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DEPARTMENT OF ADMINISTRATIVE SERVICES

 
























DIVISION 246
GENERAL PROVISIONS FOR PUBLIC
CONTRACTING
General Provisions
 























125-246-0100
Application;
Commentary; Federal Law Prevails
(1) These Rules of the Department of
Administrative Services (Department) are policy and procedure for the Public Contracting
of Agencies subject to these Rules and all state agencies that are subject to the
DAS rules adopted under ORS 279A.140(2)(h) to regulate personal services contracts
(see OAR 125-246-0335 through 125-246-0353). According to ORS 279A.065(5), the Department
adopts these Rules, including but not limited to selected and adapted Public Contract
Model Rules. Except for those Public Contract Model Rules expressly adopted by the
Department in OAR 125-246-0100, 125-247-0100, 125-248-0100 and 125-249-0100, the
Public Contract Model Rules adopted by the Attorney General do not apply to the
Department or the Agencies. These Department Public Contracting Rules implement
the Oregon Public Contracting Code and consist of the following four Divisions:
(a) Division 246, which applies
to all Public Contracting;
(b) Division 247, which applies
only to Public Contracting for Supplies and Services, and not to construction services
or Architectural, Engineering, Photogrammetric Mapping, Transportation Planning
or Land Surveying Services, or Related Services;
(c) Division 248, which applies
only to Public Contracting for Architectural, Engineering, Photogrammetric Mapping,
Transportation Planning or Land Surveying Services and Related Services; and
(d) Division 249, which applies
only to Public Contracting for construction services.
(2) If a conflict arises
between these division 246 rules and rules in division 247, 248 or 249, the rules
in divisions 247, 248 or 249 take precedence over these division 246 rules.
(3) Commentary on these Rules
may be published by the Department to assist the Agencies by providing: examples,
options, references, background, and other commentary. The Department's commentary
is not a Rule or interpretation of any Rule and has no legally-binding effect.
(4) Federal statutes and
regulations prevail and govern, except as otherwise expressly provided in ORS 279C.800
through 279C.870 (Prevailing Wage Rate) and despite other provisions of the Public
Contracting Code, under the following conditions:
(a) Federal funds are involved;
and
(b) The federal statutes
or regulations either:
(A) Conflict with any provision
of ORS Chapters 279A, 279B, or 279C.005 through 279C.670; or
(B) Require additional conditions
in Public Contracts not authorized by ORS Chapters 279A, 279B, or ORS 279C.005 through
279C.670.
(5) Adaptation of Model Rules
for Agency Use. The following words found in those Model Rules expressly adopted
by the Department are replaced by the words as defined in OAR 125-246-0110:
(a) “Contracting agency(ies)”
is replaced by “Authorized Agency(ies).”
(b) “Goods or services”
is replaced by “Supplies and Services.”
(c) “Agreements to
agree” and “price agreement” are replaced by “Price Agreement.”
(6) Capitalization of Defined
Terms. Uncapitalized terms in those Model Rules expressly adopted by the Department
have the same meaning as the same terms that are capitalized and defined in OAR
125-246-0110.
(7) Department Policy. Agencies
must comply with Department policies, if applicable.
(8) For purposes of these
Division 246 Rules, the Department adopts the following Model Public Contract Rules:
OAR 137-046-0300, 137-046-0330, 137-046-0400, 137-046-0410, 137-046-0420, 137-046-0430,
137-046-0440, 137-046-0450, 137-046-0460, 137-046-0470, 137-046-0480.
Stat. Auth.: ORS 279A.065(5)(a) &
279A.070
Stats. Implemented: ORS 279A.020,
279A.030 & 279A.065
Hist.: DAS 4-2004, f. 11-23-04,
cert. ef. 3-1-05; DAS 4-2005, f. 4-13-05, cert. ef. 6-6-05; DAS 7-2005, f. &
cert. ef. 6-6-05; DAS 9-2005, f. & cert. ef. 8-3-05; DAS 5-2006, f. & cert.
ef. 5-31-06; DAS 6-2008, f. & cert. ef. 7-2-08; DAS 3-2011, f. 12-22-11, cert.
ef. 1-1-12; DAS 3-2012, f. 11-29-12, cert. ef. 12-1-12; DAS 4-2013, f. 12-17-13,
cert. ef. 1-1-14
125-246-0110
Definitions
The following terms are a compilation
of definitions, including those found in the Public Contracting Code, in other statutes
referenced by the Public Contracting Code, and elsewhere in these Rules. Partial
definitions of the Public Contracting Code are for the use of the Agencies only.
The following terms, when capitalized in these Rules, have the meaning given below:
(1) "Addendum" or "Addenda"
means an addition to, deletion from, a material change in, or general interest explanation
of a Solicitation Document.
(2) "Adequate" is defined
in ORS 279C.305 and means sufficient to control the performance of the Work and
to ensure satisfactory quality of construction by the contracting agency personnel.
(3) "Advantageous" means
a judgmental assessment by the Agency of the Agency's best interests.
(4) "Advocate for Minority,
Women and Emerging Small Business", (also known as the Director of Economic &
Business Equity), means the individual appointed by the Governor to advise the Governor,
Legislature and Director's Office on issues related to the integration of minority,
women and emerging small business into the mainstream of the Oregon economy and
business sector. The Advocate oversees the resolution of business concerns with
Agencies impacting certified disadvantaged, minority, women and emerging small businesses
(DMWESB). The Advocate is also charged with maintaining the Oregon Opportunity Register
and Clearinghouse to facilitate the timely notice of business and contract opportunities
to DMWESB firms certified by the Office of Minority, Women and Emerging Small Businesses,
(also known as the Office of Economic & Business Equity), according to ORS 200.025.
(5) An “Administrator”
or "Administering Contracting Agency" is defined in OAR 125-246-0400.
(6) "Affected Person" or
"Affected Offeror" means a Person whose ability to participate in a Procurement
is adversely affected by an Agency decision.
(7) "Affirmative Action"
is defined in ORS 279A.100 and means a program designed to ensure equal opportunity
in employment and business for persons otherwise disadvantaged by reason of race,
color, religion, sex, national origin, age or physical or mental disability.
(8) "Agency" means those
agencies of the State of Oregon that are subject to the procurement authority of
the Director of the Department according to ORS 279A.050 and 279A.140. This term
includes the Department when the Department is engaged in Public Contracting. Under
these Rules, an Agency is authorized only through a delegation of authority according
to OAR 125-246-0170.
(9) “Agreement to Agree”
means a Price Agreement as defined in Subsection (109).
(10) “Amendment”
means a Written modification to the terms and conditions of a Public Contract, other
than Changes to the Work as defined in OAR 125-249-0910, that meets the requirements
of OAR 125-247-0805, 125-248-0340, 125-249-0160, and 125-249-0910. For the purposes
of these Rules, Amendments are included within the definitions of “Procurements”
and “Contract Administration.”
(11) "Architect" is defined
in ORS 279C.100 and means a person who is registered and holds a valid certificate
in the practice of architecture in the State of Oregon, as provided under ORS 671.010
to 671.220, and includes without limitation the terms "architect," "licensed architect"
and "registered architect.
(12) "Architectural, Engineering,
Photogrammetric Mapping, Transportation Planning or Land Surveying Services" is
defined in ORS 279C.100(2).
(13) "As-Is, Where-Is" applies
to the sale of Goods and means that the Goods are of the kind, quality, and locale
represented, even though they may be in a damaged condition. It implies that the
buyer takes the entire risk as to the quality of the Goods involved, based upon
the buyer's own inspection. Implied and express warranties are excluded in sales
of Goods "As-Is, Where-Is."
(14) "Authorized Agency”
means any Person authorized according to OAR 125-246-0170 to conduct a Procurement
or take other actions on an Agency’s behalf. This term, including its use
in the Rules, does not convey authority to an Agency. For the authority of Agencies
under the Code and these Rules, see 125-246-0170 only.
(15) "Award" means the Agency's
identification of the Person(s) with whom the Agency intends to enter into a Contract.
(16) "Bid" means a Written
response to an Invitation to Bid.
(17) "Bidder" means a Person
who submits a Bid in response to an Invitation to Bid.
(18) "Brand Name or Equal
Specification" is defined in ORS 279B.200(1) and means a Specification that uses
one or more manufacturers' names, makes, catalog numbers or similar identifying
characteristics to describe the standard of quality, performance, functionality
or other characteristics needed to meet the Agency's requirements and that authorizes
Offerors to offer Supplies and Services that are equivalent or superior to those
named or described in the Specification.
(19) "Brand Name Specification"
is defined in ORS 279B.200(2) and means a Specification limited to one or more products,
brand names, makes, manufacturer's names, catalog numbers or similar identifying
characteristics.
(20) “Business Day”
means 8:00 a.m. to 5:00 p.m., Pacific time, Monday through Friday, excluding State
of Oregon holidays.
(21) "Chief Procurement Officer"
means the individual designated and authorized by the Director of the Department
to perform certain procurement functions described in these Rules, or the Chief
Procurement Officer’s delegate.
(22) "Class Special Procurement"
is defined in ORS 279B.085 and means a contracting procedure that differs from the
procedures described in ORS 279B.055, 279B.060, 279B.065 and 279B.070 and is for
the purpose of entering into a series of Contracts over time for the acquisition
of a specified class of Goods or Services.
(23) "Client" means any individual,
family or Provider:
(a) For whom an Agency must
provide Services and incidental or specialized Goods, in any combination thereof
(“Services and Incidental Supplies”), according to state, federal law,
rule, and policy. Those Services and Incidental Supplies include but are not limited
to treatment, care, protection, and support without regard to the proximity of the
services being provided;
(b) Who in fact receives
and utilizes services provided by an Agency primarily for that individual's or family's
benefit;
(c) Who is under the custody,
care, or both of the Agency; or
(d) Who provides direct care
or Services and is a proxy or representative of the non-Provider Client.
(24) "Client Services" means
any Services that directly or primarily support a Client, whether the Client is
the recipient through the provision of voluntary or mandatory Services. Client Services
also means any Goods that are incidental or specialized in relation to any Services
defined in this Subsection. Client Services may include but are not limited to (where
these terms are used in another statute, they must have that meaning):
(a) Housing, including utilities,
rent or mortgage or assistance to pay rent, mortgage or utilities;
(b) Sustenance, including
clothing;
(c) Employment training or
Skills training to improve employability;
(d) Services for people with
disabilities;
(e) Foster care or foster
care facilities;
(f) Residential care or residential
care facilities;
(g) Community housing;
(h) In-home care including
home delivered meals;
(i) Medical care, services
and treatment, including but not limited to:
(A) Medical, Dental, Hospital,
Psychological, Psychiatric, Therapy, Vision;
(B) Alcohol and drug treatment;
(C) Smoking cessation;
(D) Drugs, prescriptions
and non-prescription;
(E) Nursing services and
facilities;
(j) Transportation or relocation;
(k) Quality of life, living
skills training; or
(l) Personal care; or
(m) Legal services and expert
witnesses services;
(n) Religious practices,
traditions and services, separately or in any combination thereof; and
(o) Educational services.
The term "Client Services" does not include benefits or services provided as a condition
of employment with an Agency.
(25) "Closing" means the
date and time specified in a Solicitation Document as the deadline for submitting
Offers.
(26) "Code" is the "Public
Contracting Code," defined in ORS 279A.010(1)(bb), and “Code” means
ORS Chapters 279A, 279B and 279C.
(27) “Competitive Quotes”
means the sourcing method according to OAR 125-249-0160.
(28) "Competitive Range"
means the Proposers with whom the Agency will conduct Discussions or Negotiations
if the Agency intends to conduct Discussions or Negotiations in accordance with
OAR 125-247-0260 or 125-249-0650.
(29) "Competitive Sealed
Bidding" means the sourcing method according to ORS 279B.055.
(30) "Competitive Sealed
Proposals" means the sourcing method according to ORS 279B.060.
(31) "Consultant" means the
Person with whom an Agency enters into a Contract for the purposes of consulting,
conferring, or deliberating on one or more subjects, and this Person provides advice
or opinion; e.g., Consultants for Architectural, Engineering, Photogrammetric Mapping,
Transportation Planning or Land Surveying Services, and Related Services as defined
in ORS 279C.115 and information technology Consultants.
(32) "Contract" means an
agreement between two or more Persons which creates an obligation to do or not to
do a particular thing. Its essentials are competent parties, subject matter, a
legal consideration, mutuality of agreement, and mutuality of obligation. For the
purposes of these Rules, “Contract” means Public Contract.
(33) "Contract Administration"
means all functions related to a given Contract, including Amendments, between an
Agency and a Contractor from:
(a) The time the Contract
is signed by all parties until;
(b) The Work is completed
and accepted or the Contract is terminated, final payment has been made, and any
disputes have been resolved.
(34) “Contract Administrator”
means the officer, employee, or other individual designated in Writing by an Authorized
Agency, by name or position description, to conduct the Contract Administration
of a Contract or class of Contracts.
(35) "Contractor" means the
Person with whom an Agency enters into a Contract and has the same meaning as "Consultant"
or “Provider."
(36) "Contract Price" means,
as the context requires, the maximum monetary obligation that an Agency either will
or may incur under a Contract, including bonuses, incentives and contingency amounts,
if the Contractor fully performs under the Contract.
(37) "Contract Review Authority"
means the Director of the Department and the Director's delegatee, unless specified
by statute as the Director of the Oregon Department of Transportation.
(38) "Contract-Specific Special
Procurement" is defined in ORS 279B.085 and means a contracting procedure that differs
from the procedures described in ORS 279B.055, 279B.060, 279B.065 and 279B.070 and
is for the purpose of entering into a single Contract or a number of related Contracts
for the acquisition of specified Supplies and Services on a one-time basis or for
a single project.
(39) “Contracting Agency.”
(a) “Contracting Agency”
is defined in ORS 279A.010(1)(b) and, for Agencies operating under these Rules and
the Code, means the Director of the Oregon Department of Administrative Services,
authorized to act on their behalf according to ORS 279A.140.
(b) The definition of “Contracting
Agency” in ORS 279A.010(1)(b) does not give Agencies procurement authority.
For procurement authority of Agencies, see OAR 125-246-0170.
(40) "Cooperative Procurement"
is defined in OAR 125-246-0400.
(41) "Cooperative Procurement
Group" is defined in OAR 125-246-0400.
(42) "Days" means calendar
days.
(43) "Department" means the
Oregon Department of Administrative Services. The procurement authority of the
Department is described in OAR 125-246-0170. When a Rule refers to any action of
the Department, any individual acting on behalf of the Department must be authorized
to take such action in accordance with OAR 125-246-0170.
(44) "Department Price Agreement"
means a Price Agreement issued by the Department on behalf of all Agencies. Such
Agreements may be mandatory for use by Agencies or voluntary for use by Agencies.
Such Agreements may result from a Cooperative Procurement. According to OAR 125-246-0360
(Purchases through Federal Programs), an Authorized Agency may not purchase Supplies
and Services through Federal Programs if a mandatory Department Price Agreement
for those authorized Supplies and Services exists.
(45) "Designated Procurement
Officer" means the individual designated and authorized by the head of an Authorized
Agency to perform certain Procurement functions described in these Rules. If any
head of an Authorized Agency does not designate and authorize an individual as a
Designated Procurement Officer, "Designated Procurement Officer" also means that
head of the Authorized Agency, who then acts in the place of the Designated Procurement
Officer.
(46) "Descriptive Literature"
means Written information submitted with the Offer that addresses the Supplies and
Services included in the Offer.
(47) "Director” is
defined in ORS 279A.010(1)(e) and means the Director of the Department or a person
designated by the Director to carry out the authority of the Director under the
Public Contracting Code and these Rules.
(48) "Discussions" means
to exchange information, compare views, take counsel, and communicate with another
for the purposes of achieving clarification and mutual understanding of an Offer.
(49) "Disqualification" means
a disqualification, suspension or debarment of a Person according to ORS 200.065,
200.075, and 279A.110 and OAR 125-246-0210(4).
(50) "Donee" is defined in
ORS 279A.250(1) and means an entity eligible to acquire federal donation property
based upon federal regulations or eligible to acquire Surplus Property in accordance
with rules adopted by the Department. Entities eligible to acquire federal donation
property may also acquire Surplus Property other than federal donation property.
(51) "Electronic Advertisement"
means an Agency's Solicitation Document, Request for Quotes, request for information
or other document inviting participation in the Agency's Procurements made available
over the Internet via:
(a) The World Wide Web;
(b) ORPIN; or
(c) An Electronic Procurement
System other than ORPIN approved by the Chief Procurement Officer. An Electronic
Advertisement may or may not include a Solicitation Document.
(52) "Electronic Offer" means
a response to an Agency's Solicitation Document or request for Quotes submitted
to an Agency via
(a) The World Wide Web or
some other Internet protocol; or
(b) ORPIN.
(53) "Electronic Procurement
System" means ORPIN or other system approved by the Chief Procurement Officer, constituting
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 an Agency
to post Electronic Advertisements, receive Electronic Offers, and conduct any activities
related to a Procurement.
(54) "Electronic Goods" means
Goods which are dependent on electric currents or electromagnetic fields in order
to Work properly and Goods for the generation, transfer and measurement of such
currents and fields.
(55) "Emergency" means circumstances
that:
(a) Could not have been reasonably
foreseen;
(b) Create a substantial
risk of loss, damage or interruption of services or a substantial threat to property,
public health, welfare or safety; and
(c) Require prompt execution
of a Contract to remedy the condition. An "Emergency Procurement" means a sourcing
method according to ORS 279B.080, 279C.335(5), 125-248-0200, or related Rules.
(56) "Energy Savings Performance
Contract" means a Public Contract between an Agency and a qualified energy service
company for the identification, evaluation, recommendation, design and construction
of energy conservation measures, including a design-build contract, that guarantee
energy savings or performance.
(57) "Engineer" is defined
in ORS 279C.100 and means a Person who is registered and holds a valid certificate
in the practice of engineering in the State of Oregon, as provided under ORS 672.002
to 672.325, and includes all terms listed in ORS 672.002(2).
(58) "Established Catalog
Price" means the price included in a catalog, price list, schedule or other form
that:
(a) Is regularly maintained
by a manufacturer or Contractor;
(b) Is either published or
otherwise available for inspection by customers; and
(c) States prices at which
sales are currently or were last made to a significant number of any category of
buyers or to buyers constituting the general market, including public bodies, for
the Supplies and Services involved.
(59) "Executive Department"
is defined in ORS 174.112.
(a) Subject to ORS 174.108,
“Executive Department” means: all statewide elected officers other than
judges, and all boards, commissions, departments, divisions and other entities,
without regard to the designation given to those entities, that are within the Executive
Department of government as described in Section 1, Article III of the Oregon Constitution,
and that are not:
(A) In the judicial department
or the legislative department;
(B) Local governments; or
(C) Special government bodies.
(b) Subject to ORS 174.108,
as used in the statutes of this State, “Executive Department” includes:
(A) An entity created by
statute for the purpose of giving advice only to the Executive Department and that
does not have members who are officers or employees of the judicial department or
Legislative Department;
(B) An entity created by
the Executive Department for the purpose of giving advice to the Executive Department,
if the document creating the entity indicates that the entity is a public body;
and
(C) Any entity created by
the Executive Department other than an entity described in Subsection (B), unless
the document creating the entity indicates that the entity is not a governmental
entity or the entity is not subject to any substantial control by the Executive
Department.
(60) "Findings" is defined
in ORS 279C.330 and means the justification for an Agency's conclusion that includes,
but is not limited to, information regarding:
(a) Operational, budget and
financial data;
(b) Public benefits;
(c) Value engineering;
(d) Specialized expertise
required;
(e) Public safety;
(f) Market conditions;
(g) Technical complexity;
and
(h) Funding sources.
(61) "Fire Protection Equipment"
is defined in ORS 476.005 and means any apparatus, machinery or appliance intended
for use by a fire service unit in fire prevention or suppression activities, excepting
forest fire protection equipment.
(62) "Flagger" means a person
who controls the movement of vehicular traffic through construction projects using
sign, hand or flag signals.
(63) “Formal Selection
Procedure” means the procedure according to OAR 125-248-0220.
(64) "Fringe Benefits" is
defined in ORS 279C.800 and means the amount of:
(a) The rate of contribution
irrevocably made by a Contractor or subcontractor to a trustee or to a third person
under a plan, fund or program; and
(b) The rate of costs to
the Contractor or subcontractor that may be reasonably anticipated in providing
benefits to Workers according to an enforceable commitment to carry out a financially
responsible plan or program that is committed in Writing to the Workers affected,
for medical or hospital care, pensions on retirement or death, compensation for
injuries or illness resulting from occupational activity, or insurance to provide
any of the foregoing, for unemployment benefits, life insurance, disability and
sickness insurance or accident insurance, for vacation and holiday pay, for defraying
costs of apprenticeship or other similar programs or for other bona fide fringe
benefits, but only when the Contractor or subcontractor is not required by other
federal, state or local law to provide any of these benefits.
(65) "Good Cause" is defined
in ORS 279C.585, and the Oregon Construction Contractors Board must define "Good
Cause" by rule. "Good Cause" includes, but is not limited to, the financial instability
of a subcontractor. The definition of "Good Cause" must reflect the least-cost policy
for Public Improvements established in 279C.305. This definition does not apply
to OAR 125-247-0255 and 125-247-0260.
(66) "Good Faith Dispute"
is defined in ORS 279C.580(5)(b) and means a documented dispute concerning:
(a) Unsatisfactory job progress;
(b) Defective work not remedied;
(c) Third-party claims filed
or reasonable evidence that claims will be filed;
(d) Failure to make timely
payments for labor, equipment and materials;
(e) Damage to the prime Contractor
or subcontractor; or
(f) Reasonable evidence that
the subcontract cannot be completed for the unpaid balance of the subcontract sum.
(67) "Goods" means supplies,
equipment, or materials, and any personal property, including any tangible, intangible
and intellectual property and rights and licenses in relation thereto, that an Agency
is authorized by law to procure.
(68) "Goods and Services"
or "Goods or Services" is defined in ORS 279A.010 and for purposes of these Rules
falls within the meaning of "Supplies and Services" (see the definition of “Supplies
and Services” in this Rule). “Goods and Services” or “Goods
or Services” does not include Personal Services. “Supplies and Services”
includes Personal Services.
(69) "Grant" is defined in
ORS 279A.010(1)(k)(A) and means:
(a) An agreement under which
an Agency receives money, property or other assistance, including but not limited
to federal assistance that is characterized as a Grant by federal law or regulations,
loans, loan guarantees, credit enhancements, gifts, bequests, commodities or other
assets, from a grantor for the purpose of supporting or stimulating a program or
activity of the Agency and in which no substantial involvement by the grantor is
anticipated in the program or activity other than involvement associated with monitoring
compliance with the Grant conditions; or
(b) An agreement under which
an Agency provides money, property or other assistance, including but not limited
to federal assistance that is characterized as a grant by federal law or regulations,
loans, loan guarantees, credit enhancements, gifts, bequests, commodities or other
assets, to a recipient for the purpose of supporting or stimulating a program or
activity of the recipient and in which no substantial involvement by the Agency
is anticipated in the program or activity other than involvement associated with
monitoring compliance with the grant conditions.
(c) "Grant" does not include
a Public Contract:
(A) For a Public Improvement
for Public Works, as defined in ORS 279C.800; or
(B) For emergency Work, minor
alterations or ordinary repair or maintenance necessary to preserve a Public Improvement,
when under the Public Contract:
(i) An Agency pays moneys
that the Agency has received under a Grant; and
(ii) Such payment is made
in consideration for Contract performance intended to realize or to support the
realization of the purposes for which Grant funds were provided to the Agency.
(70) "Industrial Oil" means
any compressor, turbine or bearing oil, hydraulic oil, metal-working oil or refrigeration
oil.
(71) “Informal Selection”
means the procedure according to OAR 125-248-0210.
(72) "Intermediate Procurement"
means a sourcing method according to ORS 279B.070 or OAR 125-249-0160.
(73) "Interstate Cooperative
Procurement" is defined in OAR 125-246-0400.
(74) "Invitation to Bid"
or "ITB" is defined in ORS 279B.005 and 279C.400 and means all documents, whether
attached or incorporated by reference, used for soliciting Bids in accordance with
279B.055, 279B.070 or 279C.335.
(75) "Joint Cooperative Procurement"
is defined in OAR 125-246-0400.
(76) "Judicial Department"
is defined in ORS 174.113 and means the Supreme Court, the Court of Appeals, the
Oregon Tax Court, the circuit courts and all administrative divisions of those courts,
whether denominated as boards, commissions, committees or departments or by any
other designation. The Judicial Department includes:
(a) An entity created by
statute for the purpose of giving advice only to the Judicial Department and that
does not have members who are officers or employees of the Executive Department
or Legislative Department;
(b) An entity created by
the Judicial Department for the purpose of giving advice to the judicial department,
if the document creating the entity indicates that the entity is a public body;
and
(c) Any entity created by
the Judicial Department other than an entity described in paragraph (b) of this
Subsection, unless the document creating the entity indicates that the entity is
not a governmental entity or the entity is not subject to any substantial control
by the Judicial Department.
(77) "Labor Dispute" is defined
in ORS 662.010 and includes any controversy concerning terms or conditions of employment,
or concerning the association or representation of Persons in negotiating, fixing,
maintaining, changing or seeking to arrange terms or conditions of employment, regardless
of whether or not the disputants stand in the proximate relation of employer and
employee.
(78) "Land Surveyor" is defined
in ORS 279C.100(4) and means a Person who is registered and holds a valid certificate
in the practice of land surveying in the State of Oregon, as provided under ORS
672.002 to 672.325, and includes all terms listed in ORS 672.002(5).
(79) "Legally Flawed" is
defined in ORS 279B.405(1)(b) and means that a Solicitation Document contains terms
or conditions that are contrary to law.
(80) "Legislative Department"
is defined in ORS 174.114 and, subject to 174.108, means the Legislative Assembly,
the committees of the Legislative Assembly and all administrative divisions of the
Legislative Assembly and its committees, whether denominated as boards, commissions
or departments or by any other designation. The Legislative Department includes:
(a) An entity created by
statute for the purpose of giving advice only to the Legislative Department and
that does not have members who are officers or employees of the executive department
or judicial department;
(b) An entity created by
the Legislative Department for the purpose of giving advice to the legislative department,
but that is not created by statute, if the document creating the entity indicates
that the entity is a public body; and
(c) Any entity created by
the Legislative Department by a document other than a statute and that is not an
entity described in paragraph (b) of this Subsection, unless the document creating
the entity indicates that the entity is not a governmental entity or the entity
is not subject to any substantial control by the Legislative Department.
(81) "Locality" is defined
in ORS 279C.800(3) and means the following district in which the Public Works, or
the major portion thereof, is to be performed:
(a) District 1, composed
of Clatsop, Columbia and Tillamook Counties;
(b) District 2, composed
of Clackamas, Multnomah and Washington Counties;
(c) District 3, composed
of Marion, Polk and Yamhill Counties;
(d) District 4, composed
of Benton, Lincoln and Linn Counties;
(e) District 5, composed
of Lane County;
(f) District 6, composed
of Douglas County;
(g) District 7, composed
of Coos and Curry Counties;
(h) District 8, composed
of Jackson and Josephine Counties;
(i) District 9, composed
of Hood River, Sherman and Wasco Counties;
(j) District 10, composed
of Crook, Deschutes and Jefferson Counties;
(k) District 11, composed
of Klamath and Lake Counties;
(l) District 12, composed
of Gilliam, Grant, Morrow, Umatilla and Wheeler Counties;
(m) District 13, composed
of Baker, Union and Wallowa Counties; and
(n) District 14, composed
of Harney and Malheur Counties.
(82) "Lowest Responsible
Bidder" is defined in ORS 279A.010(1)(r) and means the lowest Bidder who:
(a) Has substantially complied
with all prescribed Public Contracting procedures and requirements;
(b) Has met the standards
of responsibility set forth in ORS 279B.110(2) or 279C.375;
(c) Has not been debarred
or disqualified by the Agency under ORS 279B.130 or 279C.440; and
(d) Is not on the list created
by the Oregon Construction Contractors Board under ORS 701.227, if the advertised
contract is a Public Improvement Contract.
(83) "Lubricating Oil" means
any oil intended for use in an internal combustion crankcase, transmission, gearbox
or differential or an automobile, bus, truck, vessel, plane, train, heavy equipment
or machinery powered by an internal combustion engine.
(84) "Mandatory Use Contract"
means a Public Contract, Department Price Agreement, or other agreement that an
Agency is required to use for the Procurement of Supplies and Services.
(85) "Multistepped" means
more than one step, phase, tier, or round in a process used in Competitive Sealed
Bidding or Competitive Sealed Proposals according to ORS 279B and OAR division 247.
(86) "Negotiations" means
to compare views, take counsel, and communicate with another so as to arrive at
a voluntary, mutual agreement about a matter.
(87) "Nonprofit Organization"
is defined in ORS 279C.810 and means an organization or group of organizations described
in Section 501(c)(3) of the Internal Revenue Code that is exempt from income tax
under Section 501(a) of the Internal Revenue Code.
(88) "Nonresident Offeror"
means an Offeror who is not a resident Offeror. For the meaning of residency,
see the definition of “Resident Offeror.”
(89) "Not-for-Profit Organization"
means a Nonprofit Corporation as defined in ORS 307.130(1)(c).
(90) "OAR" means the Oregon
Administrative Rules.
(91) "Offer" means a response
to a Solicitation, including: a Bid, Proposal, Quote or similar response to a Solicitation.
(92) "Offeror" means a Person
who submits an Offer
(93) "Offering" means a Bid,
Proposal, or Quote.
(94) "Office of Minority,
Women, and Emerging Small Business" or "OMWESB" is defined in ORS 200.025 and 200.055
and means the office that administers the certification process for the Disadvantaged
Business Enterprise (DBE), Minority Business Enterprise/Women Business Enterprise
(MBE/WBE), and Emerging Small Business (ESB) Programs. OMWESB is the sole authority
providing certification in Oregon for disadvantaged, minority, and woman-owned businesses,
and emerging small businesses.
(95) "OPB Certified Professional"
means an individual holding an active Oregon Procurement Basic Certification, issued
by the Chief Procurement Officer.
(96) "Opening" means the
date, time and place specified in the Solicitation Document for the public opening
of Written sealed Offers.
(97) “Ordering Instrument”
or “Order” means a document used by an Authorized Agency in compliance
with the Public Contracting Code, these Rules, and Department policies, for the
general purpose of ordering Supplies and Services from one or more Providers.
(a) An Ordering Instrument
or Order may also be known as a Purchase Order, Work Order, or other name assigned
by an Agency.
(b) A Price Agreement may
specify the use of Ordering Instruments.
(c) Absent a Price Agreement
and subject to the Public Contracting Code, Rules, and Department policies, an Authorized
Agency’s appropriate use of an Ordering Instrument is an Offer to purchase
Supplies and Services from one or more Providers, and a Provider’s responsive
and appropriate acceptance of the Offer creates a Public Contract.
(98) “Ordinary Construction
Services” means those services that are not Public Improvements, are procured
under ORS Chapter 279B, and are otherwise under ORS Chapter 279C, in accordance
with OAR 125-249-0100(1) and 125-249-0140.
(99) "Original Contract"
means the initial Contract or Price Agreement of the Department or an Authorized
Agency. See OAR 125-246-0400 for the definition of "Original Contract" that the
Public Contracting Code and Rules use for Cooperative Procurements only.
(100) "ORPIN" means the on-line
electronic Oregon Procurement Information Network administered by the Department,
as further described in OAR 125-246-0500.
(101) "ORS" means the Oregon
Revised Statutes.
(102) "Participant”
is defined in OAR 125-246-0400.
(103) "Permissive Cooperative
Procurement" is defined in OAR 125-246-0400.
(104) "Person" means an individual,
corporation, business trust, estate, trust, partnership, limited liability company,
association, joint venture, governmental agency, public corporation or any other
legal or commercial entity. "Person" is also defined in ORS 279C.500 and means
the State Accident Insurance Fund Corporation and the Department of Revenue. “Person”
is defined in ORS 279C.815 and means any employer, labor organization or any official
representative of an employee or employer association.
(105) "Personal Services"
under ORS 279B means services that require specialized skills, knowledge and resources
in the application of technical or scientific expertise, or the exercise of professional,
artistic or management discretion or judgment, including, without limitation, the
services of an accountant, physician or dentist, educator, information technology
professional, Consultant, broadcaster, or artist (including a photographer, filmmaker,
painter, weaver or sculptor). "Personal Services" under ORS 279C includes the services
of an Architect, Engineer, Photogrammetrist, Transportation Planner, Land Surveyor
or Provider of Related Services as defined in ORS 279C.100, and that definition
applies only to ORS 279C.100 to 279C.125, for Architectural, Engineering, Photogrammetric
Mapping, Transportation Planning or Land Surveying Services or Related Services.
(106) "Personal Services
Contract" means a Contract or a member of a class of Contracts for Personal Services.
Contracts for Architectural, Engineering, Photogrammetric Mapping, Transportation
Planning or Land Surveying Services, and Related Services are a special class of
Personal Services Contracts, defined in ORS 279C.100(5), and Providers under such
Contracts are Consultants, as defined in OAR 125-248-0110(1).
(107) "Prevailing Rate of
Wage" is defined in ORS 279C.800 and means the rate of hourly wage, including all
fringe benefits, paid in the Locality to the majority of Workers employed on projects
of similar character in the same trade or occupation, as determined by the Commissioner
of the Bureau of Labor and Industries.
(108) “Price Agreement.”
(a) "Price Agreement" is
defined in ORS 279A.010(1)(v) and means a Public Contract for the Procurement of
Supplies and Services at a set price with:
(A) No guarantee of a minimum
or maximum purchase; or
(B) An initial order or minimum
purchase combined with a continuing Contractor obligation to provide Supplies and
Services in which the Authorized Agency does not guarantee a minimum or maximum
additional purchase.
(b) The set price may exist
at the outset or be determined later by an Ordering Instrument.
(c) A “Price Agreement”
as a Public Contract may collectively consist of an initial agreement, together
with later Ordering Instruments, if any.
(A) The initial agreement
may be known as an agreement to agree, a master agreement, a Price Agreement for
any Supplies and Services, a services agreement, or a retainer agreement, if such
agreement meets the requirements of this Rule’s definition.
(B) The Ordering Instrument
may be known as a work order, purchase order, or task order, or by another name
for ordering purposes and related to the initial agreement.
(109) "Procurement" means
the act of purchasing, leasing, renting or otherwise acquiring or selling: Supplies
and Services; Architectural, Engineering, Photogrammetric Mapping, Transportation
Planning or Land Surveying Services and Related Services; and Public Improvements.
Procurement includes each function and procedure undertaken or required to be undertaken
by an Authorized Agency to enter into a Public Contract, administer a Public Contract
and obtain the performance of a Public Contract under the Public Contracting Code
and these Rules. Procurement includes Contract Administration, and Contract Administration
includes Amendments.
(110) "Procurement Document"
collectively means the inclusive Solicitation Document and all documents either
attached or incorporated by reference, and any changes thereto, used for any of
the methods according to ORS 279A.200 through 279A.220, 279B.055 through 279B.085,
279C.100 through 279C.125, or 279C.300 through 2729C.450.
(111) “Procurement
File” means any of the following files maintained by an Authorized Agency:
a solicitation, Contract, Amendment, Work Order, or contract administration file,
separately or collectively.
(112) "Procurement Process"
means the process related to these acts, functions, and procedures of Procurement.
(113) "Product Sample" means
the exact Goods or a representative portion of the Goods offered in an Offer, or
the Goods requested in the Solicitation Document as a sample.
(114) "Property" is defined
in ORS 279A.250 and means personal property.
(115) "Proposal" means a
Written response to a Request for Proposals.
(116) "Proposer" means a
Person who submits a proposal in response to a Request for Proposals, except for
Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or
Land Surveying Services and Related Services according to OAR 125-248-0110, whereby
"Proposer" means a Consultant who submits a proposal to an Authorized Agency in
response to a Request for Proposals.
(117) "Provider" means collectively
or in the alternative: the supplier, Contractor or Consultant, providing Supplies
and Services or Public Improvements.
(118) "Post-consumer Waste"
means a finished material that would normally be disposed of as solid waste, having
completed its life cycle as a consumer item. "Post-consumer waste" does not include
manufacturing waste.
(119) "Public Agency" is
defined in ORS 279C.800 and means the State of Oregon or any political subdivision
thereof or any county, city, district, authority, public corporation or entity and
any of their instrumentalities organized and existing under law or charter.
(120) "Public Body" is defined
in ORS 174.109, subject to 174.108, and means state government bodies, local government
bodies and special government bodies.
(121) "Public Contract" is
defined in ORS 279A.010(1)(z) and means a sale or other disposal, or a purchase,
lease, rental or other acquisition, by an Authorized Agency of Supplies and Services,
Public Improvements, Public Works, minor alterations, or ordinary repair or maintenance
necessary to preserve a Public Improvement. "Public Contract" does not include Grants.
For the purposes of these Rules, “Public Contract” means Contract.
(122) "Public Contracting"
is defined in ORS 279A.010(1)(aa) and means Procurement activities described in
the Public Contracting Code relating to obtaining, modifying or administering Public
Contracts or Price Agreements.
(123) "Public Contracting
Code" or "Code" is defined in ORS 279A.010(1)(bb) and means 279A, 279B and 279C.
(124) “Public Improvement
Contract” means a Public Contract for a Public Improvement. “Public
Improvement Contract” does not include a Public Contract for emergency Work,
minor alterations, or ordinary repair or maintenance necessary to preserve a Public
Improvement.
(125) “Public Improvement”
is defined in ORS 279A.010(1)(cc) and means a project for construction, reconstruction
or major renovation on real property by or for an Authorized Agency. “Public
Improvement” does not include:
(a) Projects for which no
funds of an Authorized Agency are directly or indirectly used, except for participation
that is incidental or related primarily to project design or inspection; or
(b) Emergency Work, minor
alteration, ordinary repair or maintenance necessary to preserve a Public Improvement.
(126) “Public Works”
is defined in ORS 279C.800 and includes, but is not limited to: roads, highways,
buildings, structures and improvements of all types, the construction, reconstruction,
major renovation or painting of which is carried on or contracted for or by any
public agency, to serve the public interest, but does not include the reconstruction
or renovation of privately owned property that is leased by a Public Agency.
(127) “Purchase Order”
means an Ordering Instrument or Order, as defined in this Rule.
(128) “Qualifications
Based Selection (QBS)” means the qualifications based selection process mandated
by ORS 279C.110 for Architectural, Engineering, Photogrammetric Mapping, Transportation
Planning or Land Surveying Services, and Related Services Contracts.
(129) “Quote”
means a verbal or Written Offer obtained through an Intermediate Procurement according
to either OAR 125-247-0270 or 125-249-0160.
(130) “Recycled Material”
means any material that would otherwise be a useless, unwanted or discarded material
except for the fact that the material still has useful physical or chemical properties
after serving a specific purpose and can, therefore, be reused or recycled.
(131) “Recycled Oil”
means used oil that has been prepared for reuse as a petroleum product by refining,
re-refining, reclaiming, reprocessing or other means, provided that the preparation
or use is operationally safe, environmentally sound and complies with all laws and
regulations.
(132) “Recycled Paper”
means a paper product with not less than:
(a) Fifty percent of its
fiber weight consisting of secondary waste materials; or
(b) Twenty-five percent of
its fiber weight consisting of post-consumer waste.
(133) “Recycled PETE”
means post-consumer polyethylene terephthalate material.
(134) “Recycled Product”
means all materials, goods and supplies, not less than 50 percent of the total weight
of which consists of secondary and post-consumer waste with not less than 10 percent
of its total weight consisting of post-consumer waste. “Recycled Product”
includes any product that could have been disposed of as solid waste, having completed
its life cycle as a consumer item, but otherwise is refurbished for reuse without
substantial alteration of the product’s form.
(135) “Related Services”
is defined in ORS 279C.100(8).
(136) “Request for
Proposals” or “RFP” is defined in ORS 279B.005 and means all documents,
either attached or incorporated by reference, and any Addenda thereto, used for
soliciting Proposals in accordance with 279B.060, 279B.070 or 279C.405 and related
rules.
(137) “Request for
Qualifications” or “RFQ” means a Written document issued by an
Authorized Agency and describing: the Authorized Agency's circumstances; the type
of service(s) or Work desired; significant evaluation factors; their relative importance;
if appropriate, price; and competitive qualifications. Contractors respond in Writing
to the Authorized Agency by describing their experience and qualifications. The
RFQ will not result in a Contract. It establishes a list of qualified Contractors
in accordance with OAR 125-247-0550, 125-248-0220 or 125-249-0645.
(138) “Request for
Quotes” means a Written or oral request for prices, rates or other conditions
under which a potential Contractor would provide Supplies and Services or Public
Improvements described in the request.
(139) “Resident Bidder”
is defined in ORS 279A.120 and means a Bidder that has paid unemployment taxes or
income taxes in this state during the 12 calendar months immediately preceding submission
of the Bid, has a business address in this State, and has stated in the Bid whether
the Bidder is a “Resident Bidder.”
(140) “Resident Offeror”
means an Offeror that has paid unemployment taxes or income taxes in this state
during the 12 calendar months immediately preceding submission of the Offer, has
a business address in this State, and has stated in the Offer whether the Offeror
is a “resident Offeror.”
(141) “Responsible”
means meeting the standards set forth in OAR 125-247-0640 or 125-249-0390(2), and
not debarred or disqualified by the Authorized Agency under 125-247-0575 or 125-249-0370.
(142) “Responsible
Bidder” or “Responsible Proposer” is defined in ORS 279A.105 and
279B.005 and means a person who meets the standards of responsibility as described
in ORS 279B.110.
(143) “Responsible
Offeror” means, as the context requires, a Responsible Bidder, Responsible
Proposer or a Person who has submitted an Offer and meets the standards set forth
in OAR 125-247-0640 or 125-249-0390(2), and who has not been debarred or disqualified
by the Agency under 125-247-0575 or 125-249-0370, respectively.
(144) “Responsible
Proposer” or “Responsible Bidder” is defined in ORS 279B.005 and
means a Person who meets the standards of responsibility described in ORS 279B.110.
(145) “Responsive”
means having the characteristic of substantial compliance in all material respects
with applicable solicitation requirements.
(146) “Responsive Bid”
or “Responsive Proposal” is defined in ORS 279B.005 and means a Bid
or Proposal that substantially complies with the Invitation to Bid or Request for
Proposals, respectively, and all prescribed Procurement procedures and requirements.
(147) “Responsive Offer”
means, as the context requires, a Responsive Bid, Responsive Proposal or other Offer
that substantially complies in all material respects with applicable Solicitation
requirements.
(148) “Responsive Proposal”
or “Responsive Bid” is defined in ORS 279B.005 and means a bid or proposal
that substantially complies with the Invitation to Bid or Request for Proposals
and all prescribed procurement procedures and requirements.
(149) “Retainage”
is defined in ORS 279C.550 and means the difference between the amount earned by
a Contractor on a Public Contract and the amount paid on the contract by the Authorized
Agency.
(150) “Rules”
means these Public Contracting Rules of the Department including divisions 246 through
249, unless otherwise indicated.
(151) “Scope”
means the extent or range of view, outlook, application, operation, or effectiveness.
Scope does not include the dollar amount of the Contract.
(152) “Secondary Waste
Materials” means fragments of products or finished products of a manufacturing
process that has converted a virgin resource into a commodity of real economic value.
“Secondary Waste Materials” includes post-consumer waste. “Secondary
Waste Materials” does not include excess virgin resources of the manufacturing
process. For paper, “Secondary Waste Materials” does not include fibrous
waste generated during the manufacturing process such as fibers recovered from waste
water or trimmings of paper machine rolls, mill broke, wood slabs, chips, sawdust
or other wood residue from a manufacturing process.
(153) “Serial Negotiation”
means a Negotiation that is sequential, on-going, consecutive, alternating, or repetitive.
(154) “Services”
or “services,” for the purpose of these Rules only, means Trade Services,
Personal Services, or any combination thereof.
(155) “Signature”
means any Written mark, word or symbol that is made or adopted by a Person with
the intent to be bound and that is attached to or logically associated with a Written
document to which the Person intends to be bound.
(156) “Signed”
means, as the context requires, that a Written document contains a Signature or
that the act of making a Signature has occurred.
(157) “Small Procurement”
means a sourcing method according to ORS 279B.065.
(158) “Sole-Source
Procurement” means a sourcing method by which an Authorized Agency awards
a Contract without competition to a single source for Supplies and Services, when
Written justification demonstrates no other source is available, in accordance with
ORS 279B.075 and OAR 125-247-0275.
(159) "Solicitation" means:
(a) A request by an Authorized
Agency for the purpose of soliciting Offers. This request may take the form of
an Invitation for Bid, a Request for Proposal, a Request for Quotation, a Request
for Qualifications or a similar document; or
(b) The process of notifying
prospective Offerors that the Authorized Agency requests such Offers; or
(c) The Solicitation Document
itself.
(160) "Solicitation Document"
means an Invitation to Bid; a Request for Proposals; a Writing for a Small, Intermediate,
Informal Selection, Competitive Quote, or Emergency Procurement; a Special Procurement
Solicitation; or other document issued to invite Offers from prospective Contractors
in accordance with ORS 279B or 279C. “Solicitation Document” includes
related documents, either attached or incorporated by reference, and any changes
thereto, issued by an Authorized Agency to establish an Original Contract that forms
the basis for an Agency’s participation in a Procurement. The following examples
are not Solicitation Documents because they do not invite offers from prospective
Contractors: Request for Qualifications, a prequalification of Bidders, a request
for information, and a request for product prequalification.
(161) “Special Government
Body” is defined in ORS 174.117 and
(a) Means any of the following:
(A) A public corporation
created under a statute of this State and specifically designated as a public corporation.
(B) A school district.
(C) A public charter school
established under ORS Chapter 338.
(D) An education service
district.
(E) A community college district
or community college service district established under ORS Chapter 341.
(F) An intergovernmental
body formed by two or more public bodies.
(G) Any entity that is created
by statute, ordinance or resolution that is not part of state government or local
government.
(H) Any entity that is not
otherwise described in this Section that is:
(i) Not part of state government
or local government;
(ii) Created according to
authority granted by a statute, ordinance or resolution, but not directly created
by that statute, ordinance or resolution; and
(iii) Identified as a governmental
entity by the statute, ordinance or resolution authorizing the creation of the entity,
without regard to the specific terms used by the statute, ordinance or resolution.
(b) Subject to ORS 174.117,
“Special Government Body” includes:
(A) An entity created by
statute for the purpose of giving advice only to a special government body;
(B) An entity created by
a Special Government Body for the purpose of giving advice to the special government
body, if the document creating the entity indicates that the entity is a public
body; and
(C) Any entity created by
a Special Government Body described in Subsection (a) of this
Section, other than an entity
described in paragraph (B) of this Subsection, unless the document creating the
entity indicates that the entity is not a governmental entity or the entity is not
subject to any substantial control by the Special Government Body.
(162) “Special Procurement”
means a sourcing method may be a class Special Procurement, a contract-specific
Special Procurement or both, unless the context requires otherwise in accordance
with ORS 279B.085 and OAR 125-247-0287.
(a) “Class Special
Procurement” is defined in ORS 279B.085 and means a contracting procedure
that differs from the procedures described in 279B.055, 279B.060, 279B.065 and 279B.070
and is for the purpose of entering into a series of Contracts over time for the
acquisition of a specified class of Supplies and Services.
(b) “Contract-specific
Special Procurement” means a contracting procedure that differs from the procedures
described in ORS 279B.055, 279B.060, 279B.065 and 279B.070 and is for the purpose
of entering into a single Contract or a number of related contracts for the acquisition
of specified Supplies and Services on a one-time basis or for a single project.
(163) “Specification”
is defined in ORS 279B.200(3) and means any description of the physical or functional
characteristics, or of the nature of the Supplies and Services to be procured by
an Agency. “Specification” includes: any requirement for inspecting,
testing, or preparing the Supplies and Services for delivery and the quantities
or qualities of Supplies and Services to be furnished under the Contract. Specifications
generally will state the result to be obtained and occasionally may describe the
method and manner of performance.
(164) “State”
means the State of Oregon.
(165) “State Government,”
subject to ORS 174.108, means the Executive Department, the Judicial Department
and the Legislative Department.
(166) “Substantial
Completion” is defined in ORS 12.135 and means the date when the contractee
accepts in Writing the construction, alteration or repair of the improvement to
real property or any designated portion thereof as having reached that state of
completion when it may be used or occupied for its intended purpose or, if there
is no such Written acceptance, the date of acceptance of the completed construction,
alteration or repair of such improvement by the contractee.
(167) “Supplies and
Services” includes “Supplies or Services” and collectively means
Goods, Trade Services, Personal Services, and Ordinary Construction Services separately
or in any combination of these terms thereof as appropriate within the context of
the Rule. “Supplies and Services” includes the terms “goods and
services,” “goods or services,” and “personal services”
contained in ORS 279A and 279B. This term does not include Public Improvements
or Architectural, Engineering, Photogrammetric Mapping, Transportation Planning
or Land Surveying Services, and Related Services, governed under ORS 279C.
(168) "Surplus Property"
means all personal property, vehicles and titled equipment property received by
the Department as surplus from federal government units, state agencies, local governments,
and special government bodies for sale to state agencies, political subdivisions
of the State, and private not-for-profit organizations or the general public or
any combination thereof. See OAR 125-050.
(169) “Sustainability”
is defined in ORS 184.421 and means using, developing and protecting resources in
a manner that enables people to meet current needs and provides that future generations
can also meet future needs, from the joint perspective of environmental, economic
and community objectives.
(170) “Threshold”
means a specific monetary limitation that distinguishes one Procurement method from
another, triggers a requirement, or marks a point of reference or change in Rule.
For example, the Thresholds of $10,000 to $150,000 distinguish Intermediate Procurements
under ORS 279B from other methods.
(171) “Trade Services”
means all remaining services that do not meet the definition for Personal Services.
(172) “Unnecessarily
Restrictive” is defined in ORS 279B.405(1)(c) and means that Specifications
limit competition arbitrarily, without reasonably promoting the fulfillment of the
Procurement needs of an Agency.
(173) “Used Oil”
is defined in ORS 459A.555 and means a petroleum-based oil which through use, storage
or handling has become unsuitable for its original purpose due to the presence of
impurities or loss of original properties.
(174) “Virgin Oil”
means oil that has been refined from crude oil and that has not been used or contaminated
with impurities.
(175) “Work”
means the furnishing of all materials, equipment, labor, and incidentals necessary
to successfully complete any individual item or the entire Contract and the carrying
out and completion of all duties and obligations imposed by the Contract.
(176) “Work Order”
means an Ordering Instrument related to Services, including any incidental Supplies.
(177) “Writing”
means letters, characters and symbols inscribed on paper by hand, print, type or
other method of impression, intend to represent or convey particular ideas or meanings.
“Writing” when required or permitted by law, or required or permitted
in a Solicitation Document, also means letters, characters and symbols made in electronic
form and intended to represent or convey particular ideas or meanings.
(178) “Written”
means existing in Writing.
Stat. Auth.: ORS 279A.065(5)(a) &
279A.070
Stats. Implemented: ORS 279A.065,
279A.200, 279B.005 & 279C.110
Hist.: DAS 4-2004, f. 11-23-04,
cert. ef. 3-1-05; DAS 9-2005, f. & cert. ef. 8-3-05; DAS 5-2006, f. & cert.
ef. 5-31-06; DAS 6-2008, f. & cert. ef. 7-2-08; DAS 11-2009, f. 12-30-09, cert.
ef. 1-1-10; DAS 3-2012, f. 11-29-12, cert. ef. 12-1-12; DAS 4-2013, f. 12-17-13,
cert. ef. 1-1-14; DAS 3-2014, f. 12-29-14, cert. ef. 1-1-15
125-246-0120
Policies
(1) These Rules simplify, clarify and modernize Public Contracting pursuant to ORS 279A.015(1).
(2) These Rules provide a foundation for ethical and fair dealing in Public Contracting, designed to instill public confidence pursuant to ORS 279A.015(2).
(3) The promotion of efficient use of resources pursuant to ORS 279A.015(3) includes but is not limited to Sustainability. Pursuant to ORS 184.421, "Sustainability" means using, developing and protecting resources in a manner that enables people to meet current needs and provides that future generations can also meet future needs, from the joint perspective of environmental, economic and community objectives. ORS 184.421(1) sets forth the goals for the State of Oregon regarding Sustainability and provides that in conducting internal operations, Agencies must, in cooperation with the Department, seek to achieve the following objectives:
(a) State purchases should be made so as to serve the broad, long term financial interests of Oregonians, including ensuring that environmental, economic and societal improvements are made so as to enhance environmental, economic and societal well-being;
(b) Investments in facilities, equipment and durable goods should reflect the highest feasible efficiency and lowest life cycle costs;
(c) Investments and expenditures should help promote improvements in the efficient use of energy, water and resources;
(d) State operations and purchases should help maintain vital and active downtown and main street communities;
(e) State purchases should help support opportunities for economically distressed communities and historically underemployed people;
(f) State operations should be conducted in ways that significantly increase the efficient use of energy, water and resources;
(g) State operations and purchases should reflect the efficient use and reuse of resources and reduction of contaminants released into the environment.
(4) These Rules clearly identify and implement each of the legislatively mandated socioeconomic programs identified pursuant to ORS 279A.015(4).
(5) "Arriving at best value" pursuant to ORS 279A.015(5) means selecting a Provider based on a determination of which Providers' proposals offer the best trade-off between price and performance, in which quality is considered an integral performance factor. The selection may be based on evaluation factors including but not limited to:
(a) The total cost of ownership, including the cost of acquiring, operating, maintaining and supporting Supply and Services, Public Improvements, and Architectural, Engineering and Land Surveying and Related Services, or any combination thereof, over its projected lifetime;
(b) The technical merit of the Proposer's proposal; and
(c) The probability of the Proposer performing the requirements stated in the Solicitation on time, with high quality and in a manner that accomplishes the stated business objectives.
(6) Authorized Agencies must conduct Public Contracting to further the policies set forth in ORS 279A.015, elsewhere in the Code, and in these Rules.
Stat. Auth.: ORS 279A.065(5)(a) & 279A.070

Stats. Implemented: ORS 279A.015

Hist.: DAS 4-2004, f. 11-23-04, cert. ef. 3-1-05; DAS 9-2005, f. & cert. ef. 8-3-05
125-246-0130
Application of the Code and Rules; Exceptions
(1) Code, Rules and Policies. Except
as set forth in this Section and ORS 279A.025, an Agency must exercise all rights,
powers and authority related to Public Contracting in accordance with the Public
Contracting Code, Rules, and applicable Department policies (Policies).
(2) Exceptions for Contracts
and Grants. These Rules do not apply to the following:
(a) Contracts between Agencies;
(b) Contracts between Agencies
and Public Bodies;
(c) Contracts between Agencies
and the federal government;
(d) For Cooperative Procurements,
any contractual relationship described in Subsections (2)(a) through (c) of this
Rule. The Code, Rules, and policies apply to the contractual relationships between
the Agencies and Providers, other states, tribes, other nations, and any of their
public entities; and
(e) Grants.
(A) Agency as Recipient.
If an Agency is a recipient in an agreement with a grantor, the definition of Grant
in ORS 279A.010 and OAR 125-246-0110 determines if the agreement is subject to the
Code and these Rules. If the grantor has substantial involvement in the program
or activity of the Agency, the agreement is not a Grant. The agreement is subject
to the Code and these Rules.
(B) Agency as Grantor. If
an Agency is a grantor in an agreement with a recipient, the definition of Grant
in ORS 279A.010 and OAR 125-246-0110 determines if the agreement is subject to the
Code and these Rules. If the Agency has substantial involvement in the program or
activity of the Agency’s recipient, the agreement is not a Grant. The agreement
is subject to the Code and these Rules.
(3) Exception for a Federal
Program. Authorized Agencies otherwise subject to the Code and these Rules may enter
into Public Contracts under a federal program described in ORS 279A.180 and according
to OAR 125-246-0360, without following the procedures set forth in ORS 279B.050
through 279B.085 and 125-247-0250 through 125-247-0690.
(4) Exception when Procuring
from Qualified Rehabilitation Facilities (QRFs). Agencies subject to the Code and
these Rules are not subject to the methods set forth in ORS 279A.200 through 279A.225
(Cooperative Purchasing) or 279B.050 through 279B.085 (Sourcing Methods) and related
Rules when the Agencies procure Supplies and Services according to ORS 279.835 through
279.855 and OAR 125-055-0010(1) (Acquisition of Supplies and Services from QRFs).
Agencies are subject to the remainder of the Code and these Rules, including but
not limited to delegation of authority in accordance with OAR 125-246-0170.
(5) Exception for Correctional
Industries. Agencies otherwise subject to the Code and these Rules may enter into
Contracts with correctional industries according to the Oregon Constitution, Article
1, Subsection 11, without being subject to the source selection procedures set forth
in either ORS 279A.200 through 279A.225 (Cooperative Purchasing) or 279B.050 through
279B.085 (Sourcing Methods) and their respective rules.
(6) Exception for Price Agreements.
Agencies otherwise subject to the Code and these Rules are not subject to the methods
set forth in ORS 279A.200 through 279A.225 (Cooperative Purchasing) or 279B.050
through 279B.085 (Sourcing Methods) and related Rules when the Agencies procure
Supplies and Services from a Department Price Agreement or other Price Agreement.
Agencies are subject to the remainder of the Code and these Rules, including but
not limited to delegation of authority in accordance with OAR 125-246-0170.
Stat. Auth.: ORS 279A.065(5)(a) &
279A.070
Stats. Implemented: ORS 279A.025,
279A.050, 279A.055 & 279A.180
Hist.: DAS 4-2004, f. 11-23-04,
cert. ef. 3-1-05; DAS 5-2006, f. & cert. ef. 5-31-06; DAS 6-2008, f. & cert.
ef. 7-2-08; DAS 11-2009, f. 12-30-09, cert. ef. 1-1-10; DAS 4-2013, f. 12-17-13,
cert. ef. 1-1-14

Authority

125-246-0140
Procurement Authority
(1) The Department must conduct all Procurements and administer the contracting for Supplies and Services; Architectural, Engineering and Land Surveying Services, and Related Services; and Public Improvements for the Agencies, unless delegated, according to ORS 279A.140 and 279C.105(1). Delegations of authority in accordance with OAR 125-246-0170 do not relieve the Department of this responsibility.
(2) For Agencies, the Department and its Director are the Contracting Agency described in the Public Contracting Code and represent the Agencies. Authorized Agencies receive delegated authority according to OAR 125-246-0170.
Stat. Auth.: ORS 279A.065(5)(a) & 279A.070

Stats. Implemented: ORS 279A.050(1)(2)

Hist.: DAS 4-2004, f. 11-23-04, cert. ef. 3-1-05; DAS 5-2006, f. & cert. ef. 5-31-06; DAS 6-2008, f. & cert. ef. 7-2-08
125-246-0150
Applicability of These Rules to Agencies
Agencies subject to the authority of the Director of the Department must follow these Rules. If an Agency is partially independent of the authority of the Department and partially subject to the authority of the Department, that Agency is responsible for obtaining any legal determination related to these Rules.
Stat. Auth.: ORS 279A.065(5)(a) & 279A.070

Stats. Implemented: ORS 279A.065

Hist.: DAS 4-2004, f. 11-23-04, cert. ef. 3-1-05; DAS 5-2006, f. & cert. ef. 5-31-06; DAS 11-2009, f. 12-30-09, cert. ef. 1-1-10
125-246-0165
Delegation Policy and Procedures
(1) Generally.
(a) Purpose. This Rule describes
the policy and procedures related to the delegation of authority under OAR 125-246-0170,
including but not limited to:
(A) Policy of the Code;
(B) Individual Representation;
(C) Forms of Delegations
and Revocations of Authority;
(D) Changes in Individual
Representation;
(E) Procedural Requirements;
(F) Signature; and
(G) Commitment of Funds.
(b) This Rule applies to
all delegations and sub-delegations of Authority (collectively, Delegations), modifications
of Delegations, and revocations of Delegations under OAR 125-246-0170. This Rule
does not delegate authority. All delegations by authority under the Rules are found
solely in 125-246-0170.
(2) Policy of the Code. The
policy of the Code is to clarify responsibilities, instill public confidence, promote
efficient use of resources, implement socioeconomic programs, allow meaningful competition,
and provide a structure that supports evolving procurement methods, according to
ORS 279A.015. These Rules support this policy of the Code.
(3) Individual Representation.
Public Contracting may be delegated only to an individual, representing the State's
interests. Authority under these Rules may be delegated only to individuals acting
on behalf of the Agencies and in accordance with this Rule. All individual delegatees
must hold and use this Authority within the scope of their employment by the Agency
and act on behalf of the Agency as the Agency’s representative. Sub-delegations
may be in whole or in part according to ORS 279A.075. Any individual may decline
a sub-delegation in whole or in part. A delegator or delegatee may also be referred
to in this Rule as an “Authorized Individual.”
(4) Forms of Delegations
and Revocations of Authority. ORS 279A.075 provides that the exercise of all authorities
in the Code may be delegated and sub-delegated in whole or in part. The form of
a Delegation or revocation of Authority by an Authorized Individual may be by:
(a) OAR 125-246-0170 by the
Director of the Department;
(b) A Written external or
internal policy by an authorized delegator or revoker;
(c) An Interagency Agreement,
signed by the Chief Procurement Officer and the Authorized Agency; or
(d) A letter or memorandum
signed by an authorized delegator or revoker.
(5) Changes in Individual
Representation. If an Agency determines that an Authorized Individual has ceased
to represent that Agency for Procurement (Absent Individual), then:
(a) The Authority of the
Absent Individual automatically reverts back to the individual who originally delegated
the Authority to the Absent Individual. The Agency must determine who receives the
reverted Authority in accordance with this Rule. If the Absent Individual is a head
of an Agency or Designated Procurement Officer, the delegator of authority to that
individual must notify the Chief Procurement Officer within thirty (30) days after
the change in representation.
(b) Sub-delegations, if any,
by an Absent Individual remain in effect unless and until the Authority of any sub-delegatees
is modified or revoked by an Authorized Individual.
(6) Procedural Requirements.
(a) Compliance. Authorized
Agencies must maintain good contracting procedures in accordance with the Public
Contracting Code, related Rules and policies of the Department. Delegation of Authority
does not exempt anyone from the requirements of the Public Contracting Code, related
Rules, and policies of the Department. Any individual receiving delegated Authority
is responsible for following the Public Contracting Code, related Rules, and policies
of the Department.
(b) Modifications or Revocations.
(A) Authority. Subject to
the conditions of Subsection (ii) below, a Delegation may be modified or revoked
by:
(i) The Director of the Department,
(ii) The Chief Procurement
Officer in accordance with OAR 125-246-0170(3)(b)(D) and 125-246-0170(3)(d)(J),
or
(iii) The original authorized
delegator or successor of this delegator who made this Delegation being modified
or revoked.
(B) Conditions.
(i) This modification or
revocation of a Delegation must be Writing;
(ii) The delegatee must receive
reasonable notice of the modification or revocation of the Delegation; and
(iii) This modification or
revocation of a Delegation must be based upon a determination.
(c) Maintenance of Documents.
The Authorized Agency must maintain copies of letters, memoranda, or agreements
granting a Delegation.
(7) Signature. When an Authorized
Agency has delegated Authority according to OAR 125-246-0170, the Authorized Agency's
signature constitutes both the execution and approval of the Contract, except as
provided in 125-246-0170(2)(a)(B)(i).
(8) Commitment of Funds.
ORS 291 and 293, together with the policies of the State Controller’s Division
of the Department, provide for public financial administration, including: appropriations,
allotments by the Department, and an individual’s authority to commit or encumber
funds, financially obligate the Agency, and decide to expend funds. This type of
authority may be referred to as commitment, expenditure, obligation, expenditure
decision or signature authority (collectively, Commitment of Funds).
(9) Requests for Delegations.
Any Agency may submit a delegation request through ORPIN to the Chief Procurement
Officer for authority in accordance with the Public Contracting Code, this Rule,
and any related policy of the Department. All requested Delegations must be approved
in Writing by the Chief Procurement Officer and based upon a consideration of relevant
criteria as follows:
(a) The nature of the Supplies
and Services to be provided;
(b) Resources of the Agency
requesting the delegation, including trained and qualified contract officers and
staff, the Agency’s experience and expertise, staff time available, and the
degree of economy and efficiency to be achieved in meeting the state's requirements
if authority is delegated;
(c) The Agency’s Procurement
and public contracting past performance;
(d) Department’s resources
to exercise the authority if it is not delegated; and
(e) Value added by the Agency
if the authority is delegated.
(10) Revocation of Delegations.
The Chief Procurement Officer may revoke any delegation issued under section (9)
of this rule at any time by written notice to the Designated Procurement Officer
of the Agency, as defined in OAR 125-246-0170, based upon, but not limited to any
of the following:
(a) Failure to comply with
the requirements of the delegation;
(b) Deficiencies evidenced
by performance audits performed by the Department, the Secretary of State, or the
Legislative Assembly.
(c) Failure to comply with
the Department training requirements to obtain an Oregon Basic Procurement Certification,
Advanced Certification, or specific training described in the delegation;
(d) Lack of adequate experience
in terms of procurement knowledge and any specialized knowledge pertinent to the
authority delegated;
(e) The available resources
of the Department to conduct the purchasing activities if authority is revoked;
and
(f) The degree of economy
and efficiency to be achieved in meeting the state’s requirements if authority
is revoked.
(11) Return of Delegations
from Agencies to the Chief Procurement Officer. If an Agency needs assistance, an
Agency may request that the Chief Procurement Officer reclaim the authority previously
delegated to the Agency. With sole discretion, the Chief Procurement Officer may
accept the reclamation request for assistance according to the responsibilities,
resources, and needs of the Department and the Agency.
Stat. Auth.: ORS 279A.065(5)(a) &
279A.070
Stat. Implemented: ORS 279A.050,
279A.075 & 279A.140
Hist.: DAS 11-2009, f. 12-30-09,
cert. ef. 1-1-10; DAS 3-2012, f. 11-29-12, cert. ef. 12-1-12; DAS 4-2013, f. 12-17-13,
cert. ef. 1-1-14; DAS 3-2014, f. 12-29-14, cert. ef. 1-1-15
125-246-0170
Delegation of Authority
(1) Generally.
(a) Purpose. This Rule delegates
the procurement authority of the Department (Authority). Only this Rule delegates
this Authority.
(b) Authority of Agencies.
The Director of the Department delegates Authority to the Designated Procurement
Officers of the Authorized Agencies in section (2) of this rule.
(c) Authority of the Chief
Procurement Officer. The Director of the Department delegates Authority to the Chief
Procurement Officer in Section (3) of this Rule.
(d) Authority of the Director.
According to ORS 279A.140, the Department must conduct all Procurements, including
Contract Administration, for the Agencies. Other Sections of the Code authorize
specific actions by the Director of the Department. According to ORS 279A.050(1)
and (2), this Authority of the Department vests only in the Director of the Department.
The Director is ultimately responsible for the Procurement of the Agencies.
(2) Delegation to Individuals
in Agencies.
(a) Chain of Delegation and
Responsibilities.
(A) Head and Designated Procurement
Officer of the Agency.
(i) Conditional Delegation.
The Director of the Department delegates Authority, only as set forth in this Section
(2), to the heads of Authorized Agencies, on the condition that the heads of Authorized
Agencies subdelegate such Authority to their Agencies' Designated Procurement Officers,
who may further subdelegate such Authority in accordance with policies of their
Agencies (Chain of Delegation). Every Authorized Agency must appoint a Designated
Procurement Officer to serve that Authorized Agency; if none is appointed, the head
of the Agency is deemed to be the Designated Procurement Officer and assumes the
Authority, duties and responsibilities of the Designated Procurement Officer (collectively,
“Designated Procurement Officer”). The heads of the Agencies may not
subdelegate Authority outside this Chain of Delegation, except as provided in subsection
(2)(a)(B).
(ii) Manner of Appointment.
The Authorized Agency determines its procedure for appointing its Designated Procurement
Officer, and this Rule does not require or imply any inherent Authority in individual(s)
or the Agency in order to make this appointment. The Agency must send a Written
notice of its appointment of the Designated Procurement Officer to the Chief Procurement
Officer.
(B) Exceptions: Head and
Other Individuals of the Agency.
(i) Execution of Contracts.
Heads of Authorized Agencies may subdelegate the Authority to execute Contracts,
as described in subsection (2)(b)(F), to other individuals within their respective
Agency, provided this subdelegation is in accordance with a Written alternative
subdelegation plan, maintained on file with the Agency’s Designated Procurement
Officer.
(ii) Special Procurements
of General or Special Counsel Authorized by the Attorney General, according to OAR
125-247-0295. Heads of Authorized Agencies may subdelegate the Authority to procure
general or special counsel authorized by the Attorney General, as described in subsection
(2)(d)(L), to other individuals within their respective Agency, provided the head
of the Authorized Agency has determined that the individual receiving the subdelegation
has the requisite skills and knowledge to carry out the subdelegation. Such subdelegations
may be further subdelegated within that Authorized Agency, provided the subdelegator
has determined that each individual receiving the Delegation has the requisite skills
and knowledge to carry out the subdelegation.
(iii) Chain of Delegation.
Authorized Individuals in accordance with Subsections (2)(a)(B)(i) and (ii) are
included in the Chain of Delegation.
(C) Responsibilities. Each
individual in the Chain of Delegation remains responsible for the exercise of Authority
by that individual’s subdelegatees, and subdelegation does not waive this
responsibility. Each delegator must determine and document that the delegatee is
capable and accountable for the Procurement. The Designated Procurement Officer,
appointed within each Authorized Agency, is responsible for all delegated procurement
activity on behalf of the Authorized Agency, as described in this section (2), except
as provided in subsection (2)(a)(B).
(b) Duties and Responsibilities
of Designated Procurement Officers. The Authority, duties and responsibilities
of the Designated Procurement Officer, according to (2)(a)(A), are as follows:
(A) Serve as the exclusive
supervisor and manager of the Authorized Agency's Procurement system;
(B) Conduct, supervise and
manage the Procurement and the Procurement Process for the Authorized Agency in
accordance with the Code and these Rules, except for those Procurements conducted
by a delegatee to whom the Designated Procurement Officer has delegated Authority;
(C) Prepare or monitor the
use of Specifications or statements of work for all Procurements of the Authorized
Agency;
(D) Issue Solicitations and
implement other non-Solicitation methods for all Procurements of the Authorized
Agency in accordance with the Code and these Rules;
(E) Award Contracts only
as authorized in accordance with this Rule;
(F) Execute Contracts, which
means causing the signing of Contracts and performance of all necessary formalities
to bring the Contracts into their final, legally enforceable forms.
If the Designated Procurement
Officer is unable to make a Commitment of Funds as described in OAR 125-246-0165(8),
then the head of the Authorized Agency may follow an alternative subdelegation plan
in accordance with Subsection (2)(a)(B)(i).
(G) Comply with the reporting
requirements of the Code, these Rules, and Department policies;
(H) Monitor sourcing decisions,
Procurements, development of Contracts, awarded Contracts, Contract compliance,
spend, Delegations, Special Procurements and exemptions. Monitoring Contract development,
awards, and compliance applies to all Delegations;
(I) Based upon the monitoring
described in subsection (2)(b)(H), determine opportunities, establish targets, and
utilize methods according to ORS 279A.200 through 279A.220 and 279B.055 through
279B.085 to optimize savings consistent with strategic sourcing; and
(J) Conduct Cost Analyses,
approve Feasibility Determinations and Exceptions, and otherwise comply with OAR
125-247-0110.
(c) Delegation by Rule Based
Upon Thresholds. By this Rule, the Director of the Department delegates authority
to the heads of all Authorized Agencies, subject to section (2)(a)(A) and (B), for
the following Procurements, including Contract Administration:
(A) Small Procurements of
Supplies and Services up to and including the Threshold of $10,000, according to
ORS 279B.065 and related Rules;
(B) Direct appointments of
Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or
Land Surveying Services or Related Services according to OAR 125-248-0200;
(C) Intermediate Procurements
of Supplies and Services greater than $10,000 and not exceeding $150,000, and Amendments
of Contracts resulting from Intermediate Procurements, according to ORS 279B.070,
OAR 125-247-0270, and any related policy;
(D) Informal Selection Procedures
of Architectural, Engineering, Photogrammetric Mapping, Transportation Planning
or Land Surveying Services or Related Services according to ORS 279C.110 and OAR
125-248-0210, provided that the Authorized Agency follows the requirements as set
forth in the policy of the Department;
(E) Competitive Quotes for
Public Improvements estimated not to exceed $100,000, provided that the Authorized
Agency follows the requirements as set forth in the policy of the Department;
(F) Competitively Sealed
Bidding not exceeding $150,000 and according to OAR 125-247-0255;
(G) Competitively Sealed
Proposals not exceeding $150,000 and according to OAR 125-247-0260;
(H) Sole-Source Procurements
not exceeding $150,000 and according to ORS 279B.075 and OAR 125-247-0275;
(I) Special Procurements
in accordance with OAR 125-247-0287 not exceeding $150,000.
(J) Purchase of Used Personal
Property Special Procurements not exceeding $150,000 and according to OAR 125-247-0288(9);
(K) Reverse Auctions Special
Procurements not exceeding $150,000 and according to OAR 125-247-0288(10); and
(L) Contract Administration
as follows:
(i) For Contracts and Ordering
Instruments authorized according to this section (2)(c) and (d), the Contract Administration
of these Public Contracts and Ordering Instruments, including but not limited to:
appropriate payment approvals, ordering in accordance with the terms of Department
Price Agreements, and the oversight of the Provider(s); but excluding the Contract
Administration described in Subsection (v) below;
(ii) The daily or routine
Contract Administration of Ordering Instruments placed against Department Price
Agreements and Contracts procured by the Department on behalf of Agencies. This
daily or routine Contract Administration includes but is not limited to: appropriate
payment approvals, ordering in accordance with the terms of Department Price Agreements,
and the oversight of the Provider(s);
(iii) Activities specified
in Writing by the Chief Procurement Officer or delegatee;
(iv) Activities specified
in a related policy of the Department; and
(v) Despite subsection (2)(c)(L)(i)
through (iv) above, this Delegation by subsection (2)(c)(L) does not include:
(I) The Contract Administration
of Department Price Agreements; or
(II) For Contracts procured
by the Department on behalf of Agencies, Amendments when the amended value of Contract
exceeds $150,000; and terminations of such Contracts when the amended value of such
Contract exceeds $150,000.
(d) Delegation by Rule Based
Upon Type. By this Rule, the Director of the Department delegates authority to the
heads of all Authorized Agencies, subject to section (2)(a)(A) and (B), for the
following Procurements, including Contract Administration:
(A) Emergency Procurements,
in accordance with ORS 279B.080, 279C.335(5), OAR 125-248-0200, or related Rules;
(B) One-time, nonrepetitive
Joint Cooperative Procurements in accordance with OAR 125-246-0400, provided that:
(i) No such Procurement results
in a Permissive Cooperative Procurement that is open to any Agency outside of those
Agencies jointly named in the original Procurement;
(ii) No such Procurement
of Supplies and Services exceeds the Threshold of $150,000, including all Amendments,
according to OAR 125-247-0805;
(iii) No such Procurement
of Public Improvements exceeds $100,000, including Amendments according to OAR 125-249-0160
and 125-249-0910; and
(iv) The Authorized Agency
must follow any related policy of the Department.
(C) Federal program Procurements
not exceeding $150,000 or according to a delegation agreement with the Chief Procurement
Officer , and in accordance with ORS 279A.180 and related Rules;
(D) Client Services Special
Procurements according to OAR 125-247-0288(1) and (2);
(E) Client Services procured
under ORS 279B.055 through 279B.085 and related Rules, including all amendments
according to OAR 125-247-0805;
(F) Renegotiations of Existing
Contracts with Incumbent Contractors Special Procurements according to OAR 125-247-0288(3)
and as follows: the Authorized Agency is limited to the same authority delegated
to that Agency with regard to the Original Contract and any Amendments and may not
collectively exceed any Threshold related to its authority to procure the Original
Contract, except this limit may be exceeded with the prior Written approval of the
Chief Procurement Officer;
(G) Advertising Contracts
Special Procurements according to OAR 125-247-0288(4);
(H) Equipment Repair and
Overhaul Special Procurements according to OAR 125-247-0288(5);
(I) Contracts for Price Regulated
Items Special Procurements according to OAR 125-247-0288(6);
(J) Investment Contracts
Special Procurements according to OAR 125-247-0288(7);
(K) Food Contracts Special
Procurements according to OAR 125-247-0288(8);
(L) Special Procurements
of General or Special Counsel Authorized by the Attorney General, according to OAR
125-247-0295;
(M) Special Procurement(s)
related to disaster response, according to OAR 125-247-0287;
(N) Architectural, Engineering,
Photogrammetric Mapping, Transportation Planning or Land Surveying Services, and
Related Services (A&E) Procurement according to OAR 125-248-0200 through 125-248-0340;
(O) Brand Name Specification
Determinations for Solicitations in accordance with OAR 125-247-0691; and
(P) Brand Name Specification
Determinations for Sole Source Procurements not exceeding $150,000 and according
to OAR 125-247-0691.
(Q) Selling or leasing of
Supplies and Services in accordance with OAR 125-246-0800.
(R) Buy Decision in accordance
with OAR 125-247-0200(1) and (2).
(3) Delegation to the Chief
Procurement Officer.
(a) Powers and Authorities.
The Director of the Department delegates to the Chief Procurement Officer the rights,
powers and authority vested in the Director of the Department to:
(A) Delegate and subdelegate
these authorities in whole or in part according to ORS 279A.075;
(B) Approve Special Procurement
requests, according to ORS 279B.085 and related Rules, and receive filed protests
of approvals of Special Procurements, according to ORS 279B.400(1);
(C) Conduct hearings, approve
Agency findings, approve exemption requests, and issue exemption orders, according
to ORS 279C.335, ORS 279C.345, 279C.390, and related Rules;
(D) Create all procedures
and Specifications required by the Public Contracting Code and these Rules;
(E) Receive, maintain, and
act upon information contained in reports, including but not limited to ORS 279A.140(h)
and 279C.355, as required by the Public Contracting Code and these Rules;
(F) Receive and resolve protests
according to ORS 279B.400 to 279B.420 and Division 247 Rules, except for appeals
from a decision of the Chief Procurement Officer or delegatee;
(G) Receive notices, conduct
hearings, and make decisions regarding prequalifications, debarments, and Disqualifications
according to ORS 279A.110, 279B.425, 279C.450, 200.065(5), and 200.075(1), except
for appeals from a decision of the Chief Procurement Officer or delegatee;
(H) Approve expedited notices
for Sole-Source Procurements according to OAR 125-247-0275;
(I) Procure and administer
Cooperative Procurements and receive, hear, and resolve related protests and disputes,
according to ORS 279A.200 through 279A.225 and OAR 125-246-0400;
(J) Approve General Service
Administration federal programs or federal Contracts in accordance with OAR 125-246-0360;
(K) Authorize public notice
of bids, proposals, and public improvement Contracts to be published electronically
and according to ORS 279B.055(4)(c) and 279C.360(1);
(L) Approve the manner and
character of retainage according to ORS 279C.560(1) and (5);
(M) Approve exemptions waiving
or reducing the bid security or bonds for Public Improvement projects in accordance
with ORS 279C.390(1);
(N) Approve electronic-filing
(e-filing) in accordance with ORS 84.049, 84.052 and 84.064;
(O) Approve procurement-related
activities required by other law; and
(P) Other procurement actions
of the Department specifically required by these Rules.
(b) Duties and Responsibilities
of the Chief Procurement Officer. The authority, duties and responsibilities of
the Chief Procurement Officer are as follows:
(A) Conduct Procurements,
including administration of Contracts, for Agencies.
(B) Develop and maintain
State-wide Procurement rules, policies, procedures and standard contract terms and
conditions as necessary to carry out the Public Contracting Code.
(C) Subdelegate authority
in whole or part, in accordance with OAR 125-246-0165(9);
(D) Revoke authority delegated
by the Chief Procurement Officer or in accordance with OAR 125-246-0165(10);
(E) Maintain a file of Written
subdelegation authority granted and revoked under these Rules in accordance with
the law;
(F) Provide guidance and
leadership on Procurement matters to Agencies and their employees;
(G) Provide training and
instruction opportunities to assure Department staff and Agency staff are equipped
with necessary knowledge and skills to comply with requirements of the Public Contracting
Code, Rules, and Department policy related to Procurement;
(H) Monitor sourcing decisions,
Procurements, development of Contracts, awarded Contract, Contract compliance, spend,
Delegations, Special Procurements and exemptions. Report these matters to the Authorized
Agency and Director as appropriate. Monitoring Contract development, awards, and
compliance applies to all Delegations;
(I) Based upon monitoring
described in subsection (3)(b)(H), determine opportunities, establish targets, and
utilize methods according to ORS 279A.200 through 279A.220 and 279B.055 through
279B.085 to optimize savings consistent with strategic sourcing.
(J) Appoint procurement advisory
committees to assist with Specifications, procurement decisions, and structural
change that can take full advantage of evolving procurement methods as they emerge
within various industries, while preserving competition according to ORS 279A.015.
(c) Delegation by Rule Based
Upon Threshold. By this Rule, the Director of the Department delegates authority
to the Chief Procurement Officer for the following Procurements, including Contract
Administration:
(A) Small Procurements of
Supplies and Services on behalf of Agencies not to exceed $10,000 according to ORS
279B.065;
(B) Intermediate Procurements
of Supplies and Services greater than $10,000 and not exceeding $150,000, and Amendments
of Contracts resulting from Intermediate Procurements, on behalf of Agencies and
according to ORS 279B.070 and OAR 125-247-0270;
(C) Informal Selection procedures
of Architectural, Engineering, Photogrammetric Mapping, Transportation Planning
or Land Surveying Services, and Related Services, on behalf of Agencies and according
to ORS 279C.110 and OAR 125-248-0210;
(D) Competitive Quotes of
Public Improvements estimated not to exceed $100,000, according to ORS 279C.410
notes and OAR 125-249-0160; and
(E) All Procurements exceeding
the Thresholds for Intermediate Procurements, Informal Procurements, or Competitive
Quotes, according to ORS 279B.070 and OAR-125-247-0270 (Supplies and Services);
ORS 279C.110 and OAR 125-248-0210 (Architectural, Engineering, Photogrammetric Mapping,
Transportation Planning or Land Surveying Services, and Related Services); and
ORS 279C.410 and OAR 125-249-0210 (Public Improvements), respectively.
(d) Delegation by Rule Based
Upon Type. By this Rule, the Director of the Department delegates authority to the
Chief Procurement Officer for the following Procurements, including Contract Administration:
(A) Cooperative Procurements
in accordance with ORS 279A.200 through 279A.225 and OAR 125-246-0400;
(B) Special Procurements
according to ORS 279B.085 and related Rules;
(C) Sole-Source Procurements
in accordance with ORS 279B.075 and OAR 125-247-0275;
(D) Emergency Procurements
in accordance with ORS 279B.080, 279C.335(5), OAR 125-248-0200, or related Rules;
(E) Federal program Procurements
in accordance with ORS 279A.180 and OAR 125-246-0360;
(F) Architectural, Engineering,
Photogrammetric Mapping, Transportation Planning or Land Surveying Services, and
Related Services (A&E) Procurement according to OAR 125-248-0200 through 125-248-0340;
(G) Brand Name Specification
Determinations for Solicitations in accordance with OAR 125-247-0691;
(H) Brand Name Specification
Determinations for Sole Source Procurements according to OAR 125-247-0691;
(I) Selling or leasing of
Supplies and Services in accordance with OAR 125-246-0800;
(J) All Procurements otherwise
delegated to an Authorized Agency according to Section (2) if the Chief Procurement
Officer, at her or his own discretion, revokes and assumes this delegated authority,
based upon a determination that any Authorized Agency refuses or fails to comply
with any Delegation described in section (2); and
(K) Buy Decision in accordance
with OAR 125-247-0200(1) and (2).
(4) Delegation to the Department
Procurement Services Manager.
(a) Delegation by Rule Based
Upon Type. By this Rule, the Director of the Department delegates authority to
the Department Procurement Services Manager for the following Procurements, including
Contract Administration:
(A) Strategic Sourcing: Cooperative
Procurements and Statewide Price Agreements.
(i) Conduct Statewide Price
Agreement Solicitations,
(ii) Award and execute Statewide
Price Agreement Contracts, resulting Price Agreement Work Orders, and Statewide
Price Agreement Qualified Rehabilitation Facility (QRF) Contracts,
(iii) Procure and administer
Cooperative Procurements, including acting as an Administrator or Participant and
participating in, sponsoring, conducting or administering Cooperative Procurements
in accordance with OAR 125-246-0400,
(iv) Approve Cooperative
Procurement Sole Source Justifications as follows:
(I) The Sole Source Request
must be submitted through ORPIN and all Approvals must be attached to the ORPIN
Request to allow for searching, e-filing, and reporting purposes,
(II) For each Sole Source
Request, the reviewer(s) must create a Special Request e-file on an accessible drive
and a paper file; evaluate the Request based upon a consideration of the criteria
under ORS 279B.075 and related rules; document decision-making; and close the files
for each Sole Source Request and Approval.
(B) Agency-Specific Procurements.
(i) Conduct Agency-Specific
Solicitations, and “Agency-Specific” means one agency,
(ii) Award and execute Agency-Specific
Contracts,
(iii) Execute Agency-Specific
Contracts and Agency-Specific QRF Contracts,
(C) All Procurements.
(i) Purchase through the
federal General Service Administration Schedule 70 in accordance with OAR 125-246-0360,
(ii) Make Contract amendments
and conduct other Contract Administration,
(iii) Receive and resolve
protests, except for appeals from a decision of the Chief Procurement Officer or
delegate,
(b) Authorities related to
Agency Delegation Requests and Approvals. The Director of the Department delegates
to the Department Procurement Services Manager the authority to make Delegation
Requests on behalf of Agencies and approve Agencies’ Delegation Requests in
accordance with the following conditions:
(A) The Delegation Requests
must be submitted through ORPIN and all Delegation Agreements must be attached to
the ORPIN Delegation Requests to allow for searching, e-filing, and reporting purposes,
(B) The Delegation Request
and any Agreement relate to:
(i) A specific authority
to one agency, not exceeding a cumulative total value of $500,000, and not involving
a policy decision, or
(ii) A specific authority
to be an administrator for or participant in a cooperative procurement, and not
involving a policy decision,
(C) For each Delegation Request,
the reviewer(s) must create an e-file on an accessible drive and a paper file; complete
the assessment form; evaluate the Request based upon a consideration of the criteria
under in OAR 125-246-0165(9); authorize only the use of a procurement method under
ORS 279B.055 through 279B.085 (seven sourcing methods) or 279C.330 through 335 (competitive
bidding); document decision-making; and close the files for each Delegation Request
and Agreement.
(D) All Delegation Requests,
Assessments, and Agreements must be in writing and on the same forms as used by
the Department Procurement Policy Team.
(c) Approval of Feasibility
Determinations. The Director of the Department delegates to the Department Procurement
Services Manager the authority to conduct Cost Analyses and approve Feasibility
Determinations in accordance with OAR 125-247-0110.
(d) General.
(A) This Delegation of authority
under section (4) is not exclusive. The Director of the Department still retains
all procurement authority under ORS 279A.140.
(B) This Delegation under
section (4) is for the sole purpose of the Department performing procurement services.
Except as provided in subsection (4)(b), the authority delegated under Section
(4) may not be sub-delegated to Agencies.
Stat. Auth.: ORS 279A.065(5)(a) &
279A.070
Stats. Implemented: ORS 279A.050,
279A.075 & 279A.140
Hist.: DAS 4-2004, f. 11-23-04,
cert. ef. 3-1-05; DAS 9-2005, f. & cert. ef. 8-3-05; DAS 15-2005(Temp), f. &
cert. ef. 12-22-05 thru 5-21-06; DAS 5-2006, f. & cert. ef. 5-31-06; DAS 6-2008,
f. & cert. ef. 7-2-08; DAS 11-2009, f. 12-30-09, cert. ef. 1-1-10; DAS 3-2012,
f. 11-29-12, cert. ef. 12-1-12; DAS 4-2013, f. 12-17-13, cert. ef. 1-1-14; DAS 3-2014,
f. 12-29-14, cert. ef. 1-1-15

Minorities, Women and Emerging Small Businesses

125-246-0200
Affirmative Action; Limited Competition Permitted
According to ORS 279A.100, an Authorized Agency may limit competition on Public Contracts for Supplies and Services, or on other Public Contracts with an estimated cost of $50,000 or less to carry out affirmative action policies, including but not limited to OAR 125-246-0314 (disabled veterans), and in accordance with any policies and procedures established by the Department.
Stat. Auth.: ORS 279A.065(5)(a) & 279A.070

Stats. Implemented: ORS 279A.100

Hist.: DAS 4-2004, f. 11-23-04, cert. ef. 3-1-05; DAS 6-2008, f. & cert. ef. 7-2-08; DAS 11-2009, f. 12-30-09, cert. ef. 1-1-10
125-246-0210
Subcontracting to and Contracting with Emerging Small Businesses; Disqualification
(1) As set forth
in ORS 279A.105, an Authorized Agency may require a Contractor to subcontract some
part of a Contract to, or to obtain materials to be used in performing the Contract
from:
(a) A business
enterprise that is certified under ORS 200.055 as an emerging small business; or
(b) A business
enterprise that is:
(A) Certified
under ORS 200.055 as an emerging small business; and
(B) Is located
in or draws its Workforce from economically distressed areas, as designated by the
Oregon Business Development Department.
(2) For purposes
of ORS 279A.105, a subcontractor certified under ORS 200.055 as an emerging small
business is located in or draws its Workforce from economically distressed areas
if:
(a) Its principal
place of business is located in an area designated as economically distressed by
the Oregon Business Development Department according to administrative rules adopted
by the Oregon Economic and Community Development Department; or
(b) The Contractor
certifies in Writing to the Authorized Agency that a substantial number of the subcontractor's
employees, or subcontractors that will manufacture or provide the Goods or perform
the Services under the Contract, reside in an area designated as economically distressed
by the Oregon Business Development Department according to administrative rules
adopted by the Oregon Business Development Department. For the purposes of making
the foregoing determination, the Authorized Agency must determine in each particular
instance what proportion of a Contractor's subcontractor's employees or subcontractors
constitutes a substantial number.
(3) Discrimination
in Subcontracting Prohibited.
(a) Prohibition.
An Offeror who competes for or is awarded a Public Contract may not discriminate
against a subcontractor in the awarding of a subcontract because the subcontractor
is a minority, woman, emerging small business enterprise certified under ORS 200.055
or against a business enterprise that is owned or controlled by or that employs
a disabled veteran, as defined in ORS 408.225.
(b) Certification.
Authorized Agencies must include in each Solicitation Document a requirement that
Offerors certify in their Offers that the Offeror has not and will not discriminate,
in violation of Subsection (3)(a), against a subcontractor in the awarding of a
subcontract because the subcontractor is a minority, woman or emerging small business
enterprise certified under ORS 200.055 or against a business enterprise that is
owned or controlled by or that employs a disabled veteran, as defined in ORS 408.225.
(4) Disqualification:
(a) An Authorized
Agency may disqualify a Person from consideration of award of the Authorized Agency's
Contracts under ORS 200.065(5), or suspend a Person's right to bid on or participate
in any Public Contract according to ORS 200.075(1) after providing the Person with
notice and a reasonable opportunity to be heard in accordance with Subsections (d)
and (e) of this Section.
(b) As provided
in ORS 200.065 and 200.075 an Authorized Agency may disqualify or suspend a Person's
right to submit an Offer or to participate in a Contract (e.g., act as a subcontractor)
as follows:
(A) For a
Disqualification under ORS 200.065, the Authorized Agency may disqualify a Person
upon finding that the Person engaged in any of the activities made unlawful by ORS
200.065(1) or (2), or if the Person has been disqualified by another Authorized
Agency according to ORS 200.065.
(B) For a
Disqualification under ORS 200.075, the Authorized Agency may suspend a Person upon
finding that the Person engaged in any of the acts prohibited by ORS 200.075(a)
through (c).
(c) An Authorized
Agency may disqualify or suspend a Person's right to submit Offers or participate
in Public Contracts only for the length of time permitted by ORS 200.065 or 200.075,
as applicable.
(d) The Authorized
Agency must provide Written notice to the Person of a proposed Disqualification.
The Agency must deliver the Written notice by personal service or by registered
or certified mail, return receipt requested. This notice must:
(A) State
that the Authorized Agency intends to disqualify or suspend the Person;
(B) Set forth
the reasons for the Disqualification;
(C) Include
a statement of the Person's right to a hearing if requested in Writing within the
time stated in the notice and that if the Authorized Agency does not receive the
Person's Written request for a hearing within the time stated, the Person must have
waived the 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 Person may be represented by legal counsel.
(e) Hearing.
Upon the Authorized Agency’s receipt of the Person’s timely request,
the Authorized Agency must promptly deliver written notification and this request
to the Chief Procurement Officer. The Chief Procurement Officer must schedule a
hearing upon its receipt of the Person's timely request. The Department must notify
the Person 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 before
the hearing. The Chief Procurement Officer has the discretion to delegate authority
under OAR 125-246-0170(3)(a)(G) and specify how the delegatee must review and hear
Disqualifications.
Stat. Auth.: ORS
279A.065(5)(a) & 279A.070

Stats. Implemented:
ORS 279A.200.065, 200.075, 105 & 279A.110

Hist.: DAS
4-2004, f. 11-23-04, cert. ef. 3-1-05; DAS 5-2006, f. & cert. ef. 5-31-06; DAS
11-2009, f. 12-30-09, cert. ef. 1-1-10; DAS 3-2012, f. 11-29-12, cert. ef. 12-1-12
125-246-0220
Advocate’s
Office and OMWESB
(1) The Director
of Economic & Business Equity (also known as the "Governor's Advocate's Office
for Minority, Women and Emerging Small Business) was created in the Office of the
Governor, and the Director of Economic & Business Equity is the individual appointed
by the Governor to advise the Governor, Legislature and Director's Office on issues
related to the integration of minority, women and emerging small business into the
mainstream of the Oregon economy and business sector. The Director of Economic &
Business Equity oversees the resolution of business concerns with Authorized Agencies
impacting certified disadvantaged, minority, women and emerging small businesses
(DMWESB). The Director of Economic & Business Equity is also charged with maintaining
the Oregon Opportunity Register and Clearinghouse to facilitate the timely notice
of business and contract opportunities to DMWESB firms certified by the Office of
Minority, Women and Emerging Small Businesses according to ORS 200.025.
(2) The "Office
of Minority, Women and Emerging Small Business" (OMWESB), as part of the Governor’s
Office, administers the certification process for the Disadvantaged Business Enterprise
(DBE), Minority Business Enterprise (MBE), Women Business Enterprise (WBE), and
Emerging Small Business (ESB) Programs. As the sole certification authority in Oregon
for disadvantaged, minority-and woman-owned businesses, and emerging small businesses,
the Office of Minority, Women and Emerging Small Business (OMWESB) provides certification
services for disadvantaged, minority, woman and emerging small businesses, according
to ORS 200.025 and 200.055.
(3) A "Disadvantaged
Business Enterprise" means a small business concern which is at least 51 percent
owned by one or more socially and economically disadvantaged individuals or, in
the case of any corporation, at least 51 percent of the stock of which is owned
by one or more socially and economically disadvantaged individuals and whose management
and daily business operations are controlled by one or more of the socially and
economically disadvantaged individuals who own it.
(4) An "Emerging
Small Business" is a business with its principal place of business located in this
State; a business with average annual gross receipts over the last three years not
exceeding $1 million for construction firms and $300,000 for non-construction firms
business which has fewer than 20 employees; an independent business (not a subsidiary,
affiliate, or successor company of another business whose average gross receipts
would exceed the stated limits); and a business properly licensed and legally registered
in this State.
(5) A "Minority
or Women Business Enterprise" is a small business concern which is at least 51 percent
owned by one or more minorities or women, or in the case of a corporation, at least
51 percent of the stock of which is owned by one or more minorities or women, and
whose management and daily business operations are controlled by one or more of
such individuals, according to ORS 200.005.
(6) The general
policy of the Department and these Rules is to expand economic opportunities for
Disadvantaged Business Enterprises, Minority Business Enterprises, Women Business
Enterprises and Emerging Small Businesses by exposing them to contracting and subcontracting
opportunities available through Public Contracts, according to ORS 279A.105 and
based upon the Legislative findings set forth in ORS 200.015.
(7) The Agency
must support the participation of Minority, Women owned and Emerging Small Businesses
in its purchasing processes by notifying the Director of Economic & Business
Equity as required under ORS 200.035.
(8) When
a Public Improvement Contract is less than $100,000 and the Offerors are being drawn
exclusively from a list of Certified Emerging Small Businesses maintained by the
Office of Minority, Women and Emerging Small Business, the Authorized Agency may
let the Contract without formal competitive sourcing methods after a good faith
effort to obtain a minimum of three competitive Quotes from Emerging Small Businesses.
To obtain maximum exposure for all firms and guard against favoritism, care must
be taken to obtain Quotes from different firms each time the list is used. The Authorized
Agency must keep a Written record of the source and amount of the Quotes received
and comply with the applicable requirements of this Rule.
(9) In carrying
out the policy of affirmative action, an Authorized Agency may rely upon ORS 279A.100
and advice of legal counsel regarding its application.
(10) No Special
Procurement according to ORS 279B.085 and no exemption according to ORS 279C.335
approved by the Chief Procurement Officer waives or excepts the requirement of notice
to the Director of Economic & Business Equity in accordance with ORS 200.035
and any DAS policy. All Agencies must comply with ORS 200.035, notwithstanding the
Public Contracting Code.
Stat. Auth.: ORS
279A.065(5)(a) & 279A.070

Stats. Implemented:
ORS 279A.100 & 279A.105

Hist.: DAS
4-2004, f. 11-23-04, cert. ef. 3-1-05; DAS 5-2006, f. & cert. ef. 5-31-06; DAS
11-2009, f. 12-30-09, cert. ef. 1-1-10; DAS 3-2012, f. 11-29-12, cert. ef. 12-1-12

Contract Preferences

125-246-0300
Preference for Oregon
Supplies and Services
See OAR 137-046-0300.
Stat. Auth.: ORS 279A.065(5)(a)
& 279A.070

Stats. Implemented: ORS 279A.120

Hist.: DAS 4-2004, f. 11-23-04,
cert. ef. 3-1-05; DAS 5-2006, f. & cert. ef. 5-31-06; DAS 3-2011, f. 12-22-11,
cert. ef. 1-1-12
125-246-0310
Reciprocal Preferences
(1) When evaluating Offers according to OAR 125-247-0255 through 125-247-0260, 125-249-0390 or 125-249-0640 through 125-249-0660, Authorized Agencies must add a percentage increase to the Offer of a Nonresident Offeror equal to the percentage, if any, of the preference that would be given to that Offeror in the state in which the Offeror resides. An Authorized Agency may rely on the list maintained by the Department according to ORS 279A.120(4) to determine:
(a) Whether the Nonresident Offeror’s state gives preference to in-state Offerors; and if so,
(b) The amount of such preference (Percentage).
(2) Authorized Agencies must add a percentage to the Offer that matches the Percentage described in Section (1) before determining Tie-Offers in accordance with OAR 125-246-0300.
Stat. Auth.: ORS 279A.065(5)(a) & 279A.070

Stats. Implemented: ORS 279A.120

Hist.: DAS 4-2004, f. 11-23-04, cert. ef. 3-1-05; DAS 5-2006, f. & cert. ef. 5-31-06; DAS 6-2008, f. & cert. ef. 7-2-08; DAS 11-2009, f. 12-30-09, cert. ef. 1-1-10
125-246-0314
Disabled Veterans Preference
(1) Generally. The Public Contracting Code and these Rules may not be construed to prohibit an Authorized Agency from engaging in public contracting practices designed to promote affirmative action goals, policies or programs to give a preference in awarding Public Contracts to Disabled Veterans. In carrying out an affirmative action goal, policy or program, an Authorized Agency may limit competition for any Public Contract estimated to not exceed $50,000 to Disabled Veterans as defined in Section (2) (“Preference”).
(2) Definition. “Disabled Veteran” is defined in ORS 408.225. “Disabled Veteran” includes the individual as defined in ORS 408.225 and any business enterprise that one or more such individuals own or control, if the cumulative ownership or control by such individuals is 51% or greater.
(3) Establishing the Preference. The Authorized Agency may use a percentage for the Preference in a competitive procurement process or use the Preference for a direct award to the Disabled Veteran instead. In either case, the process for a Contract may not exceed $50,000, and the Designated Procurement Officer of the Authorized Agency must make a written determination that supports the Preference.
(4) Subcontracting. An Authorized Agency may require a Contractor to subcontract some part of a Contract not to exceed $50,000 to, or obtain materials to be used in performing the Contract from, a Disabled Veteran.
(5) Proof. Under Section (3) or (4), an Authorized Agency may require that a Disabled Veteran produce proof of service–connected disability from the United States Department of Veterans Affairs. The proof of service–connected disability may be in the form of an:
(a) Award letter;
(b) Award card; or
(c) Other evidence acceptable to the Authorized Agency from the United States Department of Veterans Affairs.
(6) Discrimination. A Bidder or Proposer who competes for or is awarded a Public Contract may not discriminate against a subcontractor in awarding a subcontract because the subcontractor employs a Disabled Veteran or is a Disabled Veteran.
(7) Debarment or Disqualification.
(a) Finding and Appeal. An Authorized Agency may debar or disqualify a Bidder or Proposer (Offeror) under OAR 125-247-0575 or OAR 125-249-0370, if the Authorized Agency finds that the Offeror has violated Section (6). A debarred or disqualified Offeror may appeal under OAR 125-247-0750 or OAR 125-249-0370.
(b) Limitation. An Authorized Agency may not allege an occurrence of discrimination in subcontracting as a basis for debarring or disqualifying a Bidder or Proposer under Section (6) more than three (3) years after the alleged discriminatory conduct occurred or more than three (3) years after the Authorized Agency, in the exercise of reasonable diligence, should have discovered the conduct, whichever is later.
(8) Certification. An Offeror must certify in the documents accompanying its Offer that the Offeror has not discriminated and will not discriminate against a Disabled Veteran or a subcontractor that employs a Disabled Veteran in obtaining a required subcontract.
(9) Violation. After a Contractor is awarded a Public Contract and if the Contractor violates the certification made under Section (8), the Authorized Agency may regard the violation as a major breach of contract that permits the Authorized Agency to:
(a) Terminate the Contract; or
(b) Exercise any of the remedies for breach of contract that are reserved in the Contract.
Stat. Auth.: ORS 279A.065(5)(a), 279A.070

Stats. Implemented: ORS 279A.100

Hist.: DAS 11-2009, f. 12-30-09, cert. ef. 1-1-10
125-246-0316
Lighting
Preference Relating to Mercury
Authorized Agencies must comply with
ORS 646A.566, including but not limited to:
(1) When making procurement
decisions on lighting that contains mercury, an Agency must:
(a) Request information from
potential suppliers on mercury content, energy use, lumen output and lighting lifetime;
(b) Issue specifications;
and
(c) Favor lighting that contains
mercury that meets the mercury content standards established by ORS 646A.564.
(2) After consultation with
the Department of Environmental Quality, the Chief Procurement Officer may direct
Agencies to use information and issue specifications to favor lighting in accordance
with (1), and Agencies must follow the directions, if any.
Stat. Auth.: ORS 279A.065(5)(a) &
279A.070
Stats. Implemented: ORS 646A.566
Hist.: DAS 3-2012, f. 11-29-12,
cert. ef. 12-1-12; DAS 3-2014, f. 12-29-14, cert. ef. 1-1-15
125-246-0318
Oregon Employment
Preference
Authorized Agencies must comply with
ORS 279B.112, including but not limited to the following requirements for a discretionary
preference:
(1) An Authorized Agency
may give a preference to an Offer including a personnel deployment disclosure form
(Disclosure Form) that states that the Offeror will employ more workers within Oregon
than a competing Offer if the Offers otherwise suit the Agency’s specifications
for the procurement equally well.
(2) The Agency may state
in the solicitation documents for any procurement (Solicitation) that the Agency
will consider a Disclosure Form and may give a preference described in section (1)
above. Then,
(a) An Offeror may submit
a Disclosure Form with its Offer;
(b) If the Agency determines
that the Offers suit the Agency’s specifications for the procurement equally
well, then the Agency may consider any Disclosure Forms submitted with those Offers
in evaluating the Offers; and
(c) The Agency may prefer
the Offer with a Disclosure Form that indicates that the Offeror will employ more
workers within Oregon than a competing Offer, with or without Disclosure Form information.
(3) The Disclosure Form submitted
by an Offeror must state:
(a) The number of workers
that the Offeror and its subcontractors plan to deploy to perform the work described
in the Solicitation;
(b) The number of workers
that the Offeror and its first-tier subcontractors will employ within Oregon; and
(c) The number of jobs in
each of the categories described in subsections (3)(a) and (b) that would be a newly
created job.
(4) The Agency may adopt
its own form and contents for the Disclosure Form, unless the Chief Procurement
Officer requires Agencies to use an approved form and contents of the Disclosure
Form.
(5) The Agency may:
(a) Verify the information
stated in the Disclosure Form before awarding a public contract; and
(b) Require that the contractor
maintain a minimum number of workers and jobs over the term of the contract.
Stat. Auth.: ORS 279A.065(5)(a) &
279A.070
Stats. Implemented: ORS 279B.112
Hist.: DAS 3-2012, f. 11-29-12,
cert. ef. 12-1-12; DAS 3-2014, f. 12-29-14, cert. ef. 1-1-15
125-246-0319
Federally
Funded Transit Projects – Preference for Exceeding Federal Buy America Requirements
See OAR 137-046-0330.
Stat. Auth.: ORS
279A.065(5)(a), 279A.070

Stats. Implemented:
Sec. 4, Ch. 52, OLs 2012

Hist.: DAS
3-2012, f. 11-29-12, cert. ef. 12-1-12
Recycling
125-246-0320
Recycling; Definitions
(1) "Post-consumer Waste" means a finished material that would normally be disposed of as solid waste, having completed its life cycle as a consumer item. "Post-consumer Waste" does not include manufacturing waste.
(2) "Recycled Material" means any material that would otherwise be a useless, unwanted or discarded material except for the fact that the material still has useful physical or chemical properties after serving a specific purpose and can, therefore, be reused or recycled.
(3) "Recycled PETE Product" means a product containing post-consumer polyethylene terephthalate material.
(4) "Secondary Waste Materials" means fragments of products or finished products of a manufacturing process that has converted a virgin resource into a commodity of real economic value, and includes post-consumer waste, but does not include excess virgin resources of the manufacturing process. For paper, "secondary waste materials" does not include fibrous waste generated during the manufacturing process such as fibers recovered from waste water or trimmings of paper machine rolls, mill broke, wood slabs, chips, sawdust or other wood residue from a manufacturing process.
Stat. Auth.: ORS 279A.065(5)(a) & 279A.070

Stats. Implemented: ORS 279A.125, 279A.145, 279A.150, 279B.270 & 279B.280

Hist.: DAS 4-2004, f. 11-23-04, cert. ef. 3-1-05
125-246-0321
Recycling Policy
(1) The Department
promotes the Procurement by all Authorized Agencies of products made from Recycled
Materials in accordance with ORS 279A.125 and 279B.270.
(2) When
purchasing Goods, or pursuant to Subsection (2)(c), Personal Services that relate
to the use of recovered resources and Recycled Materials, Authorized Agencies must:
(a) Review
the procurement Specifications currently utilized in order to eliminate, wherever
economically feasible, discrimination against the Procurement of recovered resources
or Recycled Materials;
(b) Develop
purchasing practices that, to the maximum extent economically feasible, assure purchase
of materials which are recycled or which may be recycled or reused when discarded.
The Department will make Recycled Products and materials available to Authorized
Agencies whenever they can be obtained;
(c) Provide
incentives for the maximum possible use of recovered resources and Recycled Materials,
wherever economically feasible, in all procurement Specifications issued.
(3) Pursuant
to ORS 279A.125, notwithstanding provisions of law requiring the Department to award
a Contract to the lowest or best Offeror, the Department must give preference to
the procurement of Goods manufactured from Recycled Materials, if the Recycled Product's
costs do not exceed the costs of nonrecycled products by more than 5%, or a higher
percentage if a Written determination is made by the Department . The requirements
of ORS 279A.125 may be applied to Authorized Agencies by agreement or policy of
the Department.
(4) The Offeror
must indicate in the Offer, the materials considered relevant to the 5% preference.
The 5% preference will only apply to the value of that portion of the Offer that
offers non-paper products containing verifiable recycled contents.
(5) All Contracts
must require Contractors to use, in the performance of the Contract Work, to the
maximum extent economically feasible, Recycled Paper;
(a) All Contracts
must require Contractors to use, in the performance of the Contract Work, to the
maximum extent economically feasible, recycled PETE products, as well as other recycled
plastic resin products. "Recycled PETE products" means a product containing post-consumer
polyethylene terephthalate material. The Department must provide guidelines to Authorized
Agencies and Contractors on the availability of necessary Goods that contain recycled
PETE, as well as other recycled plastic resin supplies and materials; the Department
must also identify suppliers able to provide necessary Goods containing recycled
PETE, as well as other recycled plastic resin supplies and materials, pursuant to
ORS 279A.150.
(b) All Authorized
Agencies must include the following language in any Invitation to Bid or Request
for Proposal: "Vendors must use recyclable products to the maximum extent economically
feasible in the performance of the contract Work set forth in this document," pursuant
to ORS 279B.270(2); and
(c) The Department
must include Recycled Product purchasing information within publications and training
programs provided to local governments requesting state government purchasing assistance,
pursuant to ORS 279A.145.
Stat. Auth.: ORS
279A.065(5)(a) & 279A.070

Stats. Implemented:
ORS 279A.125, 279A.145, 279A.150, 279B.270 & 279B.280

Hist.: DAS
4-2004, f. 11-23-04, cert. ef. 3-1-05; DAS 5-2006, f. & cert. ef. 5-31-06; DAS
3-2012, f. 11-29-12, cert. ef. 12-1-12
125-246-0322
Preference for Recycled
Materials
(1) Notwithstanding
provisions of law requiring an Authorized Agency to award a Contract to the lowest
or best Offer of a Provider, and in accordance with ORS 279A.125 and Subsection
(2) of this Section, an Authorized Agency charged with the Procurement of Goods
for any public use must give preference to the Procurement of Goods manufactured
from Recycled Materials whenever the Authorized Agency uses Competitive Sealed Bidding
or Competitive Sealed Proposals pursuant to ORS 279B.055 or 279B.060, respectively,
and as set forth in this Rule.
(2) In comparing
Goods from two or more Offerors, if at least one Provider offers Goods manufactured
from Recycled Materials and at least one Provider does not, an Authorized Agency
must select the Provider offering Goods manufactured from Recycled Materials if
each of the following four conditions exists:
(a) The Recycled
Product is available;
(b) The Recycled
Product meets applicable standards;
(c) The Recycled
Product can be substituted for a comparable non-recycled product; and
(d) The Recycled
Product's costs do not exceed the costs of non-recycled products by more than five
percent (5%), or a higher percentage if a Written determination is made by the Authorized
Agency and set forth in the Solicitation Document.
When making
this determination, the Authorized Agency must consider the costs of the Goods following
any adjustments the Authorized Agency makes to the price of the Goods after evaluation
pursuant to OAR 125-246-0310.
(3) For the
purposes of this Section, an Authorized Agency must determine if Goods are manufactured
from Recycled Materials in accordance with standards established by the Department
.
(4) Providers
must certify in their Offers:
(a) The minimum,
if not exact, percentage of Recycled Product in all materials and supplies offered;
and
(b) Both
the post-consumer and secondary waste content thereof. Providers may certify a zero
percent Recycled Product content. This certification applies to Public Improvement
products and all other Procurements.
(5) To be
eligible for a preference under ORS 279A.125 and this Rule:
(a) The Provider
must indicate which materials and supplies contain verifiable recycled content;
and
(b) Such
products must meet the requirements of ORS 279A.125 and this Rule.
(6) A preference
under ORS 279A.125 will only be applied to those products in the Offer that contain
verifiable recycled content.
(7) Offers
that contain false information about:
(a) The percentage of Recycled Product, post-consumer
and secondary waste content; or
(b) Verifiable recycled content, must be rejected
as nonresponsive, and the Provider offering false information may be deemed non-responsible.
(8) Contracts
awarded as a result of a preference under ORS 279A.125 are subject to such investigation,
including but not limited to, audits, plant visitations, examination of invoices,
laboratory analysis, and other documents, etc., as the Department deems necessary
to confirm that the products supplied therein contain the percentages of Recycled
Product, post-consumer and secondary waste stated in the Offer.
(9) Failure
to provide products containing the percentages of Recycled Product, post-consumer
and secondary waste stated in the Offer may result in:
(a) The Provider
reimbursing the State for the portion of the Contract Price that is attributable
to the preference applied under ORS 279A.125;
(b) Contract
termination; or
(c) Both
(a) and (b), or such other remedies as the Department deems appropriate.
Stat. Auth.: ORS
279A.065(5)(a) & 279A.070

Stats. Implemented:
ORS 279A.125

Hist.: DAS
4-2004, f. 11-23-04, cert. ef. 3-1-05; DAS 5-2006, f. & cert. ef. 5-31-06; DAS
3-2012, f. 11-29-12, cert. ef. 12-1-12
125-246-0323
Recycled
Paper and Paper Products
(1) The Department
promotes the use of Recycled Paper and paper products, and no less than 35% of Authorized
Agency Procurements of paper products may be from Recycled Paper Products, pursuant
to ORS 279A.155.
(2) The Department
must make available to Agencies paper and paper products that contain significant
quantities of Recycled Materials in all grades where it can be obtained. The Department
and Authorized Agencies must purchase Recycled Paper and paper products when the
cost of such Recycled Paper or paper products is no more than five (5%) higher than
the cost of the same quality paper or paper products containing little or no Recycled
Paper. The Department and Authorized Agencies must give a preference of up to five
percent (5%) pursuant to ORS 279A.125(2), to suppliers of Recycled Paper and paper
products, over the lowest price of non Recycled Paper and paper products if the
fitness and quality of the Recycled Paper content paper meet Specification requirements
and the type of Recycled Paper content is equivalent to the same type of virgin
material.
(3) Except
as provided in this Rule and regardless of cost, the Department must make Recycled
Paper and paper products available to Authorized Agencies through a Recycled Paper
agreement. Authorized Agencies that find it economically feasible to exceed the
incentive in Section (2) of this Rule for Recycled Paper may do so either by use
of agreements for Recycled Paper or by indicating on their purchase request the
percentage of Recycled Paper incentive, which is economically feasible for them.
Stat. Auth.: ORS
279A.065(5)(a) & 279A.070

Stats. Implemented:
ORS 279A.125 & 270A.155

Hist.: DAS
4-2004, f. 11-23-04, cert. ef. 3-1-05; DAS 5-2006, f. & cert. ef. 5-31-06; DAS
3-2012, f. 11-29-12, cert. ef. 12-1-12
125-246-0324
Recycling: Food Service and Food Packaging
(1) The Department promotes the use of recyclable or biodegradable products for food service and packaging.
(2) The five percent (5%) preference in ORS 279A.125(2) must apply to purchases of Recycled Products for food service and packaging that are not paper products. The minimum purchase in ORS 279A.155 of at least thirty-five percent (35%) must apply to purchases of Recycled Products for food service and food packaging that are 100% paper or paper products.
(3) Recyclable or Biodegradable Products for food service and packaging will be made available for purchase by Authorized Agencies.
(4) Authorized Agencies are required to purchase recyclable or biodegradable food service and packaging products when purchasing supplies.
(5) The Department must include a provision in all food service Contracts and extensions to such Contracts, requiring the use of recyclable or biodegradable food service products when such products are readily available, meaning deliverable within thirty (30) days of placement of an order by the food service Contractor to its supplier. This period of time may be less or more, as industry standards for various commodities indicate.
(6) The Department must encourage its suppliers to provide biodegradable or Recycled Products as substitutes.
(7) The Department must use best efforts to obtain and use biodegradable or Recyclable Products as substitutes for products that are non-biodegradable or non-recyclable.
Stat. Auth.: ORS 279A.065(5)(a) & 279A.070

Stats. Implemented: ORS 279A.125 & 270A.155

Hist.: DAS 4-2004, f. 11-23-04, cert. ef. 3-1-05

Doing Business in Oregon
125-246-0330
Supplier Requirements
(1) Tax Compliance.
(a) No Contract or other
agreement for more than $1,000 may be entered into, renewed or extended with any
Person unless the Person certifies in Writing, under penalty of perjury, that the
Person is not in violation of any tax laws described in ORS 305.385(6) and (7).
(b) Agency must determine
that a Bidder or Proposer is responsible under ORS 279B.110 and OAR 125-247-0500(1).
In order to make this determination, a Bidder or Proposer must demonstrate to the
Agency that the Bidder or Proposer has complied with the tax laws of this state
or a political subdivision of this state, including ORS 305.620 and ORS Chapters
316, 317 and 318. The Bidder or Proposer must demonstrate compliance by submitting
a signed affidavit that attests, under penalty of perjury, that the Bidder or Proposer
has complied with the tax laws of this state or a political subdivision of this
state (Affidavit).
(A) Agency may determine
which Bidder or Proposer must submit an Affidavit and the timing and manner of the
submittal.
(B) Agency may allow the
Bidder or Proposer to electronically transmit the Affidavit, and Agency may maintain
the electronically transmitted Affidavit in lieu of the original Affidavit.
(C) The Agency Designated
Procurement Officer, DAS Chief Procurement Officer, DAS Procurement Services Manager,
or delegate may approve the form(s) of the Affidavit.
(D) An Affidavit attests
to the Bidder or Proposer’s current compliance with tax laws. During the period
Bidder or Proposer is in compliance, a Bidder or Proposer may submit a copy of the
same Affidavit to multiple Agencies or for multiple Invitations to Bid or Requests
for Proposals, and an Agency is not required to obtain a new original Affidavit
from a Bidder or Proposer for each Procurement.
(E) The Bidder or Proposer
is responsible for determining whether the Bidder or Proposer is in compliance with
tax laws. If applicable, compliance with tax laws may not require payment of taxes.
(2) Requirements to Transact
Business in Oregon.
(a) A Contractor who is a
corporation, partnership, or who has an assumed business name must be registered
with the Secretary of State Office in accordance with ORS Chapters 58, 60, 62, 63,
65, 67, 70, and 648. This registration is the obligation of the Contractor, not
the Agency.
(b) In addition, for Contracts
requiring the services of one or more architects, engineers, and land surveyors,
these Consultants must be registered with the appropriate licensing boards under
the provisions of ORS 671.020, 672.020, and 672.025.
(c) The statutory requirements
for contracting firms to register with the Secretary of State’s Office may
be subject to a limited number of exceptions under federal law. For example, national
banks, when they contract with Authorized Agencies, are not subject to the registration
requirement.
(d) The Contractor or Consultant
must be registered at the time of the execution of the Contract and thereafter.
Stat. Auth.: ORS 279A.065(5)(a) &
279A.070
Stats. Implemented: ORS 279A.140,
279B.110(1) & 279C.105(1)
Hist.: DAS 4-2004, f. 11-23-04,
cert. ef. 3-1-05; DAS 5-2006, f. & cert. ef. 5-31-06; DAS 6-2008, f. & cert.
ef. 7-2-08; DAS 11-2009, f. 12-30-09, cert. ef. 1-1-10; DAS 3-2014, f. 12-29-14,
cert. ef. 1-1-15
Services Contracts
125-246-0333
Independent Contractors
(1) An Authorized Agency may, within
the limits of its delegation under OAR 125-246-0170 and its legislatively approved
budget, Contract for Services with Providers who are Independent Contractors.
(2) "Independent Contractor"
means a Person who provides services to an Authorized Agency in which the Authorized
Agency neither controls nor has the right to control the means or manner by which
Work is performed. The Authorized Agency may control the results of the services,
but not control the means or manner of Contractor's performance of the Work.
(3) Within the parameters
of employment, Workers' compensation, and other relevant state and federal laws,
and after determining that the contract will not violate any collective bargaining
agreements, an Authorized Agency may contract for Services when:
(a) The Work cannot be done
in a reasonable time with the Authorized Agency's own Workforce;
(b) An independent and impartial
evaluation is required; or
(c) It will be less expensive
to contract for the Work.
(4) The Authorized Agency
may not use Services Contracts to obtain and pay for the services of an employee.
If a Contractor is not an Independent Contractor, the Authorized Agency may not
enter into a Services Contract with the Contractor; instead, the Authorized Agency
must follow personnel policies for employment options.
(5) Independent Contractor
Status. The Authorized Agency must develop a Statement of Work for Services, including
Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or
Land Surveying Services, and Related Services, that will not result in an employee
relationship with the potential Contractor. Contractors must complete the Independent
Contractor Certification either as a contract provision or on a form approved by
the Chief Procurement Officer (Independent Contractor Certification). If the Contractor
cannot certify Independent Contractor status, the Authorized Agency may not contract
with the Contractor using a Services Contract, including Architectural, Engineering,
Photogrammetric Mapping, Transportation Planning or Land Surveying Services, and
Related Services, except as otherwise allowed in Subsection (5)(f) of this Rule:
(a) An Independent Contractor
Certification must be part of each Contract;
(b) If the Contractor is
a corporation, the Independent Contractor Certification is still required.
(c) If the nature of the
Services or project is such that an employee/employer relationship will exist, the
Authorized Agency must hire the individual through normal personnel procedures.
(d) The Contract must include
the Contractor's legal name and address. Either the Contract or a separate cover
sheet for the Contract must include the Contractor’s Social Security or federal
tax identification number.
(e) 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.
(f) When a Contractor cannot
certify that the Contractor meets the definition of “independent contractor,”
is customarily engaged in an independently established business, and meets at least
three of the requirements for such a business in accordance with ORS 670.600, then
the Authorized Agency may contract with the Contractor only if the Designated Procurement
Officer of the Authorized Agency approves the Contract upon a determination that
the Contractor is an Independent Contractor and the Contract will not result in
undue risk to the State.
(g) For compliance with the
tax laws in accordance with ORS 279B.110, see OAR 125-246-0330.
Stat. Auth.: ORS 279A.065(5)(a) &
279A.070
Stats. Implemented: ORS 279A.140
Hist.: DAS 6-2008, f. &
cert. ef. 7-2-08; DAS 11-2009, f. 12-30-09, cert. ef. 1-1-10; DAS 3-2012, f. 11-29-12,
cert. ef. 12-1-12; DAS 3-2014, f. 12-29-14, cert. ef. 1-1-15
Personal Services
Contracts
125-246-0335
Authority
and Standards for Personal Services Contracts
(1) Application.
For the purposes of this Rule only, "Personal Services" includes Architectural,
Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying
Services, and Related Services.
(2) Identification
of Personal Services Contracts.
(a) According
to ORS 279A.140(2)(h), the Chief Procurement Officer may designate Contracts or
classes of Contracts as Personal Services Contracts for the purposes of reporting
Personal Services Contracts in accordance with ORS 279A.140 and identifying the
appropriate required procedures in accordance with ORS 279A.070 and 279A.140. In
the event of uncertainty or disagreement as to the status of any particular Contract
or class of Contracts, the Chief Procurement Officer may determine whether a particular
contract is a Personal Services Contract.
(b) The Authorized
Agency must identify within the Contract that the Authorized Agency is contracting
for Personal Services. A failure to adequately describe Personal Services within
the Contract will not invalidate the Procurement or Contract if the Authorized Agency
properly used a sourcing method according to ORS 279B.055 through 279B.085 or 279C.100
through 279C.125 and substantially followed the related Rules.
(3) Contracting
Out for Services Provided by Employees.
(a) Where
the Authorized Agency is contemplating contracting for Work performed by Authorized
Agency employees represented by a labor organization, the Authorized Agency must
review the relevant collective bargaining agreement to ensure the contract complies
with the provisions and, if applicable, the requirements of ORS 279A.140.
(b) Whenever
the Authorized Agency pays more in a given 12-month period to a Provider under a
Personal Services Contract for services historically performed by state employees
than would have been paid to the Authorized Agency employee performing the same
Work, the Authorized Agency must report that fact, with a justifying statement to
the Department. The report must be made at the conclusion of each fiscal year.
Stat. Auth.: ORS
279A.065(5)(a) & 279A.070

Stats. Implemented:
ORS 279A.140

Hist.: DAS
4-2004, f. 11-23-04, cert. ef. 3-1-05; DAS 5-2006, f. & cert. ef. 5-31-06; DAS
6-2008, f. & cert. ef. 7-2-08; DAS 11-2009, f. 12-30-09, cert. ef. 1-1-10; DAS
3-2012, f. 11-29-12, cert. ef. 12-1-12
125-246-0345
Procedures
for Personal Services Contracts
(1) Contract and
Amendment Forms for Architectural, Engineering, Photogrammetric Mapping, Transportation
Planning or Land Surveying Services, and Related Services. Authorized Agencies must
comply with OAR 125-248-0300(1).
(2) Other
Forms for Personal Services Contracts and Amendments. Authorized Agencies must use
one of the forms provided or approved by the Chief Procurement Officer for Personal
Services Contracts and Amendments (Forms).
(a) Revised
Forms.
(A) Designated
Procurement Officer Approval up to $150,000. For revised Forms up to a cumulative
value of $150,000 and before an Authorized Agency may use a revised Form, it must
obtain its Designated Procurement Officer’s approval of any revisions to the
Form’s terms and conditions. The Designated Procurement Officer’s approval
is not required for revisions to Form exhibits that are unrelated to terms and conditions.
(B) Department
of Justice Approval over $150,000. For revised Forms exceeding a cumulative value
of $150,000 and before an Authorized Agency may use a revised Form, it must obtain
Department of Justice approval of any revisions to the revised Form’s terms
and conditions. The Department of Justice approval is not required for revisions
to Form exhibits that are unrelated to terms and conditions. The Department of Justice
approval may be delivered by facsimile, email, letter or any other objective means
of approval.
(b) Upon
an Authorized Agency's request, the Department of Justice may approve a revised
Form for repeated use for a specific class or classes of transactions.
(c) The Authorized
Agency must review the approved Form at least every two years. If upon review the
Authorized Agency revises the Form, the Authorized Agency must obtain Department
of Justice approval before using the revised Form.
(3) Screening,
Selection, Evaluation and Award Procedures. An Authorized Agency must follow the
procedures set forth in Division 248 of these Rules when contracting for Architectural,
Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying
Services, and Related Services. For all other Personal Services Contracts, an Authorized
Agency must select a sourcing method from the seven methods available according
to ORS 279B.055 through 279B.085 and follow the screening, selection, evaluation
and award procedures set forth for the selected sourcing method in Division 247
of these Rules.
(4) Amendments
and Reinstatements. The procedures for Amendments and reinstatements are found in
OAR 125-247-0805, 125-248-0340, and 125-246-0570, respectively. Procedures for Amendments
and reinstatements for Architectural, Engineering, Photogrammetric Mapping, Transportation
Planning or Land Surveying Services, and Related Services are found in OAR 125-248-0340
and 125-248-0310, respectively.
Stat. Auth.: ORS
279A.065(5)(a) & 279A.070

Stats. Implemented:
ORS 279A.70 & 279A.140(h)(B)

Hist.: DAS
4-2004, f. 11-23-04, cert. ef. 3-1-05; DAS 5-2006, f. & cert. ef. 5-31-06; DAS
6-2008, f. & cert. ef. 7-2-08; DAS 11-2009, f. 12-30-09, cert. ef. 1-1-10; DAS
3-2012, f. 11-29-12, cert. ef. 12-1-12
125-246-0350
Approval
of Personal Services Contracts
(1) Application. For the purposes of
this Rule only, "Personal Services" includes Architectural, Engineering, Photogrammetric
Mapping, Transportation Planning or Land Surveying Services, and Related Services.
(2) Chief Procurement Officer
Approval. Except as provided in OAR 125-246-0170, the Chief Procurement Officer
or delegate must approve all Personal Services Contracts exceeding $150,000 before
the Authorized Agency executes the Contract.
(3) Requisite Approvals First.
All requisite approvals must be obtained, including the approval of the Attorney
General, if required, before any Personal Services Contract entered into by an Authorized
Agency becomes binding upon the State and before any service may be performed or
payment made under the Contract, unless:
(a) The Contract is exempt
from the prohibition against services being performed before review for legal sufficiency
is obtained under ORS 291.047(6); or
(b) The Chief Procurement
Officer or delegate authorizes an Authorized Agency to acquire services before obtaining
all requisite approvals in accordance with OAR 125-246-0351.
(4) Approval after Legal
Sufficiency Review. The Chief Procurement Officer may not approve a Personal Services
Contract before the Attorney General approves this Personal Services Contract under
ORS 291.047.
(5) Types of Approvals.
(a) When Attorney General
legal sufficiency approval is required under ORS 291.047, the Authorized Agency
must seek legal approval;
(b) When an Authorized Agency
contracts for services normally provided by another Authorized Agency or for services
for which another Authorized Agency has statutory responsibilities, the Authorized
Agency is required to seek the other Authorized Agency's approvals, prior to final
approval by the Chief Procurement Officer. Examples of these special approvals include,
but are not limited to:
(A) Department, Risk Management
Services, for providing tort liability coverage.
(B) Department, Enterprise
Goods and Services Division, Publishing and Distribution, for printing services;
(C) Department, Enterprise
Goods and Services Division, for accounting services;
(D) Office of the Treasurer,
Debt Management Division, for financial and bond counsel services (bond counsel
services also require the approval of the Attorney General); and
(E) Department, Chief Information
Office, for information-system related and telecommunications services. The Authorized
Agency is also encouraged to use the Chief Information Office as a resource in carrying
out information system-related projects. This may include:
(i) Assistance to the Authorized
Agency in developing Statements of Work related to information system projects;
(ii) Reviews to assure consistency
with State standards and direction; and
(iii) A listing of vendors
that provide information system-related services.
(c) The Authorized Agency's
and Contractor's execution must be obtained;
(d) The Chief Procurement
Officer approval, when required, is last.
(6) Attorney or Financial
Auditing Services.
(a) The Attorney General
has sole authority to contract for attorney services. Only the Attorney General
may grant exceptions in Writing on a case-by-case basis;
(b) The Secretary of State
Audits Division has sole authority to contract for financial auditing services.
Only the Secretary of State Audits Division may grant exceptions in Writing on a
case-by-case basis.
Stat. Auth.: ORS 279A.065(5)(a) &
279A.070
Stats. Implemented: ORS 279A.140(2)
Hist.: DAS 4-2004, f. 11-23-04,
cert. ef. 3-1-05; DAS 5-2006, f. & cert. ef. 5-31-06; DAS 6-2008, f. & cert.
ef. 7-2-08; DAS 3-2012, f. 11-29-12, cert. ef. 12-1-12; DAS 4-2013, f. 12-17-13,
cert. ef. 1-1-14; DAS 3-2014, f. 12-29-14, cert. ef. 1-1-15
125-246-0351
Acquiring Services before Obtaining
Requisite Approvals of a Personal Services Contract
(1) Application. For the purposes of
this Rule only, "Personal Services" includes Architectural, Engineering, Photogrammetric
Mapping, Transportation Planning or Land Surveying Services, and Related Services.
“Requisite approvals” are defined in OAR 125-246-0350.
(2) Personal Services may
be performed before all requisite approvals are obtained under a Personal Services
Contract if the Personal Services Contract is exempt from the prohibition against
services being performed before review for legal sufficiency is obtained under ORS
291.047(6).
(3) The process set forth
in this Rule is intended to allow Authorized Agencies to acquire services before
obtaining all requisite approvals for those Personal Services Contracts that call
for payments of less than the Threshold for legal sufficiency review by the Attorney
General.
(4) The Chief Procurement
Officer may authorize an Authorized Agency to acquire services before obtaining
all requisite approvals when circumstances exist that require prompt action to protect
the interests of the State. An Authorized Agency may seek such authorization for
a Personal Services Contract or a class of Personal Services Contracts to address
specific recurring needs to acquire services on short notice. An Authorized Agency
seeking the Chief Procurement Officer’s authorization must describe particular
circumstances that make it impracticable to obtain all requisite approvals before
acquiring services. The Chief Procurement Officer will only authorize an Authorized
Agency to acquire services before obtaining all requisite approvals if the Authorized
Agency follows the procedures set forth in this Rule. The Chief Procurement Officer’s
authorization according to this Rule only allows the Authorized Agency to acquire
services before obtaining all requisite approvals. It does not authorize the Authorized
Agency to make any payments before obtaining all requisite approvals.
(5) The Authorized Agency
seeking the Chief Procurement Officer’s authorization to acquire services
before obtaining all requisite approvals must provide:
(a) Written findings to the
Chief Procurement Officer that describe the specific recurring circumstances that
require the Authorized Agency to take prompt action to protect the interests of
the State because they create substantial risk of loss, damage, interruption of
services or threat to public health or safety. The Authorized Agency must also describe
why, under these specific circumstances, it will be impracticable to obtain all
requisite approvals before acquiring services;
(b) The Personal Services
Contract form that the Authorized Agency will use for the Contract entered into
after acquiring services, but before making payments.
(c) Documentation demonstrating
that the Authorized Agency has established procedures to administer the Contract
or class of Contracts, for which it seeks authorization.
(6) The Chief Procurement
Officer after review of the material required by Section (5) above, may authorize
the Authorized Agency to acquire the specific services under the specific circumstances
described in response to Section (5)(a) above before obtaining all requisite approvals.
If the Chief Procurement Officer provides authorization, the Chief Procurement Officer
will do so in Writing, subject to any conditions or limitations the Chief Procurement
Officer deems appropriate, including but not limited to the duration of the authorization,
and any other terms and conditions the Chief Procurement Officer may determine
are appropriate.
(7) If Authorized Agency
acquires services before obtaining all requisite approvals when authorized by the
Chief Procurement Officer, the Authorized Agency, as soon as practicable after acquiring
the services, must enter into a Written Contract in the form submitted by the Authorized
Agency and approved by the Chief Procurement Officer. The Authorized Agency must
not revise the terms of the approved Contract form submitted by Authorized Agency
without the Chief Procurement Officer’s approval.
(8) The Authorized Agency
must not make any payments for services before obtaining all requisite approvals.
(9) The Chief Procurement
Officer authorization to perform services before obtaining all requisite approvals
does not exempt the Authorized Agency from obtaining legal sufficiency review, if
required under the provisions of ORS 291.047.
(10) An Authorized Agency
authorized to perform services before obtaining all requisite approvals must follow
all applicable screening and selection requirements unless otherwise exempt from
those requirements.
Stat. Auth.: ORS 279A.065(5)(a)
& 279A.070
Stats. Implemented: ORS 279A.140(2)
Hist.: DAS 4-2004, f. 11-23-04,
cert. ef. 3-1-05; DAS 11-2009, f. 12-30-09, cert. ef. 1-1-10; DAS 3-2012, f. 11-29-12,
cert. ef. 12-1-12; DAS 3-2014, f. 12-29-14, cert. ef. 1-1-15

125-246-0353
Reporting
Requirements for Personal Services Contracts
(1) Application.
For the purposes of this Rule only, "Personal Services" includes Architectural,
Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying
Services, and Related Services.
(2) The Department
maintains for state agencies an electronic reporting system within ORPIN for reporting
Personal Services Contracts. Each state agency that is not exempt from the Public
Contracting Code must report in ORPIN each Personal Services Contract and Amendment.
The report must include the state agency name, not-to-exceed amount of the Contract,
the name of the Contractor, the duration of the Contract, its basic purpose, and
a copy of the Personal Services Contract or Amendment. Whenever a state agency pays
more in a calendar year under a Personal Services Contract for services historically
performed by state employees than the state agency would have paid to the state
agency’s employees performing the same Work, the state agency must so report
through ORPIN and include in the report a statement of justification for the greater
costs, according to ORS 279A.140(2)(h)(A)(i).
(3) The Department
must submit a report to the Legislature summarizing state agency Personal Services
Contracts. This report must include the name of the state agency, the not-to-exceed
amount of the Contracts, the name(s) of Contractor(s), the duration of Contract(s)
and the basic purpose of the Contract(s). The report must also include the total
dollar figure of all Personal Services Contracts for each fiscal year.
(4) The Department
maintains an electronic file of Personal Services Contracts report forms for public
review. The electronic file includes a justification statement, when applicable,
and documentation of the selection process for each Contract.
(5) The state
agency must keep in the Procurement File all Personal Services Contracts, justification
statements, when applicable, documentation of the selection process for each Contract,
and the report forms in compliance with OAR 166-300-0015(7) and any other applicable
laws.
Stat. Auth.: ORS
279A.065(5)(a) & 279A.070

Stats. Implemented:
ORS 279A.140(h)(A)

Hist.: DAS
4-2004, f. 11-23-04, cert. ef. 3-1-05; DAS 5-2006, f. & cert. ef. 5-31-06; DAS
6-2008, f. & cert. ef. 7-2-08; DAS 3-2012, f. 11-29-12, cert. ef. 12-1-12
Intergovernmental
Relations
125-246-0360
Purchases Through Federal Programs
(1) Exemption. An Authorized Agency
may purchase certain authorized Supplies and Services through General Service Administration
(GSA) federal programs or federal Contracts (Federal Programs) without Competitive
Sealed Bidding, Competitive Sealed Proposals or other competition required under
ORS 279B.050 to 279B.085, provided that the Authorized Agency has federal authorization
to purchase through the Federal Program and follows the procedures set forth in
this rule.
(2) Federal Authorization.
(a) The Federal Programs
named in ORS 279A.180 are accessible to Authorized Agencies for purchasing Supplies
and Services. In addition, by this Rule, the Director of the Department (Director)
hereby makes the determination according to ORS 279A.180, that the GSA Order of
2000 and any subsequent revisions or updating of this GSA Order of 2000 (GSA Orders)
describe other Federal Programs that, under federal law, are similar to 10 U.S.C.
381 or Section 211 of the Electronic Government Act of 2002 in effectuating or promoting
transfers of property to Authorized Agencies; therefore, Authorized Agencies may
purchase through those Federal Programs described in a GSA Order without making
individual requests for determination to the Director.
(b) If an Authorized Agency
desires to purchase through another Federal Program that is not expressly named
in ORS 279A.180 or a GSA Order, the Authorized Agency must request in Writing a
determination from the Director or the Director's designated representative. In
the request, the Authorized Agency must document that the federal government has
authorized states, including the Authorized Agency, to purchase through the proposed
Federal Program. The request of the Authorized Agency and the determination by the
Director or representative must be limited to those other Federal Programs described
in ORS 279A.180 that, under federal law, are similar to 10 U.S.C. 381 or Section
211 of the Electronic Government Act of 2002 in effectuating or promoting transfers
of property to Authorized Agencies.
(c) If no federal authorization
exists as described in Sections (2)(a) and (b) of the Rule, then an Authorized Agency
is not permitted to purchase through any Federal Program.
(3) Procedures. To purchase
through a Federal Program, an Authorized Agency must document in its Procurement
File that:
(a) The federal authority
for the Authorized Agency to purchase through the Federal Program, referring to
ORS 279A.180, a GSA Order, or the Chief Procurement Officer’s approval of
an Authorized Agency's request.
(b) The acquisition meets
the Authorized Agency's needs;
(c) The price and other terms
of the acquisition are Advantageous to the State;
(d) No mandatory Department
Price Agreement for the authorized Supplies and Services exists, based upon the
Authorized Agency's inquiry through ORPIN;
(e) The Authorized Agency
has considered the acquisition's impact upon local business as follows:
(A) If the Procurement is
in excess of $5,000, the Authorized Agency has given timely notice through ORPIN
of its needs, reasons, and intent to procure through a Federal Program;
(B) The Authorized Agency
has provided a reasonable time period under the circumstances for individuals to
respond to the notice and send Written comments to the Authorized Agency; and
(C) The Authorized Agency
has considered any comments and replied, if appropriate, before proceeding with
its Procurement through a Federal Program. This Rule provides for an informal opportunity
to comment to and be considered by the Authorized Agency, instead of the formal
notice requirements for Solicitations in excess of $5,000 according to ORS 200.035.
(f) State and local preference
programs, including but not limited to Inmate Labor in accordance with the Oregon
Constitution, Article I, Section 41, Products of Disabled Individuals Program of
ORS 279.835 to 850, and state requirements Contracts under OAR 125-247-0296, are
not waived or otherwise adversely affected by an acquisition through a Federal Program;
(g) The Authorized Agency
has complied with OAR 137-045-0010 to 137-045-0090, and if it is required, obtained
a legal sufficiency review or exemption from the Department of Justice; and
(h) The Authorized Agency
is informed of its Federal Program's Procurement Process, including:
(A) Voluntary and Direct
Contract. The Authorized Agency and Contractors participate voluntarily. The Contractors
make direct deliveries to the Authorized Agency and retain the right to decline
orders on a case-by-case basis, for any reason, within a five-Day period of receipt
of that order;
(B) Funding Fee. The price
of a Federal Program Contract includes a GSA industrial funding fee to cover GSA
administrative costs to operate the Federal Program;
(C) New Contract. When a
Contractor accepts an order from an Authorized Agency, a new Contract is formed.
The Contract's terms and conditions are incorporated by reference; and
(D) Additional Terms and
Conditions. The Authorized Agency may add to its Contract such significant, substantial
contract terms and conditions as are required by State statutes or rules, if such
additions do not conflict with the Federal Program's Contract terms and conditions.
Examples of such terms and conditions include, but are not limited to:
(i) Prompt Payment. The Authorized
Agency may apply the terms and conditions of Oregon's prompt payment law to its
Contracts, but if the Authorized Agency fails to make this addition, then the Authorized
Agency may be subject to the Federal Prompt Payment Act, 31 U.S.C. sec. 3901 et
seq., as implemented at subpart 32.9 of the Federal Acquisition Regulation (FAR);
(ii) Commercial Terms. Patent
indemnity and other commercial terms and conditions may be added if they do not
conflict with the Federal Program's terms and conditions; and
(iii) Conflict Resolution.
The Authorized Agency may revise the Contract's dispute resolution provision to
use Alternative Dispute Resolution (ADR) to the extent authorized by law.
Stat. Auth.: ORS 279A.065(5)(a), 279A.070
& Sec.335, Ch. 794, OL 2003 (HB 2341)
Stats. Implemented: ORS 279A.180
Hist.: DAS 4-2004, f. 11-23-04,
cert. ef. 3-1-05; DAS 5-2006, f. & cert. ef. 5-31-06; DAS 11-2009, f. 12-30-09,
cert. ef. 1-1-10; DAS 3-2012, f. 11-29-12, cert. ef. 12-1-12; DAS 4-2013, f. 12-17-13,
cert. ef. 1-1-14
125-246-0365
ORS 190 Agreements
(1) Reporting 190 Agreements through ORPIN. A state agency that enters into an agreement under ORS 190.110, 190.420 or 190.485, or an agreement under ORS 190.112 or under ORS 660.342, must submit a summary of the agreement through ORPIN within the 30-day period immediately following the effective date of the agreement. For the purpose of this Rule only, “state agency” is defined in ORS 190. The summary must include the following information:
(a) Names of the parties to the agreement;
(b) Date of the agreement;
(c) Subject matter of the agreement; and
(d) The agency through which a person may obtain a copy of the agreement.
(2) Interstate and International Agreements. Following ORS 190, each Agency may enter into Interstate and International Agreements through negotiation, direct award, direct appointment, or in any other manner that satisfies the legal requirements for such Agreements.
(3) Tribal Agreements. Following ORS 190, each Agency may enter into Tribal Agreements through negotiation, direct award, direct appointment, or in any other manner that satisfies the legal requirements for such Agreements.
(4) Interagency and Intergovernmental Agreements. Following ORS 190, each Agency may enter into Interagency and Intergovernmental Agreements through negotiation, direct award, direct appointment, or in any other manner that satisfies the legal requirements for such Agreements.
(5) All Interstate, International, Tribal, Interagency and Intergovernmental Agreements, when required, are subject to review and approval by the Attorney General.
Stat. Auth.: ORS 279A.065(5)(a), 279A.070

Stats. Implemented: ORS 190.110, 190.112, 190.420, 190.485, 279B.085, 660.342

Hist.: DAS 6-2008, f. & cert. ef. 7-2-08; DAS 11-2009, f. 12-30-09, cert. ef. 1-1-10

Cooperative Procurement

125-246-0400
Cooperative Procurement; Purpose,
Policy, and Definitions
(1) See OAR 137-046-0400 through 137-046-0480.
(2) Regardless of OAR 137-046-0400
through 137-046-0480, Authorized Agencies must comply with the following provisions:
(a) Adaptation of Model Rules
for Agency Use. The following words found in those Model Rules expressly adopted
by the Department are replaced by the words as defined in this subsection (2)(a):
(A) “Administering
Contracting Agency” is replaced by “Administrator.”
(B) “Purchasing Contracting
Agency” is replaced by “Participant.”
(b) Definitions. For the
purposes of these Cooperative Procurement Rules only, the following definitions
apply to Cooperative Procurement:
(A) An “Administrator”
means a governmental body that solicits and establishes the Original Contract for
Supplies and Services or Public Improvements in a Cooperative Procurement. “Administrator”
means the Chief Procurement Officer or subject to the approval of the Chief Procurement
Officer: an Agency, another Public Body within the state of Oregon, or a governmental
body outside the state of Oregon. An Administrator has the same rights and responsibilities
as an Administering Contracting Agency under ORS 279A.200 through 279A.225.
(B) "Contract" means a Public
Contract or Price Agreement resulting from a Cooperative Procurement by an Administrator.
(C) "Cooperative Procurement"
means a Procurement conducted by an Administrator or on behalf of one or more Participants.
Cooperative Procurement includes but is not limited to multiparty Contracts and
Price Agreements.
(D) "Cooperative Procurement
Group" means:
(i) A group of Agencies,
Public Bodies within the state of Oregon or any governmental body outside the state
of Oregon, separately or in any combination;
(ii) Approved by the Chief
Procurement Officer; and
(iii) Joined through an intergovernmental
agreement for the purposes of facilitating a Cooperative Procurement.
(E) "Interstate Cooperative
Procurement" means a Permissive Cooperative Procurement in which the Administrator
is authorized under that governmental body's laws, rules, or regulations to enter
into Public Contracts and in which one or more of the Participants are located outside
the State of Oregon.
(F) "Joint Cooperative Procurement"
means a Cooperative Procurement that identifies:
(i) The Participants or the
Cooperative Procurement Group; and
(ii) The contract requirements
or estimated contract requirements for the Original Contract.
(G) "Original Contract" means
the initial Contract or Price Agreement awarded under a Cooperative Procurement
by an Administrator.
(H) A “Participant”
means a governmental body that procures Goods, Services, or Public Improvements
from a Provider based on the Original Contract established by an Administrator in
a Cooperative Procurement. For the purpose of the Cooperative Procurement Rules,
the procured Services include Architectural, Engineering and Land Surveying Services,
and Related Services. A Participant may be the Chief Procurement Officer or, subject
to the approval of the Chief Procurement Officer: an Authorized Agency, a local
Public Body, a state agency with independence under ORS 279A.050, or a governmental
body located outside the State of Oregon. A Participant has the same rights and
responsibilities as a Participating or Purchasing Contracting Agency under ORS 279A.200
through 279A.225.
(I) "Permissive Cooperative
Procurement" means a Cooperative Procurement in which the Participants are not identified.
(c) Authority for Cooperative
Procurements.
(A) The Chief Procurement
Officer will enter into Cooperative Procurements on behalf of Agencies, unless an
Authorized Agency receives a delegation of authority according to OAR 125-246-0170
to act as an Administrator or Participant.
(B) Subject to a delegation
of authority described in subsection (2)(c)(A) of this Rule, an Administrator or
Participant may participate in, sponsor, conduct or administer Joint Cooperative
Procurements, Permissive Cooperative Procurements and Interstate Cooperative Procurements
in accordance with ORS 279A.200 through 279A.225 and these Rules.
(C) For Permissive Cooperative
Procurements, each Participant that participates after the Award of the Original
Contract must determine, in Writing, whether the Solicitation and award process
for the Original Contract arising out of a Cooperative Procurement is substantially
equivalent to those identified in ORS 279B.055, 279B.060 or 279B.085, consistent
with 279A.200(2). The Participant must maintain this Written determination in the
Participant’s Procurement File.
(d) Responsibilities.
(A) The Administrator of
a Cooperative Procurement may establish any terms and conditions necessary to allow
other Participating Authorized Agencies or Cooperative Procurement Groups of which
the Participant is a member (collectively, "Participant”) to participate in
a Cooperative Procurement. The Administrator may require Participants to enter into
a Written agreement that establishes the terms and conditions for participation
in a Cooperative Procurement. These terms and conditions may include, but are not
limited to: the establishment of any administrative fees for the Administrator,
whether each Person must enter into a Written agreement with the Administrator,
and any other matters related to the administration of the Cooperative Procurement
source selection and the resulting Original Contract. The Administrator may include
provisions in the Solicitation Document for a Cooperative Procurement and advertise
the Solicitation Document in a manner to assist Participants’ compliance with
the Code and these Rules.
(B) In administering or applying
these Rules, the Administrator must collaboratively review and compare the procurement
needs and requirements of both the Administrator and the respective Participant(s)
for the purpose of using a Cooperative Procurement to achieve cost savings (for
examples: lowest total cost of acquisition, least time to procure, process streamlining,
Return on Investment calculation based on a comparison of the total costs of individual
Authorized Agency Procurements versus a Cooperative Procurement).
(C) If a Participant enters
into a Contract based on a Cooperative Procurement, the Participant must comply
with the Code, these Rules, and any terms and conditions set out by the Administrator,
including:
(i) The extent to which the
Participant may participate in the Cooperative Procurement;
(ii) The advertisement of
the Solicitation Document for the Cooperative Procurement; and
(iii) Public notice of the
Participant’s intent to establish Contracts based on a Cooperative Procurement.
(D) Joint, Permissive, and
Interstate Cooperative Procurement Solicitations must comply with OAR 125-247-0305.
(e) Amendments of Cooperative
Procurements must comply with OAR 125-247-0805.
Stat. Auth.: ORS 279A.065(5)(a), 279A.070
Stats. Implemented: ORS 279A.050,
279A.065(5), 279A.070, 279A.140, 279A.205, 279A.210, 279A.215, 279A.220, 279A.225
Hist.: DAS 4-2004, f. 11-23-04,
cert. ef. 3-1-05; DAS 5-2006, f. & cert. ef. 5-31-06; DAS 6-2008, f. & cert.
ef. 7-2-08; DAS 3-2012, f. 11-29-12, cert. ef. 12-1-12; DAS 4-2013, f. 12-17-13,
cert. ef. 1-1-14

Notices and Advertisement

125-246-0500
Oregon Procurement Information Network (ORPIN)
(1) The Oregon Procurement Information
Network, known as ORPIN, an Internet-based, on-line system, is the official publication
forum for state Procurement notices and advertisements, as functionality allows,
by the Department and all Agencies.
(2) All state Agencies must
use ORPIN to comply with the reporting requirements for:
(a) Personal Services Contracts
in accordance with OAR 125-246-0353;
(b) Agreements under ORS
190 in accordance with OAR 125-246-0365; and
(c) Special Procurements
in accordance with OAR 125-247-0287(12).
(3) Authorized Agencies must
use ORPIN in accordance with the Department’s ORPIN Policy no. 107-009-020,
the Department’s MWESB Procurement Policy no. 107-009-030, and the Governor’s
Executive Order No. 12-03.
Stat. Auth.: ORS 279A.065(5)(a) &
279A.070
Stats. Implemented: ORS 279A.065,
279A.070 & 279A.140
Hist.: DAS 4-2004, f. 11-23-04,
cert. ef. 3-1-05; DAS 5-2006, f. & cert. ef. 5-31-06; DAS 3-2012, f. 11-29-12,
cert. ef. 12-1-12; DAS 4-2013, f. 12-17-13, cert. ef. 1-1-14

Contract Administration

125-246-0555
Contract Administration; General Provisions
(1) Authority. Procurements include Contract Administration. The authority for an Authorized Agency to conduct Contract Administration is found in OAR 125-246-0170.
(2) Contract Administrator. The Authorized Agency must appoint, in Writing, a Contract Administrator to represent the Authorized Agency 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, including communications according to OAR 125-246-0635.
Stat. Auth.: ORS 279A.065(5)(a) & 279A.070

Stats. Implemented: ORS 279A.050, 279.065(5), 279.070, 279.140

Hist.: DAS 4-2004, f. 11-23-04, cert. ef. 3-1-05; DAS 5-2006, f. & cert. ef. 5-31-06; DAS 6-2008, f. & cert. ef. 7-2-08
125-246-0556
Procurement Files
(1) Application. This Rule applies to
Procurement Files, as defined in OAR 125-246-0110.
(2) Required Documentation.
All Procurement Files must contain:
(a) All Written documents
delivered to an Agency from the Department, whether the documents relate to approvals,
revocations, orders, modifications, or other actions (Actions), related to the documents’
subject matter and Action;
(b) An executed Contract,
if awarded, and any Ordering Instruments and Amendments (collectively, Contract);
(c) The record of the actions
used to develop and administer the Contract;
(d) A copy of the Solicitation,
if any;
(e) The Contract Administrator
and any delegates;
(f) Any required findings
or statement of justification for the selection of the Provider and sourcing method
according to ORS 279A.200 through 279A.220 (Cooperative Procurement); 279B.055 through
085 (seven methods for Supplies and Services); 279C.100 through 279C.125 (Architectural,
Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying
Services or Related Services); or ORS 279C.300 through 279C.450 (Public Improvements);
(g) Documentation of Contract
Administration according to OAR 125-246-0555 and if required by the selected procurement
method:
(A) A list of prospective
Providers notified of any Solicitation;
(B) The method used to advertise
or notify prospective Providers;
(C) A copy of each Offer
that resulted in the Award of a Contract;
(D) The record of any Negotiation
of the Statement of Work and results;
(E) A record of all material
Communications regarding the Solicitation by interested Providers according to OAR
125-246-0635;
(F) All information describing
how the Provider was selected, including the method and basis for awarding the Contract;
(G) A copy of the Request
for Special Procurement, if any;
(H) Documentation for a Federal
Program purchase according to OAR 125-246-0360; and
(I) Documentation related
to Cooperative Procurements according to OAR 125-246-0400.
(3) Time Period. The Agency
must maintain Procurement Files, including all documentation, for a period in compliance
with OAR 166-300-0015(8) and any other applicable laws. Procurement Files must be
made immediately available for review upon the request of the Department.
Stat. Auth.: ORS 279A.065(5)(a), 279A.070
Stats. Implemented: ORS 279A.050,
279A.065(5), 279A.070, 279A.140
Hist.: DAS 6-2008, f. &
cert. ef. 7-2-08; DAS 3-2012, f. 11-29-12, cert. ef. 12-1-12; DAS 4-2013, f. 12-17-13,
cert. ef. 1-1-14
125-246-0570
Reinstatement of Expired Contract;
Retroactive Approval of Existing Contract
(1) Application. This Rule applies to
the reinstatement of expired or terminated Contracts (expired Contracts) and the
retroactive approval of existing Contracts procured by Authorized Agencies for Supplies
and Services and for Architectural, Engineering and Land Surveying Services or Related
Services (“Contracts”). This Rule does not apply to mistakes that may
occur in the solicitation process (see OAR 125-247-0470).
(2) Requirements to Reinstate
an Expired Contract.
(a) Before expiration, the
Contract was properly signed by all parties;
(b) Then the signed Contract
expired;
(c) The Agency reinstates
the Contract:
(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;
(d) The Agency documents
in the Procurement File the deliverable(s) to be completed at the time of the expired
Contract’s reinstatement; and
(e) If the Contractor has
performed work under the Contract, the reinstatement does not apply to payments
made for work performed between the expiration of the Contract and the date of any
reinstatement.
(3) Requirements to Retroactively
Approve an Existing Contract.
(a) The Contract exists and
has not expired;
(b) The Contract was signed
by all parties except that the required approval of the DPO or CPO 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.
(4) Process. For either a
reinstatement of an expired Contract or retroactive approval of an existing Contract,
the requesting Agency must meet the following conditions:
(a) The Agency must submit
a Written request to the Agency’s Designated Procurement Officer (DPO) if
the Agency is authorized under OAR 125-246-0170, or if not, to the Chief Procurement
Officer (CPO) with authority under 125-246-0170 (Request). If the Request is submitted
to the DPO, the Agency must also follow its internal procedures.
(b) The Request must explain
the following:
(A) The proposed reinstatement
of the expired Contract or retroactive approval of the existing Contract.
(B) The background facts
that led to the Request;
(C) The good faith basis
for making the Request;
(D) The need for reinstatement
of an expired Contract or retroactive approval of an existing Contract due to unforeseen
or unavoidable conditions;
(E) The steps to prevent
a reoccurrence. For examples:
(i) Improvement of Agency’s
internal policies and procedures; and
(ii) Provision of new training
or retraining; and
(F) Acknowledgement that
the Request is in the best interest of the Agency.
(c) 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. The
Authorized Agency must obtain all other approvals required for the Contract before
any reinstatement, extension of time under Subsection (6), or retroactive approval
becomes binding.
(d) The DPO or CPO, as described
in Subsection (3)(a), must approve the Request.
(5) Effect of Approval.
(a) An approved reinstatement
of an expired Contract makes the Contract in full force and effect, as if it had
not expired.
(b) An approved retroactive
approval of an existing Contract makes the Contract in full force and effect, as
if it had been approved by the DPO or CPO when the Contract was formed.
(c) The DPO or CPO, as appropriate,
may create any related Contract documents to implement the reinstatement or retroactive
approval.
(d) The Agency may make an
approved payment after any related Contract documents are signed by the necessary
parties.
(6) Amendments of a Reinstated
Contract.
(a) If the Agency requests
reinstatement of an expired Contract, the Request of the Agency may also include
a request to amend the reinstated Contract for time only. The DPO or CPO, as appropriate,
may approve this Request, including the amendment.
(b) The Agency may amend
a reinstated or retroactively approved Contract for purposes other than time in
accordance with OAR 125-247-0805.
(7) An Authorized Agency
may combine in one document a Reinstatement of a Contract in accordance with this
Rule, Retroactive Approvals of that Contract in accordance with OAR 125-246-0570,
and its Amendment in accordance with 125-247-0805, as needed.
Stat. Auth.: ORS 279A.065(5)(a) &
279A.070
Stats. Implemented: ORS 279A.050,
279A.065(5), 279A.070 & 279A.140
Hist.: DAS 4-2004, f. 11-23-04,
cert. ef. 3-1-05; DAS 5-2006, f. & cert. ef. 5-31-06; DAS 6-2008, f. & cert.
ef. 7-2-08; DAS 11-2009, f. 12-30-09, cert. ef. 1-1-10; DAS 3-2011, f. 12-22-11,
cert. ef. 1-1-12; DAS 4-2013, f. 12-17-13, cert. ef. 1-1-14
125-246-0576
Payment Authorization for Cost Overruns for Services Contracts
(1) Payments on
Contracts for Trade or Personal Services that exceed the maximum contract consideration
(Cost Overruns) require approval (Approval). If the aggregated value of the Contract,
including Cost Overruns, does not exceed $150,000, the Designated Procurement Officer
of the requesting Authorized Agency may approve the Cost Overruns in accordance
with Section (2) of this Rule. If the aggregated value of the Contract, including
Cost Overruns, exceeds $150,000, the Chief Procurement Officer may approve the Cost
Overruns in accordance with Section (2) of this Rule. The Cost Overruns may also
require approval from the Department of Justice pursuant to ORS 291.047 and 291.049.
(2) Approval
may be provided if:
(a) The Original
Contract was duly executed and, if required, approved by the Department and the
Attorney General;
(b) Payments
relate to Services that were provided during the term of the Contract;
(c) The cost
overrun is not associated with any change in the Statement of Work set out in the
Original Contract;
(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 Original Contract, or the most recent Amendment, if any, was signed. Such circumstances
include, but are not limited to: emergencies arising in the course of the Contract
that require prompt action to protect the Work already completed, compliance with
official or judicial commands or directives issued during contract performance or
insurance that the purpose of the Contract will be realized;
(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) The aggregated
value of the Contract, including the Cost Overrun, and the Contract’s objective
are within the procurement authority of the Authorized Agency pursuant to OAR 125-246-0170,
and the Authorized Agency currently has funds available for payment under the Contract;
and
(g) The Agency
must prepare a Written report that describes the Authorized Agency's discovery of
the Cost Overrun, the reasons for the Cost Overrun, and the Agency’s satisfaction
of the conditions set forth in this Section (2) (Report). The Authorized Agency
must maintain this Report in its Procurement File and make this Report available
to the Department upon request.
(h) The Designated
Procurement Officer of the Authorized Agency approves in Writing the payment of
the overrun, or such portion of the overrun amount as the Designated Procurement
Officer of the Authorized Agency determines may be paid consistent with the conditions
of this Rule. If the Designated Procurement Officer of the Authorized Agency has
signed the Contract, or has immediate supervisory responsibility over performance
of the Contract, that Person must designate an alternate delegate to grant or deny
Written approval of payment.
(3) The Authorized
Agency must obtain any Attorney General's approval of the Contract Amendment, if
such approval is required by ORS 291.047, before making any Cost Overrun payment.
Stat. Auth.: ORS
279A.065(5)(a), 279A.070

Stats. Implemented:
ORS 279A.050, 279A.065(5), 279A.070, 279A.140

Hist.: DAS
5-2006, f. & cert. ef. 5-31-06; DAS 11-2009, f. 12-30-09, cert. ef. 1-1-10;
DAS 3-2012, f. 11-29-12, cert. ef. 12-1-12
125-246-0580
Dispute Resolution
Pursuant to ORS 183.502, Authorized Agencies are authorized and encouraged to use alternative dispute resolution (ADR), including collaborative forms of dispute resolution such as mediation, facilitation and collaborative rulemaking. The Attorney General's Model Rules on ADR are designed to assist Authorized Agencies in the assessment and appropriate use of collaborative ADR, as set forth in the Oregon Attorney General's Administrative Law Manual and Uniform and Model Rules of Procedure under the Administrative Procedures Act, October 3, 2001.
Stat. Auth.: ORS 279A.065(5)(a), 279A.070

Stats. Implemented: ORS 279A.050, 279A.065(5), 279A.070, 279A.140

Hist.: DAS 4-2004, f. 11-23-04, cert. ef. 3-1-05

Ethics in Public Contracting

125-246-0600
Policy
These Rules supplement and do not replace ORS 244.010 through 244.400, for the purpose of applying the policy of ORS 244.010 to Oregon Public Contracting under the Public Contracting Code and these Rules. Oregon Public Contracting is a public trust. The Agencies and Contractors involved in Public Contracting must safeguard this public trust.
Stat. Auth.: ORS 279A.065(5)(a), 279A.070

Stats. Implemented: ORS 279A.015, 279A.065(5)(a), 279A.070, 279A.140

Hist.: DAS 4-2004, f. 11-23-04, cert. ef. 3-1-05
125-246-0605
Selection and Award of Public Contracts
(1) Agency officers, employees or agents involved in the process of the selection and award of Public Contracts must carefully review the provisions of ORS 244.040.
(2) Agency officers, employees and agents are prohibited from soliciting or receiving Gifts, which means something of economic value given to a public official or the public official's relative without an exchange of valuable consideration of equivalent value, including the full or partial forgiveness of indebtedness, and which is not extended to others who are not public officials or the relatives of public officials on the same terms and conditions; and something of economic value given to a public official or the public official's relative for valuable consideration less than that required from others who are not public officials.
(3) Agency officers, employees and agents are prohibited from using their official position for personal or financial gain.
(4) Agency officers, employees and agents are prohibited from using confidential information gained in the course of the screening and selection procedures for personal or financial gain.
Stat. Auth.: ORS 279A.065(5)(a), 279A.070

Stats. Implemented: ORS 279A.015, 279A.065(5)(a), 279A.070, 279A.140

Hist.: DAS 4-2004, f. 11-23-04, cert. ef. 3-1-05
125-246-0610
Appointments to Advisory Committees
The Director, Chief Procurement Officer, Designated Procurement Officer or a delegatee may appoint procurement advisory committees to assist with Specifications, procurement decisions, and structural change that can take full advantage of evolving procurement methods as they emerge within variousindustries, while preserving competition pursuant to ORS 279A.015.
Stat. Auth.: ORS 279A.065(5)(a), 279A.070

Stats. Implemented: ORS 279A.015, 279A.065(5)(a), 279A.070, 279A.140

Hist.: DAS 4-2004, f. 11-23-04, cert. ef. 3-1-05
125-246-0615
Nonretaliation
This Rule prohibits retaliation against anyone who complies with the Public Contracting Code and these Rules. Any officer, employee or agent of an Agency or Provider who engages in retaliation action will be subject to Penalties pursuant to ORS 279A.990, 244.350 to 244.400 and related rules. Also, any Provider who engages in a retaliation action may be debarred.
Stat. Auth.: ORS 279A.065(5)(a), 279A.070

Stats. Implemented: ORS 279A.015, 279A.065(5)(a), 279A.070, 279A.140

Hist.: DAS 4-2004, f. 11-23-04, cert. ef. 3-1-05
125-246-0620
Specifications
(1) Agencies and Providers must not develop Specifications that primarily benefit a Provider, directly or indirectly, to the detriment of an Agency or the best interest of the State.
(2) Agencies must not develop Specifications that inhibit or tend to discourage Public Contracting with Qualified Rehabilitation Facilities under ORS 279.835 through 279.855 and OAR 125-055-0005 through 125-055-0045 where those Specifications inhibit or tend to discourage the acquisition of QRF-produced Supplies and Services without reasonably promoting the satisfaction of bona fide, practical procurement needs of the Agency.
(3) Agencies and Providers must not develop Specifications that inhibit or tend to discourage Public Contracting under other public procurement laws or policies of the Department.
Stat. Auth.: ORS 279A.065(5)(a), 279A.070

Stats. Implemented: ORS 279A.015, 279A.065(5)(a), 279A.070, 279A.140

Hist.: DAS 4-2004, f. 11-23-04, cert. ef. 3-1-05
125-246-0621
Anti-Trust Laws
(1) Authorized Agencies must be generally informed about anti-trust laws and their prohibitions, including the prohibition of any Contract or conspiracy in restraint of trade. Violations of anti-trust laws include but are not limited to the attempt of any Person(s) to monopolize or to conspire with any other Person(s) to monopolize any trade of commerce.
(2) Violations of anti-trust laws harm competition and the policies of ORS 279A.015. Also see OAR 125-247-0500, 125-247-0575, 125-249-0370 and 125-249-0390.
Stat. Auth.: ORS 279A.065(5)(a), 279A.070

Stats. Implemented: ORS 646.725 and 646.730

Hist.: DAS 11-2009, f. 12-30-09, cert. ef. 1-1-10
125-246-0625
Sole-Source
Authorized Agencies may not select a Sole-Source Procurement pursuant to ORS 279B.075 and avoid a competitive Procurement if the purpose of the selection is to primarily benefit the Provider, directly or indirectly, to the detriment of an Authorized Agency or the best interest of the State.
Stat. Auth.: ORS 279A.065(5)(a), 279A.070

Stats. Implemented: ORS 279A.015, 279A.065(5)(a), 279A.070, 279A.140

Hist.: DAS 4-2004, f. 11-23-04, cert. ef. 3-1-05
125-246-0630
Fragmentation
A Procurement may not be artificially divided or fragmented so as to constitute a Small Procurement, pursuant to ORS 279B.065, or an Intermediate Procurement, pursuant to ORS 279B.070.
Stat. Auth.: ORS 279A.065(5)(a), 279A.070

Stats. Implemented: ORS 279A.015, 279A.065(5)(a), 279A.070, 279B.065

Hist.: DAS 4-2004, f. 11-23-04, cert. ef. 3-1-05
125-246-0635
Authorized Agency and Provider Communications
(1) Research Phase. Authorized Agencies are encouraged to conduct research with Providers who can meet the State's needs. This research includes but is not limited to: meetings, industry presentations, and demonstrations with any Providers that, in the Agency's discretion, may be able to meet an Agency's need. Authorized Agencies must document the items discussed during the research phase of Solicitation development. The research phase ends the day of a Solicitation release or request for a Quote according to an Intermediate Procurement, unless the Solicitation or Intermediate Procurement provides for a different process that permits on-going research.
(2) Solicitation and Contracting Phase. Any communication between an Authorized Agency and Providers regarding a Solicitation, that occurs after the Solicitation release or request for a Quote and before the Award of a Contract, must only be made within the context of the Solicitation Document or Intermediate Procurement requirements (Communication). This Communication may allow for Discussions, Negotiations, Addenda, Providers' questions, and the Agency's answers to Providers' 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 the Authorized Agency in Writing. A record of all material Communications regarding the Solicitation by interested Providers must be made a part of the Procurement File according to OAR 125-246-0556.
Stat. Auth.: ORS 279A.065(5)(a) & 279A.070

Stats. Implemented: ORS 279A.015, 279A.065(5)(a), 279A.070 & 279A.140

Hist.: DAS 4-2004, f. 11-23-04, cert. ef. 3-1-05; DAS 11-2009, f. 12-30-09, cert. ef. 1-1-10



Selling or Leasing Supplies and Services

125-246-0800
Policy; Applicability; Methods
(1) Policy. A sound
and responsive Public Contracting system, according to ORS 279A.015, may include
purchasing, selling, and leasing activities. By definition, a Public Contract includes
sales and leases by Agencies according to ORS 279A.010(1)(z). The policies of ORS
279A.015 apply to public selling and leasing activities.
(2) Applicability.
This Rule applies to the sales and leases of Supplies and Services. This Rule does
not apply to residential property or the public selling activity of Agencies specifically
exempted from the Public Contracting Code by another provision of law or specifically
authorized to conduct public selling or leasing activity by another provision of
law. The sale or lease of Supplies and Services includes but is not limited to:
concessions, software rights, and personal property.
(3) Methods.
Agencies must use a method, as feasible for selling or leasing, according to ORS
279B.055 through 279B.085. For the sale of Goods, the value of the sale transactions
for the purpose of selecting the appropriate sourcing method must be based on the
gross amount of receipts.
Stat. Auth.: ORS
279A.065(5)(a) & 279A.070

Stats. Implemented:
ORS 279A.010(x), 279A.015, 279A.050(1)(2), 279A.065(5)(a) & 279A.070

Hist.: DAS
4-2004, f. 11-23-04, cert. ef. 3-1-05; DAS 6-2008, f. & cert. ef. 7-2-08; DAS
3-2012, f. 11-29-12, cert. ef. 12-1-12

Penalties

125-246-0900
Penalties
(1) Any violation of ORS 279A.140, 279A.280,
or 279B.270 must be punished as described in 291.990, pursuant to 279A.990(1).
(2) Upon notice to the Department
of an alleged violation pursuant to ORS 279A.990(1), the Department, at its own
discretion, may provide to an individual of an Agency or an Agency an optional administrative
process with an opportunity for remedy prior or parallel to a legal process leading
to conviction or a Department certification leading to other penalties provided
by ORS 291.990. This Rule and administrative process may address related considerations,
including but not limited to:
(a) What specific actions
are interpreted as violations giving rise to penalties;
(b) Applicability to individuals
of Agencies and Agencies, regardless of whether delegated authority existed pursuant
to OAR 125-246-0170; and
(c) The placement of responsibility
for violations along the chain of delegated responsibility.
Stat. Auth.: ORS 279A.065(5)(a) &
279A.070
Stats. Implemented: ORS 279A.990
Hist.: DAS 4-2004, f. 11-23-04,
cert. ef. 3-1-05; DAS 4-2013, f. 12-17-13, cert. ef. 1-1-14

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