Selection of Professional Services Must Be Based on Qualifications – Effective Now

On an ordinary June day (which means it was probably cool and rainy), Governor Kitzhaber signed House Bill (HB) 3316 - a bill that quietly became law and will likely generate a lot of discussion among local government contracting agencies. HB 3116 significantly amends Oregon’s Public Contracting Code as it relates to procurement procedures for construction-related professional services.  HB 3116 expands the definition of professional services under 279C.100 to include not only “architectural engineering, land surveying and related services,” but also now includes “photographic mapping [and] transportation planning” services.

Most significantly, HB 3116 requires public contracting agencies to use qualification-based procedures in selecting a consultant to provide such professional services, except for projects where the costs of consulting services do not exceed $100,000.  What this means is that the procedures used by the contracting agency in its initial selection of a consultant must be based on the consultant’s qualifications only – costs or other factors may not be considered.  If the contracting agency determines that two or more consultants are equally qualified, the contracting agency may use any process to select a candidate “that is not based on the candidate’s pricing policies, proposals or other pricing information.”

Once a consultant is deemed qualified, the contracting agency may then negotiate compensation, conditions and a performance schedule with the consultant.  If an agreement cannot be reached, the contracting agency may formally terminate negotiations with the selected consultant and begin negotiations with the second most qualified consultant.

The bill had an emergency clause attached to it, which permits a bill to take effect when the Governor signs it into law.  The bill was signed June 21, 2011 and applies to all contracts that were advertised or otherwise solicited on or after that date.