UPDATE: OCTOBER 2019
This Qualifications-Based Selection (QBS) webpage has been updated following the passage of HB 2769 in the 2019 legislative session and the rulemaking process which is currently ongoing.
The final rules are expected to be in place by mid-December and it's also expected they will take effect on procurements of design services beginning January 1, 2020. ACEC Oregon will have member firms representing our interests on the Rules Advisory Committee through the Oregon Department of Justice.
HB 2769 will maintain the current QBS process for all state agencies but allow local governments two options for A-E procurement. The first will be the same QBS process in current law since 2012 but a second option will be available which will allow some pricing information, but not more than 15 percent of the weight in the evaluation to each prospective consultant’s price proposal, from the top three most qualified respondents.
Section 5 of the bill is bolded below; the bill can be viewed in it's entirety here: https://olis.leg.state.or.us/liz/2019R1/Downloads/MeasureDocument/HB2769/Enrolled
HB 2769 section (5) is the main section of the bill that outlines the new second option for local governments to consider:
(5) Notwithstanding the requirement in subsection (1) of this section that a contracting agency may not solicit or use pricing policies, proposals or other pricing information until after the contracting agency has selected a consultant, a local contracting agency may use pricing policies, proposals or other pricing information as part of the local contracting agency’s screening and selection of prospective consultants if the local contracting agency:
(a) States in solicitation documents for the procurement:
(A) That the local contracting agency will screen and select prospective consultants as provided in this subsection;
(B) How the local contracting agency will rank proposals from prospective consultants, with a specific focus on:
(i) Which factors the local contracting agency will consider in evaluating proposals, including pricing policies, proposals or other pricing information, if the local contracting agency will use pricing policies, proposals or other pricing information in the evaluation; and
(ii) The relative weight the local contracting agency will give each factor, disclosing at a minimum the number of available points for each factor, the percentage each factor comprises in the total evaluation score and any other weighting criteria the local contracting agency intends to use;
(C) An estimate of the cost of professional services the local contracting agency requires for the procurement; and
(D) A scope of work that is sufficiently detailed to enable a prospective consultant to prepare a responsive proposal.
(b) Evaluates each prospective consultant on the basis of the prospective consultant’s qualifications to perform the professional services the local contracting agency requires for the procurement. The local contracting agency may use the criteria set forth in subsection (3) of this section to conduct the evaluation.
(c) Announces the evaluation scores and rank for each prospective consultant after completing the evaluation described in paragraph (b) of this subsection. The local contracting agency may determine that as many as three of the top-ranked prospective consultants are qualified to perform the professional services the local contracting agency requires for the procurement and may request a pricing proposal for the scope of work stated in paragraph (a)(D) of this subsection from each of the top-ranked consultants. The pricing proposal:
(A) Must consist of:
(i) A schedule of hourly rates that the prospective consultant will charge for the work of each individual or each labor classification that will perform the professional services the local contracting agency requires for the procurement, in the form of an offer that is irrevocable for not less than 90 days after the date of the proposal; and
(ii) A reasonable estimate of hours that the prospective consultant will require to perform the professional services the local contracting agency requires for the procurement; and
(B) May include, at the local contracting agency’s request, additional pricing information that is limited to:
(i) A description of each task that the prospective consultant understands as comprising the professional services;
(ii) A list of each individual or labor classification that will perform each task, together with the hourly rate that applies to the individual or labor classification; and
(iii) A list of expenses, including travel expenses, that the prospective consultant expects to incur in connection with providing the professional services.
(d) Permits a prospective consultant identified as qualified under paragraph (c) of this subsection to withdraw from consideration for the procurement if the prospective consultant does not wish to provide a price proposal.
(e) Completes the evaluation and selects a consultant from among the top-ranked prospective consultants that have not withdrawn as provided under paragraph (d) of this subsection, giving not more than 15 percent of the weight in the evaluation to each prospective consultant’s price proposal.
(6) The contracting agency and the consultant that the contracting agency selects shall mutually discuss, refine and finalize the scope of, the rates and number of hours applicable to, and the maximum compensation level for the professional services and shall negotiate conditions including, but not limited to, a performance schedule for the project. The contracting agency may not pay a compensation level that exceeds a level that the contracting agency alone determines is fair and reasonable to the contracting agency. Authority to negotiate a contract under this section does not supersede any provision of ORS 279A.140 or 279C.520.
This bill is the result of a workgroup convened following a very contentious February 2018 session. ACEC, AIA, PLSO and others worked closely with local governments and a few legislators to reach this compromise bill. The bill allows local governments to choose between a continuation of the current QBS law or to add in a pricing component after the top three firms have been selected. This could be a significant change and the implications will only be fully understood after it takes effect on January 1, 2020. A commitment from all sides of the issue to continue to work together to implement the new law in a manner that is consistent with best practices and to help local governments fully understand the best way to procure design services for their particular project. To this end there have been initial discussions of templates, educational opportunities and implementation between all parties. Recently, Tina Adams with Casso Consulting presented at the League of Oregon Cities annual meeting in Bend.
ACEC Oregon expects a number of questions from our members as well as the need to closely monitor new procurements in 2020 from local governments. This site will be the place to get updated information to share with your staff as well with your local government clients.
On January 1, 2012, HB 3316 became effective and requires Qualifications-Based Selection (QBS) for the procurement of engineers, architects, land surveyors, photogrammetrists, and transportation planners. This was significant as the bill removed previous thresholds and added local governments into the requirement to use QBS.
For projects with estimated design fees above $100,000 QBS will be required and this is clearly outlined in the links to the law and rules listed below. For projects below $100,000 in estimated design fees state and local governments may choose between a QBS process, a direct appointment process or they may use a hybrid process that includes fees. The language in HB 3316 was clearly intended to prohibit the use of fees in procurement but the intent was amended during rulemaking by the Department of Justice.
ACEC is working to educate state and local agencies that QBS or direct appointment are much better procurement methodologies than fee bidding. While most local governments are using QBS or direct appointment for projects under $100,000 in fees, there are still outliers who continue to bid design services. When these projects are identified ACEC and AIA have been active in contacting the agency to discuss the preferred and proven procurement methodologies and have had good success in getting them to amend the procurement and move away from bidding under $100,000.
LEARN MORE ABOUT QBS:
- Oregon Secretary of State, Department of Justice,
Administrative Rules, Chapter 137:
Division 48 - Model Rules, Consultant Selection:
Architectural, Engineering and Land Surveying Services and
Related Services Contracts
(Scroll down and click on Division 48)
OTHER RESOURCES & ADDITIONAL INFORMATION:
- QBS Flow chart
- APWA Red Book on Qualifications-Based Selection: Guidelines for Public Agencies (click here for Red Book order form)
- ACEC National Qualifications-Based Selection Resource Center
- An Analysis of Issues Pertaining to Qualifications-Based Selection, a national study developed at the request of ACEC in collaboration with the American Public Works Association (APWA). (52-page report in PDF)
QBS is endorsed by: