Model Rules General Provisions Related To Public Contracting

Link to law: http://arcweb.sos.state.or.us/pages/rules/oars_100/oar_137/137_046.html
Published: 2015

The Oregon Administrative Rules contain OARs filed through November 15, 2015

 

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DEPARTMENT OF JUSTICE

 


DIVISION 46
MODEL RULES

GENERAL PROVISIONS RELATED TO PUBLIC CONTRACTING

137-046-0100
Content and General Application; Federal Law Supremacy
(1) These Model Rules are rules of procedure for Public Contracting as required under ORS 279A.065 and consist of the following four divisions:
(a) This division 46, which applies to all Public Contracting;
(b) Division 47, which describes procedures for Public Contracting for Goods, Services and Personal Services other than Architectural, Engineering and Land Surveying Services and Related Services;
(c) Division 48, which describes procedures for Public Contracting for Architectural, Engineering and Land Surveying Services and Related Services; and
(d) Division 49, which describes procedures for Public Contracting for Construction Services.
(2) If a conflict arises between these division 46 rules and rules in divisions 47, 48 and 49, the rules in divisions 47, 48 and 49 take precedence over these division 46 rules.
(3) Except as otherwise expressly provided in ORS 279C.800 through 279C.870, and notwithstanding ORS Chapters 279A, 279B, and 279C.005 through 279C.670, applicable federal statutes and regulations govern when federal funds are involved and the federal statutes or regulations conflict with any provision of ORS Chapters 279A, 279B, or 279C.005 through 279C.670 or these Model Rules, or require additional conditions in Public Contracts not authorized by ORS Chapters 279A, 279B, and 279C.005 through 279C.670 or these Model Rules.
Stat. Auth.: ORS 279A.065

Stats. Implemented: ORS 279A.030 & 279A.065

Hist.: DOJ 11-2004, f. 9-1-04, cert. ef. 3-1-05; DOJ 20-2005, f. 12-27-05, cert. ef. 1-1-06; DOJ 19-2007, f. 12-28-07, cert. ef. 1-1-08
137-046-0110
Definitions for the Model Rules
Unless the context of a specifically
applicable definition in the Code requires otherwise, capitalized terms used in
the Model Rules have the meaning set forth in the division of the Model Rules in
which they appear, and if not defined there, the meaning set forth in these division
46 rules, and if not defined here, the meaning set forth in the Code. The following
terms, when capitalized in these Model 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) "Administering Contracting
Agency" has the meaning set forth in ORS 279A.200(1)(a) and for Interstate Cooperative
Procurements includes the entities specified in ORS 279A.220(4).
(3) "Award" means, as the context
requires, either identifying or the Contracting Agency's identification of the Person
with whom the Contracting Agency intends to enter into a Contract following the
resolution of any protest of the Contracting Agency's selection of that Person and
the completion of all Contract negotiations.
(4) "Bid" means a Written response
to an Invitation to Bid.
(5) "Closing" means the date
and time specified in a Solicitation Document as the deadline for submitting Offers.
(6) "Code" means the Public
Contracting Code.
(7) "Competitive Range" means
the Proposers with whom the Contracting Agency will conduct discussions or negotiations
if the Contracting Agency intends to conduct discussions or negotiations in accordance
with OAR 137-047-0261 or 137-049-0650.
(8) "Contract" means a contract
for sale or other disposal, or a purchase, lease, rental or other acquisition, by
a contracting agency of personal property, services, including personal services,
public improvements, public works, minor alterations, or ordinary repair or maintenance
necessary to preserve a public improvement. "Contract" does not include grants.
(9) "Contract Price" means,
as the context requires, the maximum monetary obligation that a Contracting Agency
either will or may incur under a Contract, including bonuses, incentives and contingency
amounts, if the Contractor fully performs under the Contract.
(10) "Contract Review Authority"
means:
(a) For State Contracting Agencies,
generally the Director of the Oregon Department of Administrative Services;
(b) For Local Contracting Agencies,
the Local Contracting Agency's Local Contract Review Board determined as specified
in ORS 279A.060; and
(c) Where specified by statute,
the Director of the Oregon Department of Transportation.
(11) "Contractor" means the
Person, including a Consultant as defined in OAR 137-048-0110(1), with whom a Contracting
Agency enters into a Contract.
(12) "DBE Disqualification"
means a disqualification, suspension or debarment pursuant to ORS 200.065, 200.075
or 279A.110.
(13) "Descriptive Literature"
means Written information submitted with the Offer that addresses the Goods and
Services included in the Offer.
(14) "Electronic Advertisement"
means a Contracting Agency's Solicitation Document, Request for Quotes, request
for information or other document inviting participation in the Contracting Agency's
Procurements made available over the Internet via:
(a) The World Wide Web or some
other Internet protocol; or
(b) A Contracting Agency's Electronic
Procurement System.
(15) "Electronic Offer" means
a response to a Contracting Agency's Solicitation Document or Request for Quotes
submitted to a Contracting Agency via:
(a) The World Wide Web or some
other Internet protocol; or
(b) A Contracting Agency's Electronic
Procurement System.
(16) "Electronic Procurement
System" means 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 a Contracting Agency to post Electronic Advertisements, receive Electronic Offers,
and conduct other activities related to a Procurement.
(17) "Invitation to Bid" or
"ITB" means the Solicitation Document issued to invite Offers from prospective Contractors
pursuant to either ORS 279B.055 or 279C.335.
(18) "Model Rules" means the
Attorney General's model rules of procedure for Public Contracting as required under
ORS 279A.065.
(19) "Offer" means a Written
offer to provide Goods or Services in response to a Solicitation Document.
(20) "Offeror" means a Person
who submits an Offer.
(21) "Opening" means the date,
time and place specified in the Solicitation Document for the public opening of
Offers.
(22) "Person" means any of the
following with legal capacity to enter into a Contract: individual, corporation,
business trust, estate, trust, partnership, limited liability company, association,
joint venture, governmental agency, public corporation or any other legal or commercial
entity.
(23) "Personal Services" as
used in division 47 and as used in division 46 when applicable to division 47 means
the services performed under a Personal Services Contract. "Personal Services" as
used in division 48 and division 49, and as used in this division 46 when applicable
to division 48 or division 49, or both, has the meaning set forth in ORS 279C.100.
(24) "Personal Services Contract"
means:
(a) For a Local Contracting
Agency, a Contract or member of a class of Contracts, other than a Contract for
the services of an Architect, Engineer, Land Surveyor or Provider of Related Services
(as defined in ORS 279C.100), that the Local Contracting Agency's Local Contract
Review Board has designated as a personal services contract pursuant to ORS 279A.055;
or
(b) For a State Contracting
Agency, a Contract, or member of a class of Contracts, other than a Contract for
the services of an Architect, Engineer, Land Surveyor or Provider of Related Services
(as defined in ORS 279C.100), whose primary purpose is to acquire 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, a Contract for the services of an accountant, physician
or dentist, educator, consultant, broadcaster or artist (including a photographer,
filmmaker, painter, weaver or sculptor).
(25) "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.
(26) "Proposal" means a Written
response to a Request for Proposals.
(27) "Recycled Materials" means
recycled paper (as defined in ORS 279A.010(1)(gg)), recycled PETE products (as defined
in ORS 279A.010(1)(hh), and other recycled plastic resin products and recycled products
(as defined in ORS 279A.010(1)(ii).
(28) "Request for Qualifications"
or "RFQ" means a Written document issued by a Contracting Agency to which Contractors
respond in Writing by describing their experience with and qualifications for the
Services, Personal Services or Architectural, Engineering or Land Surveying Services,
or Related Services, described in the document.
(29) "Request for Quotes" means
a Written or oral request for prices, rates or other conditions under which a potential
Contractor would provide Goods or perform Services, Personal Services or Public
Improvements described in the request.
(30) "Responsible" means meeting
the standards set forth in OAR 137-047-0640 or 137-049-0390(2), and not debarred
or disqualified by the Contracting Agency under OAR 137-047-0575 or 137-049-0370.
(31) "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 137-047-0640
or 137-049-0390(2), and who has not been debarred or disqualified by the Contracting Agency
under OAR 137-047-0575 or 137-049-0370.
(32) "Responsive" means having the characteristic
of substantial compliance in all material respects with applicable solicitation
requirements.
(33) "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.
(34) "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.
(35) "Signed" means, as the
context requires, that a Written document contains a Signature or that the act of
making a Signature has occurred.
(36) "Solicitation Document"
means an Invitation to Bid, Request for Proposals, Request for Quotes, or other
similar document issued to invite Offers from prospective Contractors pursuant to
ORS Chapter 279B or 279C. The following are not Solicitation Documents unless they
invite Offers from prospective Contractors: a Request for Qualifications, a prequalification
of bidders, a request for information, a sole source notice, an approval of a Special
Procurement, or a request for product prequalification. A project-specific selection
document under a Price Agreement that has resulted from a previous Solicitation
Document is not itself a Solicitation Document.
(37) "Writing" means letters,
characters and symbols inscribed on paper by hand, print, type or other method of
impression, intended 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.
(38) "Written" means existing
in Writing.
Stat. Auth.: ORS 279A.065
Stats. Implemented: ORS 279A.065

Hist.: DOJ 11-2004, f. 9-1-04,
cert. ef. 3-1-05; DOJ 20-2005, f. 12-27-05, cert. ef. 1-1-06; DOJ 19-2007, f. 12-28-07,
cert. ef. 1-1-08; DOJ 15-2009, f. 12-1-09, cert. ef. 1-1-10; DOJ 10-2011, f. 11-29-11,
cert. ef. 1-1-12
137-046-0120
Policy
Contracting Agencies subject to the Code shall conduct Public Contracting to further the policies set forth in ORS 279A.015, elsewhere in the Code, and in these Model Rules.
Stat. Auth.: ORS 279A.065

Stats. Implemented: ORS 279A.015 & ORS 279A.065

Hist.: DOJ 11-2004, f. 9-1-04, cert. ef. 3-1-05
137-046-0130
Application of the Code and Model
Rules; Exceptions
(1) Except as set forth in this section,
a Contracting Agency shall exercise all procurement authority related to Public
Contracting in accordance with the Code and the Model Rules.
(2) A Contracting Agency
that has specifically opted out of the Model Rules and adopted its own rules of
procedure for Public Contracting pursuant to 279A.065 in the exercise of its own
contracting authority is not subject to these Model Rules, except for those portions
of the Model Rules that the Contracting Agency has prescribed for its own use for
Public Contracting and except for those portions of the Model Rules pertaining to
the procurement of Construction Manager/General Contractor Services under ORS 279A.065(3),
where the Contracting Agency is not permitted to opt out of the Model Rules.
(3) Contracts or classes
of Contracts for Personal Services of a Local Contracting Agency designated as such
by the Local Contracting Agency's Local Contract Review Board pursuant to ORS 279A.055,
are not subject to these Model Rules, unless the Local Contracting Agency adopts
OAR 137-047-0250 through 137-047-0290 as the procedures the Local Contracting Agency
will use to screen and select persons to perform Contracts for Personal Services
other than Architectural, Engineering and Surveying Services and Related Services.
(4) These Model Rules do
not apply to the Contracts or the classes of Contracts described in ORS 279A.025(2).
(5) These Model Rules do
not apply to the contracting activities of the public bodies listed in ORS 279A.025(3).
(6) Contracting Agencies
otherwise subject to the Code and these Model Rules may enter into Contracts for
Goods or Services with non-profit agencies providing employment opportunities for
individuals with disabilities pursuant to ORS 279.835 through 279.855 without following
the source selection procedures set forth in either 279A.200 through 279A.225, or
279B.050 through 279B.085. However, Contracting Agencies must enter into such Contracts
in accordance with administrative rules promulgated by the Department.
Stat. Auth.: ORS 279A.065
Stats. Implemented: ORS 279A.050,
279A.055, 279A.065 & 279A.180
Hist.: DOJ 11-2004, f. 9-1-04,
cert. ef. 3-1-05; DOJ 20-2005, f. 12-27-05, cert. ef. 1-1-06; DOJ 19-2007, f. 12-28-07,
cert. ef. 1-1-08; DOJ 10-2014(Temp), f. & cert. ef. 7-1-14 thru 12-26-14; Administrative
correction, 1-27-15; DOJ 2-2015, f. & cert. ef. 2-3-15

Minorities, Women and Emerging Small Businesses

137-046-0200
Notice to Advocate for Minorities, Women and Emerging Small Businesses
Pursuant to ORS 200.035, State Contracting Agencies shall provide timely notice of all Procurements and Contract Awards to the Advocate for Minority, Women and Emerging Small Business if the estimated Contract Price exceeds $5,000.
Stat. Auth.: ORS 279A.065

Stats. Implemented: ORS 200.035

Hist.: DOJ 11-2004, f. 9-1-04, cert. ef. 3-1-05; DOJ 20-2005, f. 12-27-05, cert. ef. 1-1-06
137-046-0210
Subcontracting to and Contracting with Emerging Small Businesses; DBE Disqualification
(1) For purposes of ORS 279A.105, a subcontractor certified under 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 Economic and Community Development Department pursuant to administrative rules adopted by the Oregon Economic and Community Development Department; or
(b) The Contractor certifies in a Signed Writing to the Contracting Agency that a substantial number of the subcontractor's employees or subcontractors that will manufacture or provide the Goods or perform the Services or Personal Services under the Contract reside in an area designated as economically distressed by the Oregon Economic and Community Development Department pursuant to administrative rules adopted by the Oregon Economic and Community Development Department. For the purposes of making the foregoing determination, the Contracting Agency shall determine in each particular instance what proportion of a Contractor's subcontractor's employees or subcontractors constitute a substantial number.
(2) Contracting Agencies shall include in each Solicitation Document a requirement that Offerors certify in their Offers in a form prescribed by the Contracting Agency, that the Offeror has not and will not discriminate against a subcontractor in the awarding of a subcontract because the subcontractor is a minority, women 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.
(3) DBE Disqualification.
(a) A Contracting Agency may disqualify a Person from consideration of Award of the Contracting Agency's Contracts under ORS 200.065(5), or suspend a Person's right to bid on or participate in any Contract pursuant to 200.075(1) after providing the Person with notice and a reasonable opportunity to be heard in accordance with subsections (b) and (c) of this Section.
(b) The Contracting Agency shall provide Written notice to the Person of a proposed DBE Disqualification. The Contracting Agency shall deliver the Written notice by personal service or by registered or certified mail, return receipt requested. This notice shall:
(A) State that the Contracting Agency intends to disqualify or suspend the Person;
(B) Set forth the reasons for the DBE 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 Contracting Agency does not receive the Person's Written request for a hearing within the time stated, the Person shall 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 DBE Disqualification period; and
(G) State that the Person may be represented by legal counsel.
(c) Hearing. The Contracting Agency shall schedule a hearing upon the Contracting Agency's receipt of the Person's timely hearing request. Within a reasonable time prior to the hearing, the Contracting Agency shall 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.
(d) Notice of DBE Disqualification. The Contracting Agency shall provide Written notice of the DBE Disqualification to the Person. The Contracting Agency shall deliver the Written notice by personal service or by registered or certified mail, return receipt requested. The notice shall contain:
(A) The effective date and period of DBE Disqualification;
(B) The grounds for DBE Disqualification; and
(C) A statement of the Person's appeal rights and applicable appeal deadlines.
Stat. Auth.: ORS 279A.065

Stats. Implemented: ORS 200.065, 200.075, 279A.065, 279A.105 & 279A.110

Hist.: DOJ 11-2004, f. 9-1-04, cert. ef. 3-1-05; DOJ 20-2005, f. 12-27-05, cert. ef. 1-1-06; DOJ 15-2009, f. 12-1-09, cert. ef. 1-1-10
137-046-0252
Personnel Employment
Disclosure and Preference — State Agency Contracts for Goods or Services
(1) As authorized by subsection
6(2) of Oregon Laws 2012, chapter 53 (Senate Bill 1518), a state contracting agency
may state, in its Solicitation Documents for a procurement of goods or services,
that the state contracting agency will consider, and award a preference based on,
personnel deployment disclosures submitted by bidders or proposers in response to
the solicitation.
(2) A state contracting agency
may not reject a bidder or proposer on the ground that it submitted a non-responsive
bid or proposal solely due to the bidder’s or proposer’s failure to
submit a personnel employment disclosure. However, the state contracting agency may not apply the preference authorized by subsection
6(2) of Oregon Laws 2012, chapter 53 (Senate Bill 1518) in favor of a bidder or
proposer that fails to submit a complete and accurate personnel disclosure form
with its bid or proposal on or before the date and time bids or proposals are due.
(3) To qualify for the application of the
preference under subsection 6(2) of Oregon Laws 2012, chapter 53 (Senate Bill 1518),
a bidder’s or proposer’s personnel deployment disclosure form must state:
(a) The number of workers the
bidder or proposer and the bidder’s or proposer’s subcontractors will,
if awarded a contract, deploy to perform the overall contract work described in
the Solicitation Documents.
(b) The number of workers the
bidder or proposer and the bidder’s or proposer’s first-tier subcontractors
will, if awarded a contract, employ in this state to perform contract work described
in the Solicitation Documents.
(c) The number of jobs to be
held by workers employed by the bidder or proposer and by the bidder’s or
proposer’s subcontractors to perform the contract work described in the Solicitation
Documents that will be newly created jobs that result from the award of the contract.
(d) The duration of the work
of any workers (stated in number of work days) who will be employed in this state
to perform contract work described in the Solicitation Documents for all workers
(including workers of first-tier subcontractors) for whom the work duration will
not be as long as the initial term of the contract.
(e) The rates of pay of all
reported workers (including workers of first-tier subcontractors), described either
individually, by position, or by job classification, who will be employed in this
state to perform contract work described in the Solicitation Documents.
(4) To qualify for the application
of the preference under subsection 6(2) of Oregon Laws 2012, chapter 53 (Senate
Bill 1518), a bidder or proposer must make a promise in its bid or proposal to ensure
that the deployment of workers will comply, in terms of worker positions, duration
of the work, and the location of the employment of workers, with the personnel deployment
disclosure submitted with its bid or proposal. If awarded a contract, a bidder or
proposer must commit, in the contract, to ensure that the deployment of workers
will comply, in terms of worker positions, duration of the work, and the location
of the employment of workers, with the personnel deployment disclosure submitted
with its bid or proposal. In the contract, the contractor must agree to pass this
obligation to all first-tier subcontractors.
(5) A state contracting agency
may require a contractor under a contract awarded with the application of the preference
under subsection 6(2) of Oregon Laws 2012, chapter 53 (Senate Bill 1518) to submit,
on a monthly or other periodic basis, the contractor’s certification of its
employment of workers and its first-tier subcontractors’ workers) within this
state in accordance with the contractor’s personnel deployment disclosure.
(6) A state contracting agency
may give a preference of not more than ten percent to a bid or proposal that states
that the bidder or proposer (and its first-tier subcontractors) will employ more
workers within this state than competing bidders or proposers. In determining the
bidder or proposer who will employ more workers within this state, the state contracting
agency may take the rates of pay and the duration of the work into account by averaging
the rates of pay for all disclosed in-state work positions and averaging the duration
of the in-state work positions among all disclosed in-state work positions. Before
granting the preference to a bid or proposal, the agency must determine that the
competing proposals otherwise suit the state agency’s specifications for the
procurement equally well.
(7) In applying the preference,
a state contracting agency must achieve fairness by assigning a standard work-deployment
period for each solicitation that does not exceed the duration of the initial term
of any contract awarded with the application of the preference, or in project completion-based
contracts, does not exceed the probable duration of the project work exclusive of
a contractor’s performance of warranty work and maintenance.
(8) Where a state contracting
agency determines that a personnel deployment disclosure unreasonably or unrealistically
overstates the number of workers a bidder or proposer (and first-tier subcontractors)
will employ within this state, the state contracting agency may reject the bid or
proposal on grounds of bidder or proposer non-responsibility, or in a proposal situation,
may deduct proposal evaluation points.
Stat. Auth.: ORS 279A.065

Stats. Implemented: 2012 OL,
ch 53

Hist.: DOJ 8-2012, f. 7-2-12,
cert. ef. 8-1-12

Contract Preferences

137-046-0300
Preference for Oregon Goods and Services
(1) Tiebreaker Preference and
Award When Offers Are Identical. Under ORS 279A.120, when a Contracting Agency receives
Offers identical in price, fitness, availability and quality, and chooses to Award
a Contract, the Contracting Agency shall Award the Contract based on the following
order of precedence:
(a) The Contracting Agency shall
Award the Contract to the Offeror among those submitting identical Offers who is
offering Goods or Services, or both, or Personal Services, that are manufactured,
produced or to be performed in Oregon.
(b) If two or more Offerors
submit identical Offers, and they all offer Goods or Services, or both, or Personal
Services, that are manufactured, produced or to be performed in Oregon, the Contracting
Agency shall Award the Contract by drawing lots among the identical Offers. The
Contracting Agency shall provide the Offerors who submitted the identical Offers
notice of the date, time and location of the drawing of lots and an opportunity
for these Offerors to be present when the lots are drawn.
(c) If the Contracting Agency
receives identical Offers, and none of the identical Offers offer Goods or Services,
or both, or Personal Services, that are manufactured, produced or to be performed
in Oregon, then the Contracting Agency shall award the Contract by drawing lots
among the identical Offers. The Contracting Agency shall provide to the Offerors
who submitted the identical Offers notice of the date, time and location of the
drawing of lots and an opportunity for these Offerors to be present when the lots
are drawn.
(2) Determining if Offers are
Identical. A Contracting Agency shall consider Offers identical in price, fitness,
availability and quality as follows:
(a) Bids received in response
to an Invitation to Bid are identical in price, fitness, availability and quality
if the Bids are Responsive, and offer the Goods or Services, or both, or Personal
Services, described in the Invitation to Bid at the same price.
(b) Proposals received in response
to a Request for Proposals are identical in price, fitness, availability and quality
if they are Responsive and achieve equal scores when scored in accordance with the
evaluation criteria set forth in the Request for Proposals.
(c) Offers received in response
to a Special Procurement conducted under ORS 279B.085 are identical in price, fitness,
availability and quality if, after completing the contracting procedure approved
by the Contract Review Authority, the Contracting Agency determines, in Writing,
that two or more Offers are equally advantageous to the Contracting Agency.
(d) Offers received in response
to an intermediate Procurement conducted pursuant to ORS 279B.070 are identical
if the Offers equally best serve the interests of the Contracting Agency in accordance
with 279B.070(4).
(3) Determining if Goods or
Services or Personal Services are Manufactured or Produced in Oregon. In applying
Section 1 of this rule, Contracting Agencies shall determine whether a Contract
is predominantly for Goods, Services or Personal Services and then use the predominant
purpose to determine if the Goods, Services or Personal Services are manufactured,
produced, or performed in Oregon. Contracting Agencies may request, either in a
Solicitation Document, following Closing, or at any other time the Contracting Agency determines is appropriate, any information
the Contracting Agency may need to determine if the Goods, Services or Personal
Services are manufactured or produced in Oregon. A Contracting Agency may use any
reasonable criteria to determine if Goods, Services or Personal Services are manufactured,
produced, or performed in Oregon, provided that the criteria reasonably relate to
that determination, and provided that the Contracting Agency applies those criteria
equally to each Offer.
(4) Procedure for Drawing Lots. When this
rule calls for the drawing of lots, the Contracting Agency shall draw lots by a
procedure that affords each Offeror subject to the drawing a substantially equal
probability of selection and that does not allow the person making the selection
the opportunity to manipulate the drawing of lots to increase the probability of
selecting one Offeror over another.
(5) Discretionary Preference
and Award. Under ORS 279A.128, a Contracting Agency may provide, in a Solicitation
Document for Goods, Services or Personal Services, a specified percentage preference
of not more than ten percent for Goods fabricated or processed entirely in Oregon
or Services or Personal Services performed entirely in Oregon. When the Contracting
Agency provides for a preference under this Section, and more than one Offeror qualifies
for the preference, the Contracting Agency may give a further preference to a qualifying
Offeror that resides in or is headquartered in Oregon. A Contracting Agency may
establish a preference percentage higher than ten percent by written order that
finds good cause to establish the higher percentage and which explains the Contracting
Agency’s reasons and evidence for finding good cause to establish a higher
percentage. A Contracting Agency may not apply the preferences described in this
Section in a Procurement for emergency work, minor alterations, ordinary repairs
or maintenance of public improvements, or construction work that is described in
ORS 297C.320.
Stat. Auth.: ORS 279A.065; OL
2011, ch 237

Stats. Implemented: ORS 279A.065;
279A.120 & 279A.128; OL 2011, ch 237

Hist.: DOJ 11-2004, f. 9-1-04,
cert. ef. 3-1-05; DOJ 20-2005, f. 12-27-05, cert. ef. 1-1-06; DOJ 10-2011, f. 11-29-11,
cert. ef. 1-1-12; DOJ 8-2012, f. 7-2-12, cert. ef. 8-1-12
137-046-0310
Reciprocal Preferences
When evaluating Bids pursuant to OAR 137-047-0255, 137-047-0257 or 137-049-0390 and applying the reciprocal preference provided under ORS 279A.120(2)(b) a Contracting Agency may rely on the list prepared and maintained by the Department pursuant to ORS 279A.120(4) to determine (i) whether the Nonresident Bidder's state gives preference to in-state bidders and (ii) the amount of such preference.
Stat. Auth.: ORS 279A.065

Stats. Implemented: ORS 279A.065 & 279A.120

Hist.: DOJ 11-2004, f. 9-1-04, cert. ef. 3-1-05; DOJ 20-2005, f. 12-27-05, cert. ef. 1-1-06
137-046-0320
Preference for Recycled Materials
(1) In comparing Goods from two or more Offerors, if at least one Offeror offers Goods manufactured from Recycled Materials, and at least one Offeror does not, a Contracting Agency shall select the Offeror offering Goods manufactured from Recycled Materials if each of the conditions specified in ORS 279A.125(2) exists. When making the determination under 279A.125(2)(d), the Contracting Agency shall consider the costs of the Goods following any adjustments the Contracting Agency makes to the price of the Goods after evaluation pursuant to OAR 137-046-0310.
(2) A Contracting Agency shall determine if Goods are manufactured from Recycled Materials in accordance with standards established by the Contracting Agency.
Stat. Auth.: ORS 279A.065

Stats. Implemented: ORS 279A.065 & 279A.125

Hist.: DOJ 11-2004, f. 9-1-04, cert. ef. 3-1-05; DOJ 20-2005, f. 12-27-05, cert. ef. 1-1-06
137-046-0330
Federally Funded Transit
Projects — Preference for Exceeding Federal Buy America Requirements
(1) A contracting agency, in
its Solicitation Documents to award a contract for a transit project that will be
funded in whole or in part with funds from the federal government or a federal government
agency, may provide for the application of a preference in favor of an Offeror whose
bid or proposal exceeds the applicable federal Buy America requirements.
(a) A contracting agency has
discretion to adjust the amount or character of the preference to account for variations
in the nature of the contract or project, and the degree to which each Offeror’s
bid or proposal exceeds the federal Buy America requirements.
(b) For example, in an invitation
to bid procurement the contracting agency may authorize a range of preference price
percentages to account for the various degrees to which the bidders might exceed
the federal Buy America requirements. In no event, however, may the percentage preference
given to a bidder exceed ten percent of the total bid price.
(c) Similarly, under a request
for proposals, the contracting agency may allocate and award evaluation points to
reflect the degrees to which the proposers might exceed the applicable federal Buy
America requirements. In no event, however, may those percentage points exceed ten
percent of the total number of points available for award under the request for
proposals.
Stat. Auth.: ORS 279A.065

Stats. Implemented: 2012 OL,
ch 58

Hist.: DOJ 8-2012, f. 7-2-12,
cert. ef. 8-1-12

Cooperative Procurement

137-046-0400
Authority for Cooperative Procurements
(1) Contracting Agencies 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.
(2) Each Purchasing Contracting Agency shall determine in Writing whether the solicitation and award process for an 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).
Stat. Auth.: ORS 279A.065

Stats. Implemented: ORS 279A.065 & 279A.205

Hist.: DOJ 11-2004, f. 9-1-04, cert. ef. 3-1-05; DOJ 20-2005, f. 12-27-05, cert. ef. 1-1-06
137-046-0410
Responsibilities of Administering Contracting Agencies and Purchasing Contracting Agencies
(1) If a Contracting Agency is an Administering Contracting Agency of a Cooperative Procurement, the Contracting Agency may establish the conditions under which Persons may participate in the Cooperative Procurement administered by the Administering Contracting Agency. Such conditions may include, without limitation, whether each Person who participates in the Cooperative Procurement must pay administrative fees to the Administering Contracting Agency, whether each Person must enter into a Written agreement with the Administering Contracting Agency, and any other matters related to the administration of the Cooperative Procurement and the resulting Original Contract. A Contracting Agency that acts as an Administering Contracting Agency may, but is not required to, include provisions in the Solicitation Document for a Cooperative Procurement and advertise the Solicitation Document in a manner to assist Purchasing Contracting Agencies' compliance with the Code or these Model Rules.
(2) If a Contracting Agency acting as a Purchasing Contracting Agency enters into a Contract based on a Cooperative Procurement, the Contracting Agency shall comply with the Code and these Model Rules, including without limitation those sections of the Code and these Model Rules that govern:
(a) The extent to which the Purchasing Contracting Agency may participate in the Cooperative Procurement;
(b) The advertisement of the Solicitation Document related to the Cooperative Procurement; and
(c) Public notice of the Purchasing Contracting Agency's intent to establish Contracts based on a Cooperative Procurement.
Stat. Auth.: ORS 279A.065

Stats. Implemented: ORS 279A.065 & 279A.205

Hist.: DOJ 11-2004, f. 9-1-04, cert. ef. 3-1-05; DOJ 20-2005, f. 12-27-05, cert. ef. 1-1-06
137-046-0420
Joint Cooperative Procurements
A Contracting Agency that chooses to participate in, sponsor, conduct or administer a Joint Cooperative Procurement may do so only in accordance with ORS 279A.210.
Stat. Auth.: ORS 279A.065

Stats. Implemented: ORS 279A.065 & 279A.210

Hist.: DOJ 11-2004, f. 9-1-04, cert. ef. 3-1-05
137-046-0430
Permissive Cooperative Procurements
A Contracting Agency that chooses to participate in, sponsor, conduct or administer a Permissive Cooperative Procurement may do so only in accordance with ORS 279A.215.
Stat. Auth.: ORS 279A.065

Stats. Implemented: ORS 279A.065 & 279A.215

Hist.: DOJ 11-2004, f. 9-1-04, cert. ef. 3-1-05
137-046-0440
Advertisements of Intent to Establish Contracts through a Permissive Cooperative Procurement
(1) For purposes of determining whether a Purchasing Contracting Agency must give notice of intent to establish a Contract through a Permissive Cooperative Procurement as required by ORS 279A.215(2)(a), the estimated amount of the procurement will exceed $250,000 if:
(a) The Purchasing Contracting Agency's Contract arising out of the Permissive Cooperative Procurement expressly provides that the Purchasing Contracting Agency will make payments over the term of the Contract that will, in aggregate, exceed $250,000, whether or not the total amount or value of the payments is expressly stated;
(b) The Purchasing Contracting Agency's Contract arising out of the Permissive Cooperative Procurement expressly provides for payment, whether in a fixed amount or up to a stated maximum amount, that exceeds $250,000; or
(c) At the time the Purchasing Contracting Agency enters into the Contract, the Purchasing Contracting Agency reasonably contemplates, based on historical or other data available to the Purchasing Contracting Agency, that the total payments it will make for Goods or Services, or both, or Personal Services, under the Contract will, in aggregate, exceed $250,000 over the anticipated duration of the Contract.
(2) An Administering Contracting Agency that intends to establish a Contract arising out of the Permissive Cooperative Procurement it administers may satisfy the notice requirements set forth in ORS 279A.215(2)(a) by including the information required by 279A.215(2)(b) in the Solicitation Document related to the Permissive Cooperative Procurement, and including instructions in the Solicitation Document to potential Offerors describing how they may submit comments in response to the Administering Contracting Agency's intent to establish a Contract through the Permissive Cooperative Procurement. The content and timing of such notice shall comply in all respects with 279A.215(2), 279A.215(3) and these Model Rules.
Stat. Auth.: ORS 279A.065

Stats. Implemented: ORS 279A.065 & 279A.215

Hist.: DOJ 11-2004, f. 9-1-04, cert. ef. 3-1-05; DOJ 20-2005, f. 12-27-05, cert. ef. 1-1-06
137-046-0450
Interstate Cooperative Procurements
A Contracting Agency that chooses to participate in, sponsor, conduct or administer an Interstate Cooperative Procurement may do so only in accordance with ORS 279A.220.
Stat. Auth.: ORS 279A.065

Stats. Implemented: ORS 279A.065 & 279A.220

Hist.: DOJ 11-2004, f. 9-1-04, cert. ef. 3-1-05
137-046-0460
Advertisements of Interstate Cooperative Procurements
(1) The Solicitation Document for an Interstate Cooperative Procurement is advertised in Oregon for purposes of ORS 279A.220(2)(a) if it is advertised in Oregon in compliance with 279B.055(4) or 279B.060(4) by:
(a) The Administering Contracting Agency;
(b) The Purchasing Contracting Agency;
(c) The Cooperative Procurement Group, or a member of the Cooperative Procurement Group, of which the Purchasing Contracting Agency is a member; or
(d) Another Purchasing Contracting Agency that is subject to the Code, so long as such advertisement would, if given by the Purchasing Contracting Agency, comply with ORS 279B.055(4) or 279B.060(4) with respect to the Purchasing Contracting Agency.
(2) A Purchasing Contracting Agency or the Cooperative Procurement Group of which the Purchasing Contracting Agency is a member satisfies the advertisement requirement under ORS 279A.220(2)(b) if the notice is advertised in the same manner as provided in 279B.055(4)(b) and (c).
Stat. Auth.: ORS 279A.065

Stats. Implemented: ORS 279A.065 & 279A.220

Hist.: DOJ 11-2004, f. 9-1-04, cert. ef. 3-1-05; DOJ 20-2005, f. 12-27-05, cert. ef. 1-1-06
137-046-0470
Protests and Disputes
(1) An Offeror or potential Offeror wishing to protest the procurement process, the contents of a solicitation document related to a Cooperative Procurement or the award or proposed award of an Original Contract shall make the protest in accordance with ORS 279B.400 through 279B.425 unless the Administering Contracting Agency is not subject to the Code. If the Administering Contracting Agency is not subject to the Code, then the Offeror or potential Offeror shall make the protest in accordance with the processes and procedures established by the Administering Contracting Agency.
(2) Any other protests related to a Cooperative Procurement, or disputes related to a Contract arising out of a Cooperative Procurement, shall be made and resolved as set forth in ORS 279A.225.
(3) The failure of a Purchasing Contracting Agency to exercise any rights or remedies it has under a Contract entered into through a Cooperative Procurement shall not affect the rights or remedies of any other Contracting Agency that participates in the Cooperative Procurement, including the Administering Contracting Agency, and shall not prevent any other Purchasing Contracting Agency from exercising any rights or seeking any remedies that may be available to it under its own Contract arising out of the Cooperative Procurement.
Stat. Auth.: ORS 279A.065

Stats. Implemented: ORS 279A.065 & 279A.225

Hist.: DOJ 11-2004, f. 9-1-04, cert. ef. 3-1-05; DOJ 20-2005, f. 12-27-05, cert. ef. 1-1-06
137-046-0480
Contract Amendments
A Purchasing Contracting Agency may amend a Contract entered into pursuant to a Cooperative Procurement as set forth in OAR 137-047-0800.
Stat. Auth.: ORS 279A.065

Stats. Implemented: ORS 279A.065

Hist.: DOJ 11-2004, f. 9-1-04, cert. ef. 3-1-05; DOJ 20-2005, f. 12-27-05, cert. ef. 1-1-06

Repealed Rules

137-046-0500
Repealed Rules
As required by Or Laws 2003, Chapter 794, Section 334, OAR 137-030-0000, 137-030-0005, 137-030-0006, 137-030-0008, 137-030-0010, 137-030-0011, 137-030-0012, 137-030-0013, 137-030-0014, 137-030-0015, 137-030-0020, 137-030-0030, 137-030-0035, 137-030-0040,137-030-0050, 137-030-0055, 137-030-0060, 137-030-0065, 137-030-0070, 137-030-0075, 137-030-0080,137-030-0085, 137-030-0090, 137-030-0095, 137-030-0100, 137-030-0102, 137-030-0104, 137-030-0105, 137-030-0110, 137-030-0115, 137-030-0120, 137-030-0125, 137-030-0130, 137-030-0135, 137-030-0140, 137-030-0145, 137-030-0155, 137-035-0000, 137-035-0010, 137-035-0020, 137-035-0030, 137-035-0040,137-035-0050, 137-035-0060, 137-035-0065, 137-035-0070, 137-035-0080, 137-040-0000, 137-040-0005,137-040-0010, 137-040-0015, 137-040-0017, 137-040-0020, 137-040-0021, 137-040-0025, 137-040-0030,137-040-0031, 137-040-0035, 137-040-0045, 137-040-0500, 137-040-0510, 137-040-0520, 137-040-0530, 137-040-0540, 137-040-0550, 137-040-0560, 137-040-0565, 137-040-0570, 137-040-0590 are repealed effective March 1, 2005. The repealed rules will continue to apply to the solicitation of Public Contracts first advertised, but if not advertised then entered into, before March 1, 2005.
Stat. Auth.: ORS 279A.065 & OL 2003, Ch. 795, 334

Stats. Implemented: ORS 279A.065 & OL 2003, Ch. 795, 334

Hist.: DOJ 11-2004, f. 9-1-04, cert. ef. 3-1-05

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