to, travel times, speeds, reliability, increasing accessibility, reducing greenhouse gas emissions, and avoiding, to the extent practicable, the reduction of existing service levels on the tollway.

(6) In addition to the factors described in section (5) of this rule, the Commission may consider:

(a) Authorizing toll reductions or exemptions. The reduction or exemption may be limited and directly related to the needs for operation, maintenance, safety, person-carrying capacity of the roadway, or for emergency response. The Commission may also consider a reduction or exemption for low-income households or for tribal members and tribal government vehicles.

(b) Simplifying the rate structure to help with communication and public understanding, which may include minimizing the number of different rates, limiting rate changes throughout the day, or rounding rates to the closest 5 cent increment.

(d) Structuring rates to encourage users to shift trips to less busy times of day, telecommute, or use other modes of transportation, such as public transportation, carpools, biking, and walking.

(e) Setting rates based on vehicle classification, in accordance with requirements for fairness and proportionality between classes of vehicles, as provided in Article IX, section 3a(3), of the Oregon Constitution.

(7) The Commission will approve, conditionally approve, or disapprove a proposal to establish initial toll rates. A Commission decision is issued in writing.

History

Statutory/Other Authority: ORS 184.619 & 383.015
Statutes/Other Implemented: ORS 383
DOT 6-2024, amend filed 12/04/2024, effective 12/05/2024
DOT 5-2012, f. & cert. ef. 7-19-12
DOT 3-1997, f. & cert. ef. 12-29-97

Or. Admin. R. 731-040-0051 Process for Approving Initial Rates on Tollways on Interstate Bridges

(1) This rule applies to a proposal to approve initial toll rates on an interstate bridge that is or will be a state highway under the Department’s jurisdiction, including proposals submitted by the Department, or jointly with the Department under ORS 381.010 (Columbia River bridges), or ORS 381.098 (Snake River bridges). Approval of tolls on interstate bridges is also subject to the requirements of OAR 731-040-0050.

(2) The proposal must be submitted to the Department for review. The Department will consider the factors identified in OAR 731-040-0050 in evaluating the initial toll rate proposal and provide a recommendation to the Commission.

(3) The Commission will consider the Department’s recommendation, the factors identified in OAR 731-040-0050, and all the following:

(a) Whether another state has any authority over the bridge.

(b) Whether the proposal has been authorized, or is expected to be authorized, by the governing body with jurisdiction over the proposal in the other state linked to Oregon by the bridge.

(c) Whether the proposal is consistent with any conditions imposed by the governing body with jurisdiction over the proposal in the other state, if any.

(d) Whether the proposer has legal authority to implement the project in the other state, and if not, the level of coordination between the proposer and the entity having such authority.

(4) The Commission will approve, conditionally approve, or disapprove a proposal to establish initial toll rates. A Commission decision is issued in writing.

History

Statutory/Other Authority: ORS 184.619, 383.004, 383.015 & 383.075
Statutes/Other Implemented: ORS 383
DOT 6-2024, adopt filed 12/04/2024, effective 12/05/2024

Or. Admin. R. 731-040-0056 Process for Approving Revised Rates, Generally

(1) This rule applies to a tollway operator, including a tollway operator operating jointly with the Department under an OIPP agreement.

(2) Proposals to revise toll rates shall include analysis and documentation of the following:

(a) How the proposed toll rate revisions account for the factors in OAR 731-040-0050.

(b) Feedback gained from engagement with communities identified in the process equity plan on the revised toll rates.

(d) Explaining revisions to the toll rates, toll exemptions, reductions, or toll rates for different vehicle classifications.

(3) The Department will consider the operator’s performance review(s), described in OAR 731-040-0065, evaluate the proposed toll rate revisions and provide a recommendation to the Commission.

(4) The Commission will review the Department’s recommendation and approve, conditionally approve, or disapprove a proposal to revise toll rates. A Commission decision is issued in writing.

History

Statutory/Other Authority: ORS 184.619 & 383.004
Statutes/Other Implemented: ORS 383
DOT 6-2024, amend filed 12/04/2024, effective 12/05/2024
DOT 5-2012, f. & cert. ef. 7-19-12

Or. Admin. R. 731-040-0061 Process for Approving Revised Rates on Interstate Bridges

(1) This rule applies to a tollway operator’s proposal to revise the tolls on a tollway on an interstate bridge that is or will be a state highway under the Department’s jurisdiction, including proposals submitted by the department, or jointly with the department under ORS 381.010 (Columbia River bridges) or ORS 381.098 (Snake River bridges). Approval of revised toll rates on these interstate bridges is also subject to the requirements of OAR 731-040-0056.

(2) The Department will consider the operator’s performance review(s), described in OAR 731-040-0065, evaluate the proposed revisions and provide a recommendation to the Commission.

(3) The Commission will consider the Department’s recommendation, and all of the following:

(a) Whether another state has any authority over the bridge.

(b) Whether the proposed toll schedule has been authorized, or is expected to be authorized, by the governing body with jurisdiction over the project in the other state linked to Oregon by the bridge.

(c) Whether the proposal is consistent with any conditions imposed by the governing body with jurisdiction over the proposed toll schedule in the other state, if any.

(d) Whether the proposer has legal authority to approve the toll schedule in the other state, and if not, the level of coordination between the proposer and the entity having such authority.

(4) The Commission will approve, conditionally approve, or disapprove a proposal to revise toll rates. A Commission decision is issued in writing.

History

Statutory/Other Authority: ORS 184.619, 383.004, 383.015 & 383.075
Statutes/Other Implemented: ORS 383
DOT 6-2024, adopt filed 12/04/2024, effective 12/05/2024

Or. Admin. R. 731-040-0062 Tolling System Compatibility with the State of Washington

Toll collection and enforcement systems used on tollways in Oregon shall be inter-operable with toll collection and enforcement systems used in the State of Washington to the extent technology permits.

History

Statutory/Other Authority: ORS 184.616, 184.619 & 383.014
Statutes/Other Implemented: ORS 383.014
DOT 5-2012, f. & cert. ef. 7-19-12

Or. Admin. R. 731-040-0064 Civil Penalties for Failure to Pay a Toll

(1) In addition to any other penalty or sanction provided by law, a person who is required to pay a toll as described in ORS 383.035 and fails to pay a toll established pursuant to ORS 383.004, shall pay to the department, for each unpaid toll:

(a) The amount of the toll;

(b) For the first unpaid toll, a civil penalty of $15; and,

(2) Each time a bill is sent to a person for an unpaid toll, an administrative fee of $2 shall be assessed as reimbursement for labor, materials, printing and postage expenses.

(3) An unpaid toll will be considered a subsequent unpaid toll if the person was assessed a civil penalty for an unpaid toll within three years of the unpaid toll under consideration.

(4) Civil penalties and administrative fees assessed under this rule shall be collected as provided in ORS 183.745 and according to the procedures in OAR 137-003-0501 to 137-003-0700.

(5) The department shall refuse to renew the motor vehicle registration of the motor vehicle owned by a person who at the time of application for registration has unpaid tolls, civil penalties or any administrative fees charged under this section.

History

Statutory/Other Authority: ORS 184.616, 184.619, 802.010, 383.035 & 383.055
Statutes/Other Implemented: ORS 383.035 & 383.055
DOT 5-2012, f. & cert. ef. 7-19-12

Or. Admin. R. 731-040-0065 Tollway Operator Performance Review

(1) This rule applies to tollway operators, including those operating jointly with the Department under an OIPP agreement.

(2) A tollway operator shall provide a written annual performance review of the tollway to the Department and Commission no later than one year from the date of commencing operations. Subsequent annual reviews shall cover a state fiscal year and be due after the end of the fiscal year. If the tollway operator intends to propose revised toll rates in the coming fiscal year, the tollway operator shall include the analysis and documentation described in OAR 731-040-0056 in the review.

(3) The written annual performance review must include the following:

(a) Revenue and administration costs for the tollway project and tollway.

(b) Status of tollway project investments, financing requirements, and needs for maintenance, operations, preservation, and rehabilitation.

(c) A report on mobility and safety of the tollway and adjacent roadways included in the tollway project footprint and any changes to travel patterns associated with imposing tolls.

(d) Overall amount of tolls collected, and tolls collected, including tolls owed, by vehicle classification.

(e) Information on transportation mobility and air quality, where monitoring data is available, that would inform the Department’s pursuit of state greenhouse gas emissions reduction and air quality goals.

(f) Number and classification of vehicles receiving reductions and exemptions, the impact of reductions and exemptions to revenue and administration costs.

(g) If a low-income toll program applies to the tollway, the number of vehicles enrolled in a low-income toll program as a percentage of the estimated number of potentially qualifying customers for that tollway, the impact to revenue and administration costs, and a report on the aggregate travel patterns of vehicles participating in a low-income toll program.

(h) Information on vehicle trip counts and transit passenger counts, both on the tolled facility and adjacent facilities that may experience diversion as a result of tolling.

History

Statutory/Other Authority: ORS 184.619, 381.010, 381.098 & 383.004
Statutes/Other Implemented: ORS 383
DOT 6-2024, adopt filed 12/04/2024, effective 12/05/2024

Or. Admin. R. 731-040-0075 Customer Data

(1) Customer records and information used to collect and enforce tolls follow the disclosure requirements specified in ORS 383.075.

(2) Public records request fees and requirements for the Department are described in OAR 731-001-0025.

(3) An individual requesting customer records or data must submit a request in writing as prescribed by the Department, which is identified on the Department’s webpage. The request must include:

(a) Government issued identification to verify the identity of the requestor.

(b) Information demonstrating that the requester is one of authorized individuals or entities that may access driver records and information used to collect and enforce tolls, as is identified in ORS 383.075(2) and (3).

(c) A description of the requester’s intended use of the information and how that intended use will conform to the requirements in ORS 383.075.

(4) The Department may disclose the requested records if the Department is satisfied that requester has provided reasonable assurances that the requester’s identity, uses of the information, and any applicable permissions comply with the requirements of this rule and ORS 383.075.

History

Statutory/Other Authority: ORS 183.413, 183.470, 183.745, 184.619 & 192.324
Statutes/Other Implemented: ORS 383
DOT 6-2024, adopt filed 12/04/2024, effective 12/05/2024

Division 50 HIGHWAY PROJECTS

Or. Admin. R. 731-050-0010 Definition of District Highway

For purposes of chapter 669, Oregon Laws 2001 (HB 2142), "District Highway" means a state facility of county-wide significance that functions largely as a county and city arterial or collector.

History

Statutory/Other Authority: ORS 184.616, 184.619 & Sec. 2, Ch. 669 & OL 2001
Statutes/Other Implemented: Sec. 2, Ch. 669 & OL 2001
DOT 3-2001, f. & cert. ef. 12-14-01
DOT 1-2001, f. 9-24-01, cert. ef. 10-6-01 thru 4-3-02

Or. Admin. R. 731-050-0020 Definition of “Ready for Construction”

For purposes of Section 57, Chapter 618, Oregon Laws 2003 (HB 2041), “Ready for Construction” means that priority will be given to modernization projects, that as of the effective date of this rule:

(1) Have completed plans, specifications and cost estimates (PS&E); and

(2) In the event use of federal funds are likely in any aspect of the project, have been approved for construction by the Federal Highway Administration (FHWA).

History

Statutory/Other Authority: ORS 184.616, 184.619 & Sec. 57, Ch. 618 & OL 2003
Statutes/Other Implemented: Sec. 57, Ch. 618 & OL 2003
DOT 3-2004, f. & cert. ef. 6-24-04

Division 65 SMALL BUSINESS DEVELOPMENT PROGRAM

Or. Admin. R. 731-065-0001 Purpose

As required by ORS 184.906, ODOT has established a small business development program. These rules are to implement and administer this program. They detail eligibility criteria, program duration, disqualification factors, and the process for requesting reconsideration of program disqualification.

History

Statutory/Other Authority: ORS 184.619
Statutes/Other Implemented: ORS 184.906
DOT 7-2024, adopt filed 12/04/2024, effective 12/04/2024

Or. Admin. R. 731-065-0010 Definitions

The following definitions apply to terms used in ORS 184.906 and these rules:

(1) “Active Project” is an SBDP project where a contract has been awarded but not yet reached Second Notification. “Second Notification” is a written acknowledgment by the ODOT Engineer of the end of Contract Time according to Oregon Standard Specification for Construction 00180.50(g).

(2) “Applicant” means a business owner or business representative who completes the application process and attests that their Business meets eligibility requirements for the SBDP.

(3) “Business” means a for-profit construction business.

(4) “COBID” means the Certification Office for Business, Inclusion and Diversity. It is the sole certification authority for Oregon state programs, which include the Minority Business Enterprise (MBE), Women Business Enterprise (WBE), Veteran Business Entity (VBE), and Emerging Small Business (ESB), and certified for the federal Disadvantaged Business Enterprise (DBE) program.

(5) “Expired” means the SBDP participation term of 2 years following program acceptance has been completed and the Business did not renew participation. The Business is no longer eligible for program participation unless it reapplies.

(6) “Misconduct Disqualification” is disqualification of the Business due to specific conduct that includes but is not limited to conduct that is intentionally false or misleading to gain access to the program.

(7) “ODOT” or “Department” means the Oregon Department of Transportation.

(8) “Participation” means the business’s ability to participate in the SBDP and compete for public improvement contracts that the Department procures under the SBDP.

(9) “SBA” means the United States Small Business Administration.

(10) “SBDP” means the Oregon Department of Transportation (ODOT) Small Business Development Program.

(11) “Self-Qualification” is a mechanism by which Applicant qualifies for SBDP participation by attesting that it meets required program criteria.

(12) “Termination” means the Business may no longer participate in the program.

History

Statutory/Other Authority: ORS 184.619
Statutes/Other Implemented: ORS 184.906
DOT 7-2024, adopt filed 12/04/2024, effective 12/04/2024

Or. Admin. R. 731-065-0020 Qualifying Criteria

(1) A Business may qualify to participate in the SBDP through proof of valid SBA registration, Certification from COBID, or Self-Qualification.

(2) Qualification through valid SBA registration or Certification. A Business may qualify for participation in the SBDP if the Business meets any of the following criteria:

(a) Has registered with the SBA, or a successor agency, as a small disadvantaged business;

(b) Is certified as an emerging small business under ORS 200.055;

(c) Has registered with the SBA, or a successor agency, and is eligible to participate in any SBA small business contracting assistance program; or

(d) Has been certified by COBID as a Minority Business Enterprise (MBE), a Woman Business Enterprise (WBE), a Disadvantaged Business Enterprise (DBE), a Veteran Business Enterprise (VBE), or an Emerging Small Business (ESB).

(3) Self-Qualification. An Applicant may self-qualify their Business for participation in the SBDP if it meets all the following criteria:

(a) The Business is for-profit;

(b) The Business is in the construction industry;

(d) The Business is not a subsidiary of another business;

(e) The Business is registered with the Secretary of State;

(f) The Business has employed an average of fewer than 500 employees annually, over the past 2 calendar years;

(g) The gross receipts of the Business do not exceed an average of $45 million annually, over the past 2 calendar years; and

(h) Following completion of the online SBDP application, the Applicant attests that all information provided about the Business is true, accurate, and willingly provided.

(4) The Department retains the right to require proof of meeting qualifying criteria at any time.

History

Statutory/Other Authority: ORS 184.619
Statutes/Other Implemented: ORS 184.906
DOT 7-2024, adopt filed 12/04/2024, effective 12/04/2024

Or. Admin. R. 731-065-0030 Application Process, Program Participation Term, and Renewal

(1) A Business may submit an application to participate via the SBDP application online through the ODOT website or by delivering a hard copy to 355 Capitol St. NE, MS11, c/o SBDP, Salem, OR 97301.

(2) Upon notification that it has received an application from a Business, the Department will determine whether it meets the qualifying criteria.

(3) If the Business meets the qualifying criteria, the Department will notify the Business that the business has been accepted as an SBDP Participant for a two-year term. The Business will be notified of acceptance in writing, and the two-year participation term will be identified in the acceptance letter.

(4) If the Department determines that the Business does not meet the qualifying criteria, the Department will issue a Notice of Intent to Deny Participation for Failure to Meet Qualifying Criteria by Certified Mail, which will include:

(a) An explanation supporting the reasons for failure to qualify and,

(b) A statement of the Business's ability to request Administrative Reconsideration of program qualification and applicable deadlines.

(5) If the Department does not receive a request for Administrative Reconsideration within 20 calendar days, the Notice of Intent to Deny Participation for Failure to Meet Qualifying Criteria will become the Department’s final determination of program eligibility.

(6) Renewal. The process to renew participation at the end of the term is as follows:

(a) The Department will notify the Business that the two-year participation term is expiring.

(b) Notifications will be provided to the Business 30 calendar days prior to expiration and 7 calendar days prior to expiration. The notifications will be in writing with the first sent by Certified Mail.

(c) The Business may renew program participation for another two-year term upon timely attestation confirming continued eligibility as set out in Section 731-065-0020.

(7) If the Business does not timely attest to its eligibility, then the Business’ participation term will expire, and participation is terminated on its expiration date.

History

Statutory/Other Authority: ORS 184.619
Statutes/Other Implemented: ORS 184.906
DOT 7-2024, adopt filed 12/04/2024, effective 12/04/2024

Or. Admin. R. 731-065-0040 Change In Qualifying Criteria

(1) If a Business no longer meets SBDP qualifying criteria, the Business must notify the Department of the change within 30 calendar days. A change in qualifying criteria only impacts future bidding opportunities in the SBDP.

(2) If the Department suspects that a Business no longer meets SBDP qualifying criteria, the Department may request documentation to assess Business eligibility. The Department retains the right to require proof from a Business of qualifying criteria at any time.

History

Statutory/Other Authority: ORS 184.619
Statutes/Other Implemented: ORS 184.906
DOT 7-2024, adopt filed 12/04/2024, effective 12/04/2024

Or. Admin. R. 731-065-0050 Disqualification

(1) The Department may disqualify and terminate the participation of a Business if it determines that a Business no longer meets the eligibility criteria set out in section 731-065-0020.

(2) When the Department determines that the Business no longer meets the eligibility requirements, the Department will send by Certified Mail, a Notice of Intent to Disqualify and Terminate Participation. The Notice will include:

(a) The effective date of program disqualification;

(b) An explanation supporting the reasons for disqualification; and

(3) The Business has 20 calendar days from the date of the Notice of Intent in which to request Administrative Reconsideration. If the Department does not receive a request for Administrative Reconsideration within 20 calendar days, the Notice of Intent to Disqualify and Terminate Participation will become the Department’s final determination of program eligibility.

(4) A disqualified Business may reapply for the SBDP following the procedures set out in section 731-065-0020.

History

Statutory/Other Authority: ORS 184.619
Statutes/Other Implemented: ORS 184.906
DOT 7-2024, adopt filed 12/04/2024, effective 12/04/2024

Or. Admin. R. 731-065-0060 Misconduct Disqualification

(1) The Department may disqualify a Business and terminate SBDP participation due to misconduct.

(2) Reasons for Misconduct Disqualification include, but are not limited to:

(a) The Applicant knowingly made a false claim, or misrepresented existing certification status, during the qualifying process.

(b) The Business entered into an agreement with another organization to leverage Business qualification in the program.

(c) If a Business does not meet eligibility criteria and attempts to participate in the SBDP as a qualified small business on the basis of false, fraudulent, or deceitful statements or representations indicating a serious lack of business integrity or honesty, the Department may terminate program participation.

(3) If the Department determines that a Business should be disqualified for misconduct and have its participation terminated, the Department will issue a Notice of Intent to Disqualify for Misconduct and Terminate Participation, by Certified Mail, which will include:

(a) The effective date of program disqualification;

(b) An explanation supporting the reasons for disqualification; and

(4) The Business has 20 calendar days from the date of the Notice of Intent in which to request Administrative Reconsideration. If the Department does not receive a request for request Administrative Reconsideration within 20 calendar days, the Notice of Intent to Revoke Participation Due to Misconduct and Terminate Participation will become the Department’s final determination of eligibility.

(5) A Business subject to the Department’s final determination of Misconduct Disqualification is not eligible to qualify for future program participation.

History

Statutory/Other Authority: ORS 184.619
Statutes/Other Implemented: ORS 184.906
DOT 7-2024, adopt filed 12/04/2024, effective 12/04/2024

Or. Admin. R. 731-065-0070 Administrative Reconsideration Process and Final Determination

(1) Following the receipt of any Notice of Intent, a Business can request Administrative Reconsideration.

(2) Any request for Administrative Reconsideration must be in writing and received by the Department within 20 calendar days of the date of the Notice of Intent. This written request must include:

(a) The date; and

(b) A clear statement of the basis for Administrative Reconsideration; and

(3) Upon receipt of a request for Administrative Reconsideration, the disqualification or termination will be stayed while the Department reviews the request. The Department will complete this review within 30 business days and will inform the Business of the outcome of Administrative Reconsideration in writing either by rescinding the Notice of Intent or issuing a new Notice of Intent.

(4) If the Department does not rescind the Notice of Intent, the Department will issue, via Certified Mail, a Notice of Intent Following Administrative Reconsideration to Deny Participation for Failure to Meet Qualifying Criteria or Notice of Intent to Disqualify and Terminate Program Participation.

(5) The Business may request a contested case hearing under the provisions of ORS chapter 183 by submitting a written request. A written request for a contested case hearing must include:

(a) The date; and

(b) A clear statement of the basis for requesting a contested case hearing; and

(6) If no request is made, the Notice of Intent will become the Department’s final determination of program eligibility.

History

Statutory/Other Authority: ORS 184.619
Statutes/Other Implemented: ORS 183 & 184.906
DOT 7-2024, adopt filed 12/04/2024, effective 12/04/2024

Or. Admin. R. 731-065-0080 Project Selection

(1) For purposes of this rule “SBDP participant” means a business that meets the qualifying criteria established in OAR 731-065-0020.

(2) ODOT may select a public improvement project to be in the SBDP if it meets the following selection criteria, as determined by ODOT staff knowledgeable of the project and the SBDP:

(a) Project can reasonably be performed by a SBDP participant serving as a prime contractor;

(b) Selection of project supports the statutory purpose of expanding opportunities for small construction firms to compete for and perform public improvement contracts; and

(3) ODOT may limit competition for projects in the SBDP to SBDP participants consistent with ORS 184.906.

(4) ODOT may select no less than one public improvement project each calendar year to be in the SBDP. The aggregate estimated total of all projects in the SBDP awarded in one calendar year may not exceed $25,000,000.

(5) ODOT may remove a project from the SBDP if it determines a project no longer meets selection criteria set forth in paragraph (2) or if no SBDP participant bids on the project.

History

Statutory/Other Authority: ORS 184.619
Statutes/Other Implemented: ORS 184.906
DOT 1-2026, adopt filed 06/11/2026, effective 06/11/2026

Division 70 OREGON INNOVATIVE PARTNERSHIPS PROGRAM

Or. Admin. R. 731-070-0005 Purpose and Intent of the Oregon Innovative Partnerships Program

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

(2) Public-Private Partnerships succeed 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 innovation and 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.

History

Statutory/Other Authority: ORS 184.619 & 367.824
Statutes/Other Implemented: ORS 367.800 - 367.824
DOT 5-2022, amend filed 05/24/2022, effective 05/24/2022
DOT 5-2004, f. & cert. ef. 8-26-04

Or. Admin. R. 731-070-0010 Definitions for the Oregon Innovative Partnerships Program

As used in OAR 731-070-0005 to 731-070-0340:

(1) “Agency” means any agency of the State of Oregon or any political subdivision thereof authorized by law to enter into public contracts, as defined in ORS 279A.010(1), and any public body created by intergovernmental agreement.

(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) “Department” or “ODOT” means the Oregon Department of Transportation created by ORS 184.615.

(4) “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.

(5) “Key Persons” means key officials of the proposing entity who play a critical role in running the enterprise and whose loss or unavailability could jeopardize the success of the venture. Any change or addition of Key Persons is subject to the provisions of OAR 731-0080.

(6) “Local government” has the meaning given that term in ORS 174.116.

(7) “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%.

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

(9) “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.

(10) “Program” or “OIPP” means the Oregon Innovative Partnerships Program established under ORS 367.800 to 367.826.

(11) "Project Team" means the group of Key Persons and staff of the proposer or consortium of proposers who will lead the project.

(12) “Public-Private Partnerships” or “PPP” means a nontraditional arrangement between the Department and one or more private or public entities that provides for the implementation of a Transportation Project. “Public-Private Partnership” or “P3” does not have the meaning, attributes or incidents of a “partnership” as used in ORS chapters 68 and 70 or in common law. Attributes 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;

(d) Use of innovative funding methods; or

(e) Expedited project delivery.

(13) “Sensitive business, commercial or financial information that is not customarily provided to business competitors” includes records or information pertaining to activities of the proposer that are commercial in nature, are intended to be treated with a high degree of discretion and which would not be provided to the proposer’s competitors.

(14) “Tollway” has the meaning given that term in ORS 383.003.

(15) “Transportation Project” or “Project” has the meaning given that term in ORS 367.802.

(16) “Unsolicited Proposal” means any proposal from a pre-qualified proposer under OAR 731-070-0340 for a Project submitted under OAR 731-070-0050.

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

History

Statutory/Other Authority: ORS 184.619 & 367.824
Statutes/Other Implemented: ORS 367.800 - 367.824
DOT 5-2022, amend filed 05/24/2022, effective 05/24/2022
DOT 6-2018, minor correction filed 07/30/2018, effective 07/30/2018
DOT 1-2016, f. & cert. ef. 3-22-16
DOT 4-2009, f. & cert. ef. 12-22-09
DOT 5-2004, f. & cert. ef. 8-26-04

Or. Admin. R. 731-070-0020 General Selection Policies

(1) The Department may exercise broad discretion, subject to the ultimate approval of the Commission, in evaluating 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 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 Chapters 279A, 279B and 279C contained in ORS 367.806(6), the Department may consider factors including public need, technical and financial feasibility, transportation efficiency, cost effectiveness, and acceleration of project delivery when evaluating proposals for Transportation Projects. Instead of a lowest responsible bidder determination, ODOT’s proposal selection is determined on a best-value basis, taking into consideration:

(a) Economy and potential savings to the public;

(b) Policies described in this rule; and

(3) In evaluating Unsolicited Proposals and in selecting projects for which to solicit proposals under OAR 731-070-0042, the Department may give precedence to proposals and projects that will satisfy one or more of the following policies:

(a) Projects that address an urgent or state-identified transportation need in a manner that materially advances 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), 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.

History

Statutory/Other Authority: ORS 184.619 & 367.824
Statutes/Other Implemented: ORS 367.800 - 367.824
DOT 5-2022, amend filed 05/24/2022, effective 05/24/2022
DOT 1-2016, f. & cert. ef. 3-22-16
DOT 4-2009, f. & cert. ef. 12-22-09
DOT 5-2004, f. & cert. ef. 8-26-04

Or. Admin. R. 731-070-0040 Protection of ODOT from Proposer “Monopolization” of Site Claims

(1) By submitting a proposal, a proposer waives 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 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.

History

Statutory/Other Authority: ORS 184.619 & 367.824
Statutes/Other Implemented: ORS 367.800 - 367.824
DOT 5-2022, amend filed 05/24/2022, effective 05/24/2022
DOT 5-2004, f. & cert. ef. 8-26-04

Or. Admin. R. 731-070-0042 Solicitation of Proposals for OIPP Projects

ODOT may solicit proposals or enter into negotiations with one or more legal entities, as described in OAR 731-070-0044, to develop a public-private partnership approach to planning, acquiring, financing, developing, designing, managing, constructing, reconstructing, replacing, improving, maintaining, repairing, leasing or operating a Transportation Project.

History

Statutory/Other Authority: ORS 184.619 & 367.824
Statutes/Other Implemented: ORS 367.800 - 367.824
DOT 5-2022, amend filed 05/24/2022, effective 05/24/2022
Renumbered from 731-070-0240, DOT 1-2016, f. & cert. ef. 3-22-16
DOT 4-2009, f. & cert. ef. 12-22-09
DOT 2-2009(Temp), f. & cert. ef. 7-29-09 thru 1-22-10
DOT 5-2004, f. & cert. ef. 8-26-04

Or. Admin. R. 731-070-0044 Negotiations

(1) ODOT Authority to Elect Direct Negotiations. ODOT may elect to enter into direct negotiations for a Public-Private Partnership with a private entity or unit of Local Government. ODOT may request a proposal from the entity or unit of Local Government, and may specify requirements for proposal content, and the criteria and procedures under which ODOT will evaluate the proposal for further negotiations towards a final agreement.

(2) ODOT Authority to Elect Competitive Negotiations. ODOT may elect to enter competitive negotiations with multiple proposers to select from among proposals solicited under section (1) of this rule or OAR 731-070-0020. Negotiations under this section are part of the proposal evaluation process and do not constitute the negotiation of a Transportation Project agreement.

(a) The object of competitive negotiations is to maximize ODOT's ability to obtain best value and to permit proposers to develop revised proposals.

(b) ODOT may conduct competitive negotiations serially or concurrently with more than one proposer. Negotiations may include, but are not 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) Allowing proposers to develop revised proposals to permit ODOT to obtain the best proposal based on the requirements and evaluation criteria set forth in the notice or request. The scope, manner and extent of negotiations with any proposer are subject to ODOT's discretion. To prevent the disclosure of proposal information to a proposer’s competitors, ODOT may conduct negotiations with proposers before information about the subject proposals is shared with other government entities under ORS 367.804(5)(a).

(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 the pricing information of one proposer to another proposer except to indicate the proposal price is too high or too low relative to other proposals.

History

Statutory/Other Authority: ORS 184.619 & 367.824
Statutes/Other Implemented: ORS 367.800 - 367.824
DOT 5-2022, amend filed 05/24/2022, effective 05/24/2022
Renumbered from 731-070-0245, DOT 1-2016, f. & cert. ef. 3-22-16
DOT 4-2009, f. & cert. ef. 12-22-09
DOT 2-2009(Temp), f. & cert. ef. 7-29-09 thru 1-22-10

Or. Admin. R. 731-070-0046 Solicitation Documents

(1) In a solicitation for proposals, ODOT will specify requirements for proposal content, and for criteria and procedures used to evaluate selected proposals. These requirements, criteria and procedures will comply with the requirements of ORS 367.800 to 367.826.

(2) Nothing in this rule is intended 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.

History

Statutory/Other Authority: ORS 184.619 & 367.824
Statutes/Other Implemented: ORS 367.800 - 367.824
DOT 5-2022, amend filed 05/24/2022, effective 05/24/2022
Renumbered from 731-070-0250, DOT 1-2016, f. & cert. ef. 3-22-16
DOT 4-2009, f. & cert. ef. 12-22-09
DOT 5-2004, f. & cert. ef. 8-26-04

Or. Admin. R. 731-070-0048 Public Notice of Solicitation

(1) ODOT will furnish notice to a number of entities deemed by ODOT to be sufficient for the purpose of fostering and promoting competition. The notice will 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 furnish notice using any method determined to foster and promote competition, including:

(a) Mailing the notice to any party that has expressed an interest in ODOT’s OIPP procurements;

(b) Placing the notice on the Oregon the Department of Administrative Services' electronic procurement system; or

(2) ODOT will provide timely notice of all solicitations to the Advocate for Minority, Women and Emerging Small Business as required by law.

History

Statutory/Other Authority: ORS 184.619 & 367.824
Statutes/Other Implemented: ORS 367.800 - 367.824
DOT 5-2022, amend filed 05/24/2022, effective 05/24/2022
DOT 8-2018, minor correction filed 08/08/2018, effective 08/08/2018
Renumbered from 731-070-0260, DOT 1-2016, f. & cert. ef. 3-22-16
DOT 4-2009, f. & cert. ef. 12-22-09
DOT 5-2004, f. & cert. ef. 8-26-04

Or. Admin. R. 731-070-0050 Submission of Unsolicited Proposals for OIPP Projects

(1) A private entity wishing to submit an Unsolicited Proposal for a Transportation Project to ODOT for consideration under the OIPP must first submit an Application for Prequalification as described in OAR 731-070-0340. A unit of Local Government may submit an Unsolicited Proposal without prior prequalification.

(2) An application evaluation fee in the amount prescribed by OAR 731-070-0055 must accompany any Application for Prequalification.

(3) A pre-qualified private entity that submits an Unsolicited Proposal must include a proposal evaluation fee in the amount prescribed by OAR 731-070-0055. The proposal evaluation fee is waived for a state Agency or unit of Local Government.

(4) ODOT will publish the requirements for contents and format of an Unsolicited Proposal on its external website. The proposer must submit the original Unsolicited Proposal bearing the signature of the authorized representative, two hard copies and an electronic copy of the Unsolicited Proposal in a format not to exceed the file size indicated in the application form. The original signed proposal, required copies and evaluation fee must be delivered to the Director according to the instructions provided in the application form.

(5) The proposer shall include a list of any proprietary information included in the proposal that the proposer considers protected trade secrets or other information exempted from disclosure under ORS 367.804, OAR 731-070-0280, and 731-070-0290. ODOT may consider an Unsolicited Proposal for a project involving an Oregon unit of Local Government or an agency of another state only if the proposal clearly demonstrates ongoing engagement regarding the project with the state or Local Government unit. The Unsolicited Proposal must provide the name and contact information of an official representative knowledgeable of the proposed project.

(6) ODOT may consider an Unsolicited Proposal only if the proposal is properly formatted as described in, and includes all information required by, this rule.

History

Statutory/Other Authority: ORS 184.619 & 367.824
Statutes/Other Implemented: ORS 367.800 - 367.824
DOT 5-2022, amend filed 05/24/2022, effective 05/24/2022
DOT 1-2016, f. & cert. ef. 3-22-16
DOT 2-2013, f. & cert. ef. 6-21-13
DOT 4-2009, f. & cert. ef. 12-22-09
DOT 5-2004, f. & cert. ef. 8-26-04

Or. Admin. R. 731-070-0055 Fees to Accompany Applications for Prequalification and Unsolicited Proposals

(1) The non-refundable fee for evaluation of an application for prequalification, as required by OAR 731-070-0050 is $2,500.

(2) The non-refundable evaluation fee for an Unsolicited Proposal required by OAR 731-070-0050 is:

(a) $5,000 for a project valued under $500,000;

(b) $15,000 for a project valued from $500,000 to $100 million; and

(3) If the cost of evaluating an Unsolicited Proposal exceeds the evaluation fee, the Director may assess an additional fee that reflect the reasonable expected costs to ODOT that may be incurred in excess of the amount deposited pursuant to section (2) of this rule for evaluation of the Unsolicited Proposal.

(4) The Director may waive the fees specified in sections (1) and (2) of this rule if the interests of the state or the specific merits of the project would warrant such a waiver. In considering whether to grant a waiver the Director will consider the magnitude of costs versus benefits of such a waiver.

History

Statutory/Other Authority: ORS 184.619, 367.822 & 367.824
Statutes/Other Implemented: ORS 367.800 - 367.824
DOT 5-2022, amend filed 05/24/2022, effective 05/24/2022
DOT 9-2018, minor correction filed 08/08/2018, effective 08/08/2018
DOT 1-2016, f. & cert. ef. 3-22-16
DOT 4-2009, f. & cert. ef. 12-22-09
DOT 1-2005, f. & cert. ef. 1-20-05
DOT 6-2004(Temp), f. & cert. ef. 8-26-04 thru 2-21-05

Or. Admin. R. 731-070-0065 Prequalification of Proposers of Unsolicited Proposals

To submit an Unsolicited Proposal, an entity must first submit a completed Application for Prequalification and receive notice of approval for prequalification from ODOT.

(1) ODOT may establish the required content and format of the application and criteria used to evaluate Applications for Prequalification. ODOT will publish on its external website:

(a) The location at which interested entities may obtain prequalification application forms, 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.

(2) Each Application for Prequalification must be in writing and must substantially comply with the instructions given by ODOT in a prequalification application form and in OAR 731- 070-0145 .

(3) An Application for Prequalification must be accompanied by:

(a) A non-refundable application evaluation fee as designated in OAR 731-070-0055.

(b) An executed conflict of interest disclosure forms provided by ODOT for the Project Team, each Major Partner and any Major Subcontractor.

(c) Any additional information described and required by the prequalification application form or by ODOT necessary to evaluate the application.

(4) After reviewing a prequalification application submitted in accordance with this rule, ODOT will notify the applicant whether the applicant is qualified to submit an Unsolicited Proposal.

(a) 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 the determination.

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

(5) If an entity timely submits a protest that complies with section (4) 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.

(6) Unless otherwise specified, 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.

(7) 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 inform the entity that it may protest the proposed action under section (4) of this rule.

History

Statutory/Other Authority: ORS 184.619 & 367.824
Statutes/Other Implemented: 367.800 - 367.824
DOT 5-2022, adopt filed 05/24/2022, effective 05/24/2022

Or. Admin. R. 731-070-0080 Additional Unsolicited Proposal Disclosure Requirements

(1) After submission of an unsolicited proposal as described in OAR 731-070-0050, the Director may impose any other special disclosure requirements the Director determines to be reasonably necessary to evaluate the expertise, experience, financial backing, integrity, ownership and control of the business.

(2) ODOT may reject, or require the supplementation of, an incomplete proposal. ODOT will reject any proposal that contains false, untruthful or misleading information. A proposer's failure or refusal to properly execute, fully complete, or accurately report any information required in OAR 731-070-0050 is sufficient grounds for rejection of the proposal.

(3) If, during the evaluation process, there is any change in the status of the proposer, the identity of any Key Person, or the addition of any Key Person, the proposer must report the change to the Department within 30 calendar days of the known change. For purposes of this section, a “change in the status of a proposer” means a reorganization of the business structure or corporate structure of the proposer or a Major Partner, or a change in ownership of the proposer or a Major Partner amounting to a transfer of over twenty percent of the entity’s ownership.

(4) The burden of satisfying ODOT’s disclosure requirements for Unsolicited Proposals, both in terms of producing the disclosures and assuring the accuracy and completeness of such information, resides with each proposer.

(5) A proposer, by submitting a proposal, accepts all risk of adverse public notice, damages, financial loss, criticism or embarrassment that may result from any disclosure or publication of any material or information required or requested by the Department in connection with the proposer’s submission of a proposal. In submitting a proposal, the proposer expressly waives, on behalf of itself, its partners, joint venturers, officers, employees and agents, any claim against the Director, the state of Oregon, the Oregon Transportation Commission, ODOT, and their officers and employees, for any damages that may arise therefrom.

(6) An Agency of the state of Oregon that submits a proposal may, prior to submission, request ODOT to waive the disclosure requirements of this rule with respect to the Agency and its officers. However, if the Agency proposes to enter into or establish a partnership or joint venture with a private entity to perform any substantial portion of the proposed Project (as opposed to the engagement of only a prime contractor or subcontractors), then disclosure of the private entity must be made and the proposal must include all information regarding the private entity as required under these rules, to the same extent as if the private entity is a proposer.

History

Statutory/Other Authority: ORS 184.619 & 367.824
Statutes/Other Implemented: ORS 367.800 - 367.824
DOT 5-2022, amend filed 05/24/2022, effective 05/24/2022
DOT 1-2016, f. & cert. ef. 3-22-16
DOT 4-2009, f. & cert. ef. 12-22-09
DOT 5-2004, f. & cert. ef. 8-26-04

Or. Admin. R. 731-070-0145 Evaluation of Unsolicited Proposals

(1) ODOT will review and make a preliminary assessment that the Unsolicited Proposal does or does not meet the requirements of OAR 731-070-0050.

(2) An Evaluation Panel will independently evaluate each proposal that meets all requirement. Members of the Evaluation Panel may change and ODOT may have additional or fewer evaluators for optional rounds of competition.

(3) Proposer Presentations. At any time during the evaluation process, the Evaluation Panel may require that a proposer make a presentation to the Evaluation Panel. The presentation is to allow the Evaluation Panel to seek clarification of Project elements and provide proposers with an opportunity to explain their proposed Project further. The Evaluation Panel will provide written notice to a proposer and give the proposer a minimum of 10 business days from the date of the notice to prepare the presentation. The format of the presentation may include a formal presentation by the proposer, followed by questions from the Evaluation Panel pertaining to the Project, proposal, or presentation.

(4) Evaluation Factors. ODOT will publish on its external website the general criteria for evaluation of an Unsolicited Proposal, including but not limited to any of the following factors:

(a) Qualifications, experience, and structure of the Project Team;

(b) Project description in sufficient detail to determine the type and size of the Project, the location, and all proposed interconnections with other transportation facilities;

(c) The point in the Transportation Project at which the public and private sector partners enter the Project and the responsibility to be assumed by each partner for specific Project elements, including shared risk management, costs of development, and allocation of financial responsibility for overruns;

(d) Reasonableness of proposed project schedule;

(e) Degree of technical innovation associated with the proposal and if the knowledge or technology gained from the Project benefit other areas of this state or the United States;

(f) Whether the Project meets or exceeds state and federal environmental standards;

(g) Right of Way considerations and plans for acquisitions;

(h) Ongoing maintenance of the project;

(i) Financial Plan demonstrating a reasonable basis for funding Project development and operations, based on well-defined and reasonable assumptions;

(j) Estimated cost of the Project;

(k) Life cycle cost analysis;

(L) Public support, community benefit and engagement; and

(m) Compatibility with the existing transportation system and support of transportation policies and goals.

(5) Based on the Evaluation Panel's assessments, ODOT will:

(a) Accept the proposal and enter into discussions and negotiations with the proposing entity or entities;

(b) Request additional information from the proposing entity or entities; or

History

Statutory/Other Authority: ORS 184.619 & 367.824
Statutes/Other Implemented: 367.800 - 367.824
DOT 5-2022, adopt filed 05/24/2022, effective 05/24/2022

Or. Admin. R. 731-070-0200 Negotiation of Agreements for Transportation Projects

(1) The Director will refer a proposal selected for negotiation of a final agreement to a working group. The working group is 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;

(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 279C.520 and 279C.800 to 279C.870.

(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.

History

Statutory/Other Authority: ORS 184.619 & 367.824
Statutes/Other Implemented: ORS 367.800 - 367.824
DOT 5-2022, amend filed 05/24/2022, effective 05/24/2022
DOT 4-2009, f. & cert. ef. 12-22-09
DOT 5-2004, f. & cert. ef. 8-26-04

Or. Admin. R. 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 identified in its proposal 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. Subcontractors who are ineligible to receive public works contracts under ORS 279C.860 are not eligible to receive contracts on OIPP projects. During performance of the contract, the proposer shall promptly notify ODOT of the engagement or disengagement of any Major Subcontractor. If ODOT has reasonable objection to any proposed subcontractor, ODOT may require, before the execution of a contract, an apparently successful proposer to submit an acceptable substitute, as determined by ODOT.

(2) The resulting contract may be modified at ODOT's discretion to equitably account for any difference in cost resulting from the substitution. An apparently successful proposer has 14 calendar days from the date of ODOT's written demand for substitution in which to make an acceptable substitution. An apparently successful proposer's failure to make an acceptable substitution at the end of the 14-calendar day period constitutes sufficient grounds for ODOT to refuse to execute a contract without incurring any liability for the refusal.

(3) If the apparently successful proposer identified a Major Subcontractor in its proposal as an equity contributor to the Project, or the Major Subcontractor had committed other financial support relied on by the proposer, the apparently successful proposer shall be granted 60 business days to identify an acceptable substitute Major Subcontractor. Following identification of the Major Subcontractor, the apparently successful proposer shall be granted an additional 30 business days to conclude negotiations of acceptable terms and conditions with that substitute Major Subcontractor.

History

Statutory/Other Authority: ORS 184.619 & 367.824
Statutes/Other Implemented: ORS 367.800 - 367.824
DOT 5-2022, amend filed 05/24/2022, effective 05/24/2022
DOT 4-2009, f. & cert. ef. 12-22-09
DOT 5-2004, f. & cert. ef. 8-26-04

Or. Admin. R. 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.

History

Statutory/Other Authority: ORS 184.619 & 367.824
Statutes/Other Implemented: ORS 367.800 - 367.824
DOT 5-2022, amend filed 05/24/2022, effective 05/24/2022
DOT 4-2009, f. & cert. ef. 12-22-09
DOT 5-2004, f. & cert. ef. 8-26-04

Or. Admin. R. 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.

History

Statutory/Other Authority: ORS 184.619 & 367.824
Statutes/Other Implemented: ORS 367.800 - 367.824
DOT 5-2022, amend filed 05/24/2022, effective 05/24/2022
DOT 5-2004, f. & cert. ef. 8-26-04

Or. Admin. R. 731-070-0280 Public Records Requests

(1) Upon written request and within a reasonable time, the Director will provide records relating to Transportation Project proposals for inspection in accordance with ORS Chapter 192, ORS 367.804, and OAR 731-001-0025.

(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.

History

Statutory/Other Authority: ORS 184.619 & 367.824
Statutes/Other Implemented: ORS 367.800 - 367.824
DOT 5-2022, amend filed 05/24/2022, effective 05/24/2022
DOT 4-2009, f. & cert. ef. 12-22-09
DOT 5-2004, f. & cert. ef. 8-26-04

Or. Admin. R. 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) If a proposer considers certain information "trade secret" information for purposes of the public records exemption from disclosure set out in ORS 192.345 (2), the proposer must clearly mark each individual page of a plan or progress report that contains trade secret information as “Trade Secret.”

History

Statutory/Other Authority: ORS 184.619 & 367.824
Statutes/Other Implemented: ORS 367.800 - 367.824
DOT 5-2022, amend filed 05/24/2022, effective 05/24/2022
DOT 5-2004, f. & cert. ef. 8-26-04

Or. Admin. R. 731-070-0295 Consultation with Local Government, 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.

History

Statutory/Other Authority: ORS 184.619 & 367.824
Statutes/Other Implemented: ORS 367.800 - 367.824
DOT 5-2022, amend filed 05/24/2022, effective 05/24/2022
DOT 4-2009, f. & cert. ef. 12-22-09
DOT 5-2004, f. & cert. ef. 8-26-04

Or. Admin. R. 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) Prioritize proposals to be reviewed and determine the order of review.

(b) Reject any proposal at any time.

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

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

(f) Extend any deadline or time within which a proposer or ODOT must take any action required or permitted under OAR chapter 731, division 70

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

(h) Issue addenda to or cancel any Request For Proposals.

(i) Decline to return any fees required to be paid by proposers hereunder.

(j) Request revisions to proposals.

(2) Except as otherwise provided for in a solicitation of proposals or in an order pertaining to an unsolicited proposal, neither the state, the Oregon Transportation Commission or ODOT is liable for, or obligated to reimburse the costs incurred by proposers in developing proposals or in negotiating agreements. In its sole discretion, ODOT may, in a solicitation of proposals or in an order, provide for the possibility of payment for work product developed by a proposer in the course of developing a proposal.

(3) Any information ODOT makes available to proposers is 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.

History

Statutory/Other Authority: ORS 184.619 & 367.824
Statutes/Other Implemented: ORS 367.800 - 367.824
DOT 5-2022, amend filed 05/24/2022, effective 05/24/2022
DOT 4-2009, f. & cert. ef. 12-22-09
DOT 5-2004, f. & cert. ef. 8-26-04

Division 90 ROAD USAGE CHARGE PROGRAM

Or. Admin. R. 731-090-0000 Definitions

(1) “Account Manager” means a Certified Service Provider under ORS 319.915. It is either the Department or a Commercial Account Manager. Should the Department outsource the agency’s account management function for Road Usage Charging to an ODOT Account Manager, “Account Manager” shall include the ODOT Account Manager.

(2) “Anonymized Information” means information that does not identify or describe a person.

(3) “Anonymized Aggregated information” means aggregated information accumulated in a way that preserves the anonymity of the persons participating in the Road Usage Charge Program, and does not identify or describe a person or create travel pattern data.

(4) “Certified Service Provider” means an entity that has entered into an agreement with the Department of Transportation under ORS 367.806 for reporting metered use by a subject vehicle or for administrative services related to the collection of per-mile road usage charges and authorized employees of the entity. For these rules, Account Manager will be used in lieu of Certified Service Provider.

(5) “Combined rating” means the weighted average of city and highway miles per gallon values calculated by weighting the city value at 55% and the highway value at 45%, as determined by the United States Environmental Protection Agency.

(6) “Commercial Account Manager” means an entity, operating within a commercial market, which has entered into an agreement with the Department under ORS 367.806 for reporting metered use by a subject vehicle or for administrative services related to the collection of Road Usage Charges and authorized employees of the entity.

(7) “Consent” means voluntary agreement given to retain location and daily metered use beyond the period required by ORS 319.915(4) (a).

(a) A RUC Payer must provide consent to an Account Manager in a manner separate and apart from a general approval of terms and conditions. A written request by the RUC Payer to an Account Manager constitutes consent.

(b) The consent may not be presented as, or serve as a condition to, a Road Usage Charge service agreement between the ODOT Account Manager and the RUC Payer.

(c) For consent to be valid under this rule, an Account Manager must notify the RUC Payer of the Account Manager’s request to consent to retain the records, including a specific description of the information to be retained and the retention timeframe.

(8) “Delinquency” means failure to report or pay by the due date.

(9) “Electric Vehicle” is a passenger vehicle, that is capable of attaining a speed of 55 miles per hour or more, and is powered:

(a) Primarily by an electric battery and may or may not use a flywheel energy storage device or a capacitor that stores energy to assist in vehicle operation; or

(b) By polymer electrolyte membrane fuel cells or proton exchange membrane fuel cells that use hydrogen fuel and oxygen from the air to produce electricity; or

(c) Primarily by a zero-emission energy storage device that provides enough power for the vehicle to travel 75 miles or more using only electricity and may or may not use a backup alternative power unit that does not operate until the energy storage device is fully depleted.

(10) “Eligible vehicle” means an electric vehicle or a vehicle with a combined rating of at least 20 miles per gallon and has the ability to support the reporting of mileage and other data to the Account Manager.

(11) “Express Approval” means active approval, either electronic or on paper, by a RUC Payer that identifies the entity with which Personally Identifiable Information will be shared.

(a) The RUC Payer must give express approval in a manner separate and apart from a general approval of terms and conditions with the Account Manager.

(b) For express approval of an entity to receive Personally Identifiable Information to be valid, an Account Manager must notify the RUC Payer of the request to disclose PII, including a specific description of the information to be disclosed.

(12) “Good cause,” for the purposes of Division 90 rules, means circumstances outside the reasonable control of an Account Manager that make it impossible for the Account Manager to deliver, deposit, or transmit its Official Tax Reports or payments to the Department in compliance with this section, or that make it impossible for the Account Manager to do so without incurring exceptional additional expense.

(a) These circumstances include catastrophic events, suspension of the operations of financial institutions or communications carriers on which an Account Manager depends, and serious and unforeseen failures or the disablement of an Account Manager’s information management, accounting, or transmission systems, that make the timely submission of the reports or payments unachievable.

(b) “Good cause” does not include circumstances that an Account Manager could anticipate, like system service interruptions for maintenance or upgrades of an Account Manager’s operational systems.

(c) The Account Manager shall have the burden of presenting ODOT with reliable evidence that the circumstances of any untimeliness in the Account Manager’s submission of reports or payments satisfy this standard of good cause.

(13) “Lessee” means a person that leases a motor vehicle that is required to be registered in Oregon.

(14) “Metered Use Report” means an Account Manager’s periodic report of its RUC Payer’s metered use of Oregon’s public roads for submittal to the Department.

(15) “Metered Use Reporting Period” means the period of time for which metered use, or the miles driven, are reported by the RUC Payer to the Account Manager and by the Account Manager to the Department. The frequency of the metered use reports is determined by contract between the Department and the Account Manager.

(16) “Mileage Reporting Option” is the manner in which the RUC Payer will report miles and other data to the Account Manager. All mileage reporting options must be approved and certified by the Department for use in the Road Usage Charge Program.

(17) “Net Road Usage Charges” means Road Usage Charges attributable to taxable miles reported less Oregon fuels tax credit, applicable to the same reported miles.

(18) “Non-compliance” includes, but is not limited to, failure to report regularly, failure to pay an invoice, tampering or fraud, non-responsiveness to Account Manager requests for information, and not following terms and conditions as agreed to in the Volunteer Agreement.

(19) “Non-compliance Investigation” means an investigation by the Department to determine if, and to what extent, any person, including but not limited to a RUC Payer, is in compliance with the statutory provisions of the Road Usage Charge Program and associated Oregon Administrative Rules in Chapter 731, Division 90. Such investigations may include informal inquiries or a formal review of the relevant records and the mileage reporting option of the RUC Payer or Account Manager to ascertain the extent of non-compliance, if any

(20) “Null Mileage Day” means any 24 hour period from 12:00 AM to 11:59 PM Pacific Time where no miles are reported by the subject vehicle and there is an indication of reporting error for the subject vehicle for that day.

(21) “ODOT” or “Department” means the Oregon Department of Transportation.

(22) “ODOT Account Manager” means an entity, operating in the capacity of ODOT, which has entered into an agreement with the Department under ORS 367.806 for reporting metered use by a subject vehicle or for administrative services related to the collection of Road Usage Charges and authorized employees of the entity.

(23) “Official Tax Report” means an Account Manager’s periodic report of its RUC Payer’s metered use and the associated Road Usage Charge for submittal to the Department.

(24) “Official Tax Reporting Period” means a calendar quarter during which an Account Manager must file the Official Tax Report of its RUC Payer’s metered use and remit the associated tax to the Department in accordance with its contractual obligation.

(25) “Personally identifiable Information” or “PII” means any information that identifies or describes a person that is obtained or developed in the course of reporting metered use by a subject vehicle or for providing administrative services related to the collection of Road Usage Charges.

(a) PII includes, but is not limited to, the person’s travel pattern data, per-mile road usage charge account number, address, telephone number, electronic mail address, driver license or identification card number, registration plate number, photograph, recorded images, bank account information and credit card number.

(b) PII does not include anonymized information or anonymized aggregated information.

(26) “Registered Owner” means a person or a business, other than a vehicle dealer, that holds a certificate issued under ORS 822.020, which is required to register a motor vehicle in Oregon.

(27) “Reasonably Reliable Information available” means any data or information that can be used to determine tax due including calculated projections or averages based on prior reports or data from other sources as determined by the Department.

(28) “Road Usage Charge” or “RUC” means a fee charged at the statutory rate per mile driven on Oregon public roads.

(29) “Plug-in hybrid electric motor vehicle” means a passenger, hybrid electric motor vehicle that is capable of attaining a speed of 55 miles per or hour or more, and that:

(a) Has zero evaporative emissions from its fuel system;

(b) Has an onboard electrical energy storage device with useful capacity of 10 or more miles of urban dynamometer driving schedule range, as described by the United States Environmental Protection Agency, on electricity alone;

(d) Is rechargeable from an external connection to an off-board electrical source; and

(e) Meets the super ultra-low emission vehicle standards for exhaust emissions, as defined by the United States Environmental Protection Agency by rule.

(30) “Road Usage Charge Program” or “Program” means the voluntary program established by ORS 319.883 to 319.945 for paying the Road Usage Charge in lieu of the fuel tax.

(31) “RUC Payer” refers to the registered owner or lessee of a subject vehicle that voluntarily participates in the Road Usage Charge Program.

(32) “Subject Vehicle” means a motor vehicle that is the subject of an application approved pursuant to ORS 319.890.

(33) “Tax Remittance Report” means a ledger of taxes owed by and due to RUC Payers who are enrolled with the ODOT Account Manager. It is submitted by the ODOT Account Manager to the Department quarterly.

(34) “Travel Pattern Data” means location and daily metered use of a subject vehicle and data that describes a person’s travel habits in sufficient detail that the person becomes identifiable either through the data itself or by combining publicly available information with the data.

History

Statutory/Other Authority: ORS 184.619 & 319.883 - 319.990
Statutes/Other Implemented: ORS 319.883 - 319.990
DOT 2-2019, amend filed 10/22/2019, effective 01/01/2020
DOT 4-2017, amend filed 11/17/2017, effective 01/01/2018
DOT 3-2016, f. & cert. ef. 9-26-16
DOT 1-2015, f. 4-21-15, cert. ef. 7-1-15

Or. Admin. R. 731-090-0010 Confidentiality

(1) An Account Manager may not disclose Personally Identifiable Information (PII) used or developed for reporting metered use by a subject vehicle or for administration services related to the collection of Road Usage Charges to any person except as allowed by ORS 319.915(3). An ODOT Account Manager may not disclose PII without written approval of the Department.

(2) If the RUC Payer declines to give express approval for disclosure of PII to an entity, such an act must not invalidate any Road Usage Charge service agreement existing between the Account Manager and the RUC Payer.

(3) Not later than 30 days after completion of payment processing, dispute resolution for a single payment period or a noncompliance investigation, whichever is latest, the Account Manager shall destroy records of location and daily metered use of subject vehicles.

(a) A Commercial Account Manager may retain and use records of location and daily metered use of subject vehicles if the RUC Payer consents to the retention and use.

(b) If the RUC Payer files for a refund under ORS 319.280, records of location and daily metered use of subject vehicles will be destroyed 30 days after check issuance, dispute resolution for a single reporting period, or a noncompliance investigation, whichever is latest.

(4) An Account Manager may retain, aggregate and use, for the purposes of traffic management and research, records of the location and daily metered use of subject vehicles after removing Personally Identifiable Information.

(5) Upon request of the RUC Payer, an Account Manager and its contractor shall provide the RUC Payer the following rights regarding Personally Identifiable Information (PII):

(a) The right to inquire about the nature, accuracy, status and use of the RUC Payer’s PII;

(b) The right to examine the RUC Payer’s PII or a reasonable facsimile of the RUC Payer’s PII;

(c) The right to request corrections of the RUC Payer’s PII should the RUC Payer provide reasonable evidence that the RUC Payer’s PII has errors or has changed;

(d) The right to delete the location and daily metered use data that has not been destroyed within the required period of time, as per ORS 319.915 (4); and

(e) An Account Manager, and its contractor, shall respond to all such requests within five (5) business days of receipt of the request.

History

Statutory/Other Authority: ORS 184.619 & 319.883 - 319.990
Statutes/Other Implemented: ORS 319.915
DOT 2-2019, amend filed 10/22/2019, effective 01/01/2020
DOT 1-2015, f. 4-21-15, cert. ef. 7-1-15

Or. Admin. R. 731-090-0020 RUC Payer: Enrolling in the Program

(1) For a vehicle to be eligible for participation in the Road Usage Charge Program, the registered owner or lessee of the passenger vehicle must:

(a) Have the vehicle registered, in accordance with OAR 735-022-0000, in Oregon;

(b) The vehicle must meet the definition of passenger vehicle as found in OAR 735-030-0015 (1);

(d) Select a Mileage Reporting Option and an Account Manager from options certified by the Department;

(e) Complete an application with the Account Manager, on a form approved by the Department; and

(f) Equip or activate a Mileage Reporting Option within the vehicle.

(2) The registered owner or lessee of the motor vehicle must provide a minimum of the following information for the subject vehicle to the Account Manager:

(a) Vehicle identification number;

(b) Registration plate number; and

(3) The Department may determine certain passenger vehicles are ineligible for the Program if:

(a) The subject vehicle has a combined rating of less than 20 miles per gallon; or

(b) The vehicle does not have the capability to functionally accommodate a certified Mileage Reporting Option.

(4) RUC Payers who are dissatisfied with the reporting or payment requirements of their selected Account Manager may un-enroll from the Program and re-enroll in the Program with another Account Manager. Reenrollment is contingent upon the RUC Payer being in good standing with the previous Account Manager.

(5) At the discretion of the Department, the Department may issue emblems to selected RUC Payers who have use fuel vehicles, as defined in ORS 319.520 (7) enrolled in the Program, with the permission or at the request of the RUC Payer.

(6) At the discretion of the Department or the Account Manager, a RUC Payer may be unenrolled from the Program for Non-Compliance.

(7) Electric Vehicles and vehicles with a combined MPG rating of 40 miles per gallon, or greater, that enroll in the Program will be exempted from paying additional registration fees under ORS 803.422, at the time of vehicle registration or renewal of registration.

(8) If the eligible vehicle is un-enrolled from the Program, or is removed from the Program for non-compliance, the entity the vehicle is registered to will be responsible for paying all additional registration fees under ORS 803.422 for the current registration period.

History

Statutory/Other Authority: ORS 184.619 & 319.883 - 319.990
Statutes/Other Implemented: ORS 319.915
DOT 2-2019, amend filed 10/22/2019, effective 01/01/2020
DOT 4-2017, amend filed 11/17/2017, effective 01/01/2018
DOT 3-2016, f. & cert. ef. 9-26-16
DOT 1-2015, f. 4-21-15, cert. ef. 7-1-15

Or. Admin. R. 731-090-0030 RUC Payer: Mileage Calculation

(1) The Account Managers shall collect road usage data by options approved and certified by the Department. The Department may authorize the following options for collecting road usage data:

(a) Mileage reporting that uses vehicle location capability; or

(b) Mileage reporting that does not use vehicle location capability; or

(c) Mileage reporting that alternates between location and non-location based functionality at the RUC Payer’s direction or discretion.

(d) Other technologies that collect and report road usage data.

(2) For any subject vehicle that incurs more than 10 null mileage days in a calendar year, the RUC Payer may be assessed a Road Usage Charge for any null mileage days. The null mileage day calculation process is determined by the agreement between the RUC Payer and the Account Manager.

(3) For any Road Usage Charge assessed for null mileage days, the RUC Payer may request abatement of part or all of the assessment and submit information supporting the request to the Account Manager.

(4) Gaps in RUC Payer data reporting will be reviewed by the Department. How to resolve and account for gaps in RUC Payer data reporting will be determined in contractual documents between the Department and the Account Managers.

(5) Tax liability begins on the day the Mileage Reporting Option is activated in the vehicle for the purposes of collecting the Road Usage Charge. Tax liability ends on the day the RUC Payer informs the RUC Payer’s Account Manager, in the manner prescribed by the Account Manager, that the RUC Payer wants to leave the program.

(6) RUC Payer information supplied to the Department by the Account Manager may be reviewed by the Department. If the Department finds that Road Usage Charge or fuels tax credits were incorrectly or insufficiently calculated, the Department may adjust the account, which will result in an invoice or a credit. RUC Payers are expected to pay invoices resulting from a Departmental review within 30 days, or the Department may assess interest at the rate of 1 percent per month as well as a 10 percent late penalty fee for delinquent payments.

History

Statutory/Other Authority: ORS 184.619 & 319.883 - 319.990
Statutes/Other Implemented: ORS 319.915
DOT 2-2019, amend filed 10/22/2019, effective 01/01/2020
DOT 4-2017, amend filed 11/17/2017, effective 01/01/2018
DOT 3-2016, f. & cert. ef. 9-26-16
DOT 1-2015, f. 4-21-15, cert. ef. 7-1-15

Or. Admin. R. 731-090-0040 RUC Payer: Reporting and Payment

(1) All RUC Payers, or the Account Manager that reports on their behalf, must report and pay the Road Usage Charge for their subject vehicles.

(2) All RUC Payers must report all miles subject to the Road Usage Charge during a Metered Use Reporting Period to their Account Manager. The Mileage Reporting Option must be configured to report metered use at least once a month.

(3) RUC Payers who have paid Oregon fuels tax will receive a credit to be applied against their Road Usage Charge.

(a) The Account Manager will use the Combined Fuel Economy Rating for the vehicle as determined by the manufacturer’s Vehicle Identification Number, or other reliable information available to the Department.

(b) Electric Vehicles will not receive a fuels tax credit.

(4) If the RUC Payer is an emblemed use fuel user with the Department’s Fuels Tax Group, then the Department will assume that the RUC Payer is fueling only with tax-exempt fuel, and is therefore not entitled to a fuels tax credit to be applied against the RUC Payer’s road usage charge.

(5) The following will apply to RUC Payers who select the Department or the ODOT Account Manager for reporting their miles traveled and paying their Road Usage Charges:

(a) The ODOT Account Manager or the Department will invoice the Net Road Usage Charge once the account threshold has exceeded 20 dollars, and the calendar quarter end has been reached.

(b) The Department will assess interest at the rate of 1 percent per month as well as a 10 percent late penalty fee for delinquent payments. Delinquency is defined as 45 days past the due date. This penalty may be waived at the discretion of the Department.

(6) The following will apply to RUC Payers who select a Commercial Account Manager for reporting their miles and paying their Road Usage Charges:

(a) The Commercial Account Manager will invoice the Net Road Usage Charge per its agreement with the RUC Payer.

(b) The Commercial Account Manager shall assess penalties and interest for delinquent payments as established in its agreement with the RUC Payer.

(7) Electric vehicles and those with a combined rating of 40 miles per gallon or higher that do not report at least once a month, or are otherwise removed from the Program by the Account Manager for Non-Compliance, will be removed from the Program and will have to pay all applicable registration fees for the current registration period according to ORS 803.422.

History

Statutory/Other Authority: ORS 184.619 & 319.883 - 319.990
Statutes/Other Implemented: ORS 319.915
DOT 2-2019, amend filed 10/22/2019, effective 01/01/2020
DOT 4-2017, amend filed 11/17/2017, effective 01/01/2018
DOT 3-2016, f. & cert. ef. 9-26-16
DOT 1-2015, f. 4-21-15, cert. ef. 7-1-15

Or. Admin. R. 731-090-0050 RUC Payer: Exiting the Program

(1) RUC Payers who are exiting the Program must inform their Account Manager of their service cancellation in a manner prescribed by that Account Manager.

(2) RUC Payers must pay any outstanding Road Usage Charge fees upon their exit from the program.

(3) RUC Payers enrolled with the ODOT Account Manager must return their Mileage Reporting Device.

(4)The Department may remove a RUC Payer from the Program for failure to pay the Road Usage Charge, or for fraud or tampering, as described in ORS 815.555.

History

Statutory/Other Authority: ORS 184.616, 184.619 & 319.883 - 319.990
Statutes/Other Implemented: ORS 319.915
DOT 1-2015, f. 4-21-15, cert. ef. 7-1-15

Or. Admin. R. 731-090-0060 RUC Payer: Fraud

RUC Payers who are suspected of tampering with their Mileage Reporting Device will be subjected to a non-compliance investigation by the Department, and depending on the results of the investigation, may be subject to a penalty of 10 percent of delinquent payments in addition to actual damages and a Class A traffic violation.

History

Statutory/Other Authority: ORS 184.616, 184.619 & 319.883 - 319.990
Statutes/Other Implemented: ORS 319.915
DOT 1-2015, f. 4-21-15, cert. ef. 7-1-15

Or. Admin. R. 731-090-0070 RUC Payer: Refunds for Out of State Mileage/Non-Public Road Mileage

(1) Any RUC Payer who has been assessed Road Usage Charges for miles operated off of public roads, or roads outside of Oregon may request a refund from the Department on a form prescribed by the Department. The Department will determine, on a case by case basis, what travel is eligible for refund.

(2) The refund request must be postmarked no later than 15 months after the date on which the RUC Payer pays the Road Usage Charge for which a refund is claimed.

(3) Refund requests must be accompanied by information acceptable to the Department to support the refund claim. Acceptable information may include, but is not limited to, odometer readings, vehicle trip records indicating out-of-state or non-public road usage of the vehicle, and other documentation supporting a claim. RUC Payers that do not maintain and report this information will not be entitled to a refund.

(4) RUC Payers may use daily metered use and location data, as captured by the Mileage Reporting Option, to support their refund claim, only if the Mileage Reporting Option has the capability to differentiate between public and non-public road usage and out of state miles, to a degree acceptable to the Department, and the RUC Payer has requested in writing that the RUC Payer’s Account Manager maintain this data beyond the timeframes established in ORS 319.915.

(5) Refund checks will be issued by the Department in January for refunds requested during the previous calendar year.

History

Statutory/Other Authority: ORS 184.619 & 319.883 - 319.990
Statutes/Other Implemented: ORS 319.280, 319.831, 319.885, 319.890, 319.900, 319.905 & 319.910
DOT 2-2019, amend filed 10/22/2019, effective 01/01/2020
DOT 4-2017, amend filed 11/17/2017, effective 01/01/2018
DOT 3-2016, f. & cert. ef. 9-26-16
DOT 1-2015, f. 4-21-15, cert. ef. 7-1-15

Or. Admin. R. 731-090-0080 Commercial Account Managers

(1) Commercial Account Managers shall provide Metered Use Reports to the Department on intervals as defined in contract.

(2) Official Tax Reports and payments from Commercial Account Managers of aggregate Road Usage Charges, including charges not yet remitted by enrolled RUC payers for the Official Tax Reporting Period, will be due to the Department on or before the 20th day following the end of the calendar quarter. The Commercial Account Manager is liable for the tax accumulated by its enrolled RUC Payers.

(3) Reports and payments that are not reported in compliance with this section will be assessed penalties and interest as per the contract with the Commercial Account Manager.

(4) The Department may waive the late payment charges and interest at its discretion based on individual circumstances for good cause shown.

(5) The Department may, at any time during normal business hours, examine the financial records of a Commercial Account Manager, which are applicable to Road Usage Charge collections, including any entities with which the Commercial Account Manager has partnered, subcontracted, or otherwise engaged to provide any aspect of the Commercial Account Manager’s Road Usage Charge services for the Department. This includes examination of physical ledgers, documents, and account information as well as access to electronic records, financial systems, and any other type of records the Department deems necessary to ensure the integrity of the collection process, in compliance with ORS Chapter 319.

(6) Commercial Account Managers must make financial records available to the Department at a location in Oregon. Commercial Account Managers who fail to make records available for inspection are subject to assessment of under-paid Road Usage Charges based on reliable information, subsequent collection action, and possible cancellation of the Commercial Account Manager’s agreement with the Department according to the terms of that agreement.

History

Statutory/Other Authority: ORS 184.616 & 184.619
Statutes/Other Implemented: ORS 319.885, 319.900, 319.905 & 319.910
DOT 4-2017, amend filed 11/17/2017, effective 01/01/2018
DOT 3-2016, f. & cert. ef. 9-26-16
DOT 1-2015, f. 4-21-15, cert. ef. 7-1-15

Or. Admin. R. 731-090-0090 ODOT Account Manager

(1) The Department may outsource the agency’s account management function for the Road Usage Charging to an ODOT Account Manager.

(2) The ODOT Account Manager shall provide Metered Use Reports to the Department on intervals as defined in contract.

(3) Official Tax Reports and associated Tax Remittance Report from the ODOT Account Manager will be due to the Department on or before the 20th day following the end of the calendar quarter.

(4) Official Tax Remittance from the ODOT Account Manager of aggregate Road Usage Charges, which have already been invoiced and paid by the RUC Payer to the ODOT Account Manager, will be due to the Department as soon as payment is made by the RUC Payer. RUC Payers enrolled with the ODOT Account Manager are ultimately liable for the tax.

(5) Reports and payments that are not reported in compliance with this section will be assessed penalties and interest as per the contract with the ODOT Account Manager.

(6) The Department may waive the late payment charges and interest at its discretion for good cause shown.

(7) The Department may, at any time during normal business hours, examine the financial records of the ODOT Account Manager, which are applicable to Road Usage Charge collections, including any entities with which the ODOT Account Manager has partnered, subcontracted or otherwise engaged to provide any aspect of the Account Manager’s Road Usage Charge services for the Department. This includes examination of physical ledgers, documents and account information as well as access to electronic records, financial systems, and any other type of records the Department deems necessary to ensure the integrity of the collection process, in compliance with ORS Chapter 319.

(8) The ODOT Account Manager must make financial records available to the Department at a location in Oregon. Account Managers who fail to make records available for inspection are subject to assessment of under-paid Road Usage Charges based on reasonably reliable information, subsequent collection action, and possible cancellation of the ODOT Account Manager’s agreement with the Department according to the terms of that agreement.

History

Statutory/Other Authority: ORS 184.616 & 184.619
Statutes/Other Implemented: ORS 319.885, 319.900, 319.905 & 319.910
DOT 4-2017, amend filed 11/17/2017, effective 01/01/2018
DOT 3-2016, f. & cert. ef. 9-26-16
DOT 1-2015, f. 4-21-15, cert. ef. 7-1-15

Division 145 JURISDICTIONAL TRANSFERS

Or. Admin. R. 731-145-0000 Purpose

The purpose of these rules, OAR 731, Division 145, is to establish the process by which a city or county may apply for inclusion on the list of jurisdictional transfers of state highway facilities from the ownership of ODOT to the ownership of a city or county, to be recommended for funding and submitted to the Joint Committee on Transportation.

History

Statutory/Other Authority: ORS184.619 & Ch 323 OL 2023
Statutes/Other Implemented: Ch 323 OL 2023
DOT 4-2024, adopt filed 08/06/2024, effective 08/06/2024

Or. Admin. R. 731-145-0010 Definitions

(1) “Applicant” refers to a city or county completing the application.

(2) “Joint Committee on Transportation” means the legislative committee described in Oregon Laws 2023, chapter 323.

(3) “Jurisdictional transfer” means the transfer of ownership of all or part of a transportation facility from the ownership of one government entity to another, such as from ODOT to a City.

(4) “Jurisdictional Transfer Advisory Committee” or “Committee” means the Governor-appointed committee described in Oregon Laws 2023, chapter 323, for purposes of reviewing and recommending for funding applications for jurisdictional transfers.

(5) “ODOT” means the Oregon Department of Transportation.

(6) “OTC” means the Oregon Transportation Commission.

(7) “State of good repair” means a condition in which physical assets, both individually and as a system, are performing at a level at least equal to that called for in their as-built or as-modified design specification during any period when the life cycle cost of maintaining the assets is lower than the cost of replacing them and sustained through regular maintenance and replacement programs.

(8) “Transportation facility,” for purposes of these OAR 731, division 145, rules, means a facility and all parts of the facility that are used for conveying and managing the transportation of people and goods. “Transportation facility” includes all associated structures and transportation features.

History

Statutory/Other Authority: ORS184.619 & Ch 323 OL 2023
Statutes/Other Implemented: Ch 323 OL 2023
DOT 4-2024, adopt filed 08/06/2024, effective 08/06/2024

Or. Admin. R. 731-145-0020 Application Process

(1) A city or county may apply to the Jurisdictional Transfer Advisory Committee for inclusion on the list of jurisdictional transfers recommended for funding that is submitted to the Joint Committee on Transportation, in accordance with the requirements described in this rule, OAR 731-145-0020.

(2) Pre-Application:

(a) A city or county may submit a pre-application to the Committee through the ODOT staff person assigned to the Committee.

(b) A pre-application is used to determine eligibility of a city or county to apply to the Committee.

(A) A letter or resolution indicating support for the jurisdictional transfer by the governing body of the city or county that proposes to be the receiving jurisdiction.

(B) A letter of support for the jurisdictional transfer by the ODOT Region Manager in which the highway is located.

(d)The Committee will determine if the Applicant is eligible to apply and respond to the pre-application.

(3) Application:

(a) Upon receipt of approval of the pre-application, a city or county may submit an application to the Committee through the ODOT staff person assigned to the Committee.

(b) For the Committee to consider an application, in accordance with Or Laws 2023, chapter 323, section 1, the application must include, at a minimum, the following:

(A) The name of the city or county;

(B) A description of the portion of the highway to be transferred;

(D) The scope of the transfer;

(E) A description of which body assumes liability during and after the transfer;

(F) The cost to update the segment of highway transferred to a state of good repair;

(G) Plans to provide at least 20 percent of the moneys required for the jurisdictional transfer;

(H) A community vision plan that describes the applicant’s plan for managing and improving the highway; and

(I) Any other information the city or county deem necessary or helpful to the Jurisdictional Transfer Advisory Committee in making its recommendations to the Joint Committee on Transportation.

(4) Information on the Jurisdictional Transfer Advisory Committee and its schedule can be found on the ODOT website (https://www.oregon.gov/odot/Get-Involved/Pages/Jurisdictional-Transfer-Comm.aspx).

History

Statutory/Other Authority: ORS184.619 & Ch 323 OL 2023
Statutes/Other Implemented: Ch 323 OL 2023
DOT 4-2024, adopt filed 08/06/2024, effective 08/06/2024

Or. Admin. R. 731-145-0030 Application Review Process

(1) The Jurisdictional Transfer Advisory Committee Chairperson, or their designee, shall receive submitted pre-applications. The Chairperson may schedule a meeting of the Committee to review each pre-application or may hold applications until such time the Committee is able to meet to discuss multiple pre-applications.

(2) Upon review of the pre-application(s), the Committee, by a majority vote, will:

(a) Invite a city or county to submit an application if the Committee accepts the pre-application;

(b) Return the pre-application to the city or county because the pre-application requires additional clarification or further work; or

(3) The Committee will notify a pre-applicant city or county of the Committee’s decision regarding the pre-application.

(4) At the close of the application period, the Committee Chairperson, or their designee, shall schedule a meeting for review of applications by the Committee.

(5) At the scheduled meeting for review of applications, the Committee shall:

(a) Review the applications.

(b) If needed, request:

(A) Missing or additional information from the applicant in writing, to which the city or county must respond before the Committee may consider the application to be complete; or

(B) A presentation by the city or county to the Committee.

(c) Develop a list of jurisdictional transfers to present to the Oregon Transportation Commission for review and comment.

(6) After soliciting review and comment from the Oregon Transportation Commission, the Committee will develop a list of three jurisdictional transfers to recommend for funding;

(7) If fewer than 3 applications are received by the Committee during the application period, the Committee will review the applications and will bring forward its recommendations to the OTC for review and comment before submission to the Joint Committee on Transportation.

History

Statutory/Other Authority: ORS184.619 & Ch 323 OL 2023
Statutes/Other Implemented: Ch 323 OL 2023
DOT 4-2024, adopt filed 08/06/2024, effective 08/06/2024

Or. Admin. R. 731-145-0040 Report to Joint Committee on Transportation

(1) The Committee shall submit a report by September 15 of each even-numbered year to the Joint Committee on Transportation, in a manner provided in ORS 184.285, that includes the list of jurisdictional transfers recommended for funding to the Joint Committee on Transportation. The report must:

(a) Contain a list of up to three jurisdictional transfers recommended for funding; and

(b) Include the criteria used for selection, a summary of the process used to develop the list of recommendations, a list of the Committee members, and any other information the Committee deems relevant.

(2) The Committee Chair or their designee may submit the report to ODOT staff for distribution to the Joint Committee on Transportation.

(3) The Committee will provide a copy of the final recommendations to the OTC when the report is submitted to the Joint Committee on Transportation.

History

Statutory/Other Authority: ORS184.619 & Ch 323 OL 2023
Statutes/Other Implemented: Ch 323 OL 2023
DOT 4-2024, adopt filed 08/06/2024, effective 08/06/2024

Or. Admin. R. 731-146-0010 Application

(1) The Oregon Department of Transportation (ODOT) adopts OAR 137-046-0100 through 137-046-0480 in effect as of April 15, 2017.

(2) Unless the context of a specifically applicable definition in the Code or Model Rules requires otherwise, capitalized terms used in ODOT’s public contracting rules (ODOT’s Rules) will have the meaning set forth in the division of ODOT’s Rules in which they appear, and if not defined there, the meaning set forth in Code or Model Rules.

(3) Unless expressly stated otherwise in a rule below, these division 146 rules apply to all procurements conducted under divisions 147, 148 and 149. If a conflict arises between these division 146 rules and rules in divisions 147, 148 and 149, the rules in divisions 147, 148 and 149 take precedence over these division 146 rules.

(4) If a conflict arises between these rules and the Department of Justice Model Rules, General Provisions Relating to Public Contracting, these rules take precedence.

History

Statutory/Other Authority: ORS 184.619 & 279A.065
Statutes/Other Implemented: ORS 279A.030 & 279A.065
DOT 1-2019, amend filed 02/21/2019, effective 02/21/2019
DOT 4-2011, f. 12-22-11, cert. ef. 1-1-12
DOT 1-2010, f. & cert. ef. 5-18-10
DOT 5-2009(Temp), f. 12-22-09, cert. ef. 1-1-10 thru 6-30-10
DOT 7-2006, f. & cert. ef. 11-17-06
DOT 5-2006(Temp), f. & cert. ef. 5-25-06 thru 11-20-06
DOT 5-2005, f. & cert. ef. 8-23-05
DOT 3-2005(Temp), f. 2-16-05, cert. ef. 3-1-05 thru 8-27-05

Or. Admin. R. 731-146-0012 Delegation of Authority

The ODOT Chief Procurement Officer may act on behalf of ODOT and, by written agreement between ODOT and DAS, delegate to DAS on a case-by-case basis Procurements which are under ODOT’s authority. If such delegation is accepted, DAS shall process these procurements under Oregon Administrative Rules Chapter 125, Divisions 246, 247, 248, and 249. The ODOT Chief Procurement Officer may rescind any written agreement issued under this rule.

History

Statutory/Other Authority: ORS 184.619, 279A.065(6)(a) & 279A.070
Statutes/Other Implemented: ORS 279A.050(3), 279A.065(6) & 279A.070
DOT 1-2019, amend filed 02/21/2019, effective 02/21/2019
DOT 5-2005, f. & cert. ef. 8-23-05

Or. Admin. R. 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.

History

Statutory/Other Authority: ORS 184.619, 279A.065(6)(a) & 279A.070
Statutes/Other Implemented: ORS 279A.050(3)
DOT 1-2019, adopt filed 02/21/2019, effective 02/21/2019

Or. Admin. R. 731-146-0025 Independent Contractor Status For Services Contracts

(1) ODOT must develop a statement of work for services that will not result in an employee relationship with the potential Contractor.

(2) An independent contractor certification by Contractors must be included as a contract provision in each contract.

(3) If the nature of the services or project is such that an employee/employer relationship will exist, ODOT must hire the individual through normal personnel procedures.

(4) The Contract must include the Contractor’s legal name and address. The Contractor must provide its federal Employer Identification Number or Social Security Number to ODOT.

(5) The Contract must provide that the Contractor is responsible for federal Social Security, except those categories excluded by law, and for any federal or state taxes applicable to the contract payment.

(6) Failure to comply with subsections (1) through (6) of this section may result in withdrawal of intent to award or termination of the Contract.

History

Statutory/Other Authority: ORS 184.619, 279A.065(6)(a) & 279A.070
Statutes/Other Implemented: ORS 279A.050(3)
DOT 1-2019, amend filed 02/21/2019, effective 02/21/2019
DOT 4-2011, f. 12-22-11, cert. ef. 1-1-12
DOT 5-2005, f. & cert. ef. 8-23-05
DOT 3-2005(Temp), f. 2-16-05, cert. ef. 3-1-05 thru 8-27-05

Or. Admin. R. 731-146-0030 Procurement Files

(1) Application. This Rule applies to Procurement Files as defined in this section. “Procurement Files” means any of the following files maintained by ODOT: a solicitation, Contract, Price Agreement, work order contract, amendment or Contract Administration file, separately or collectively.

(2) Procurement File documentation and level of detail should be directly related to the dollar value and risk of the procurement. Each Procurement File must contain:

(a) An executed Contract, if awarded;

(b) The record of the actions used to develop the Contract;

(d) Any required findings or statement of justification for the selection of the Contractor and sourcing method pursuant to ORS 279A.200 through 279A.220 (Cooperative Procurement); 279B.055 through 279B.085 (seven methods for Goods or Services); 279C.100 through 279C.125 (Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying and Related Services); or 279C.300 through 279C.450 (Public Improvements);

(e) A list of prospective Contractors notified of any solicitation;

(f) The method used to advertise or notify prospective Contractors of any solicitation;

(g) Copy of each Offer that resulted in the Award of a Contract;

(h) The method of evaluating Offers, the results of the evaluation, and basis of selection;

(i) The record of any negotiation of the statement of work, costs, and results;

(j) A record of any material communications regarding the solicitation by interested Contractors; and

(k) A copy of the Request for Special Procurement, if any.

(3) ODOT must maintain Procurement Files, including all documentation, for a period not less than six (6) years, except for ten (10) years beyond each Contract’s expiration date for Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services and Related Services or for another period in accordance with another provision of law.

History

Statutory/Other Authority: ORS 184.619, 279A.065(5)(a) & 279A.070
Statutes/Other Implemented: ORS 279A.050, 279A.065(5) & 279A.070
DOT 1-2019, amend filed 02/21/2019, effective 02/21/2019
DOT 4-2011, f. 12-22-11, cert. ef. 1-1-12
DOT 5-2005, f. & cert. ef. 8-23-05
DOT 3-2005(Temp), f. 2-16-05, cert. ef. 3-1-05 thru 8-27-05

Or. Admin. R. 731-146-0050 Contract Administration; General Provisions

(1) "Contract Administration" means all functions related to a given Contract between ODOT and a Contractor from the time the Contract is awarded until the work is completed, accepted, and all payment has been made, or until the Contract is terminated, payment has been made, and disputes have been resolved.

(2) Authority. Unless otherwise exempt by other provision of law, ODOT must conduct all procurements, including Contract Administration, for Goods or Services, including Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services and Related Services, Public Works, and Public Improvements, pursuant to ORS 279A.050 and 279A.075.

(3) Contract Administrator. ODOT must appoint, in Writing, a Contract Administrator as an ODOT representative for each Contract. The Contract Administrator may delegate in Writing a portion of the Contract Administrator’s responsibilities to a technical representative for specific day-to-day administrative activities for each Contract.

(4) Documentation Requirements. Contract Administration documentation and level of detail should be directly related to the dollar value and risk of the procurement. In accordance with OAR 731-146-0030, documentation of Contract Administration is a part of the Procurement File, whether maintained with the Procurement file or at a separate location. Contract Administration documentation must include:

(a) An executed Contract, if maintained separate from the Procurement File;

(b) The record of the actions used to administer the Contract;

(d) The name and contact information for the Contract Administrator and any technical representative delegates, together with a description of duties delegated to any technical representative;

(e) All executed amendments;

(f) Claims related to the Contract;

(g) Release of claims documents; and

(h) Copies of invoices, project status reports, receiving records and Contract close-out documents, as applicable.

History

Statutory/Other Authority: ORS 184.619, 279A.065(6)(a) & 279A.070
Statutes/Other Implemented: ORS 279A.050(3), 279A.065(6) & 279A.070
DOT 1-2019, amend filed 02/21/2019, effective 02/21/2019
DOT 4-2011, f. 12-22-11, cert. ef. 1-1-12
DOT 5-2005, f. & cert. ef. 8-23-05
DOT 3-2005(Temp), f. 2-16-05, cert. ef. 3-1-05 thru 8-27-05

Or. Admin. R. 731-146-0060 Payment Authorization of Cost Overruns

(1) Payments on Contracts that exceed the maximum contract consideration require prior written approval from ODOT’s Chief Procurement Officer and may require approval from the Department of Justice pursuant to OAR 137-045-0010 et seq. Approval may be provided if there is compliance with all of the following:

(a) The Contract was duly executed and, if required, approved by the Attorney General.

(b) The Contract has not expired or been terminated as of the date Written approval to increase the Contract amount is granted.

(d) The cost overrun arose out of extraordinary circumstances or conditions encountered in the course of contract performance that were reasonably not anticipated at the time the Contract, or the most recent amendment, if any, was signed. Such circumstances include, but are not limited to cost overruns that:

(A) Address emergencies arising in the course of the Contract that require prompt action to protect the work already completed.

(B) Comply with official or judicial commands or directives issued during contract performance.

(e) The cost overrun was incurred in good faith, results from the good faith performance by the Contractor, and is no greater than the prescribed hourly rate or the reasonable value of the additional work or performance rendered.

(f) Except for the cost overrun, the Contract and its objective are within the statutory authority of ODOT and ODOT currently has funds available for payment under the Contract.

(g) An officer or employee of ODOT has presented a Written report to ODOT’s Chief Procurement Officer within 60 days of the discovery of the overrun that states the reasons for the cost overrun and demonstrates to the satisfaction of ODOT’s Chief Procurement Officer that the Contract and the circumstances of the overrun satisfy the conditions stated above.

(h) ODOT’s Chief Procurement Officer approves in Writing the payment of the overrun, or such portion of the overrun amount as ODOT’s Chief Procurement Officer determines may be paid consistent with the conditions of this Rule. If ODOT’s Chief Procurement Officer has signed the Contract, or has immediate supervisory responsibility over performance of the Contract, ODOT's Chief Procurement Officer must designate an alternate delegate to grant or deny Written approval of payment.

(2) Before making any overrun payment, ODOT must obtain Written approval from ODOT's Chief Procurement Officer per section (1)(h) and, if such approval is required by ORS 271.047, an Attorney General’s approval of the Contract amendment. This rule does not apply to payments made prior to obtaining all required approvals.

(3) For this rule, references to ODOT's Chief Procurement Officer mean ODOT's Chief Procurement Officer or delegate.

History

Statutory/Other Authority: ORS 184.619, 279A.065(6)(a) & 279A.070
Statutes/Other Implemented: ORS 279A.065(5)(a) & 279A.070
DOT 1-2019, amend filed 02/21/2019, effective 02/21/2019
DOT 4-2011, f. 12-22-11, cert. ef. 1-1-12
DOT 5-2005, f. & cert. ef. 8-23-05
DOT 3-2005(Temp), f. 2-16-05, cert. ef. 3-1-05 thru 8-27-05

Or. Admin. R. 731-146-0130 Fragmentation

A procurement may not be artificially divided or fragmented for the purpose of restricting competition or circumventing a legal requirement.

History

Statutory/Other Authority: ORS 184.619, 279A.065(6)(a) & 279A.070
Statutes/Other Implemented: ORS 279A.065(5)(a) & 279A.070
DOT 1-2019, amend filed 02/21/2019, effective 02/21/2019
DOT 5-2005, f. & cert. ef. 8-23-05
DOT 3-2005(Temp), f. 2-16-05, cert. ef. 3-1-05 thru 8-27-05

Or. Admin. R. 731-146-0140 ODOT and Contractor Communications

(1) For this rule, “Solicitation Document” means an Invitation to Bid, Request for Proposals, Request for Quotes, a project-specific selection document under a Price Agreement, a small purchase under OAR 731-148-0205 or other similar document issued to invite Offers from prospective Contractors under ORS Chapter 279B or 279C. The following are not Solicitation Documents unless they invite Offers from prospective Contractors: a Request for Qualifications, a prequalification of bidders, a request for information, a sole source notice, an approval of a Special Procurement, or a request for product prequalification.

(2) Research Phase. ODOT is encouraged to conduct research with potential Contractors who can meet the State's needs. This research includes but is not limited to:

(a) Meetings with potential Contractors;

(b) Industry presentations; and

(c) Demonstrations by Contractors that, in ODOT’s discretion, demonstrate Goods or Services that may be able to meet ODOT’s needs.

(3) ODOT must document all items discussed during the research phase of solicitation development. The research phase ends the day of a Solicitation Document release, unless the Solicitation Document provides for a different process that permits on-going research.

(4) Solicitation and Contracting Phase. Any communication between ODOT and Contractors regarding a solicitation, that occurs after the Solicitation Document release and before the Award of a Contract, must only be made within the context of the Solicitation Document.

(5) Communication may allow for discussions, negotiations, Addenda, Contractor questions, and ODOT’s answers to Contractor questions about terms and conditions, specifications, amendments, or related matters. During this phase, telephone conversations and meetings must be documented in the Procurement File. Written inquiries regarding the solicitation should be responded to by ODOT in Writing.

(6) A record of all communications regarding the solicitation by interested Contractors must be made a part of the Procurement File pursuant to OAR 731-146-0030.

History

Statutory/Other Authority: ORS 184.619, 279A.065(6)(a) & 279A.070
Statutes/Other Implemented: ORS 279A.065(5)(a) & 279A.070
DOT 1-2019, amend filed 02/21/2019, effective 02/21/2019
DOT 5-2005, f. & cert. ef. 8-23-05
DOT 3-2005(Temp), f. 2-16-05, cert. ef. 3-1-05 thru 8-27-05

Or. Admin. R. 731-146-0150 Electronic Procurement and Submittals

(1) The following terms have the meaning given below when capitalized in this Rule:

(a) “Electronic Advertisement” means the Solicitation Document, RFQ or other document inviting participation in the procurements made available electronically, including but not limited to, via:

(A) The World Wide Web;

(B) ORPIN or other electronic procurement system approved by the Chief Procurement Officer; or

(b) “Electronic Offer” means a response to the Solicitation Document, RFQ or other document inviting participation submitted to ODOT via:

(A) The World Wide Web;

(B) ORPIN or other electronic procurement system approved by the Chief Procurement Officer; or

(d) “ORPIN” The Oregon Procurement Information Network, known as ORPIN, is an Internet-based, on-line system used by state agencies for procurement notices and advertisements, as functionality allows.

(2) Electronic Procurement and Submittals Authorized:

(a) ODOT may conduct all phases of a procurement under these Rules, including without limitation the posting of Electronic Advertisements and the receipt of Electronic Submittals, by electronic methods if and to the extent the Department specifies in a Solicitation Document or RFQ, or any other Written instructions on how to participate in the procurement;

(b) ODOT shall open Electronic Submittals in accordance with electronic security measures in effect at the time of its receipt of the Electronic Submittal. Unless ODOT provides procedures for the secure receipt of Electronic Submittal, the Person submitting the Electronic Submittal assumes the risk of premature disclosure due to submission in unsealed form;

(d) If ODOT determines that Bid or Proposal security is or will be required, ODOT shall not authorize Electronic Offers unless it has established methods for receipt of such security.

(3) Receipt of Electronic Submittals:

(a) If ODOT permits Electronic Submittals in the Solicitation Document or RFQ, the Offeror may submit Electronic Submittal in accordance with the Solicitation Document or RFQ. ODOT shall not consider Facsimile or Electronic Submittals unless authorized by the Solicitation Document or RFQ;

(b) When ODOT conducts an electronic procurement, all Electronic Submittals must be submitted by the particular date and time identified in the Solicitation Document or RFQ;

(c) A person may withdraw an Electronic Submittal at any time prior to the specified date and time in accordance with Solicitation Document or RFQ.

(4) Failure of the Electronic Procurement System. In the event of a failure of an Electronic Procurement System or electronic mail system that interferes with the ability of Persons to submit Electronic Submittals, to protest or to otherwise participate in the procurement, ODOT may cancel the procurement or may extend the date and time for receipt of Electronic Submittals by providing notice of the extension immediately after the Electronic Procurement System or electronic mail systems becomes available.

History

Statutory/Other Authority: ORS 184.619, 279A.065(6)(a) & 279A.070
Statutes/Other Implemented: ORS 279A.050(3), 279A.065 & 279A.070
DOT 3-2020, amend filed 07/17/2020, effective 07/17/2020
DOT 1-2019, adopt filed 02/21/2019, effective 02/21/2019

Or. Admin. R. 731-146-0160 Reinstatement of Expired or Terminated Contract; Retroactive Approval of Existing Contract

(1) Application. This rule applies to the Reinstatement of expired or terminated Contracts and the Retroactive Approval of existing Contracts. This rule does not apply to mistakes that may occur in the solicitation process. This rule allows Reinstatement of expired or terminated Contracts and Retroactive Approval to occur simultaneously.

(2) Definitions.

(a) “Procurement Authority” means a person within ODOT with delegated authority to execute a Contract.

(b) “Reinstatement” means the restoration of an expired or terminated Contract in order to:

(A) Complete one or more deliverables within the scope of the Contract at the time of its expiration or termination, or

(B) Fulfill its term, up to the maximum time period provided in the Contract before its expiration or termination.

(c) “Retroactive Approval” means the documentation of Procurement Authority approval on an existing Contract which was previously signed by all parties except the required Procurement Authority.

(3) Requirements to Reinstate an Expired or Terminated Contract.

(a) Before expiration or termination, the Contract was properly signed by all parties;

(b) Then the signed Contract expired or was terminated;

(d) ODOT reinstates the Contract by amendment:

(A) To fulfill its term, up to the maximum time period provided in the Contract; or

(B) To complete one or more deliverable(s) included within the Contract’s scope at the time of its expiration or termination;

(e) ODOT documents in the Procurement File the deliverable(s) to be completed at the time of the Contract’s Reinstatement; and

(f) If the Contractor has performed work under the Contract, the Reinstatement does not apply to payments made for work performed between the expiration or termination of the Contract and the date of any Reinstatement.

(4) Requirements to Retroactively Approve an Existing Contract.

(a) The Contract exists and has not expired;

(b) The Contract was signed by all parties except the required Procurement Authority approval was lacking;

(c) If the Contractor has performed work under the Contract, the Retroactive Approval does not apply to payments made for work performed between the start of the Contract and the date of any Retroactive Approval.

(5) Process. The following must be met for either a Reinstatement or Retroactive Approval of a Contract, or both:

(a) The Contract Administrator must submit a Written request to the ODOT Chief Procurement Officer or delegate. The request must explain the following:

(A) Either the proposed Reinstatement or Retroactive Approval of the Contract, or both.

(B) The background facts that led to the request;

(D) The need for either Reinstatement or Retroactive Approval of a Contract, or both, due to unforeseen or unavoidable conditions;

(E) The steps to prevent a reoccurrence. For example:

(i) Improvement of internal policies and procedures; and

(ii) Provision of new training or retraining; and

(F) Acknowledgement that the request is in the best interest of ODOT.

(b) ODOT must obtain all other approvals required for the Contract, including but not limited to: Attorney General’s approval of legal sufficiency under ORS 291.047 or ratification under 291.049. All approvals required for the Contract must be obtained before any Reinstatement or Retroactive Approval becomes binding.

(c) The ODOT Chief Procurement Officer or delegate must approve the request before theContract Reinstatement amendment or Retroactive Approval becomes effective.

(6) Effect of Approval.

(a) With the exception of subsection (3)(f), an approved Reinstatement makes the Contract in full force and effect, as if it had not expired.

(b) With the exception of subsection (4)(c), an approved Retroactive Approval makes the Contract in full force and effect, as if it had been approved by the Procurement Authority when the Contract was formed.

(7) ODOT may combine an amendment to reinstate a Contract and a Retroactive Approval of that Contract in accordance with this rule.

(8) Terminated Contracts. If a Contract has been terminated for any reason, ODOT may enter into a new Contract with the same party to perform the obligations not completed under the former Contract.

History

Statutory/Other Authority: ORS 184.619, 279A.065(6)(a) & 279A.070
Statutes/Other Implemented: ORS 279A.050(3), 279A.065 & 279A.070
DOT 3-2020, amend filed 07/17/2020, effective 07/17/2020
DOT 1-2019, adopt filed 02/21/2019, effective 02/21/2019

Or. Admin. R. 731-146-0170 Late Offers, Late Withdrawals and Late Modifications

Any Offer received after Closing is late. An Offeror's request for withdrawal or modification of an Offer received after Closing is late. ODOT shall not consider late Offers. ODOT shall not consider withdrawals or modifications except as permitted in OAR 731-146-0180 or 137-047-0261.

History

Statutory/Other Authority: ORS 184.619, 279A.065 & 279A.070
Statutes/Other Implemented: ORS 279A.050(3), 279A.065(6) & 279A.070
DOT 1-2019, adopt filed 02/21/2019, effective 02/21/2019

Or. Admin. R. 731-146-0180 Mistakes in Offers

(1) Generally. To protect the integrity of the competitive procurement process and to assure fair treatment of Offerors, ODOT should carefully consider whether to permit waiver, correction or withdrawal of Offers for certain mistakes.

(2) Treatment of Mistakes. ODOT shall not allow an Offeror to correct or withdraw an Offer for an error in judgment. If ODOT discovers certain mistakes in an Offer after Opening, but before Award of the Contract, ODOT may take the following action:

(A) Return the correct number of Signed Offers or the correct number of other documents required by the Solicitation Document;

(B) Sign the Offer in the designated block, provided a Signature appears elsewhere in the Offer, evidencing an intent to be bound; and

(C) Acknowledge receipt of an Addendum to the Solicitation Document, provided that it is clear on the face of the Offer that the Offeror received the Addendum and intended to be bound by its terms; or the Addendum involved did not affect price, quality or delivery.

(b) ODOT may correct a clerical error if the error is evident on the face of the Offer or other documents submitted with the Offer, and the Offeror confirms the correction in Writing. A clerical error is an Offeror's error in transcribing its Offer. Examples include typographical mistakes, errors in extending unit prices, transposition errors, arithmetical errors, instances in which the intended correct unit or amount is evident by simple arithmetic calculations (for example, a missing unit price may be established by dividing the total price for the units by the quantity of units for that item, or a missing or incorrect total price for an item may be established by multiplying the unit price by the quantity when those figures are available in the Offer). Unit prices shall prevail over extended prices in the event of a discrepancy between extended prices and unit prices.

(c) ODOT may permit an Offeror to withdraw an Offer based on one or more clerical errors in the Offer only if the Offeror shows with objective proof and by clear and convincing evidence:

(A) The nature of the error;

(B) That the error is not a minor informality under this subsection or an error in judgment;

(D) That the Offeror acted in good faith in submitting an Offer that contained the claimed error and in claiming that the alleged error in the Offer exists;

(E) That the Offeror acted without gross negligence in submitting an Offer that contained a claimed error;

(F) That the Offeror will suffer substantial detriment if ODOT does not grant the Offeror permission to withdraw the Offer;

(G) That ODOT's or the public's status has not changed so significantly that relief from the forfeiture will work a substantial hardship on ODOT or the public it represents; and

(H) That the Offeror promptly gave notice of the claimed error to ODOT.

(d) The criteria in subsection (2)(c) of this rule shall determine whether ODOT will permit an Offeror to withdraw its Offer after Closing. These criteria also shall apply to the question of whether ODOT will permit an Offeror to withdraw its Offer without forfeiture of its Bid bond (or other Bid or Proposal security), or without liability to ODOT based on the difference between the amount of the Offeror's Offer and the amount of the Contract actually awarded by ODOT, whether by Award to the next lowest Responsive and Responsible Bidder or the most Advantageous Responsive and Responsible Proposer, or by Award of a Contract from a new solicitation.

(4) Identification of Mistakes after Award. The procedures and criteria set forth above are Offeror's only opportunity to correct mistakes or withdraw Offers because of a mistake. Following Award, an Offeror is bound by its Offer, and may withdraw its Offer or rescind a Contract only to the extent permitted by applicable law.

History

Statutory/Other Authority: ORS 184.619, 279A.065 & 279A.070
Statutes/Other Implemented: ORS 279A.050(3), 279A.065(6) & 279A.070
DOT 1-2019, adopt filed 02/21/2019, effective 02/21/2019

Or. Admin. R. 731-146-0200 Amendments to Public Contracts

(1) Application. This rule applies to procurements processed under OAR 731-147 and OAR 731-148.

(2) Generally. ODOT may amend a Public Contract without additional competition in any of the following circumstances:

(a) The amendment is within the scope of the Procurement as described in the Solicitation Documents, if any, or if no Solicitation Documents, as described in the sole source notice or the approved Special Procurement, if any, or in the absence of any of the preceding, the amendment is within the scope of the Public Contract. An amendment is not within the scope of the Procurement if ODOT determines that if it had described in the Procurement the changes to be made by the amendment, it would likely have increased competition or affected the award of the Public Contract.

(b) These Rules otherwise permit ODOT to Award a Public Contract without competition for the goods or services to be procured under the amendment.

(d) The amendment results from renegotiation of the terms and conditions, including the Contract Price, of a Public Contract and the amendment is advantageous to ODOT, subject to all of the following conditions:

(A) The goods or services to be provided under the amended Public Contract are the same as the goods or services to be provided under the un-amended Public Contract.

(B) ODOT determines that, with all things considered, the amended Public Contract is at least as favorable to ODOT as the un-amended Public Contract.

(C) The amended Public Contract does not have a total term greater than allowed in the Solicitation Documents, if any, or if no Solicitation Documents, as described in the sole source notice or the approved Special Procurement, if any, after combining the initial and extended terms. For example, a one-year Public Contract described as renewable each year for up to four additional years, may be renegotiated as a two to five-year Public Contract, but not beyond a total of five years.

(3) Public Contracts from Small or Intermediate Procurements. ODOT may amend a Public Contract Awarded as a small or intermediate Procurement pursuant to section (1) of this rule, provided that the total increase in price does not exceed the amount set forth in OAR 137-047-0265 for small Procurements or 137-047-0270 for intermediate Procurements.

(4) Contracts from Direct Appointment, Small Purchase, or Informal Selection Procedures. ODOT may amend a Public Contract Awarded as a direct appointment, small purchase, or informal selection pursuant to section (2) of this rule, provided that the total increase in price does not exceed the amount set forth in OAR 731-148-0200(b) for direct appointments (small estimated fee), OAR 731-148-0205 for small purchases or OAR 731-148-0210 for informal selection procedure Procurements.

(5) Price Agreements. ODOT may amend a Price Agreement as follows:

(a) As permitted by the Price Agreement;

(b) For Price Agreements subject to ORS 279B, if the circumstances set forth in ORS 279B.140(2) exist; or

History

Statutory/Other Authority: ORS 184.619, 279A.065 & 279A.070
Statutes/Other Implemented: ORS 279A.050(3), 279A.065(6) & 279A.070
DOT 1-2019, adopt filed 02/21/2019, effective 02/21/2019

Or. Admin. R. 731-146-0220 Emergency Procurement

Procedures. Regardless of the dollar value of the Contract, ODOT entering into an Emergency Contract must, either before or promptly after entering into an Emergency Contract, make and retain in its Procurement File documentation of the nature of the Emergency that includes:

(1) A brief description of the Supplies and Services to be provided under the Contract, together with its cost or anticipated cost;

(2) A brief explanation of how the Contract, in terms of duration and Services provided under it, was restricted to the Scope reasonably necessary to adequately deal only with the risk created or anticipated to be created by the Emergency circumstances;

(3) A description of the emergency circumstances that require the prompt performance of the Contract, stating the anticipated harm from failure to establish the Contract on an expedited basis; and

(4) Documentation of the measures taken, regardless of the dollar value of the Contract, to encourage competition that is reasonable and appropriate under the Emergency circumstances.

History

Statutory/Other Authority: ORS 184.619 & 279A.065(6), 279A.070
Statutes/Other Implemented: ORS 279A.050(3), 279B.015, 279B.080, 279C.110(9), 279C.320
DOT 3-2020, adopt filed 07/17/2020, effective 07/17/2020

Division 147 PUBLIC PROCUREMENT FOR GOODS AND SERVICES; GENERAL PROVISIONS

Or. Admin. R. 731-147-0010 Application

(1) The Oregon Department of Transportation (ODOT) adopts OAR 137-047-0000 through 137-047-0810 in effect as of April 15, 2017, with the exception of OAR 137-047-0275, 137-047-0330, 137-047-0460, 137-047-0470, 137-047-0710, and 137-047-0800. Any reference to OAR 137-047-0330 is replaced by a reference to OAR 731-146-0150 and any reference to OAR 137-047-0800 is replaced by a reference to OAR 731-146-0200 .

(2) In addition to the general requirements set forth in Division 146 of these rules, applicable to all Public Contracting by ODOT under OAR Chapter 731, Divisions 147, 148, and 149, the rules in this Division 147 apply to Procurements conducted by ODOT under ORS Chapter 279B.

(3) If a conflict arises between these rules and the Department of Justice Model Rules, General Provisions Related to Public Contracting (OAR Chapter 137, Division 046), these rules take precedence.

History

Statutory/Other Authority: ORS 184.619, 279A.065(6) & 279A.070
Statutes/Other Implemented: ORS 279B.015
DOT 3-2020, amend filed 07/17/2020, effective 07/17/2020
DOT 1-2019, amend filed 02/21/2019, effective 02/21/2019
DOT 5-2013, f. 12-20-13, cert. ef. 1-1-14
DOT 4-2011, f. 12-22-11, cert. ef. 1-1-12
DOT 1-2010, f. & cert. ef. 5-18-10
DOT 5-2009(Temp), f. 12-22-09, cert. ef. 1-1-10 thru 6-30-10
DOT 7-2006, f. & cert. ef. 11-17-06
DOT 5-2006(Temp), f. & cert. ef. 5-25-06 thru 11-20-06
DOT 5-2005, f. & cert. ef. 8-23-05
DOT 3-2005(Temp), f. 2-16-05, cert. ef. 3-1-05 thru 8-27-05

Or. Admin. R. 731-147-0055 Sole-Source Procurements

(1) Generally. ODOT may Award a Public Contract without competition as a Sole-Source Procurement pursuant to the requirements of ORS 279B.075 and this rule.

(2) Public Notice. If the value of the resulting Public Contract exceeds $250,000, ODOT shall publish a Public Notice in a manner similar to a Public Notice for a solicitation for Competitive Sealed Bids or Competitive Sealed Proposals. The Public Notice must describe the Goods or Services, or both, to be acquired by the Sole-Source Procurement; identify the prospective Contractor; and state the date, time and place that protests are due. ODOT will advertise the Public Notice at least seven (7) Days before Award of the Contract.

(3) Protest. For Sole-Source Procurements requiring Public Notice under this rule, an Affected Person may protest the determination of ODOT that the Goods or Services or class of Goods or Services are available from only one source. Pursuant to ORS 279B.420(3)(f), before seeking judicial review, an Affected Person must file a Written protest with ODOT and exhaust all administrative remedies.

(a) Delivery. Unless otherwise specified in the Public Notice of the Sole-Source Procurement, an Affected Person must deliver a Written protest to ODOT within seven (7) Days after the first date of Public Notice of the Sole-Source Procurement, unless a different protest period is provided in the Public Notice of a Sole-Source Procurement.

(b) Content of Protest. The Written protest must include:

(A) A detailed statement of the legal and factual grounds for the protest;

(B) A description of the resulting harm to the Affected Person; and

(c) ODOT Response. ODOT shall not consider an Affected Person’s Sole-Source Procurement protest submitted after the timeline established for submitting such protest under this rule, or such different time period as may be provided in the Public Notice of the Sole-Source Procurement. ODOT shall issue a Written disposition of the protest in a timely manner. If ODOT upholds the protest, in whole or in part, the Contracting Agency shall not enter into a Sole-Source Contract.

(d) Judicial Review. Judicial review of ODOT disposition of a Sole-Source Procurement protest shall be in accordance with ORS 279B.420.

History

Statutory/Other Authority: ORS 184.619, 279A.065(6) & 279B.075
Statutes/Other Implemented: ORS 279B.075
DOT 3-2024, amend filed 06/12/2024, effective 06/12/2024
DOT 3-2020, amend filed 07/17/2020, effective 07/17/2020
DOT 1-2019, amend filed 02/21/2019, effective 02/21/2019
DOT 5-2005, f. & cert. ef. 8-23-05

Or. Admin. R. 731-147-0070 Mandatory Use Contracts

For Contracts entered into pursuant to ORS 279A.050(3), ODOT is exempt from Mandatory Use Contracts entered into pursuant to OAR 125-247-0296 when purchasing Goods or Services through federal programs pursuant to ORS 279A.180.

History

Statutory/Other Authority: ORS 184.619, 279A.065(6) & 279A.070
Statutes/Other Implemented: ORS 279A.050(3) & 279A.180
DOT 3-2020, adopt filed 07/17/2020, effective 07/17/2020

Or. Admin. R. 731-147-0810 Emerging Small Business Procurements

For Contracts entered into under ORS 279A.050(3), ODOT may limit competition for a public contract to emerging small businesses, as provided in ORS 279A.142. To assist emerging small businesses in overcoming barriers to participation in state public improvement and maintenance projects under ORS 200.160, ODOT may limit competition under this rule if:

(1) ODOT is purchasing Goods or Services;

(2) Competition is limited to emerging small businesses certified under ORS 200.055;

(3) The contract price is estimated at $250,000 or less; and

(4) The Contract is funded by the Emerging Small Business Account established under ORS 200.180.

History

Statutory/Other Authority: ORS 184.619, ORS 279.050(3) & ORS 279A.142
Statutes/Other Implemented: ORS 200.055, ORS 200.160 & ORS 200.180
DOT 8-2022, adopt filed 09/21/2022, effective 09/21/2022

Or. Admin. R. 731-148-0100 Application

(1) In addition to the general requirements set forth in Division 146 of these rules applicable to all Public Contracting by ODOT under Divisions 147, 148 and 149, the rules in this Division 148 apply to:

(a) The screening and selection of Architects, Engineers, Photogrammetrists, Transportation Planners, Land Surveyors, and Providers of Related Services under Contracts, and set forth the procedures through which ODOT selects Consultants to perform Architectural, Engineering, Photogrammetric Mapping, Transportation Planning and Land Surveying Services or Related Services; and

(b) Two-tiered procedures for selection of Architects, Engineers, Photogrammetrists, Transportation Planners, Land Surveyors and Providers of Related Services for certain Public Improvements owned and maintained by a Local Government.

(2) In the event of conflict or ambiguity, the more specific requirements of the rules in this Division 148 take precedence over the more general requirements of the rules in Division 146.

(3) The rules as a whole implement the Oregon Public Contracting Code, as defined in ORS 279A.010, and this Division 148 of the rules specifically addresses matters covered in ORS Chapter 279C.100 through 279C.125.

(4) The dollar threshold amounts that are applicable to OAR 731-148-0200 (Direct Appointment Procedure), OAR 731-148-0205 (Small Purchase Procedure), and OAR 731-148-0220 (Formal Selection Procedure), are independent from and have no effect on the dollar threshold amounts that trigger the legal sufficiency review requirement under ORS 291.047.

History

Statutory/Other Authority: ORS 184.619, 279A.065(6)(a) & 279A.070
Statutes/Other Implemented: ORS 279A.050(3) & 279A.065
DOT 3-2020, amend filed 07/17/2020, effective 07/17/2020
DOT 1-2019, adopt filed 02/21/2019, effective 02/21/2019

Or. Admin. R. 731-148-0110 Definitions

In addition to the definitions set forth in ORS 279A.010 and ORS 279C.100, the following definitions apply to these Division 148 rules:

(1) "Consultant" means an Architect, Engineer, Photogrammetrist, Transportation Planner, Land Surveyor or provider of Related Services. A Consultant includes a business entity that employs Architects, Engineers, Photogrammetrists, Transportation Planners, Land Surveyors or providers of Related Services, or any combination of the foregoing. Provided, however, when ODOT is entering into a direct Contract under OAR 731-148-0200(1)(c) or (d), the "Consultant" must be an Architect, Engineer, Photogrammetrist, Transportation Planner or Land Surveyor, as required by ORS 279C.115(1).

(2) "Estimated Fee" means ODOT's reasonably projected fee to be paid for a Consultant's services under the anticipated Contract, excluding all anticipated reimbursable or other non-professional fee expenses. The Estimated Fee is used solely to determine the applicable Contract solicitation method and is distinct from the total amount payable under the Contract. The Estimated Fee shall not be used as a basis to resolve other Public Contracting issues, including without limitation, direct purchasing authority or Public Contract review and approval under ORS 291.047.

(3) “Evaluate” means to review and score or rank, or both, Proposals submitted by Consultants in response to a solicitation or RFQ or interviews conducted during a solicitation or RFQ. Unless otherwise stated in the solicitation or RFQ, if Proposals or interviews, or both, are scored, the Consultant with the highest score is the highest ranked proposer. The remaining Consultants are ranked in descending order according to their scores.

(4) “ODOT” means the Oregon Department of Transportation.

(5) "Price Agreement," for purposes of this Division 148, is limited to mean an agreement related to the Procurement of Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services, or Related Services, under agreed-upon terms and conditions, including, but not limited to terms and conditions of later work orders for Project-specific services, and which may include Consultant compensation information, with:

(a) No guarantee of a minimum or maximum purchase; or

(b) An initial work order, task order or minimum purchase, combined with a continuing Consultant obligation to provide Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services in which ODOT does not guarantee a minimum or maximum additional purchase.

(6) "Project" means all components of ODOT's planned undertaking that gives rise to the need for a Consultant's Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services, or Related Services, under a Contract.

(7) "Transportation Planning Services" are defined in ORS 279C.100. Transportation Planning Services include only Project-specific transportation planning involved in the preparation of categorical exclusions, environmental assessments, environmental impact statements and other documents required for compliance with the National Environmental Policy Act, 42 USC 4321 et. seq. Transportation Planning Services do not include transportation planning for corridor plans, transportation system plans, interchange area management plans, refinement plans and other transportation plans not directly associated with an individual Project that will require compliance with the National Environmental Policy Act, 42 USC 4321 et. seq. Transportation Planning Services also do not include transportation planning for Projects not subject to the National Environmental Policy Act, 42 USC 4321 et. seq.

History

Statutory/Other Authority: ORS 184.619, 279A.065(6)(a) & 279A.070
Statutes/Other Implemented: ORS 279A.050(3) & 279A.065
DOT 3-2020, amend filed 07/17/2020, effective 07/17/2020
DOT 1-2019, adopt filed 02/21/2019, effective 02/21/2019

Or. Admin. R. 731-148-0130 Source Selection; Pricing Information; Conflicts of Interest

(1) ODOT shall Award a Contract for Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services, and Related Services following the applicable selection procedures under OAR 731-148-0200 (Direct Appointment Procedure), OAR 731-148-0205 (Small Purchase Procedure) or OAR 731-148-0220 (Formal Selection Procedure).

(2) ODOT is not required to follow the procedures in section (1) of this rule, when ODOT has established Price Agreements with more than one Consultant and is selecting a single Consultant to perform Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services under an individual work order. Provided, however, the criteria and procedures ODOT uses to select a single Consultant, when ODOT has established Price Agreements with more than one Consultant, must meet the requirements of OAR 731-148-0270 (Price Agreements).

(3) ODOT may solicit and use pricing policies, pricing Proposals, or other pricing information when procuring:

(a) Related Services; and

(b) Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services under sections (a) and (b) of OAR 731-148-0200 (Direct Appointment Procedure).

(4) As required by ORS 279C.307, pertaining to requirements to ensure the objectivity and independence of providers of certain Personal Services which are procured under ORS chapter 279C, ODOT may not:

(a) Procure the Personal Services identified in ORS 279C.307 from a Contractor or an affiliate of a Contractor who is a party to the Public Contract that is subject to administration, management, monitoring, inspection, evaluation or oversight by means of the Personal Services; or

(b) Procure the Personal Services identified in ORS 279C.307 through the Public Contract that is subject to administration, management, monitoring, inspection, evaluation or oversight by means of the Personal Services.

(5) The requirements of ORS 279C.307 and section (4) of this rule apply in the following circumstances, except as provided in section (6) of this rule:

(a) ODOT requires the Procurement of Personal Services for the purpose of administering, managing, monitoring, inspecting, evaluating compliance with or otherwise overseeing a Public Contract or performance under a Public Contract that is subject to ORS chapter 279C. A Public Contract that is “subject to ORS chapter 279C” includes a Public Contract for Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services, a Public Contract for Related Services or a Public Contract for construction services under ORS chapter 279C.

(b) The Procurements of Personal Services subject to the restrictions of ORS 279C.307 include, but are not limited to, the following:

(A) Procurements for Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services, which involve overseeing or monitoring the performance of a construction Contractor under a Public Contract for construction services subject to ORS chapter 279C;

(B) Procurements for commissioning services, which involve monitoring, inspecting, evaluating or otherwise overseeing the performance of a Contractor providing Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or the performance of a construction Contractor under a Public Contract for construction services subject to ORS chapter 279C;

(C) Procurements for project management services, which involve administration, management, monitoring, inspecting, evaluating compliance with or otherwise overseeing the performance of a Contractor providing Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services, construction services subject to ORS chapter 279C, commissioning services or other Related Services for a Project;

(D) Procurements for special inspections and testing services, which involve inspecting, testing or otherwise overseeing the performance of a construction Contractor under a Public Contract for construction services subject to ORS chapter 279C; and

(E) Procurements for other Related Services or Personal Services, which involve administering, managing, monitoring, inspecting, evaluating compliance with or otherwise overseeing the Public Contracts described in Section (5)(a) of this rule.

(6) The restrictions of ORS 279C.307 do not apply in the following circumstances, except as further specified below:

(a) To ODOT’s Procurement of both design services and construction services through a single “Design-Build” Procurement, as that term is defined in OAR 137-049-0610. Such a Design-Build Procurement includes a Procurement under an Energy Savings Performance Contract, as defined in ORS 279A.010. Provided, however, the restrictions of ORS 279C.307 do apply to a ODOT’s Procurement of Personal Services for the purpose of administering, managing, monitoring, inspecting, evaluating compliance with or otherwise overseeing a Design-Build Contract or performance under such a Contract resulting from a Design-Build Procurement; and

(b) To ODOT’s Procurement of both pre-construction services and construction services through a single Procurement of Construction Manager/General Contractor Services, as that term is defined in ORS 279C.332(3). Provided, however, the restrictions of ORS 279C.307 do apply to a ODOT’s Procurement of Personal Services for the purpose of administering, managing, monitoring, inspecting, evaluating compliance with or otherwise overseeing a Construction Manager/General Contractor Services Contract or performance under such a Contract resulting from a Procurement of Construction Manager/General Contractor Services.

(c) In an application for an exception submitted by ODOT pursuant to ORS 279C.307(3), the Director of Transportation may grant exceptions to the procurement prohibitions stated in ORS 279C.307(1). In ODOT’s application to the Director of Transportation for an exception under 279C.307(3), ODOT will follow the exception process, consult with legal counsel, and include the findings, justifications, and supporting facts required in ORS 279C.307(3)(c), (d) and (e). The Director of Transportation shall respond to ODOT’s applications for exceptions under ORS 279C.307(3) pursuant to the requirements of ORS 279C.307(3)(e) and (f).

History

Statutory/Other Authority: ORS 184.619, 279A.065(6)(a) & 279A.070
Statutes/Other Implemented: ORS 279A.050(3), 279C.100-279C.125 & 279C.307
DOT 10-2022, amend filed 11/17/2022, effective 11/17/2022
DOT 3-2020, amend filed 07/17/2020, effective 07/17/2020
DOT 1-2019, adopt filed 02/21/2019, effective 02/21/2019

Or. Admin. R. 731-148-0200 Direct Appointment Procedure

(1) ODOT may enter into a Contract directly with a Consultant without following the selection procedures set forth elsewhere in these rules if:

(a) Emergency. ODOT finds that an Emergency exists; or

(b) Small Estimated Fee. The Estimated Fee to be paid under the Contract does not exceed $100,000; or

(c) Continuation of Project with Intermediate Estimated Fee. For ODOT where a Project is being continued, as more particularly described below, and where the Estimated Fee will not exceed $250,000, the Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services to be performed under the Contract must meet the following requirements:

(A) The services consist of or are related to Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services that have been substantially described, planned or otherwise previously studied in an earlier Contract with the same Consultant and are rendered for the same Project as the Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services rendered under the earlier Contract;

(B) The Estimated Fee to be made under the Contract does not exceed $250,000; and

(C) ODOT used either the formal selection procedure under OAR 731-148-0220 (Formal Selection Procedure) or the formal selection procedure applicable to selection of the Consultant at the time of original selection to select the Consultant for the earlier Contract; or

(d) Continuation of Project with Extensive Estimated Fee. For ODOT where a Project is being continued, as more particularly described below, and where the Estimated Fee is expected to exceed $250,000, the Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services to be performed under the Contract must meet the following requirements:

(A) The services consist of or are related to Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services that have been substantially described, planned or otherwise previously studied under an earlier Contract with the same Consultant and are rendered for the same Project as the Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services rendered under the earlier Contract;

(B) ODOT used either the formal selection procedure under OAR 731-148-0220 (Formal Selection Procedure) or the formal selection procedure applicable to selection of the Consultant at the time of original selection to select the Consultant for the earlier Contract; and

(C) ODOT makes written findings that entering into a Contract with the Consultant, whether in the form of an amendment to an existing Contract or a separate Contract for the additional scope of services, will:

(i) Promote efficient use of public funds and resources and result in substantial cost savings to ODOT; and,

(ii) Protect the integrity of the Public Contracting process and the competitive nature of the Procurement by not encouraging favoritism or substantially diminishing competition in the award of the Contract.

(2) ODOT may select a Consultant for a Contract under this rule from the following sources:

(a) A list of Consultants created and maintained by ODOT under OAR 731-148-0215 (Request for Qualifications);

(b) A list of Consultants awarded Price Agreements under OAR 731-148-0270 (Price Agreements);

(d) Any combination of (a) through (c) above.

(3) ODOT shall direct negotiations with a Consultant selected under this rule toward obtaining written agreement on:

(a) The Consultant's performance obligations and performance schedule;

(b) Payment methodology, Consultant’s rates and number of hours, and a maximum amount payable to the Consultant for the Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services required under the Contract that is fair and reasonable to ODOT as determined solely by ODOT, taking into account the value, scope, complexity and nature of the Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services; and

History

Statutory/Other Authority: ORS 184.619, 279A.065(6)(a) & 279A.070
Statutes/Other Implemented: ORS 279A.050(3), 279C.110, 279C.115 & 279C.120
DOT 3-2020, amend filed 07/17/2020, effective 07/17/2020
DOT 1-2019, adopt filed 02/21/2019, effective 02/21/2019

Or. Admin. R. 731-148-0205 Small Purchase Procedure

(1) ODOT may use the Small Purchase Procedure described in this rule to award a Contract if the Estimated Fee does not exceed $250,000.

(2) ODOT shall consider the qualifications of at least three prospective Consultants. If fewer than three Consultants are available, ODOT shall consider the qualifications of all available prospective Consultants and shall maintain a written record of ODOT’s efforts to locate available prospective Consultants. ODOT may draw prospective Consultants from:

(a) A list of Consultants created and maintained by ODOT under OAR 731-148-0215 (Request for Qualifications);

(b) A list of Consultants awarded Price Agreements under OAR 731-148-0270 (Price Agreements);

(d) Any combination of (a) through (c) above.

(3) ODOT shall select a Consultant using criteria appropriate for the services.

(4) ODOT shall direct negotiations with a Consultant selected under this rule toward obtaining written agreement on:

(a) The Consultant's performance obligations and performance schedule;

(5) ODOT shall terminate the small purchase procedure and proceed under OAR 731-148-0220 (Formal Selection Procedure) if the scope of the anticipated Contract is revised during negotiations so that the Estimated Fee will exceed $250,000.

History

Statutory/Other Authority: ORS 184.619, 279A.065(6)(a) & 279A.070
Statutes/Other Implemented: ORS 279A.050(3), 279C.110 & 279C.115
DOT 3-2020, amend filed 07/17/2020, effective 07/17/2020
DOT 1-2019, adopt filed 02/21/2019, effective 02/21/2019

Or. Admin. R. 731-148-0215 Requests for Qualifications

(1) ODOT may use this Request for Qualifications (“RFQ”) procedure to Evaluate potential Consultants and establish a short list of qualified Consultants for some or all of the Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services described in the RFQ. This RFQ procedure will be used as the first step in a two-step Procurement process, with the second step in the process being a selection by ODOT under OAR 731-148-0200 (Direct Appointment), a selection under OAR 731-148-0205 (Small Purchase Procedure) or an RFP processed under OAR 731-148-0220 (Formal Selection Procedure).

(2)(a) ODOT shall publish each RFQ by one or more of the electronic methods identified in OAR 731-146-0150(1).

(b) ODOT shall publish the advertisement within a reasonable time before the deadline for the response to the RFQ, but in any event no fewer than seven calendar days before the closing date set forth in the RFQ.

(c) In the alternative to advertising using one or more electronic methods in subsection (2)(a) of this rule, ODOT may advertise the RFQ in at least one newspaper of general circulation in the area where the Project is located and in as many other issues and publications as may be necessary or desirable to achieve adequate competition. Other issues and publications may include, but are not limited to, local newspapers, trade journals, and publications targeted to reach disadvantaged business enterprise (“DBE”), veteran business, minority business enterprise (“MBE”), women business enterprise (“WBE”) and emerging small business enterprise (“ESB”) audiences.

(3) ODOT shall include the following, at a minimum, in each RFQ:

(a) A brief description of the services or Project(s), or both, for which ODOT is seeking one or more Consultants;

(b) Conditions or limitations, if any, that may constrain or prohibit the selected Consultant(s) ability to provide additional services related to the services or Project(s) or both, including but not limited to construction services;

(d) A description of required Consultant qualifications for the Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services ODOT seeks;

(e) The RFQ evaluation criteria, including weights, points or other classifications applicable to each criterion;

(f) A statement whether or not ODOT will hold a pre-qualification meeting for all interested Consultants to discuss the services or Project(s) described in the RFQ and if a pre-qualification meeting will be held, the location of the meeting and whether or not attendance is mandatory; and

(g) A statement that Consultants responding to the RFQ do so solely at their expense, and that ODOT is not responsible for any Consultant expenses associated with the RFQ.

(4) ODOT may include a request for any or all of the following in each RFQ:

(a) A statement describing Consultants’ general qualifications and related performance information;

(b) A description of Consultants’ specific qualifications to perform the Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services described in the RFQ including Consultants’ committed resources and recent, current and projected workloads;

(c) A list of similar Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services and references concerning past performance, including but not limited to price and cost data from previous projects, quality of work, ability to meet schedules, cost control and contract administration;

(d) A copy of all records, if any, of Consultants’ performance under Contracts with any other agency;

(e) The number of Consultants’ experienced staff committed to perform the Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services described in the RFQ, including such personnel’s specific qualifications and experience and an estimate of the proportion of time that such personnel would spend on those services;

(f) Consultants’ approaches to Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services described in the RFQ and design philosophy, if applicable;

(g) Consultants’ geographic proximity to and familiarity with the physical location of the Project, if applicable;

(h) Consultants’ ownership status and employment practices regarding women, minorities and emerging small businesses or historically underutilized businesses;

(i) If ODOT is selecting a Consultant to provide Related Services, Consultants’ pricing policies and pricing Proposals or other pricing information, including the number of hours estimated for the services required, expenses, hourly rates and overhead;

(j) Consultants’ ability to assist ODOT in complying with art acquisition requirements, pursuant to ORS 276.073 through 276.090;

(k) Consultants’ ability to assist ODOT in complying with State of Oregon energy efficient design requirements, pursuant to ORS 276.900 through 276.915;

(L) Consultants’ ability to assist ODOT in complying with the energy technology requirements of ORS 279C.527 and 279C.528; and

(m) Any other information ODOT deems reasonably necessary to Evaluate Consultants’ qualifications.

(5) ODOT shall Evaluate all responses received according to the criteria set forth in the RFQ.

(6) ODOT may use any reasonable screening or evaluation method to establish a short list of qualified Consultants, including but not limited to, the following:

(a) Requiring Consultants responding to an RFQ to achieve a threshold score before qualifying for placement on the short list;

(b) Placing a pre-determined number of the highest scoring Consultants on a short list;

(c) Placing on a short list only those Consultants with certain essential qualifications or experience, whose practice is limited to a particular subject area, or who practice in a particular geographic locale or region, provided that such factors are material, would not unduly restrict competition, and were announced as dispositive in the RFQ.

(7) After the evaluation committee Evaluates the responding Consultants, ODOT shall establish a short list of at least three qualified Consultants, if feasible; provided however, if four or fewer Consultants responded to the RFQ or if fewer than three Consultants fail to meet ODOT’s minimum requirements, then ODOT may establish a short list of fewer than three qualified Consultants.

(8) ODOT shall provide copies of the selection notices that ODOT sent to the highest ranked Proposers to all Consultants submitting a response to the RFQ.

(9) ODOT may establish more than one short list from an RFQ, with each short list applicable to a particular service, dollar threshold, geographic location, or combination of the preceding.

(10) No Consultant will be eligible for placement on an ODOT short list established under this rule if Consultant or any of Consultant’s principals, partners or associates are members of ODOT’s RFQ evaluation committee.

(11) ODOT may limit participation under OAR 731-148-0205 (Small Purchase Procedure) and OAR 731-148-0220 (Formal Selection Procedure) to firms on ODOT’s short list applicable to the services.

(12)(a) RFQ Protest and Request for Change. If allowed by the RFQ, Consultants may submit a written protest of anything contained in the RFQ and may request a change to any provision contained in the RFQ, no later than seven calendar days prior to the date responses are due, unless a different deadline is indicated in the RFQ. Each protest and request for change must include the reasons for the protest or request, and the proposed changes to the RFQ. ODOT may not consider any protest or requests for change that is submitted after the submission deadline.

(b) Protest of Exclusion from Short List. If allowed by the RFQ, a Consultant who claims to have been adversely affected or aggrieved by the selection of the highest ranked Consultants may submit a written protest of the selection to ODOT no later than seven calendar days after the date of the selection notices, unless a different deadline is indicated in the RFQ. A Consultant submitting a protest must claim that the protesting Consultant is one of the highest ranked Consultants because the responses of all higher ranked Consultants failed to meet the requirements of the RFQ, or because a sufficient number of responses of higher ranked Consultants failed to meet the requirements of the RFQ. In the alternative, a Consultant Proposer submitting a protest must claim that the responses of all higher ranked Consultants, or a sufficient number of higher ranked Consultants, are not qualified to perform the Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services described in the RFQ. ODOT may not consider any protest that is submitted after the submission deadline.

(c) Resolution of Protests. ODOT shall resolve all timely submitted protests and requests for change within a reasonable time following ODOT’s receipt of the protest or request for change. Once resolved, ODOT shall promptly issue a written decision on the protest or request for change to the Consultant who submitted the protest or request for change. If the protest results in a change to the RFQ, ODOT shall revise the RFQ accordingly and may re-advertise the RFQ in accordance with these rules or post an addenda, as applicable.

(13) ODOT may cancel an RFQ per OAR 731-148-0250.

History

Statutory/Other Authority: ORS 184.619, 279A.065(6)(a) & 279A.070
Statutes/Other Implemented: ORS 279A.050(3) & 279C.110
DOT 2-2024, amend filed 06/12/2024, effective 06/12/2024
DOT 3-2020, amend filed 07/17/2020, effective 07/17/2020
DOT 1-2019, adopt filed 02/21/2019, effective 02/21/2019

Or. Admin. R. 731-148-0220 Formal Selection Procedure

(1) ODOT may use the formal selection procedure described in this rule to obtain a Contract regardless of Estimated Fee of the Contract, but ODOT must use this rule to obtain a Contract if the Estimated Fee of the Contract exceeds $250,000 and the services cannot be obtained under OAR 731-148-0200 (Direct Appointment Procedure) or OAR 731-148-0205 (Small Purchase Procedure).

(2) ODOT shall obtain Contracts using the formal selection procedure through public advertisement of RFPs.

(a) ODOT shall publish each RFP by one or more of the electronic methods identified in OAR 731-146-0150(1).

(A) ODOT shall publish the advertisement within a reasonable time before the deadline for the Proposal submission or response to the RFP.

(B) ODOT shall include a brief description of the following items in the advertisement:

(i) The Project(s) or the Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services ODOT seeks;

(ii) How and where Consultants may obtain a copy of the RFP; and

(iii) The deadline for submitting a Proposal or response to the RFP.

(b) In the alternative to advertising using one or more electronic methods in subsection (2)(a) of this rule, ODOT may advertise the RFP in at least one newspaper of general circulation in the area where the Project is located and in as many other issues and publications as may be necessary or desirable to achieve adequate competition. Other issues and publications may include, but are not limited to, local newspapers, trade journals, and publications targeted to reach DBE, Veteran, MBE, WBE and ESB audiences.

(c) ODOT may send notice of the RFP directly to Consultants on ODOT’s list of Consultants that is created and maintained under OAR 731-148-0215 (Request for Qualifications).

(3) Formal Selection of Consultants through Request for Proposals. ODOT shall use the procedure described in section (3) of this rule when issuing an RFP for a Contract described in section (1) of this rule.

(a) RFP Required Contents. An RFP processed under this rule must include:

(A) General background information, including a description of the Project and the specific Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services sought for the Project, the estimated Project cost, the estimated time period during which the Project is to be completed, and the estimated time period in which the specific Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services sought will be performed;

(B) The RFP evaluation process and the criteria which will be used to select the most qualified Proposer, including the weights, points or other classifications applicable to each criterion. If ODOT does not indicate the applicable number of points, weights or other classifications, then each criterion is of equal value. Evaluation criteria may include, but are not limited to, the following:

(i) Proposers’ availability and capability to perform the Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services described in the RFP;

(ii) Experience of Proposers’ key staff persons in providing similar Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services, or Related Services on comparable projects;

(iii) The amount and type of resources, and number of experienced staff persons Proposers have committed to perform the Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services described in the RFP;

(iv) The recent, current and projected workloads of the staff and resources referenced in section (3)(a)(B)(iii), above;

(v) The proportion of time Proposers estimate that the staff referenced in section (3)(a)(B)(iii), above, would spend on the Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services described in the RFP;

(vi) Proposers’ demonstrated ability to complete successfully similar Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services on time and within budget, including whether or not there is a record of satisfactory performance;

(vii) References and recommendations from past clients;

(viii) Proposers’ performance history in meeting deadlines, submitting accurate estimates, producing high quality work, meeting financial obligations, price and cost data from previous projects, cost controls and contract administration;

(ix) Status and quality of any required license or certification;

(x) Proposers’ knowledge and understanding of the Project and Architectural, Engineering and Land Surveying Services or Related Services described in the RFP as shown in Proposers’ approaches to staffing and scheduling needs for the Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services and proposed solutions to any perceived design and constructability issues;

(xi) Results from interviews, if conducted;

(xii) Design philosophy, if applicable, and approach to the Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services described in the RFP;

(xiii) If ODOT is selecting a Consultant to provide Related Services, pricing policies and pricing Proposals or other pricing information, including the number of hours proposed for the services required, expenses, hourly rates and overhead; and

(xiv) Any other criteria that ODOT deems relevant to the Project and the Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services described in the RFP, including, where the nature and budget of the Project so warrant, a design competition between competing Proposers. Provided, however, these additional criteria cannot include pricing policies, pricing Proposals or other pricing information, including the number of hours proposed for the services required, expenses, hourly rates and overhead, when the sole purpose or predominant purpose of the RFP is to obtain Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services.

(C) Conditions or limitations, if any, that may constrain or prohibit the selected Consultant’s ability to provide additional services related to the Project, including but not limited to construction services;

(D) Whether interviews are possible and if so, the weight, points or other classifications applicable to the potential interview;

(E) The date and time Proposals are due, and the delivery location for Proposals;

(F) Reservation of the right to seek clarifications of each Proposal;

(G) Reservation of the right to negotiate a final Contract that is in the best interest of ODOT;

(H) Reservation of the right to reject any or all Proposals and reservation of the right to cancel the RFP at any time if doing either would be in the public interest as determined by ODOT;

(I) A Statement that Proposers responding to the RFP do so solely at their expense, and ODOT is not responsible for any Proposer expenses associated with the RFP;

(J) A statement directing Proposers to the protest procedures set forth in these Division 148 rules;

(K) Special Contract requirements, including but not limited to DBE, MBE, WBE, ESB and Veteran participation goals or good faith efforts with respect to DBE, MBE, WBE, ESB and Veteran participation, and federal requirements when federal funds are involved;

(L) A statement whether or not ODOT will hold a pre-Proposal meeting for all interested Consultants to discuss the Project and the Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services described in the RFP and if a pre-Proposal meeting will be held, the location of the meeting and whether or not attendance is mandatory;

(M) A request for any information ODOT deems reasonably necessary to permit ODOT to evaluate, rank and select the most qualified Proposer to perform the Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services described in the RFP; and

(N) A sample form of the Contract.

(b) RFP Contents for Related Services Selections Based on Price Only. ODOT shall include at least the following in each RFP, whether or not the RFP is preceded by an RFQ, when the formal selection procedure is for Related Services selected on the basis of price Proposals and other pricing information only:

(A) General background information, including a description of the Project and the specific Related Services sought for the Project, the estimated Project cost, the estimated time period during which the Project is to be completed, and the estimated time period in which the specific Related Services sought will be performed;

(B) The RFP evaluation process and the price criteria which will be used to select the highest ranked Proposer, including the weights, points or other classifications applicable to each criterion. If ODOT does not indicate the applicable number of points, weights or other classifications, then each criterion is of equal value. Evaluation price criteria may include, but are not limited to, the total price for the Related Services described in the RFP, Consultant pricing policies, and other pricing information such as the Consultant’s estimated number of staff hours needed to perform the Related Services described in the RFP, expenses, hourly rates and overhead;

(C) Any minimum or pass-fail qualifications that the Proposers must meet, including but not limited to any such qualifications in the subject matter areas described in section (3)(a)(B)(i) through section (3)(a)(B)(xii) of this rule; and

(D) The information listed in section (3)(a)(C) through section (3)(a)(N) of this rule pertaining to the Related Services described in the RFP.

(d) If ODOT does not cancel the RFP after Evaluating the Proposals, ODOT will begin negotiating a Contract with the highest ranked Proposer. ODOT shall direct negotiations towards obtaining a written agreement on:

(A) The Consultant’s performance obligations and performance schedule;

(B) Payment methodology, Consultant’s rates and number of hours, and a maximum amount payable to the Consultant for the Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services required under the Contract that is fair and reasonable to ODOT as determined solely by ODOT, taking into account the value, scope, complexity and nature of the Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services; and; and

(e) ODOT shall, either orally or in writing, formally terminate negotiations with the highest ranked Proposer if ODOT and Proposer are unable for any reason to reach agreement on a Contract within a reasonable amount of time. ODOT may thereafter negotiate with the second ranked Proposer, and if necessary, with the third ranked Proposer, and so on, until negotiations result in a Contract. If negotiations with any Proposer do not result in a Contract within a reasonable amount of time, ODOT may end the particular formal solicitation. Nothing in this rule precludes ODOT from proceeding with a new formal solicitation for the same Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services described in the RFP that failed to result in a Contract.

History

Statutory/Other Authority: 279A.065(6)(a), 279A.070 & ORS 184.619
Statutes/Other Implemented: ORS 279A.050(3) & 279C.110
DOT 2-2024, amend filed 06/12/2024, effective 06/12/2024
DOT 3-2020, amend filed 07/17/2020, effective 07/17/2020
DOT 1-2019, adopt filed 02/21/2019, effective 02/21/2019

Or. Admin. R. 731-148-0230 Ties Among Proposers

(1) If ODOT is selecting a Consultant on the basis of qualifications alone and determines after the ranking of Proposers that two or more Proposers are equally qualified, ODOT may select a candidate through any process that ODOT believes will result in the best value for ODOT taking into account the scope, complexity and nature of the Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services. Provided, however, the tie breaking process established by ODOT under this section (1) cannot be based on the Consultant's pricing policies, pricing proposals or other pricing information, including the number of hours proposed for the services required, expenses, hourly rates, and overhead. The process must be designed to instill public confidence through ethical and fair dealing, honesty and good faith on the part of ODOT and Proposers and shall protect the integrity of the Public Contracting process. Once a tie is broken, ODOT and the selected Proposer shall proceed with negotiations under OAR 731-148-0200(3), 731-148-0205(4), 731-148-0210(4) or 731-148-0220(3)(d), as applicable.

(2) If ODOT is selecting a Consultant on the basis of price alone, or on the basis of price and qualifications, and determines after the ranking of Proposers that two or more Proposers are identical in terms of price or are identical in terms of price and qualifications, then ODOT shall follow the procedure set forth in OAR 137-046-0300 (Preferences for Oregon Goods and Services) to select the Consultant.

History

Statutory/Other Authority: ORS 184.619, 279A.065(6)(a) & 279A.070
Statutes/Other Implemented: ORS 279A.050(3) & 279C.110
DOT 1-2019, adopt filed 02/21/2019, effective 02/21/2019

Or. Admin. R. 731-148-0240 Protest Procedures

(1) Applicability. This rule applies to RFPs processed under OAR 731-148-0220 (Formal Selection Procedure).

(2) RFP Protest and Request for Change. Consultants may submit a written protest of anything contained in an RFP and may request a change to any provision, specification or Contract term contained in an RFP, no later than seven calendar days prior to the date Proposals are due, unless a different deadline is indicated in the RFP. Each protest and request for change must include the reasons for the protest or request, and any proposed changes to the RFP provisions, specifications or Contract terms. ODOT may not consider any protest or request for change that is submitted after the submission deadline.

(3) Protest of Consultant Selection.

(a) Single Award. In the event of an award to a single Proposer, ODOT shall provide to all Proposers a copy of the selection notice that ODOT sent to the highest ranked Proposer. A Proposer who claims to have been adversely affected or aggrieved by the selection of the highest ranked Proposer may submit a written protest of the selection to ODOT no later than seven calendar days after the date of the selection notice unless a different deadline is indicated in the RFP. A Proposer submitting a protest must claim that the protesting Proposer is the highest ranked Proposer because the Proposals of all higher ranked Proposers failed to meet the requirements of the RFP or because the higher ranked Proposers otherwise are not qualified to perform the Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services described in the RFP.

(b) Multiple Award. In the event of an award to more than one Proposer, ODOT shall provide to all Proposers copies of the selection notices that ODOT sent to the highest ranked Proposers. A Proposer who claims to have been adversely affected or aggrieved by the selection of the highest ranked Proposers may submit a written protest of the selection to ODOT no later than seven calendar days after the date of the selection notices, unless a different deadline is indicated in the RFP. A Proposer submitting a protest must claim that the protesting Proposer is one of the highest ranked proposers because the Proposals of all higher ranked Proposers failed to meet the requirements of the RFP, or because a sufficient number of Proposals of higher ranked Proposers failed to meet the requirements of the RFP. In the alternative, a Proposer submitting a protest must claim that the Proposals of all higher ranked Proposers, or a sufficient number of higher ranked Proposers, are not qualified to perform the Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services described in the RFP.

(c) Effect of Protest Submission Deadline. ODOT may not consider any protest that is submitted after the submission deadline.

(4) Resolution of Protests. A duly authorized representative of ODOT shall resolve all timely submitted protests within a reasonable time following ODOT's receipt of the protest and once resolved, shall promptly issue a written decision on the protest to the Proposer who submitted the protest. If the protest results in a change to the RFP, the Contracting Agency shall revise the RFP accordingly and shall re-advertise the RFP in accordance with these rules.

History

Statutory/Other Authority: ORS 184.619, 279A.065(6)(a) & 279A.070
Statutes/Other Implemented: ORS 279A.050(3), 279A.065 & 279C.110
DOT 3-2020, amend filed 07/17/2020, effective 07/17/2020
DOT 1-2019, adopt filed 02/21/2019, effective 02/21/2019

Or. Admin. R. 731-148-0250 Solicitation Cancellation, Delay or Suspension; Rejection of All Proposals or Responses; Consultant Responsibility for Costs

ODOT may cancel, delay or suspend a solicitation, RFQ or other preliminary Procurement document, whether related to OAR 731-148-0200 (Direct Appointment Procedure), OAR 731-148-0205 (Small Purchase Procedure), OAR 731-148-0210 (Informal Selection Procedure), OAR 731-148-0215 (Request for Qualifications) or OAR 731-148-0220 (Formal Selection Procedure), or reject all Proposals, responses to RFQs, responses to other preliminary Procurement documents, or any combination of the foregoing, if ODOT believes it is in the public interest to do so. In the event of any such cancellation, delay, suspension or rejection, ODOT is not liable to any Proposer for any loss or expense caused by or resulting from any such cancellation, delay, suspension or rejection. Consultants responding to either solicitations, RFQs or other preliminary Procurement documents are responsible for all costs they may incur in connection with submitting Proposals, responses to RFQs or responses to other preliminary Procurement documents.

History

Statutory/Other Authority: ORS 184.619, 279A.065(6)(a) & 279A.070
Statutes/Other Implemented: ORS 279A.050(3), 279A.065 & 279C.110
DOT 1-2019, adopt filed 02/21/2019, effective 02/21/2019

Or. Admin. R. 731-148-0260 Two-Tiered Selection Procedure for Local Contracting Agency Public Improvement Projects

(1) For Procurements subject to ORS 279C.125, ODOT will serve as the lead Contracting Agency and will enter into Contracts which result from the two-tiered selection process described below.

(2) Tier One.

(a) ODOT shall, when feasible, identify no fewer than three most qualified Proposers responding to an RFP that was issued under OAR 731-148-0220 (Formal Selection Procedure), or from among Architects, Engineers, Photogrammetrists, Transportation Planners, or Land Surveyors identified under OAR 731-148-0200 (Direct Appointment Procedure) or OAR 731-148-0205 (Small Purchase Procedure).

(b) ODOT shall notify the Local Contracting Agency of the Architects, Engineers, Photogrammetrists, Transportation Planners, or Land Surveyors identified in (a) above.

(3) Tier Two. In accordance with the qualifications based selection requirements of ORS 279C.110, the Local Contracting Agency shall select an Architect, Engineer, Photogrammetrist, Transportation Planner, or Land Surveyor from:

(a) The list of Proposers provided to the Local Contracting Agency by ODOT pursuant to section (2) above by using an additional qualification based process; or

(b) An alternative process adopted by the Local Contracting Agency consistent with the provisions of the applicable Procurement document, if any, and these Division 148 rules.

(A) ODOT and the Local Contracting Agency may document through an intergovernmental agreement between the parties, the alternative process that the Local Contracting Agency has adopted for a Procurement or series of Procurements.

(B) The Local Contracting Agency’s alternative process must be described in the applicable Procurement document and may include, for example selecting the highest-ranked firm identified by ODOT in section (2) above or, in the event of a multiple award under the terms of the applicable Procurement document, selecting the highest ranked firms that are selected under the terms of the Procurement document.

(4) Where multiple Local Government Agencies are involved in a two-tiered selection procedure, the Local Government Agencies may name one or more authorized representative(s) to act on behalf of all the Local Government Agencies, whether the Local Government Agencies are acting collectively or individually, to select the Architect, Engineer, Photogrammetrist, Transportation Planner or Land Surveyor to perform the Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services under the tier two selection process. In the event of a multiple award under the terms of the applicable Procurement, the authorized representative(s) of the Local Contracting Agencies may act on behalf of the Local Contracting Agencies to select the highest ranked firms that are required under the terms of the Procurement document, as part of the tier two selection process.

(5) ODOT shall negotiate a Contract with the selected Architect, Engineer, Photogrammetrist, Transportation Planner, or Land Surveyor in accordance with the negotiation provisions of OAR 731-148-0200 (Direct Appointment Procedure), OAR 731-148-0205 (Small Purchase Procedure) or OAR 731-148-0220 (Formal Selection Procedure) as applicable.

(6) Nothing in these Division 148 rules should be construed to deny or limit a Local Contracting Agency’s ability to enter into a Contract directly with an Architect, Engineer, Photogrammetrist, Transportation Planner, or Land Surveyor pursuant to ORS 279C.125(4), through a selection process established by that Local Contracting Agency.

(7) For all Procurements subject to the two-tier selection procedure, ODOT will serve as the contract administrator.

History

Statutory/Other Authority: ORS 184.619, 279A.065(6)(a) & 279A.070
Statutes/Other Implemented: ORS 279A.050(3), 279C.110 & 279C.125
DOT 3-2020, amend filed 07/17/2020, effective 07/17/2020
DOT 1-2019, adopt filed 02/21/2019, effective 02/21/2019

Or. Admin. R. 731-148-0270 Price Agreements

(1) ODOT may establish Price Agreements for Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services, when ODOT cannot determine the precise quantities of those Services that ODOT will require over a specified time period.

(2) When establishing Price Agreements under this rule, ODOT shall select no fewer than three Consultants, when feasible. The selection procedures for establishing Price Agreements shall be in accordance with OAR 731-148-0130(1). ODOT may select a single Consultant when a Price Agreement is awarded to obtain services for a specific Project or a closely-related group of Projects.

(3) In addition to any other applicable solicitation requirements set forth in these Division 148 rules, solicitation materials and the terms and conditions for a Price Agreement for Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services must:

(a) Include a scope of services, menu of services, a specification for services or a similar description of the nature, general scope, complexity and purpose of the Procurement that will reasonably enable a prospective bidder or Proposer to decide whether to submit a bid or proposal;

(b) Specify whether ODOT intends to award a Price Agreement to one Consultant or to multiple Consultants. If ODOT will award a Price Agreement to more than one Consultant, the Solicitation Document and Price Agreement shall describe the criteria and procedures ODOT will use to select a Consultant for each individual work order. Subject to the requirements of ORS 279C.110, the criteria and procedures to assign work orders that only involve or predominantly involve Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying services are at ODOT's sole discretion; provided, however, in circumstances where a direct contract is not permitted under OAR 731-148-0200, the selection criteria cannot be based on pricing policies, pricing proposals or other pricing information, including the number of hours proposed for the Services required, expenses, hourly rates and overhead. In accordance with OAR 731-148-0200, OAR 731-148-0205, and OAR 731-148-0220 applicable to Related Services Procurements, the selection criteria and procedures may be based solely on the qualifications of the Consultants, solely on pricing information, or a combination of both qualifications and pricing information. Pricing information may include the number of hours proposed for the services required, expenses, hourly rates, the number of hours, overhead and other price factors. Work order assignment procedures under Price Agreements may include direct appointments, subject to the requirements of OAR 731-148-0200; and

(c) Specify the maximum term for assigning Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services under the Price Agreement.

(4) All Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services assigned under a Price Agreement require a written work order issued by ODOT. Any work orders assigned under a Price Agreement must include, at a minimum, the following:

(a) The Consultant's performance obligations and performance schedule;

(b) The payment methodology, Consultant’s rates and number of hours, and a maximum amount payable to the Consultant for the Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services required under the work order that is fair and reasonable to ODOT, as determined solely by ODOT, taking into account the value, scope, complexity and nature of the Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services;

(d) Any other conditions or provisions ODOT believes to be in ODOT's best interest.

History

Statutory/Other Authority: ORS 184.619, 279A.065(6)(a) & 279A.070
Statutes/Other Implemented: ORS 279A.050(3) & 279A.065
DOT 3-2020, amend filed 07/17/2020, effective 07/17/2020
DOT 1-2019, adopt filed 02/21/2019, effective 02/21/2019

Or. Admin. R. 731-148-0300 Prohibited Payment Methodology; Purchase Restrictions

(1) Except as otherwise allowed by law, ODOT shall not enter into any Contract that includes compensation provisions that expressly provide for payment of:

(a) Consultant's costs under the Contract plus a percentage of those costs; or

(b) A percentage of the Project construction costs or total Project costs.

(2) Except as otherwise allowed by law, ODOT shall not enter into any Contract in which:

(a) The compensation paid under the Contract is solely based on or limited to the Consultant's hourly rates for the Consultant's personnel working on the Project and reimbursable expenses incurred during the performance of work on the Project (sometimes referred to as a "time and materials" Contract); and

(b) The Contract does not include a maximum amount payable to the Consultant for the Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services required under the Contract.

(3) Except in cases of Emergency or in the particular instances noted in the subsections below, ODOT shall not purchase any building materials, supplies or equipment for any building, structure or facility constructed by or for ODOT from any Consultant under a Contract with ODOT to perform Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services, for the building, structure or facility. This prohibition does not apply if either of the following circumstances exists:

(a) The Consultant is providing Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services or Related Services under a Contract with ODOT to perform Design-Build services or Energy Savings Performance Contract services (see OAR 137-049-0670 and 137-049-0680); or

(b) That portion of the Contract relating to the acquisition of building materials, supplies or equipment was awarded to the Consultant pursuant to applicable law governing the award of such a Contract.

History

Statutory/Other Authority: ORS 184.619, 279A.065(6)(a) & 279A.070
Statutes/Other Implemented: ORS 279A.065
DOT 1-2019, adopt filed 02/21/2019, effective 02/21/2019

Or. Admin. R. 731-149-0010 Application

Except as specifically set forth below, the Oregon Department of Transportation adopts OAR 137-049-0100 through 137-049-0910, the Department of Justice Model Rules, General Provisions Related to Public Contracts for Construction Services for any Public Improvement Contract procurements conducted pursuant to OAR chapter 731, division 149.

(1) The following sentence is adopted instead of the first sentence of OAR 137-049-0330(1): Receipt. ODOT shall electronically or mechanically time-stamp or hand-mark each Offer and any modification or other submittals upon receipt, or provide a self-time-stamping device for use by Offerors for these purposes.

(2) Per ORS 279C.337, construction manager/general contractor services shall be procured in accordance with the model rules the Attorney General adopts under ORS 279A.065 (3) as may be updated from time to time (see OAR 137-049-0690 et al); therefore, OAR 137-049-0610 through 137-049-0690 applicable to procurements of construction manager/general contractor services adopted pursuant to ORS 279A.065(3) and ORS 279C.337(1), are adopted herein.

(3) The Oregon Department of Transportation does not adopt any Oregon Department of Justice Division 49 rule related to diesel engine requirements pursuant to ORS 279C.537. The Oregon Department of Transportation has adopted OAR 731-005-0800 and OAR 731-149-0020 to implement ORS 279C.537.

(4) In the event of a conflict between the ODOT Chapter 731, Division 149 Rules and the Department of Justice Model Rules referenced above for Alternative Contracting Methods for Public Improvement Contracts, the Department of Justice Model Rules for Alternative Contracting Methods for Public Improvement Contracts control.

History

Statutory/Other Authority: ORS 184.619 & 279A.065
Statutes/Other Implemented: ORS 279A.065
DOT 1-2024, amend filed 05/09/2024, effective 06/01/2024
DOT 4-2023, amend filed 11/13/2023, effective 11/13/2023
DOT 5-2013, f. 12-20-13, cert. ef. 1-1-14
DOT 4-2011, f. 12-22-11, cert. ef. 1-1-12
DOT 1-2010, f. & cert. ef. 5-18-10
DOT 5-2009(Temp), f. 12-22-09, cert. ef. 1-1-10 thru 6-30-10
DOT 7-2006, f. & cert. ef. 11-17-06
DOT 5-2006(Temp), f. & cert. ef. 5-25-06 thru 11-20-06
DOT 5-2005, f. & cert. ef. 8-23-05
DOT 3-2005(Temp), f. 2-16-05, cert. ef. 3-1-05 thru 8-27-05

Or. Admin. R. 731-149-0020 Clean Diesel Construction Standard

(2) The definitions provided in OAR 731-005-0430 apply to sections (3) through (10) of this rule.

(3) For a Public Improvement Contract where the majority of the Project Site is located within Clackamas, Multnomah, or Washington County, the public improvement is subject to the following requirements:

(4) The following Non-Road Diesel Equipment are exempt from section (3) of this rule:

(a) Non-Road Diesel Equipment required for an Emergency, as determined by the Contracting Agency responsible for administering the Public Improvement Contract; and

(b) For a Public Improvement Contract with an advertisement date before January 1, 2029, Non-Road Diesel Equipment owned and operated by a Certified Firm. For a Public Improvement Contract with an advertisement date before January 1, 2029, Non-Road Diesel Equipment that is owned and operated by a Certified Firm, and is otherwise compliant with the requirements of section (3) of this rule, may be counted as compliant Non-Road Diesel Equipment for purposes of the calculation under section (5)(a).

(5) To verify compliance with section (3) of this rule, Contractor must submit all required and necessary data to the Contracting Agency, according to the specifications of the Public Improvement Contract.

(a) Compliance with section (3) of this rule will be determined by the following calculation:

(A) Total pieces of Non-Road Diesel Equipment used on the Project Site =_______

(B) Multiply the answer to (5)(a)(A) by the required percentage under section (3) of this rule (round to the nearest whole number) =_______

(C) Total pieces of Non-Road Diesel Equipment that qualify for an exemption under sections (4)(a) and (4)(b) of this rule =_______

(D) Subtract the number under section (5)(a)(C) from the number under (5)(a)(B) =_______

(E) Total pieces of Non-Road Diesel Equipment used on the Project Site that must meet or exceed United States Environmental Protection Agency Tier 4 Exhaust Emission Standards for non-road compression ignition diesel engines; or if not equipped with a Tier 4 compression ignition diesel engine, be retrofit with a Verified Diesel Oxidation Catalyst or Verified Diesel Particulate Filter (equal to (5)(a)(D)) =_______

(6) For a Public Improvement Contract where the majority of the Project Site is located within Clackamas, Multnomah, or Washington County, the Public Improvement Contract is subject to the following requirements:

(a) For a Public Improvement Contract with a Solicitation Document advertisement date on or after January 1, 2022 but before January 1, 2025, when the Public Improvement Contract will have an awarded Contract Amount of $20 million or more, 50 percent of the total on-road concrete mixer trucks and on-road dump trucks, powered by a compression ignition diesel engine, used on the Project Site during the performance of the Public Improvement Contract must be powered by a model year 2010 or newer engine;

(b) For a Public Improvement Contract with a Solicitation Document advertisement date on or after January 1, 2025 but before January 1, 2029, when the Public Improvement Contract will have an awarded Contract Amount of $15 million or more, 75 percent of the total on-road concrete mixer trucks and on-road dump trucks, powered by a compression ignition diesel engine, used on the Project Site during the performance of the Public Improvement Contract must be powered by a model year 2010 or newer engine;

(c) For a Public Improvement Contract with a Solicitation Document advertisement date on or after January 1, 2029, when the Public Improvement Contract will have an awarded Contract Amount of $10 million or more, 100 percent of the total concrete mixer trucks and dump trucks, powered by compression ignition diesel engines, used on the Project Site during the performance of the Public Improvement Contract must be powered by a model year 2010 or newer engine.

(7) The requirements of section (6) of this rule apply to on-road concrete mixer trucks and on-road dump trucks powered by compression ignition diesel engines owned or operated by Contractors, subcontractors, and those operated under trucking services agreements.

(8) The requirements of section (6) of this rule do not apply to the following:

(a) Concrete mixer trucks or dump trucks powered by compression ignition diesel engines owned and operated by a Certified Firm providing Work under a Public Improvement Contract with a Solicitation Document advertisement date before January 1, 2029; and

(b) Concrete mixer trucks or dump trucks powered by compression ignition diesel engines owned and operated by suppliers or vendors delivering materials to a Project Site under a Public Improvement Contract, that are not operated under a trucking services agreement or subcontract.

(9) For purposes of this rule, a Contract does not become a Public Improvement Contract until construction work is described, specified, authorized and agreed upon by the parties to the Contract. A Contract that has not yet become a Public Improvement Contract includes, but is not limited to, a Contract for Construction Manager/General Contractor Services which only include preconstruction services to be provided by the Contractor, or a progressive design-build Contract that only includes preliminary design services to be provided by the Contractor.

(10) The Contracting Agency may at any time suspend, extend, or otherwise modify the timeline provide in section (4)(b) and (8)(a) of this rule related to exemptions provided to Certified Firms, if the Contracting Agency finds that market conditions, or other factors, exist that would render the expiration of the exemption unreasonable, or would inflict undue burden on Certified Firms.

History

Statutory/Other Authority: ORS 184.619 & ORS 279C
Statutes/Other Implemented: ORS 279C
DOT 4-2022, minor correction filed 03/08/2022, effective 03/08/2022
DOT 2-2022, adopt filed 01/25/2022, effective 01/25/2022