(1) Generally. If all responsive bids from responsible bidders on a competitively bid project exceed the department's cost estimate, prior to contract award the department may negotiate value engineering and other options with the responsible bidder submitting the lowest, responsive bid in an attempt to bring the project within the department's cost estimate.
- (a) Scope of Negotiations. Contracting agencies shall not proceed with contract award if the scope of the project is significantly changed from the original bid. The scope is considered to have been significantly changed if the pool of competition would likely have been affected by the change; that is, if other bidders would have been expected by the department to participate in the bidding process had the change been made during the solicitation process rather than during negotiation. This rule shall not be construed to prohibit resolicitation of trade subcontracts.
- (b) Discontinuing Negotiations. The department may discontinue negotiations at any time, and shall do so if it appears to the department that the apparent low bidder is not negotiating in good faith or fails to share cost and pricing information upon request. Failure to rebid any portion of the project, or to obtain subcontractor pricing information upon request, shall be considered a lack of good faith.
- (c) Limitation. Negotiations may be undertaken only with the lowest responsive, responsible bidder.
- (d) Public Records. To the extent that a bidder's records used in contract negotiations are public records, they are exempt from disclosure until after the negotiated contract has been awarded or the negotiation process has been terminated, at which time they are subject to disclosure pursuant to the provisions of the Oregon Public Records Law, ORS 192.311 through 192.478.
- (2) Following Award, the department may negotiate any contract terms or conditions with the Contractor if the department determines that negotiation is in the department’s best interests.
Statutory/Other Authority
ORS 279.025(3)(k)
Statutes/Other Implemented
ORS 279.025(3)(k)
History
PRD 2-2026, temporary adopt filed 04/23/2026, effective 04/24/2026 through 10/19/2026