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DEPARTMENT OF ADMINISTRATIVE SERVICES

 

























DIVISION 247
PUBLIC PROCUREMENT OF SUPPLIES AND SERVICES
General Provisions
























125-247-0010
Policies
(1) ORS Chapter 279B and this Division 247 apply the policies of ORS 279A.015 to the Procurement of Supplies and Services. The seven sourcing methods for procurement, procedures, and legal remedies set forth in ORS Chapter 279B and these Rules simplify, clarify and modernize procurement practices so that they reflect the market place and industry standards. ORS Chapter 279B and this Division 247 provide a Public Contracting structure that can take full advantage of evolving procurement methods as they emerge within various industries, according to ORS 279A.015(6).
(2) Specific procedures accompany each method, followed by a Section of general procedures. Authorized Agencies must comply with both the specific procedures of a method and general procedures.
(3) The responsibility of the Designated Procurement Officer and any delegatee of an Authorized Agency is to choose the appropriate sourcing methods in accordance with the Code, Rules, and policy, and arrive at offers that represent optimal value to the Agency and the State.
(4) Meaningful competition can be achieved through various strategies and sourcing methods when procuring Supplies and Services, and this competition must be reasonably calculated and demonstrated to satisfy the Authorized Agency’s and the State’s needs.
Stat. Auth.: ORS 279A.065(5)(a) & 279A.070

Stats. Implemented: ORS 279B.010

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
125-247-0100
Applicability
(1) In addition
to the general requirements set forth in Division 246 of these Rules, the Rules
in this Division 247 apply to Public Contracting for Supplies and Services. In the
event of conflict or ambiguity, the more specific requirements of the Rules in this
Division 247 take precedence over the more general requirements of the Rules in
Division 246.
(2) The Rules
implement the Oregon Public Contracting Code, as defined in ORS 279A.010, and this
Division 247 of the Rules specifically addresses matters covered in ORS Chapter
279B.
(3) For purposes
of these Division 247 Rules, the Department adopts the following Model Public Contract
Rules: OAR 137-047-0255, 137-047-0257, 137-047-0260, 137-047-0261, 137-047-0265,
137-047-0270, 137-047-0310, 137-047-0320, 137-047-0400, 137-047-0410, 137-047-0420,
137-047-0440, 137-047-0450, 137-047-0460, 137-047-0470, 137-047-0480, 137-047-0490,
137-047-0525, 137-047-0575, 137-047-0620, 137-047-0640, 137-047-0650, 137-047-0660,
137-047-0670, 137-047-0700, 137-047-0710, 137-047-0720, 137-047-0745, 137-047-0740,
137-047-0750, 137-047-0760, 137-047-0800, 137-047-0810.
Stat. Auth.: ORS
279A.065(5)(a) & 279A.070

Stats. Implemented:
ORS 279B.015

Hist.: DAS
4-2004, f. 11-23-04, cert. ef. 3-1-05; 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
125-247-0110
Feasibility
Determination, Cost Analysis and Department Report
(1) The Table of Contents for this Rule
is as follows:
(a) Section 2: Generally
(b) Section 3: Feasibility
Determination
(c) Section 4: Cost Analysis:
Estimation of Agency and Contractor Data
(d) Section 5: Decision:
Comparison of Compensation and Other Costs
(e) Section 6: Decision:
Comparison of Agency and Contracting Costs
(f) Section 7: Department
Evaluation and Report
(2) Generally.
(a) Before conducting a Procurement
for Services, an Authorized Agency must, in the absence of a Feasibility Determination
under Section (3) of this Rule, conduct a Written Cost Analysis under sections (4)
through (6) of this rule (Cost Analysis).
(b) Responsibilities for
the Conduct of the Cost Analysis.
(A) An Agency with procurement
authority must conduct the Cost Analysis for its Agency-specific Procurements;
(B) An Agency without procurement
authority must conduct the Cost Analysis for its Agency-specific Procurements to
be procured by the Department;
(C) At the Department’s
request, an Agency must contribute to the Cost Analysis for statewide Price Agreement
Procurements; and
(D) The Department must conduct
the Cost Analysis for statewide Price Agreement Procurements and Department -specific
Procurements.
(c) This Rule applies to
a Procurement for Services that the Authorized Agency estimates will result in one
or more Contracts with a value that exceeds $250,000 for the estimated term of the
Contract(s) (Value), including incidental costs related to the Services, and Amendments.
Authorized Agencies must not fragment to avoid this threshold (see OAR 125-246-0630).
(d) If a Procurement is conducted
in accordance with this Rule, an Award is made, and one or more Amendments then
increase the estimated contract’s value over $250,000, a Cost Analysis is
not required at that time.
(e) “Services”
has the meaning as defined in OAR 125-246-0110, except that for purposes of this
Rule only:
(A) “Services”
does not include the services of an Architect, Engineer, Photogrammetrist, Transportation
Planner, Land Surveyor or Provider of Related Services as defined in ORS 279C.100
as defined in ORS 279C.100; and
(B) “Services”
does not include Client Services, defined as of August 4, 2009, in OAR 125-246-0110,
as follows:
(i) “Client”
means any individual, family or Provider:
(I) 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;
(II) Who in fact receives
and utilizes services provided by an Agency primarily for that individual's or family's
benefit;
(III) Who is under the custody,
care, or both of the Agency; or
(IV) Who provides direct
care or Services and is a proxy or representative of the non-Provider Client.
(ii) "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):
(I) Housing, including utilities,
rent or mortgage or assistance to pay rent, mortgage or utilities;
(II) Sustenance, including
clothing;
(III) Employment training
or Skills training to improve employability;
(IV) Services for people
with disabilities;
(V) Foster care or foster
care facilities;
(VI) Residential care or
residential care facilities;
(VII) Community housing;
(VIII) In-home care including
home delivered meals;
(IX) Medical care, services
and treatment, including but not limited to:
(IX-a) Medical, Dental, Hospital,
Psychological, Psychiatric, Therapy, Vision;
(IX-b) Alcohol and drug treatment;
(IX-c) Smoking cessation;
(IX-d) Drugs, prescriptions
and non-prescription;
(IX-e) Nursing services and
facilities;
(IX-f) Transportation or
relocation;
(IX-g) Quality of life, living
skills training; or
(IX-h) Personal care; or
(IX-i) Legal services and
expert witnesses services;
(IX-j) Religious practices,
traditions and services, separately or in any combination thereof; and
(IX-k) Educational services.
The term "Client Services" does not include benefits or services provided as a condition
of employment with an Agency.
(3) Feasibility Determination.
An Authorized Agency may proceed with the Procurement of Services without conducting
a Cost Analysis if the Authorized Agency makes Written findings that one or more
of the Special Circumstances described in subsection (3)(b) make the Authorized
Agency’s use of its own personnel and resources to provide the Services not
feasible (Feasibility Determination).
(a) Approval of Feasibility
Determination.
(A) The Designated Procurement
Officer or delegate (DPO) of an Authorized Agency must approve the Feasibility Determination
for its Procurement;
(B) The DPO of an Agency
without authority must approve the Feasibility Determination for an Agency-specific
Procurement to be procured by the Department on behalf of that Agency;
(C) The Department Procurement
Services Manager must approve the Feasibility Determination for a statewide Price
Agreement Procurement or Department-specific Procurement. At the Department’s
request, DPOs must cooperate with the Department to prepare the findings for the
Feasibility Determination for a statewide Price Agreement Procurement.
(b) Special Circumstances.
Special Circumstances include any circumstances, conditions or occurrences that
would make the Services, if performed by the Authorized Agency’s employees,
incapable of being managed, utilized or dealt with successfully in terms of the
quality, timeliness of completion, success in obtaining desired results, or other
reasonable needs of the Authorized Agency. Special Circumstances may include, but
are not limited to, the follow circumstances:
(A) Expertise. The DPO approves
a determination that the Authorized Agency lacks the specialized capabilities, experience,
or technical or other expertise necessary to perform the Services. In making the
finding, the Authorized Agency must compare the Authorized Agency's capability,
experience or expertise in the field most closely involved in performing the Services
with a potential contractor's capability, experience or expertise in the same or
a similar field.
(B) Funding Requirement.
The terms under which the Authorized Agency receives a grant or other funds for
use in a Procurement require the Authorized Agency to obtain Services through an
independent contractor;
(C) Law Requirement. Other
state or federal law requires the Authorized Agency to procure Services through
an independent contractor;
(D) Real or Personal Property.
The Procurement is for Services that are incidental to a contract for purchasing
or leasing real or personal property, including service and maintenance agreements
for equipment that is leased or rented;
(E) Conflict of Interest;
Unbiased Review. The Authorized Agency cannot accomplish policy, administrative
or legal goals, including but not limited to avoiding conflicts of interest or ensuring
independent or unbiased findings in cases when using the Authorized Agency's existing
personnel or persons the Authorized Agency could hire through a regular or ordinary
process would not be suitable;
(F) Emergency Procurement.
The Procurement is for Services to which the provisions of ORS 279B.080 apply;
(G) Delay. The Procurement
is for Services, the need for which is so urgent, temporary or occasional that attempting
to perform the Services with the Authorized Agency's own personnel or resources
would cause a delay that would frustrate the purpose for obtaining the Services;
and
(H) Services Completed within
Six Months. The Services that the Authorized Agency intends to procure will be completed
within six months after the date on which the contract for the Services is executed.
(c) Procurement File. All
written determinations required in this section (3) must be made a part of the Procurement
File in accordance with OAR 125-246-0556.
(4) Cost Analysis: Estimation
of Agency and Contractor Data.
(a) Costs of Using Authorized
Agency’s Own Personnel and Resources. The Authorized Agency must estimate
the Authorized Agency's cost of performing the Services and consider cost factors
that include:
(A) Salaries or Wages and
Benefits. The salary or wage and benefit costs for the employees of the Authorized
Agency who would be directly involved in performing the Services, to the extent
those costs reflect the proportion of the activity of those employees in the direct
provision of the Services. These costs include those salary or wage and benefit
costs of the employees who inspect, supervise or monitor the performance of the
Services, to the extent those costs reflect the proportion of the activity of those
employees in the direct inspection, supervision or monitoring of the performance
of the Services.
(B) Material Costs. The
material costs necessary to the performance of the Services, including the costs
for space, energy, transportation, storage, raw and finished materials, equipment
and supplies used or consumed in the provision of the Services.
(C) Related Costs.
(i) Costs incurred in planning
for, training for, starting up, implementing, transporting and delivering the Services.
(ii) Any costs related to
stopping and dismantling a project or operation because the Authorized Agency intends
to procure a limited quantity of Services or to procure the Services within a defined
or limited period of time.
(iii) The miscellaneous costs
related to performing the Services, including but not limited to reasonably foreseeable
fluctuations in the costs for the items identified in this subsection (4)(a) over
the expected duration of the Procurement. These costs exclude the Authorized Agency's
indirect overhead costs for existing salaries or wages and benefits for administrators
and exclude costs for rent, equipment, utilities and materials, except to the extent
the cost items identified in this sentence are attributed solely to performing the
Services and would not be incurred unless the Authorized Agency performed the Services.
(D) Other Information. The
Authorized Agency’s costs described in this subsection (4)(a)(A) do not constitute
an exclusive list of cost information. An Authorized Agency may consider other reliable
information that bears on the cost to the Authorized Agency of performing the Services.
For example, if the Authorized Agency has accounted for its actual costs of performing
the Services under consideration, or reasonably comparable Services, in a relatively
recent Services project, the Authorized Agency may consider those actual costs in
making its estimate.
(b) Costs a Potential Contractor
Would Incur. The Authorized Agency must estimate the cost a potential Contractor
would incur in performing the Services and consider cost factors that include:
(A) Salaries or Wages and
Benefits. The estimated salary or wage and benefit costs for a potential Contractor
and potential Contractor’s employees who work in the business or industry
most closely involved in performing the Services; and who would be necessary and
directly involved in performing the Services or who would inspect, supervise, or
monitor the performance of the Services.
(i) The Authorized Agency
may, but is not required to, communicate with any actual Contractor for information
related to this estimate (see OAR 125-246-0635).
(ii) The Authorized Agency
may consider in making this estimate any public source of information, including
but not limited to:
(I) Other Contracts of the
Authorized Agency or another Agency for reasonably comparable services;
(II) Trade or other marketplace
websites;
(III) Industry or professional
associations and publications;
(IV) The Oregon Bureau of
Labor and Industries or an agency of another jurisdiction that performs comparable
functions; and
(V) A survey of Persons who
provide reasonably comparable services by means including but not limited to Internet
or telephone searches.
(B) Material Costs. The material
costs necessary to the performance of the Services, including the costs for space,
energy, transportation, storage, raw and finished materials, equipment and supplies
used or consumed in the provision of the Services.
(C) Related Costs. The miscellaneous
costs related to performing the Services. These miscellaneous costs include but
are not limited to reasonably foreseeable fluctuations in the costs listed in subsections
(4)(b)(A) through (C) over the expected duration of the Procurement.
(D) Other Information. The
potential Contractor’s costs described in subsections (4)(b)(A) through (C)
do not constitute an exclusive list of cost information. An Authorized Agency may
consider other reliable information that bears on the costs a potential Contractor
would incur. For example, if in the recent past, the Authorized Agency conducted
a Solicitation that required cost information or permitted negotiation of price
based on a cost analysis for Services reasonably comparable to the current Services,
the Authorized Agency may use that cost information in estimating the costs of current
Services.
(5) Decision: Comparison
of Compensation and Other Costs.
(a) The Authorized Agency
must compare:
(A) The Authorized Agency’s
estimated costs under Subsection (4)(a) and
(B) The Contractor’s
estimated costs under subsection (4)(b).
(b) Decision. If the Authorized
Agency’s costs exceed the Contractor’s costs under Subsection (5)(a)
for the sole reason that the Contractor’s costs for salaries or wages and
benefits under Subsection (4)(b)(A) are lower than the Authorized Agency’s
costs for salaries or wages and benefits under subsection (4)(a)(A), then the Authorized
Agency may not conduct the Procurement.
(6) Decision: Comparison
of Agency and Contracting Costs.
(a) If subsection (5)(b)
does not apply, the Authorized Agency must compare:
(A) The Authorized Agency’s
estimated costs under Subsection (4)(a) and
(B) The total estimated costs
that the Authorized Agency would incur in procuring the Services from a Contractor
(Contracting Costs).
(b) Profit Included. Contracting
Costs include the Authorized Agency’s estimate of Contractor’s profit
in addition to the estimate of Contractor’s costs under subsection (4)(b).
If the Authorized Agency, in the reasonably near past, received Bids or Proposals
for the performance of the Services under consideration, or reasonably comparable
services, the Authorized Agency may consider the pricing offered in those Bids or
Proposals in making its estimate. Similarly, the Authorized Agency may consider
what it actually paid under a Contract for the same or similar services. For the
purposes of these examples, the reasonably near past is limited to Contracts, Bids
or Proposals entered into or received within the five (5) years preceding the date
of the cost estimate. The Authorized Agency must take into account, when considering
the pricing offered in previous Bids, Proposals, or Contracts, adjustments to the
pricing in light of measures of market price adjustments that apply to the Services,
such as the Consumer Price Indexes.
(c) Decision. If the Authorized
Agency’s Contracting Cost under this section is lower than the Authorized
Agency’s cost under subsection (4)(a), the Authorized Agency may conduct the
Procurement. If the Authorized Agency’s Contracting Cost is higher than the
Authorized Agency’s cost under subsection (4)(a), the Authorized Agency may
not conduct the Procurement, unless the Exception of subsection (6)(d) applies
(d) Exception Based on Lack
of Agency Personnel and Resources; Reporting. If the Authorized Agency determines
that it would incur less cost in providing the Services with its own personnel and
resources, the Authorized Agency may still conduct the Procurement if, at the time
the Authorized Agency intends to conduct the Procurement, the Authorized Agency
determines that it lacks personnel and resources to perform the Services within
the time the Authorized Agency requires the Services (Exception). When an Authorized
Agency conducts a Procurement under this Exception, the Authorized Agency must:
(A) Make and keep a Written
determination that it lacks personnel and resources to perform the Services within
the time the Authorized Agency requires the Services and the basis for the Authorized
Agency’s decision to conduct the Procurement;
(B) Obtain the Written approval
by the DPO of the Authorized Agency of the Exception before conducting an Agency-specific
Procurement or the Written approval by the CPO of the Exception before the Department
conducts a Procurement.
(C) Provide to the Emergency
Board, each calendar quarter, copies of each Cost Analysis, Exception, and any other
records described in this Subsection (6)(d);
(D) Prepare a request to
the Governor for an appropriation and authority necessary for the Authorized Agency
to hire personnel and obtain resources necessary to perform the Services that the
Authorized Agency procured under this Subsection (6)(d). The request must include
a copy of the records that the Authorized Agency provided to the Emergency Board
under Subsection (6)(d)(C).
Stat. Auth.: ORS 279A.065(5)(a), 279A.070
Stats. Implemented: ORS 279B.030,
279B.033 & 279B.036 (OL Ch. 880, § 4a)
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 3-2014, f. 12-29-14,
cert. ef. 1-1-15
125-247-0165
Practices Regarding Electronic Goods Procurement
(1) ORS 279B.025
requires the Department to establish procurement practices that ensure, to the maximum
extent economically feasible, Procurement of Goods that may be recycled or reused
when discarded.
(2) The Department
and Authorized Agencies must procure Electronic Goods in a manner that includes
consideration of the impact of the electronic goods upon the environment and public
health, in addition to consideration of economic and community interests, in accordance
with goals of sustainability pursuant to ORS 184.423. The Department and Authorized
Agencies, separately or together, may:
(a) Consult
with stakeholders to develop procedures or guidelines for Procurement of Electronic
Goods; and
(b) Address
policy and procedure decisions including but not limited to: recycling, relationship
to Rules for State Surplus Property as set forth in OAR 125-246-0700 through 125-246-0730,
Energy Star certifications, promote toxic use reduction, and the use of certain
components such as mercury or lead that have detrimental impacts.
Stat. Auth.: ORS
279A.065(5)(a) & 279A.070

Stats. Implemented:
ORS 279B.025, 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
125-247-0170
Life Cycle Costing
(1) Policy.
(a) Analysis. Life Cycle
Costing provides a method of analysis, considering Sustainability and analyzing
total cost of ownership as part of the best value of the purchased Goods (Products).
The method applies to the development of Life Cycle Costing criteria for a Solicitation,
collection of Product information about Life Cycle, evaluation of Offers, selection
of Contractor(s), and award of Contract(s). Using this method, Agency does not award
a Contract based solely on the lowest price, and a low Bid would include Life Cycle
Costing.
(b) Planning. Agency must
consider using Life Cycle Costing during planning for Competitive Sealed Bidding
or Proposals. Life Cycle Costing is optional for other sourcing methods under this
Division 247.
(c) Services Related to the
Product. Agency may also consider the costs of Services related to a Product, including
other Sustainability criteria.
(2) Definitions:
(a) “Life Cycle”
means the life cycle of a Product, including conception, design, manufacture, service,
and disposal. The design of the Product may allow for a repetitive lifecycle: material
extraction, manufacturing/production, transportation, utilization/reuse, and disposal/recycling,
which leads to the beginning of a new cycle.
(b) "Life Cycle Cost" means
the total cost of acquiring, operating, supporting and (if applicable) disposing
of the Product being acquired.
(c) "Life Cycle Costing"
means an analysis method that quantifies Life Cycle Costs, including the costs of
acquiring, operating, supporting and disposing of a Product. The method may also
include any additional Costs that relate to adverse impacts of a Product, for example,
impacts to the environment or public health.
(d) “Products”
means goods, supplies, equipment, or materials.
(3) Life Cycle Costs. Life
Cycle Costing considers the acquisition costs of a Product, and includes all associated
costs of ownership, such as purchase price, shipping, maintenance and repair, longevity,
and disposition costs at the end of life. For complex Products, several Contracts
may be required and acquisition costs may involve research and development as well
as production, delivery, and installation of the Product. Other costs expected to
occur over the anticipated life of the Product may be added to the acquisition costs,
based upon a reasonable determination by the Agency. Examples of other typical Life
Cycle Costs include the following:
(a) Switching costs associated
with changing from the current Product to another model or brand of the Product.
Typically, such costs may include: removal, shipping, training, and replacement
of peripheral equipment and consumables that support the Product. The Agency may
also consider increased project management or additional transition time.
(b) Operating and support
costs, including third party contract costs, associated with equipment, supplies,
utilities, fuel, and services needed to operate and maintain an operational system.
(c) Disposal costs, including
third party contract costs, associated with removing equipment from service and
disposing of it. Evaluations that consider Life Cycle Cost should also consider
any significant salvage, reuse, or resale value at the time of disposal.
(4) Solicitation Requirements.
The Solicitation must:
(a) Describe to prospective
Offerors how Life Cycle Costing will be considered and applied in the evaluation
process and award decision.
(A) If the Agency plans to
make an Award based solely on the lowest evaluated cost resulting from Life Cycle
Costing, the Solicitation must describe an evaluation process that includes Life
Cycle Costing. For example, an Invitation to Bid must include quantifiable total
Life Cycle Costs as a part of the bid evaluation methodology and award, and the
lowest total Life Cycle Cost would be considered the low Bid.
(B) If the Agency plans to
make an Award based on an evaluation of other factors than the lowest cost, the
Solicitation for Proposals or Quotes must describe an evaluation process that includes
Life Cycle Costing.
For example: (i) A Request for Proposals
may include Life Cycle Costs as a part of the total points awarded for costs. All
Life Cycle Costs will be calculated, and the lowest total Life Cycle Cost is awarded
the maximum points allocated for cost in the Solicitation; or (ii) A Request for
Proposals may separate Life Cycle Costs and assign to them a weight or points in
addition to other defined costs and non-cost criteria in the evaluation process.
(b) Provide relevant information for
the evaluation of the Offer; for example, projected Product usage, operating environment,
and operating period.
(c) Describe the information
that an Offeror must provide in the Offer, including relevant Life Cycle Costs and
supporting information. Examples include:
(A) Average unit price, including
production and operational costs,
(B) Delivery, shipping and
transportation costs,
(C) Any response to switching
costs identified in the Solicitation,
(D) Unit operating and support
costs (for example, staffing and technical assistance, energy, parts requirements,
scheduled maintenance, and training),
(E) Unit disposal costs (for
example, the cost of removing equipment from the State facility),
(F) Unit salvage, reuse,
or residual value,
(G) Any information related
to testing, demonstrations, or interviews, and
(H) Other Product information
related to Life Cycle and Sustainability.
(5) Solicitation Options.
The Solicitation may:
(a) Provide for adjustments
to the Life Cycle Costs if the costs continue over a period of years, for example,
inflation or cost uncertainty, and
(b) Include third party estimates
of a Product’s Life Cycle.
(6) Award Decision.
(a) If Agency uses Life Cycle
Costing, an Award resulting from Competitive Sealed Bidding must be made to the
Responsible Offeror whose Responsive Offer provides the lowest overall cost of ownership
in accordance with the Life Cycle Costing described in the Solicitation.
(b) If Agency uses Life Cycle
Costing, an Award resulting from Competitive Sealed Proposals with Life Cycle Costing
must be made to the Responsible Offeror whose Responsive Offer is determined to
be the most Advantageous or best Proposal in accordance with the Life Cycle Costing
described in the Solicitation.
Stat. Auth.: ORS 279A.065(5)(a) &
279A.070
Stats. Implemented: ORS 279B.025,
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 6-2008, f. & cert.
ef. 7-2-08; DAS 4-2013, f. 12-17-13, cert. ef. 1-1-14

Methods of Source Selection

125-247-0200
Buy Decision and Methods of Source Selection
(1) Buy Decision. The Buy Decision means
the decision to buy Supplies and Services through socio-economic programs, agreements,
or the open market (Source). Agency is not required to make a Buy Decision based
on the lowest price. See the specific law for the authority to use each Source.
(2) Priority. Agencies must
make their Buy Decision in the priority order set forth in subsections (a) through
(d) and in accordance with applicable law (Priority). If a higher Priority Source
satisfies a Procurement and law requires the use of that Source, the Agency must
procure through that higher Priority Source and may not elect to procure through
a lower Priority Source.
(a) Surplus Property. Procuring
from surplus property promotes the efficient use of existing resources (see OAR
125-050-0100 through 125-050-0400).
(b) Qualified Rehabilitation
Facilities (QRFs). Procuring from QRFs assists individuals with disabilities through
gainful employment (see ORS 279.835 through 279.855 and OAR 125-055-0005 through
125-055-0045).
(c) Inmate Labor. See the
Oregon Constitution, Article I, Section 41, subsection 11, which encourages the
use of inmate work programs.
(d) Statewide Department
Price Agreement. Economy and efficiency are promoted through volume and strategic
purchases. Some Statewide Department Price Agreements are Mandatory Use Contracts,
described in OAR 125-247-0296. To determine if a Price Agreement exists and whether
it is mandatory, use ORPIN and perform a “Statewide Contract Search”
or an “Award Search” for “active” Contracts. Under ORS 279A.140,
DAS has the procurement authority to establish and administer statewide Price Agreements,
and according to the terms of each Price Agreement, DAS delegates the procurement
authority to the Agencies to use these Statewide Department Price Agreements.
(3) ORS 190 Agreement. Section
(2) does not apply to ORS 190 Agreements that promote the use of existing state
resources, including an Interagency Agreement, Intergovernmental Agreement, Interstate
Agreement, International Agreement, or Tribal Agreement (see OAR 125-246-0365).
An Agency may elect to use an ORS 190 Agreement at any time.
(4) Open Market. If sections
(2) and (3) do not apply, the Agency may procure Supplies and Services through the
open market, using the methods provided under the Public Contracting Code, related
Rules, and policies. See ORS 279AB, OAR 125-246 and 247.
(5) Methods of Source Selection.
An Authorized Agency must award a Contract for Supplies and Services by one of the
following seven sourcing methods in accordance with the Code and related Rules:
(a) Competitive Sealed Bidding
according to ORS 279B.055;
(b) Competitive Sealed Proposals
according to ORS 279B.060;
(c) Small Procurement according
to ORS 279B.065;
(d) Intermediate Procurement
according to ORS 279B.070;
(e) Sole-Source Procurement
according to ORS 279B.075;
(f) Emergency Procurement
according to ORS 279B.080; or
(g) Special Procurement according
to ORS 279B.085. A Cooperative Procurement in accordance with OAR 125-246-0400 substantially
uses a Competitive Sealed Bidding or Competitive Sealed Proposals method.
Stat. Auth.: ORS 279A.065(5)(a) &
279A.070
Stats. Implemented: ORS 279B.050
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; DAS 3-2014, f. 12-29-14, cert. ef. 1-1-15
125-247-0255
Competitive Sealed
Bidding
(1) See OAR 137-047-0255
and 137-047-0257.
(2) Regardless
of OAR 137-047-0255 and 137-047-0257, Authorized Agencies must comply with the following
provisions:
(a) Options.
An Authorized Agency may use one or more or any combination of the processes described
in this Rule.
(b) Public
Notice. The Authorized Agency must provide public notice of the Competitive Sealed
Bidding Solicitation as set forth in OAR 125-247-0305.
(c) Emerging
Small Business. The Invitation to Bid must include the requirement, if applicable,
for the awarded Bidder to obtain or subcontract labor, materials, or labor and materials
from a supplier registered as an Emerging Small Business.
(d) Revised
Rounds of Bidding.
(A) Process.
Revised Rounds of Bidding means a process that begins with an initial round of Competitive
Sealed Bidding according to OAR 125-247-0255 and may, at the discretion of the Authorized
Agency, include successive rounds of Bidding in order for the Agency to gain the
best Offer for purposes of Award. An Agency may revise the Solicitation's Specifications,
terms and conditions, and pricing structure for successive rounds to best meet the
State's needs. Bidders must be allowed adequate time to revise and resubmit their
Bids in accordance with the requirements set forth in the newly revised Solicitation
Document. At each successive round, the Agency may disregard its scoring of prior
Bids and commence new scoring for the new Bids. The Agency must comply with the
following procedures for this type of Solicitation:
(B) Revisions.
The Agency may reject any Bid, after any round, because the Bid did not meet a minimum
score or minimum set of requirements. The Agency may then proceed with a subsequent
round that requires additional Bids to be submitted, based on different Specifications,
terms and conditions, pricing structure, scoring model, references and set of award
criteria, separately or in any combination thereof, in order to best meet the State's
interests (Revisions). If any Revision is made by the Agency in any subsequent round,
the Agency has the right, in its sole discretion, to permit any Bidder whose Bid
was previously rejected to submit a new Bid, if the reason(s) for the rejection
of the prior Bid by that Bidder no longer applies. Following clarifications and
additional investigations, the Agency may reinstate or disqualify an Bidder at any
stage of the evaluation process.
(C) Disclosures.
The initial Solicitation Document must disclose that a Revised Rounds of Bidding
process will or may be used. The Agency must give notice to all initial Bidders
of any Revision(s) in the Specifications, terms and conditions, pricing structure,
scoring model, and award criteria, separately or in any combination. If the Agency
discloses any prices, terms or conditions offered by other Bidders, the Agency must
give notice of these disclosures to the initial Bidders.
Stat. Auth.: ORS
279A.065(5)(a) & 279A.070

Stats. Implemented:
ORS 279B.055

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
125-247-0260
Competitive
Sealed Proposals
(1) See OAR 137-047-0260
and 137-047-0261.
(2) Regardless
of OAR 137-047-0260 and 137-047-0261, Authorized Agencies must comply with the following
provisions:
(a) An Authorized
Agency may use one or more or any combination of the procedures described in ORS
279B.060 and this Rule.
(b) In addition
to the requirements in ORS 279B.060(2), the Request for Proposals must include the
following:
(A) The form
and instructions for submission of Proposals;
(B) A description
of the procurement process, including but not limited to: optional process, evaluation,
selection, and protest process.
(C) Mandatory
preferences, if applicable, and any discretionary preferences, if elected; and
(D) All applicable
certifications of compliance with tax laws.
(c) Interviews.
If the evaluation committee conducts interviews, it must award weights, points or
other classifications indicated in the Request for Proposals for the anticipated
interview.
(d) Competitive
Range. The Authorized Agency may decrease the number of Proposers in the initial
Competitive Range if the excluded Proposers have no reasonable chance to be the
most Advantageous Proposer.
(e) The Authorized
Agency may continue serial or simultaneous Negotiations until the Agency has determined:
(A) To award
the Contract to the eligible Proposer with whom it is currently discussing or negotiating;
(B) To conduct
Revised Rounds of Negotiations; or
(C) To cancel
the Procurement under ORS 279B.100.
(f) Revised
Rounds of Negotiations.
(A) Process
and Revisions. After publication of the original Request for Proposals, the Authorized
Agency may conduct successive rounds of Proposals achieved through Negotiations
to gain the best Proposal for purposes of Award. These Negotiations may concern
the price, Specifications, and final terms and conditions, separately or in any
combination. The Agency must treat all Proposers fairly. Before the start of each
round of Negotiations, the Agency must disclose the parameters of that round of
Negotiations. At that time, the Agency may revise the Solicitation's Specifications,
terms and conditions, evaluation criteria and weight, and pricing structure in order
to best meet the State's interests (Revisions). At each successive round, the Agency
may disregard its scoring of prior Proposals and commence new scoring for the new
Proposals. The Agency may eliminate any Proposal after a round because the Proposal
did not meet a minimum score, or the Proposal was not susceptible to award, and
then proceed with a subsequent round that requires additional Proposals based on
the Revision(s). If any Revision is made by the Agency in any subsequent round,
the Agency reserves the right, in its sole discretion, to permit any Proposer whose
Proposal was previously eliminated to submit a new Proposal, if the reason(s) for
the elimination of the prior Proposal no longer applies.
(B) Disclosures.
The initial Solicitation Document must disclose that a Revised Rounds of Negotiation
process will or may be used. The Agency must give notice to all initial Proposers
of any Revision(s) in the Specifications, terms and conditions, pricing structure,
scoring model, and award criteria, separately or in any combination. If the Agency
discloses any prices, terms or conditions offered by other Proposers, the Agency
must give notice of these disclosures to the initial Proposers.
Stat. Auth.: ORS
279A.065(5)(a) & 279A.070

Stats. Implemented:
ORS 279B.060

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
125-247-0265
Small Procurements
(1) Generally. For Procurements of Goods
or Services less than or equal to $10,000 an Authorized Agency may Award a Contract
as a Small Procurement pursuant to ORS 279B.065.
(2) Amendments. An Authorized
Agency may amend:
(a) A Contract Awarded as
a Small Procurement before January 1, 2014 in accordance with OAR 125-247-0805,
but the cumulative amendments must not increase the total Contract Price to a sum
greater than $6,000; and
(b) A Contract Awarded as
a Small Procurement on or after January 1, 2014 in accordance with OAR 125-247-0805,
but the cumulative amendments must not increase the total Contract Price to a sum
greater than $12,500.
(3) An Authorized Agency
must comply with ORS 200.035.
Stat. Auth.: ORS 279A.065(5)(a) &
279A.070
Stats. Implemented: ORS 279B.065
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; DAS 4-2013, f. 12-17-13, cert. ef. 1-1-14
125-247-0270
Intermediate Procurements
(1) See OAR 137-047-0270.
(2) Regardless of OAR 137-047-0270,
Authorized Agencies must comply with the following provisions:
(a) Amendments. If the cumulative
value of the original Contract Price and all Amendments exceeds $150,000.00, or
one hundred twenty-five percent (125%) of the original Contract Price, whichever
is greater, then the Authorized Agency must request and obtain prior approval of
a Special Procurement in accordance with OAR 125-247-0287.
(b) Written Solicitation.
Authorized Agencies are not required to use a Written Solicitation, unless an Agency’s
Designated Procurement Officer requires a Written Solicitation. This Written Solicitation
may allow revisions to the Solicitation and opportunity for protests, at the discretion
of the Agency.
(c) Documentation. Authorized
Agencies must document:
(A) The method used by the
Agency; and
(B) Communications between
the Agency and prospective Offerors.
(d) Borderline Procurements.
If an Authorized Agency’s Designated Procurement Officer in good faith estimated
that the Procurement would be equal to or less than $150,000, and learned thereafter
that all of the Offers were minimally exceeding $150,000, this Procurement complies
with ORS 279B.070 and this Rule upon the following conditions:
(A) The Designated Procurement
Officer must document in the Procurement File the basis for the original estimate
under $150,000 and the process used; and
(B) The Agency must comply
with the remainder of ORS 279B.070 and this Rule.
(e) Notice on ORPIN. The
Agency must post on ORPIN a notice that it is seeking at least three Offers.
(A) The Notice must provide:
(i) A general description
of the Supplies and Services to be acquired;
(ii) Contact information;
(iii) An adequate time period
in accordance with the DAS MWESB Policy; and
(iv) For Intermediate Procurements
exceeding $100,000, the Time Period must be a reasonable interval of at least seven
(7) calendar Days. Despite this Time Period, Authorized Agencies may determine that
a shorter Time Period is in the public’s interest and that a shorter Time
Period will not substantially affect competition. The Authorized Agency must document
the specific reason for the shorter Time Period in the Procurement File in accordance
with OAR 125-246-0556.
(B) OAR 125-247-0305 (Public
Notice of Solicitation Documents) does not apply to Intermediate Procurements.
(f) Negotiations. An Authorized
Agency may negotiate with an Offeror.
(g) Nothing in this Rule
waives the Department of Justice legal sufficiency review if applicable under ORS
291.047.
Stat. Auth.: ORS 279A.065(5)(a) &
279A.070
Stats. Implemented: ORS 279B.070
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
125-247-0275
Sole-Source
Procurements
(1) Generally. An
Authorized Agency with delegated authority according to OAR 125-246-0170 may award
a Contract without a competitive process through a Sole-Source Procurement according
to the requirements of ORS 279B.075, this Rule, and the policy of the Department.
The Authorized Agency must make a determination of a sole source based upon Written
findings of fact that the Supplies and Services are available from only one source.
(2) Findings
of Fact. Findings of fact required under OAR 125-247-0275(1) may include:
(a) Compatibility.
The efficient utilization of existing Supplies and Services requires the acquisition
of compatible Supplies and Services from only one source. For example, compatibility
may be implicated when: Supplies are required to directly interface with or attach
to equipment of the same manufacturer and no other manufacturer’s Supplies
will correctly interface with existing equipment; or when Services such as maintenance,
warranty, project management, or systems integration are required to interface or
integrate with existing Supplies and Services.
(b) Exchange
of Software or Data. Specific Supplies and Services, which are available from only
one source, may be required for the exchange of software or data with other public
or private agencies. This finding may be particularly applicable when the Supplies
and Services involve assets such as copyrights, patents, trademarks, and trade secrets.
(c) Pilot
or Experimental Project. Supplies and Services are for the use in such projects,
which may include but are not limited to research and economic development projects.
(d) Other
findings that support the conclusion that Supplies and Services are available from
only one source may include but are not limited to considerations of: unique design,
availability, geographic location, exclusive authorized representative, cost of
conversion, and warranty services.
(3) Market
Research. ORS 279B.075 requires that the Authorized Agency “determines in
writing” that the goods or services are “available from only one source.”
This means that the Authorized Agency must conduct and document its market research
before public notice described in Section (4) or (5).
(4) Contracts
up to $150,000. For all Contracts awarded through Sole-Source Procurements over
$5,000 and not exceeding $150,000:
(a) The Authorized
Agency must place a public notice on ORPIN of its determination that the Supplies
and Services or class of Supplies and Services are available from only one source.
(b) The public
notice must describe the Supplies and Services to be acquired through a Sole-Source
Procurement and identify the prospective Contractor and include the date, time and
place that protests are due.
(c) The Authorized
Agency must give Affected Persons at least seven calendar (7) Days from the date
of the public notice of the determination that the Supplies or Services are available
from only one source to protest the determination under OAR 125-247-0710. If the
Department is conducting the Sole-Source Procurement, then the Department is the
Authorized Agency for purposes of this Rule.
(d) The Authorized
Agency must obtain the Written approval of that Agency’s Designated Procurement
Officer or delegatee before the Authorized Agency places a public notice on ORPIN
in accordance with this Section.
(5) Contracts
over $150,000. For all Contracts exceeding $150,000:
(a) The Authorized
Agency must place a public notice on ORPIN in accordance with Subsections (4)(a)-(c);
and if the Department is conducting the Sole-Source Procurement, then the Department
is the Authorized Agency for purposes of this Rule; and
(b) The Authorized
Agency must obtain the Written approval of the Chief Procurement Officer or delegatee
before the Authorized Agency places a public notice on ORPIN in accordance with
this Section.
(6) Negotiation.
According to ORS 279B.075 and to the extent reasonably practical, the Authorized
Agency must negotiate with the sole source to obtain contract terms advantageous
to the Authorized Agency.
(7) Protest.
An Affected Person may protest the Authorized Agency's determination that the Supplies
and Services or class of Supplies and Services are available from only one source
in accordance with OAR 125-247-0710.
(8) Brand
Name Requirements. If the findings of fact required under this Rule include a specification
of a Brand Name, that specification must be in accordance with ORS 279B.215 and
OAR 125-247-0691.
(9) Legal
Sufficiency Review. When legal sufficiency review by the Attorney General is required
under ORS 291.047, the Authorized Agency must seek this approval.
Stat. Auth.: ORS
279A.065(5)(a) & 279A.070

Stats. Implemented:
ORS 279B.075

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
125-247-0280
Emergency
Procurements
(1) An Authorized
Agency may award a Contract as an Emergency Procurement under ORS 279B.080. An Authorized
Agency has delegated authority to enter into an Emergency Contract according to
OAR 125-246-0170.
(2) An Authorized
Agency may, in its discretion, enter into a Contract without competitive Solicitation
if an Emergency exists. Emergency means circumstances that could not have been reasonably
foreseen that create a substantial risk of loss, damage, interruption of services
or threat to public health or safety that requires prompt execution of a Contract
to remedy the condition.
(3) Regardless
of the dollar value of the Contract, the Authorized Agency entering into an Emergency
Contract must encourage competition that is reasonable and appropriate under the
Emergency circumstances. However, for the emergency procurement of construction
services that are not Public Improvements, see ORS 279B.080(2).
(4) Regardless
of the dollar value of the Contract, the Authorized Agency entering into an Emergency
Contract must, either before or promptly after entering into an Emergency Contract,
make and retain in its Procurement File documentation of the nature of the Emergency
that includes:
(a) A brief
description of the Supplies and Services to be provided under the Contract, together
with its cost or anticipated cost;
(b) A brief
explanation of how the Contract, in terms of duration or Supplies and Services provided
under it, was restricted to the Scope reasonably necessary to adequately deal only
with the risk created or anticipated to be created by the Emergency circumstances;
(c) A description
of the emergency circumstances that require the prompt performance of the Contract,
stating the anticipated harm from failure to establish the Contract on an expedited
basis; and
(d) Documentation
of the measures taken under Section (3) to encourage competition; the amounts of
the Bids, Quotes or Proposals obtained, if any; and the reason for selecting the
Contractor.
(5) The head
of the Authorized Agency, or a person designated under ORS 279A.075, must authorize
the conduct of the emergency procurement, and must review and approve the documentation
required by Section (4) of this Rule.
(6) Any Contract
awarded under this Rule must be awarded no later than sixty (60) days following
the approval of the documentation of the emergency unless the head of the Authorized
Agency or Person designated has granted an extension.
(7) Agencies
must also comply with OAR 137-045-0070, Emergency Public Contract Exemption, if
applicable. The Authorized Agency must maintain a copy of any required report in
the Authorized Agency's Emergency Procurement File.
(8) For an
Emergency Procurement of construction services that are not Public Improvements,
the Authorized Agency must insure competition for a contract for the emergency work
that is reasonable and appropriate under the emergency circumstances. In conducting
the Procurement, the Authorized Agency must set a solicitation time period that
the Authorized Agency determines to be reasonable under the emergency circumstances
and may issue Written or oral requests for Offers or make direct appointments without
competition in cases of extreme necessity.
(9) 2009
“Go Oregon!” Economic Stimulus Package.
(a) Program.
The 2009 “Go Oregon!” Economic Stimulus Package, Enrolled Senate Bill
338, House Bill 5562 and related legislative measures (Program), provides funding
and direction to identified Authorized Agencies for deferred maintenance, capital
construction, capital renewal, code compliance, safety, renovation, and other construction
projects (Projects). The Program’s objective is to stimulate Oregon’s
economy through job growth by providing opportunities to local businesses and certified
minority, women and emerging small businesses. The Director of the Department has
made a determination of emergency circumstances and documented the nature of the
Emergency under the Program (Emergency Determination). Most of the Projects are
not Public Improvements as defined in OAR 125-246-0110(127). ORS 279C.320 provides
that ORS 279B.080 regulates these Projects.
(b) Application.
Sections (2) through (6) of this Rule do not apply to Procurements and Contracts
under the Program.
(c) Emergency
Documentation. The Emergency Determination documents the nature of the Emergency
on behalf of the Authorized Agencies to satisfy the requirement of ORS 279B.080.
No further documentation that an Emergency exists is required of the Authorized
Agencies.
(d) Authorization.
The Designated Procurement Officer, or designee, of the Authorized Agency must authorize
Procurements under the Program and may determine whether to excuse the requirement
of furnishing a good and sufficient performance bond or payment bond.
(e) Procurement
Processes. The Authorized Agencies may conduct expedited Emergency Procurement processes,
including but not limited to: informal or formal requests for quotes, invitations
to bid, and requests for proposals; special procurements; and direct awards. Any
of these processes may be utilized regardless of project value.
(f) Project
Documentation. The Authorized Agency must retain in its Procurement File(s) the
following documentation of its Emergency Procurements and Contracts under the Program:
(A) Copies
of all data requested by the Department;
(B) A brief
description of the Project;
(C) A description
of how the particular contractor was selected and the measures taken to encourage
competition, if reasonable and appropriate under the emergency circumstances.
(D) A statement
by the Designated Procurement Officer, or designee, excusing performance and payment
bonds for the Project in accordance with ORS 279C.380(4), if applicable.
(g) Timing.
The documentation described in Section (9)(f) may occur a reasonable time after
the award of the Contract. No documentation is required before the award of the
Contract.
(10) Other
State Economic Stimulus Programs.
(a) Application.
For any other state economic stimulus program that is administered by the Department
or an Authorized Agency (State Program), Sections (9)(d) through (g) replace Sections
(2) through (6) of this Rule and apply to the State Program on the following condition:
the Department or Authorized Agency determines that the State Program is in response
to adverse economic circumstances.
(b) Emergency
Determination and Documentation. The Director of the Department may make an emergency
determination and document the nature of the Emergency on behalf of Authorized Agencies.
Regardless of any determination by the Director of the Department, an Authorized
Agency may make an emergency determination and document the nature of the Emergency
on that Agency’s behalf and in accordance with ORS 279B.080.
(11) Federal
Economic Stimulus Programs.
(a) Application.
For any federal economic stimulus program that is administered by the Department
or an Authorized Agency (Federal Program), Sections (9)(d) through (g) replace Sections
(2) through (6) of this Rule and apply to the Federal Program upon the following
condition: the Department determines that the Federal Program is in response to
adverse economic circumstances.
(b) Emergency
Determination and Documentation. The Director of the Department may make an emergency
determination and document the nature of the Emergency on behalf of Authorized Agencies.
Regardless of any determination by the Director of the Department, an Authorized
Agency may make an emergency determination and document the nature of the Emergency
on that Agency’s behalf and in accordance with ORS 279B.080.
(12) Amendment.
An Authorized Agency may modify a Contract awarded as an Emergency Procurement if
the emergency justification for entering into the Contract still exists, and the
Amendment is necessary to address the continuing emergency. This modification may
be made by change order or Amendment to address the conditions described in the
original declaration or an amended declaration that further describes additional
Work necessary and appropriate for related Emergency circumstances.
Stat. Auth.: ORS
279A.065(5)(a) & 279A.070

Stats. Implemented:
ORS 279B.080 & 279C.320

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 5-2009(Temp), f. & cert. ef. 2-13-09
thru 8-12-09; DAS 9-2009, f. & cert. ef. 8-11-09; DAS 11-2009, f. 12-30-09,
cert. ef. 1-1-10; DAS 3-2012, f. 11-29-12, cert. ef. 12-1-12
125-247-0285
Special Procurements;
Purpose and Application
(1) Generally. An
Authorized Agency may award a Contract as a Special Procurement pursuant to the
requirements of ORS 279B.085.
(2) Purpose.
Pursuant to ORS 279B.085, these Rules establish the criteria for procuring Supplies
and Services through Special Procurements by the Department and Authorized Agencies.
Authorized Agencies must have delegated authority pursuant to OAR 125-246-0170.
Stat. Auth.: ORS
279A.065(5)(a) & 279A.070

Stats. Implemented:
ORS 279B.085

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
125-247-0286
Special Procurements;
Definitions
As used in this
Section and ORS 279B.400:
(1) "Class
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 series of Contracts over time or for multiple projects.
(2) "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 on a one-time
basis or for a single project.
(3) "Special
Procurement" means, unless the context requires otherwise, a class Special Procurement,
a contract-specific Special Procurement or both.
Stat. Auth.: ORS
279A.065(5)(a) & 279A.070

Stats. Implemented:
ORS 279B.085

Hist.: DAS
4-2004, f. 11-23-04, cert. ef. 3-1-05; DAS 6-2008, f. & cert. ef. 7-2-08
125-247-0287
Special Procurements;
Request Procedures
(1) Approval. An Authorized Agency may
request approval of its new or amended Special Procurement from the Chief Procurement
Officer. The request must describe one or more particular Contracts or class of
Contracts and use the designated ORPIN form. A request for a Special Procurement
concerns the procurement process only, and the authority to use the Special Procurement
is determined under OAR 125-246-0170.
(2) Requests. Special Procurement
Requests must contain the following:
(a) Request must include
reason(s) why Agency has elected to use Special Procurement and how it will benefit
the Agency or the public.
(b) The Request must include
findings, market research, or other documentation that the Special Procurement:
(A) Is unlikely to encourage
favoritism in the awarding of Public Contracts or to substantially diminish competition
for Public Contracts, and
(B) Either:
(i) Is reasonably expected
to result in substantial cost savings to the Agency or to the public; or
(ii) Otherwise substantially
promotes the public interest in a manner that could not practicably be realized
by complying with requirements that are applicable under ORS 279B.055, 279B.060,
279B.065 or 279B.070 or under any related Rules.
(c) The alternative process
designed by the Agency must be clear and complete, including a description of the
Supplies and Services that are the subject of the Special Procurement, provisions
for advertisement, a procurement process, including provisions for Amendment and
criteria for selection, and the proposed contract document.
(d) The Chief Procurement
Officer may require any additional information deemed necessary to evaluate the
Agency's request for approval of a Special Procurement.
(3) Effect. The Special Procurement
approval is effective only after the Chief Procurement Officer's approval of the
findings and Request and completion of the Public Notice required under section
(4) of this Rule.
(4) Public Notice. The Public
Notice process and requirements are as follows:
(a) General. The requesting
Authorized Agency must give public notice of the approval of its Special Procurement
as required under ORS 279B.085(4) and in accordance with this Rule, unless otherwise
directed by the Chief Procurement Officer (Public Notice). As a Written condition
to approval of the Special Procurement, the Chief Procurement Officer may require
that the Department instead of the requesting Agency give the Public Notice.
(b) Content. The Public Notice
must at least describe the Supplies and Services or class of Supplies and Services
to be acquired through the Special Procurement.
(c) Time Periods.
(A) If the Special Procurement
involves one or more Solicitations, then Public Notice of the approval of the proposed
Special Procurement must be given at least seven (7) calendar Days before the Award.
The Solicitation Document must either contain the attached request and approval
of the Special Procurement or incorporate the request and approval by reference
with the documents easily accessible to Affected Persons; or
(B) If the Special Procurement
does not involve a Solicitation, then Public Notice of the approval of the Special
Procurement must be given at least seven (7) Days before the commencement of the
Special Procurement.
(d) An Agency may request
certain information to be withheld from the public notice requirement of this Rule
in cases where confidentiality or security may be jeopardized only according to
an exception under the Public Records Law (ORS 192.410 through 192.505).
(5) Protest. An Affected
Person may protest the approval of a Special Procurement in accordance with ORS
279B.400 and OAR 125-247-0700.
(6) Reference. Any Solicitation
or Contract resulting from a Special Procurement approval must contain a reference
to the number of the approved Special Procurement.
(7) Conditions. If the Chief
Procurement Officer provides Written approval of the proposed Special Procurement
(Approval), the Authorized Agency must award any Contract under the Special Procurement
in accordance with the conditions of this Approval and any subsequent amendments
to the Approval. The Approval may include conditions, including but not limited
to expiration, Public Notice and dollar limitations, and may be revoked at any time
by the Chief Procurement Officer.
(8) If an Authorized Agency
competitively solicits, it must comply with the process described in the Special
Procurement or the Rules for that method of Solicitation according to ORS 279B.055
through 279B.070 and 279A.200 et seq.
(9) Nothing in this Rule
exempts the Agency from obtaining the approval of the Attorney General for legal
sufficiency according to ORS 291.047.
(10) All Agencies must comply
with ORS 200.035 and related Department policy, despite this Rule.
(11) If an Authorized Agency
intends to award a Contract through a Special Procurement that calls for competition
among prospective contractors, the Authorized Agency must award the Contract to
the Offeror the Authorized Agency determines to be the most advantageous to the
Authorized Agency.
(12) Reporting. An Authorized
Agency must comply with ORS 279A.165, including but not limited to:
(a) Application. This section
(12) applies to all Special Procurements advertised or otherwise solicited on or
after January 1, 2012.
(b) Records. An Authorized
Agency must maintain records about its Special Procurements that enable the Agency
to determine and provide to the Chief Procurement Officer at least the following
information:
(A) The name of the Agency
that conducted each Special Procurement;
(B) The number of Special
Procurements the Agency conducted;
(C) The number of contracts
awarded through each Special Procurement;
(D) A summary of the reasons
that the Agency decided to conduct each Special Procurement;
(E) A descriptive summary
of the procurement procedure used to conduct the Special Procurement, noting whether
the procedure was competitive or not;
(F) A listing of the number
of Offers the Agency received if the Special Procurement procedure was competitive;
(G) The contract price or
estimated contract price for each contract awarded through a Special Procurement;
(H) A summary of the protests
or other responses to the approval of each Special Procurement that the Agency received;
and
(I) A summary of the disposition
of the protests or other responses described in subsection 12(b)(H).
(c) Reports. Authorized Agencies
must provide to the Chief Procurement Officer the information in section (12)(b)
of this rule.
(A) Form. Agencies must report
on a form approved by the Chief Procurement Officer.
(B) Timing. Agencies must
deliver regular reports on the approved form to the Chief Procurement Officer no
later than the dates announced by the Chief Procurement Officer.
(d) Section (12) of this
Rule is effective on the date of the filing of this amended Rule.
Stat. Auth.: ORS 279A.065(5)(a) &
279A.070
Stats. Implemented: ORS 279A.165
& 279B.085
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 3-2014, f. 12-29-14,
cert. ef. 1-1-15
125-247-0288
Special Procurements;
by Rule
(1) Client Placement
and Client Health Care Services.
(a) Authorization
and Application. An Authorized Agency with delegated authority under OAR 125-246-0170
may use this Special Procurement by Rule to enter into Written agreements for Client
Placement and Client Health Care services, as described in this Rule. When an Authorized
Agency determines that a need exists to secure or maintain Client Placement Services
or to secure Client Health Care Services, the Authorized Agency may contract subject
to the following definitions and conditions of this Section (1).
(A) "Client
Placement Services" means securing, enhancing, or continuing the placement of a
Client in a structured family-like setting or residential setting operated by a
qualified Provider.
(B) "Client
Health Care Services" means health care services or provision of incidental or specialized
supplies related to the health of a Client. Client Health Care Services include
but are not limited to: preventive, diagnostic, therapeutic, behavioral, rehabilitative,
maintenance, or palliative care and counseling services, assessment, or procedure
with respect to the physical or mental condition, or functional status of a Client,
or that affect the structure or function of the body; and the sale or dispensing
of a drug, device, equipment, or other item in accordance with a prescription.
(C) Services
that may prevent a placement or placement disruption but that cannot definitively
be classified as Client Placement Services by the Authorized Agency are deemed to
be Client Placement Services and are subject to the Special Procurement approved
under this Rule. This Special Procurement for Client Placement Services may include
training only if it is provided directly to the Client, excluding Providers.
(b) Authorized
Agencies must execute a Contract or amendment to an existing Contract within 180
days of obtaining the Client Placement Services or Client Health Care Services as
defined herein. Should the Authorized Agency fail to execute the Contract within
this specified period, then the Authorized Agency may execute the Contract if:
(A) A Written
statement of justification that describes the unforeseen or unavoidable circumstances
that were reasonably unanticipated and preclude the Authorized Agency from executing
the Contract within the initial 180 day period; and
(B) A copy
of the Written justification is maintained in the Procurement File.
(c) The Authorized
Agency may not make any payments for Client Placement Services or Client Health
Care Services before obtaining all requisite approvals of the Contract.
(d) An Authorized
Agency may:
(A) Use one
of the defined source selection methods as found in OAR 125-247-0200. If an Authorized
Agency elects to use one of the defined source selection methods, it must conduct
it in accordance with the Code, Rules and Department policies; or
(B) The Authorized
Agency may elect to create its own source selection method. If an Authorized Agency
elects to create its own source selection method, it must document the file describing
why the alternate method was selected.
(e) The Authorized
Agency must ensure that all Procurement personnel responsible for procuring Placement
Services or Client Health Care Services are provided training on the conditions
and limitations of this Rule.
(f) Contract
and Amendment Forms.
(A) Original
Forms. Authorized Agencies must use a Contract form and Amendment form (Form) approved
by the Chief Procurement Officer when acquiring Client Placement Services or Client
Health Care Services according to this Rule. The Chief Procurement Officer may approve
the Form by facsimile, email, letter or any other method that provides an objective
means to verify its approval. The Authorized Agency must review the approved Form
at least every two years.
(B) Revised
Forms.
(i) 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 a
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.
(ii) 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. 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.
(g) Nothing
in this Rule exempts the Authorized Agency from obtaining the approval of the Attorney
General for legal sufficiency according to ORS 291.047.
(2) Client
Services Source Selection.
(a) An Authorized
Agency with delegated authority under OAR 125-246-0170 may use this Special Procurement
Rule.
(b) The Chief
Procurement Officer waives the source selection requirements as found in OAR 125-247-0200
for Authorized Agencies to procure Client Services, as defined in OAR 125-246-0110.
(c) The Authorized
Agency is urged to solicit for Client Services when there is known competition.
Under these circumstances, the Authorized Agency may:
(A) Use
one of the defined source selection methods as found in OAR 125-247-0200. If an
Authorized Agency uses one of the defined source selection methods, it must conduct
it in accordance with the Code, Rules and Department policies; or
(B) The
Authorized Agency may elect to create its own source selection method. If an Authorized
Agency creates its own source selection method, it must document the file describing
why the alternate method was selected. This Subsection (2)(c) does not apply to
Section (1) above.
(3) Renegotiations
of Existing Contracts with Incumbent Contractors.
(a) Authorization.
An Authorized Agency with delegated authority under OAR 125-246-0170 may use this
Special Procurement by Rule to renegotiate and amend an existing Contract with
an incumbent Contractor within the term of the contract, when market conditions
have changed and it is in the best interest of the State.
(b) Process
and Criteria. The Authorized Agency may renegotiate various items of the Contract,
including but not limited to: price, term, delivery and shipping, order size, item
substitution, warranties, discounts, on-line ordering systems, price adjustments,
product availability, product quality, and reporting requirements. The Authorized
Agency must post notice on ORPIN. Nothing in this Rule waives the Department of
Justice legal sufficiency review if applicable under ORS 291.047. The Authorized
Agency must meet the following conditions in its Renegotiations with incumbent Contractors:
(A) Favorable
Result. The Authorized Agency must determine that, with all things considered, the
renegotiated Contract is at least as favorable to the State as the Original Contract
and document this in the Procurement File. For example, the Authorized Agency and
the Contractor may adjust terms and conditions within the Original Contract to meet
different needs;
(B) Within
the Scope. The Supplies and Services provided under the renegotiated Contract must
be reasonably related to the Original Contract's Solicitation. For example, the
Authorized Agency may accept functionally equivalent substitutes for any Supplies
and Services in the Original Contract's Solicitation;
(C) Optional
Term or Condition. If a Contractor offered to the Authorized Agency during the original
Solicitation a term or condition that was rejected at that time, (for the purpose
of this Subsection only, Rejected Term or Condition), the Authorized Agency may
not renegotiate for a lower price based on this Rejected Term or Condition as a
mandatory term or condition in the renegotiated Contract. If, however, a Contractor
offers a lower price according to a Rejected Term or Condition without additional
consideration from the Authorized Agency and as only an option to the Authorized
Agency, then the Authorized Agency may accept the option of a lower price under
the Rejected Term or Condition. For example, if the Authorized Agency initially
rejected a Contractor's proposed Condition that the price required a minimum order,
any renegotiated Contract may not mandate this Condition; but the Authorized Agency
may agree to the option to order lesser amounts or receive a reduced price based
upon a minimum order; and
(D) Market.
In order to avoid encouraging favoritism or diminishing competition, the Authorized
Agency must research the accepted competitive practices and expectations of Offerors
within the market for the specific Contract(s) or Classes of Contracts to be renegotiated
(Market Norm). The Authorized Agency must document the results of the Market Norm
research in the Procurement File. Based upon this information, the Authorized Agency
must confirm that, if the Authorized Agency follows the Market Norm, favoritism
is not likely to be encouraged, competition is not likely to be diminished, and
substantial cost savings may be realized. Under no condition may the Authorized
Agency accept or follow any Market Norm that likely encourages favoritism or diminishes
competition, even if it is accepted or expected in the market.
(4) Advertising
Contracts.
(a) Authorization.
An Authorized Agency with delegated authority under OAR 125-246-0170 may use this
Special Procurement by Rule to purchase media advertising, regardless of dollar
value, without competitive bidding, according to OAR 125-246-0170.
(b) Process
and Criteria. Authorized Agencies must use competitive methods where practicable
to achieve best value and must document in Agency policy or the Procurement File
the reasons why a competitive process was deemed to be impractical. If the anticipated
purchase exceeds $5,000 and a competitive method is used, the Authorized Agency
must post notice on ORPIN. The resulting Contract must be in Writing and the Authorized
Agency Procurement File must document the use of this Special Procurement Rule by
number to identify the sourcing method. Nothing in this Rule waives the Department
of Justice legal sufficiency review if applicable under ORS 291.047.
(5) Equipment
Repair and Overhaul.
(a) Authorization.
An Authorized Agency with delegated authority under OAR 125-246-0170 may use this
Special Procurement by Rule for equipment repair and overhaul, as described in this
Rule.
(b) Conditions.
An Authorized Agency, having delegated purchasing authority according to OAR 125-246-0170,
may enter into a Public Contract for equipment repair or overhaul without competitive
bidding, subject to the following conditions:
(A) Service
or parts required are unknown and the cost cannot be determined without extensive
preliminary dismantling or testing; or
(B) Service
or parts required are for sophisticated equipment for which specially trained personnel
are required and such personnel are available from only one source; and
(C) The Authorized
Agency purchases within the limits and according to the methods in (5)(c) of this
Rule.
(c) Process
and Criteria. Authorized Agencies must use competitive methods where practicable
to achieve best value and must document in Agency policy or the Procurement File
the reasons why a competitive process was deemed to be impractical. If the anticipated
purchase exceeds $5,000 and a competitive method is used, the Authorized Agency
must post notice on ORPIN. The resulting Contract must be in Writing and the Authorized
Agency Procurement File must document the use of this Special Procurement Rule by
number to identify the sourcing method. Nothing in this Rule waives the Department
of Justice legal sufficiency review if applicable under ORS 291.047.
(6) Contracts
for Price Regulated Items.
(a) Authorization.
An Authorized Agency with delegated authority under OAR 125-246-0170 may use this
Special Procurement by Rule for the Procurement of price regulated items, and the
Authorized Agency must comply with the conditions of this Rule. An Authorized Agency
having delegated purchasing authority according to OAR 125-246-0170 may, regardless
of dollar value and without competitive bidding, contract for the direct purchase
of Supplies and Services where the rate or price for the Supplies and Services being
purchased is established by federal, state, or local regulatory authority.
(b) Process
and Criteria. Authorized Agencies must use competitive methods where practicable
to achieve best value and must document in Agency policy or the Procurement File
the reasons why a competitive process was deemed to be impractical. If the anticipated
purchase exceeds $5,000 and a competitive method is used, the Authorized Agency
must post notice on ORPIN. The resulting Contract must be in Writing and the Authorized
Agency Procurement File must document the use of this Special Procurement Rule by
number to identify the sourcing method. Nothing in this Rule waives the Department
of Justice legal sufficiency review if applicable under ORS 291.047.
(7) Investment
Contracts.
(a) Authorization.
An Authorized Agency with delegated authority under OAR 125-246-0170 may use this
Special Procurement by Rule for investment Contracts, including related Contracts
arising from or giving rise to investment opportunities (collectively, investment
Contracts), as described in this Rule. An Authorized Agency may, without competitive
bidding, and regardless of dollar amount, contract for the purpose of the investment
of public funds or the borrowing of funds by the Authorized Agency when such investment
or borrowing is contracted according to duly enacted statute, or constitution.
(b) Process
and Criteria. Authorized Agencies must use competitive methods where practicable
to achieve best value and must document in Agency policy or the Procurement File
the reasons why a competitive process was deemed to be impractical. If the anticipated
purchase exceeds $5,000 and a competitive method is used, the Authorized Agency
must post notice on ORPIN. The resulting Contract must be in Writing and the Authorized
Agency Procurement File must document the use of this Special Procurement Rule by
number to identify the sourcing method. Nothing in this Rule waives the Department
of Justice legal sufficiency review if applicable under ORS 291.047.
(8) Food
Contracts.
(a) Intent.
The intent of this Rule is to provide a method for Authorized Agencies to procure
food products, which are available for a limited period of time at "lower than normal"
prices (also referred to as "spot buys") (Food Contracts).
(b) Authorization.
An Authorized Agency with delegated authority under OAR 125-246-0170 may use this
Special Procurement by Rule for the Procurement of Food Contracts, and the Authorized
Agency must comply with the conditions of this Rule.
(c) Conditions.
An Authorized Agency may procure an unlimited dollar value of food using a competitive
bid or quote process when all of the following conditions are present:
(A) The proposed
unit price of the item(s) to be purchased is significantly less than a comparable
item's price on an existing Mandatory Use Contract or any recent bid and the amount
saved exceeds any additional administrative costs incurred to purchase using this
Special Procurement;
(B) The product
being purchased has limited availability (i.e., the product may no longer be available
upon completion of normal bid processes); and
(C) The purchase
does not jeopardize fulfillment of a guaranteed minimum volume under an existing
Mandatory Use Contract.
(d) Documentation.
Purchases may only be made under this Special Procurement after the Authorized Agency
documents the following in its Procurement File in accordance with OAR 125-246-0556:
the Authorized Agency's attempt and method to obtain Quotes from at least three
sources; the Written Quote or Bid, if obtained; item Specifications; quantity; unit
pricing; delivery; and other pertinent information. Contract or bid pricing used
for comparison must be representative of current pricing available and must have
been obtained or confirmed no more than six (6) months before the current purchase.
When practical, Written Quotes are recommended.
(e) Process
and Criteria. Authorized Agencies must use competitive methods where practicable
to achieve best value and must document in Agency policy or the Procurement File
the reasons why a competitive process was deemed to be impractical. If the anticipated
purchase exceeds $5,000 and a competitive method is used, the Authorized Agency
must post notice on ORPIN, except when the competitive method involves verbal Quotes
for perishable food. The resulting Contract must be in Writing and the Authorized
Agency Procurement File must document the use of this Special Procurement Rule by
number to identify the sourcing method. Nothing in this Rule waives the Department
of Justice legal sufficiency review if applicable under ORS 291.047.
(9) Purchase
of Used Personal Property.
(a) Authorization.
An Authorized Agency with delegated authority under OAR 125-246-0170 may use this
Special Procurement by Rule Subject to the provisions of this Rule, an Authorized
Agency may purchase used property or equipment without competitive bidding and without
obtaining Quotes, if, at the time of purchase, the Agency has determined and documented
that the purchase will (i) be unlikely to encourage favoritism or diminish competition;
and (ii) result in substantial cost savings or promote the public interest. "Used
personal property or equipment" means the property or equipment which has been placed
in its intended use by a previous owner or user for a period of time recognized
in the relevant trade or industry as qualifying the personal property or equipment
as "used," at the time of the Authorized Agency purchase. "Used personal property
or equipment" generally does not include property or equipment if the Authorized
Agency was the previous user, whether under a lease, as part of a demonstration,
trial or pilot project, or similar arrangement.
(b) Process
and Criteria.
(A) For purchases
of used personal property or equipment not exceeding $150,000, Authorized Agencies
having delegated authority according to OAR 125-246-0170, must, where feasible,
obtain three Quotes, unless the Authorized Agency has determined and documented
that a purchase without obtaining Quotes will result in cost savings to the Authorized
Agency and will not diminish competition or encourage favoritism.
(B) For purchases
of used personal property or equipment exceeding $150,000, the Department must
obtain and keep a Written record of the source and amount of Quotes received. If
three Quotes are not available, a Written record must be made of the attempt to
obtain Quotes.
(C) If the
total purchase is estimated to exceed $150,000, an Authorized Agency must submit
a Written request for a Written delegation of authority from the Chief Procurement
Officer before making the purchase.
(D) Authorized
Agencies must use competitive methods wherever possible to achieve best value and
must document in Agency policy or the Procurement File the reasons why a competitive
process was deemed to be impractical. If the anticipated purchase exceeds $5,000
and a competitive method is used, the Authorized Agency must post notice on ORPIN.
The resulting Contract must be in Writing and the Authorized Agency Procurement
File must document the use of this Special Procurement Rule by number to identify
the sourcing method. Nothing in this Rule waives the Department of Justice legal
sufficiency review if applicable under ORS 291.047.
(10) Reverse
Auctions.
(a) Authority.
An Authorized Agency with delegated authority under OAR 125-246-0170 may use this
Special Procurement by Rule.
(b) Process.
A Reverse Auction means a process for the purchase of Supplies and Services by a
buyer from the lowest Bidder. The Authorized Agency as the buyer must conduct Reverse
Auctions by first publishing a Solicitation that describes its requirements, Contract
terms and conditions. Then, the Authorized Agency must solicit online Bids from
all interested Bidders through an Internet-based program. The Solicitation must
set forth a start and end time for Bids and specify the following type of information
to be disclosed to Bidders during the Reverse Auction:
(A) The prices
of the other Bidders or the price of the most competitive Bidder;
(B) The rank
of each Bidder (e.g., (i) "winning" or "not winning" or (ii) "1st, 2nd, or higher");
(C) The scores
of the Bidders if the Authorized Agency chooses to use a scoring model that weighs
non-price factors in addition to price; or
(D) Any combination
of (A), (B) and (C) above. Before the Reverse Auction commences, Bidders must be
required by the Authorized Agency to assent to the Contract terms and conditions,
either in Writing or by an Internet "click" agreement. The Bidders then compete
for the award of a Contract by offering successively lower prices, informed by the
price(s), ranks, and scores, separately or in any combination thereof, disclosed
by the Authorized Agency. The identity of the Bidders must not be revealed during
this process. Only the successively lower price(s), ranks, scores and related details,
separately or in any combination thereof, will be revealed to the participants.
The Authorized Agency may cancel this Solicitation if this Agency determines that
it is in this Agency's or the State's best interest. At the end of this Bidding
process, the Authorized Agency must award any potential Contract to the lowest Responsible
Bidder or in the case of multiple awards, lowest Responsible Bidders according
to ORS 279B.055(10)(b). This process allows the Authorized Agency to test and determine
the suitability of the Supplies and Services before making the Award. The Authorized
Agency must comply with the following procedures for this type of Solicitation:
(c) Policy.
The Authorized Agency must follow the policy of the Department.
(d) Public
Notice.
(A) The Authorized
Agency must disclose the Reverse Auction process in the Solicitation Document. The
Reverse Auction process must include the manner of giving notices of the price(s)
offered, rank(s), score(s), and related details to the initial Bidders.
(B) The Authorized
Agency must provide initial notice of this Solicitation through ORPIN.
(C) If the
value exceeds $150,000, the Authorized Agency must issue a Notice of Intent to award
at least seven (7) calendar Days before making the Award.
(e) Prequalification.
For each Solicitation, on a case-by-case basis, the Authorized Agency may determine
whether prequalification of suppliers is needed. If prequalification is used, the
Authorized Agency must prequalify suppliers and provide an appeal process in accordance
with ORS 279B.120 and related Rules.
(f) E-Procurement.
The requirements of OAR 125-247-0330 apply to Reverse Auctions. In the event of
conflict or ambiguity, the more specific requirements of this Section (11) take
precedence over the more general requirements of OAR 125-247-0330.
Stat. Auth.: ORS
279A.065(5)(a) & 279A.070

Stats. Implemented:
ORS 279B.085

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
125-247-0295
Special Procurements: General or Special Counsel Authorized by the Attorney General
(1) Authority and Application. An Authorized Agency with delegated authority under OAR 125-246-0170 may use this Special Procurement by Rule. Under ORS 180.235, the Oregon Attorney General may authorize a public officer or Agency to retain its own general or special counsel, including but not limited to conflict counsel, other than the Department of Justice. This Rule governs the process for obtaining such counsel.
(2) Definitions.
For purposes of this Rule only, these terms have the following meanings:
(a) "Attorney General" means the Attorney General of the State of Oregon.
(b) "Authorized Agency" means a public officer or Agency that the Attorney General authorized to retain its own general or special counsel other than the Department of Justice under ORS 180.235.
(c) "Authorized Legal Services" means the legal services as authorized by the Attorney General for the particular matter or class of matters and as required by the Authorized Agency.
(d) "Outside Counsel" means general or special counsel selected by the Authorized Agency under this Rule.
(e) "Firm" means the proprietorship, partnership or professional legal corporation engaged in the practice of law of which Outside Counsel is a partner, a shareholder, an associate, a member, or a lawyer serving as "of counsel."
(f) "Solicitation" means a written or oral request for offers, proposals, statements of qualifications, or other information from individuals or entities.
(3) Selection Criteria.
(a) The Authorized Agency must select the Firm it considers most advantageous based on the following factors:
(A) The knowledge, skills and ability of the Firm that will provide Authorized Legal Services. The Firm's ability to provide Authorized Legal Services includes the training and expertise of the Firm attorneys, including Outside Counsel. Outside Counsel must be a member of the Oregon State Bar according to ORS 180.235(2);
(B) The Firm's experience, level of expertise and suitability to perform the Authorized Legal Services;
(C) Whether the Firm's available personnel possess any required licenses or certifications required to perform the legal services for the Authorized Legal Services, such as licenses to practice law in the appropriate jurisdiction, or to appear in a certain forum;
(D) The Outside Counsel’s availability and capability to perform the Authorized Legal Services and meet the Agency’s needs;
(E) The commitment the Outside Counsel and Counsel’s Firm can make to the Authorized Agency to meet the Agency’s needs;
(F) The value of the Firm's legal services, taking into account the cost of the Firm's legal services; and
(G) Other factors the Authorized Agency considers relevant to accomplish an optimal, timely outcome.
(b) In weighing the evaluation factors, no single factor is determinative.
(4) Scope of Firms Considered. The Solicitation process may range from direct negotiation and contracting with a single firm to publication of a request for proposals. The Authorized Agency must extend Solicitations to those firms that it considers reasonable and practical to solicit under the circumstances, and must take into consideration the following factors:
(a) When the subject matter of the Authorized Legal Services requires specialized knowledge in a particular field of law, the Authorized Agency may limit the Solicitation to prospective Firms that have a reputation of subject matter expertise in that field of law;
(b) The Authorized Agency must limit the number of Firms considered under the Solicitation as appropriate if the interests of the Authorized Agency would likely be adversely affected by delay in obtaining a Firm or through broad distribution of the Solicitation; and
(c) Other factors the Authorized Agency considers relevant to accomplish an optimal, timely outcome.
(5) Documentation of Selection.
(a) The Authorized Agency must prepare a record of selection signed by the public officer or Agency designated to be responsible for the selection process. The record of selection must include the public officer’s or Agency’s summary of:
(A) The Solicitation process used and the Firms considered in the Solicitation process;
(B) Why the selected firm is considered most advantageous to the Authorized Agency; and
(C) Why the Scope of the Solicitation was reasonable and practical under the circumstances.
(b) As used in (5)(a) above, the public officer may include a member of the Authorized Agency’s board or commission.
(c) The record of solicitation must be retained by the Authorized Agency within the Procurement File for the Firm.
(6) The Agency may procure Amendments to existing Contracts under this Rule. In lieu of complying with Sections (4) through (5) of this Rule, the Agency must document why amending the Contract is necessary and in the best interest of the State.
Stat. Auth.: ORS 279A.065(5)(a), 279A.070

Stats. Implemented: ORS 279B.075, 279B.085

Hist.: DAS 5-2006, f. & cert. ef. 5-31-06; DAS 6-2008, f. & cert. ef. 7-2-08
125-247-0296
Price Agreements and Mandatory Use Contracts
(1) Mandatory Use Contracts, for the
purposes of this Rule and including Department Price Agreements, service agreements,
and sales agreements, may be established for the purposes of minimizing paper work,
achieving continuity of product, securing a source of supply, reducing inventory,
combining Agency requirements for volume discounts, standardization among Agencies,
and reducing lead time for ordering. A Mandatory Use Contract requires the Authorized
Agency to purchase Supplies and Services for an anticipated need at a predetermined
price, provided the Mandatory Use Contract is let by a competitive Procurement Process
according to the requirements of ORS 279ABC and these Rules.
(2) Authorized Agencies may
purchase the Supplies and Services from a Contractor awarded a Mandatory Use Contract
without first undertaking additional competitive Solicitation.
(3) Authorized Agencies must
use Mandatory Use Contracts established by the Department unless otherwise specified
in the Contract, allowed by law or these Rules, or specifically authorized by the
Chief Procurement Officer.
(4) Despite section (3) above,
Authorized Agencies are exempted from Mandatory Use Contracts for acquisition of
the following, regardless of dollar amount:
(a) Supplies and Services
from another Oregon Public Agency provided that a formal, Written agreement is entered
into between the parties;
(b) Personal property for
resale through student stores operated by public educational Agencies; and
(c) Emergency purchases declared
by an Authorized Agency according to ORS 279B.
(5) Authorized Agencies may
be exempted from a Mandatory Use Contract upon a request to and approval by the
Contract Administrator of the Mandatory Use Contract.
(6) The term of the Contract,
including renewals, must not exceed the maximum term stated in the original Solicitation.
Stat. Auth.: ORS 279A.065(5)(a)
& 279A.070
Stats. Implemented: ORS 279B.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; DAS 3-2014, f. 12-29-14, cert. ef. 1-1-15
Procurement Process
125-247-0300
Applicability
of General Rules to Methods of Source Selection
(1) Generally. These
Procurement Process Rules are intended to apply to more than one sourcing method
according to ORS 279B.050 through 279B.085 and to specify those methods.
(2) In the
event of conflict or ambiguity arising from specific requirements of another Rule
in Division 247 and a general Rule in OAR 125-247-0305 through 125-247-0691, the
specific requirements of another Rule take precedence over the more general requirements
of a Rule under Procurement Process.
(3) If a
general Rule in OAR 125-247-0305 through 125-247-0691 is silent regarding its specific
application or an ambiguity arises regarding the application of any such Rule to
any of the seven sourcing methods of ORS 279B.050 through 279B.085, that Rule applies
only to Bidding and Proposals in accordance with ORS 279B.055, 279B.060, and OAR
125-247-0255 through 125-247-0261.
Stat. Auth.: ORS
279A.065(5)(a) & 279A.070

Stats. Implemented:
ORS 279B.050 - 279B.090

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
125-247-0305
Public Notice of Solicitation Documents
(1) Application. This Rule applies only to Bidding and Proposals in accordance with ORS 279B.055, 279B.060, and OAR 125-247-0255 through 125-247-0260.
(2) Notice of Solicitation Documents.
(a) Official Notice. An Authorized Agency must post public notice of every Solicitation Document on ORPIN in accordance with OAR 125-246-0500 (Official Notice).
(b) Additional Notice. The Authorized Agency may give additional notice if:
(A) The additional notice refers to the Official Notice, and
(B) The Authorized Agency uses any method it determines appropriate to foster and promote competition, including:
(i) Mailing notice of the availability of the Solicitation Document to Persons that have expressed an interest in the Authorized Agency's Procurements;
(ii) Placing notice on the Authorized Agency's Internet World Wide Web site; or
(iii) Publishing notice in a newspaper of general circulation as described in ORS 279B.055(4) (Additional Notice).
(3) Content of Official and Additional Notices. All notices for solicitation of Offers must set forth:
(a) Where, when, how, and for how long the Solicitation Document may be obtained;
(b) A general description of the Supplies and Services to be acquired;
(c) The date that Persons must file applications for prequalification if prequalification is a requirement and the class of Supplies and Services is one for which Persons must be prequalified;
(d) The office where contract terms, conditions and Specifications may be reviewed if not electronically attached;
(e) The name, title and address of the individual authorized by the Authorized Agency to receive Offers;
(f) The scheduled Opening; and
(g) Any other information the Authorized Agency deems to be appropriate.
(4) Notice Time Periods.
(a) The Authorized Agency must give Official Notice of an Invitation to Bid at least fourteen (14) Days before the Closing.
(b) The Authorized Agency must give Official Notice of a Request for Proposals at least thirty (30) Days before the Closing.
(c) The Authorized Agency may give Additional Notice for any reasonable time
(d) Despite Section (4)(a) and (b), the Authorized Agency may determine that a shorter time period is in the public's interest and that a shorter time period will not substantially affect competition. In no event may the Authorized Agency give any Official Notice less then seven (7) Days before Closing. The Authorized Agency must document the specific reasons for the shorter time period in the Procurement File in accordance with OAR 125-246-0556.
(e) Despite other provisions of this Rule, the public notice time period for a Qualified Products List is at least seven (7) days.
(5) Availability of Written Advertisement for Offers. Upon the request of any member of the public, the Authorized Agency must provide a copy of each advertisement for Offers and all supporting documents, to be located in the Procurement File or an identified repository.
(6) Minority, Women, and Emerging Small Business. In accordance with ORS 200.035, an Authorized Agency must provide timely notice of all Procurements to the Advocate for Minority, Women and Emerging Small Business if the estimated Contract Price exceeds $5,000.
(7) Fees. The Authorized Agency may charge a fee or require a deposit for the Solicitation Document, supporting documents and any combination thereof.
(8) Notice of Addenda. The Authorized Agency must provide notice to potential Offerors on ORPIN of any Addenda to a Solicitation Document in accordance with OAR 125-247-0430.
Stat. Auth.: ORS 279A.065(5)(a) & 279A.070

Stats. Implemented: ORS 279B.050-279B.085

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
125-247-0310
Bids or Proposals are Offers
See OAR 137-047-0310.
Stat. Auth.: ORS 279A.065(5)(a)
& 279A.070

Stats. Implemented: ORS 279B.050-279B.085

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; DAS 3-2011, f. 12-22-11, cert. ef. 1-1-12
Electronic Procurement Processes (E-Procurement)
125-247-0320
Facsimile Bids and Proposals
See OAR 137-047-0320.
Stat. Auth.: ORS 279A.065(5)(a)
& 279A.070

Stats. Implemented: ORS 279B.050-279B.085

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 3-2011, f. 12-22-11,
cert. ef. 1-1-12
125-247-0330
E-Procurement
(1) General.
(a) Electronic
Processes. An Authorized Agency may conduct all phases of a Procurement, including
without limitation, the posting of Electronic Advertisements and the receipt of
Electronic Offers, by the following electronic processes:
(A) E-Bidding;
(B) Reverse
Auction; or
(C) Special
Procurement if (i) or (ii) are not appropriate (Electronic Processes). The Authorized
Agency must specify in a Solicitation Document, a request for Quotes, or any other
Writing that instructs Persons how to participate in the Procurement.
(b) Security
Measures. The Authorized Agency must open an Electronic Offer in accordance with
electronic security measures in effect at the Authorized Agency at the time of its
receipt of the Electronic Offer. Unless the Authorized Agency provides procedures
for the secure receipt of Electronic Offers, the Person submitting the Electronic
Offer assumes the risk of premature disclosure due to submission in unsealed form.
(c) The Authorized
Agency's use of electronic Signatures must be consistent with applicable statutes
and rules. An Authorized Agency must authorize, and may limit the use of Electronic
Processes of conducting a Procurement based on the best interests of the Authorized
Agency, as determined by the Authorized Agency.
(d) If the
Authorized Agency determines that Bid or Proposal security is or will be required,
the Authorized Agency should not authorize Electronic Offers unless the Authorized
Agency has another method for receipt of such security.
(2) Rules
Governing Electronic Procurements. The Authorized Agency must conduct all portions
of an electronic Procurement in accordance with these Division 247 Rules, unless
otherwise set forth in this Rule.
(3) Preliminary
Matters. As a condition of participation in an electronic Procurement, the Authorized
Agency may require potential Contractors to register with the Authorized Agency
before the date and time on which the Authorized Agency will first accept Offers,
to agree to the terms, conditions, or other requirements of a Solicitation Document,
or to agree to terms and conditions governing the Procurement, such as procedures
that the Authorized Agency may use to attribute, authenticate or verify the accuracy
of an Electronic Offer, or the actions that constitute an electronic Signature.
(4) Offer
Process. An Authorized Agency may specify that Persons must submit an Electronic
Offer by a particular date and time, or that Persons may submit multiple Electronic
Offers during a period of time established in the Electronic Advertisement. When
the Authorized Agency specifies that Persons may submit multiple Electronic Offers
during a specified period of time, the Authorized Agency must designate a time and
date on which Persons may begin to submit Electronic Offers, and a time and date
after which Persons may no longer submit Electronic Offers. The date and time after
which Persons may no longer submit Electronic Offers need not be specified by a
particular date and time, but may be specified by a description of the conditions
that, when they occur, will establish the date and time after which Persons may
no longer submit Electronic Offers. When the Authorized Agency will accept Electronic
Offers for a period of time, then at the designated date and time that the Authorized
Agency will first receive Electronic Offers, the Authorized Agency must begin to
accept real time Electronic Offers on ORPIN or other Electronic Procurement System
approved by the Chief Procurement Officer (for purposes of this Rule, collectively,
ORPIN), and must continue to accept Electronic Offers in accordance with Subsection
5 of this Rule until the date and time specified by the Authorized Agency, after
which the Authorized Agency will no longer accept Electronic Offers.
(5) One-Time
Receipt of All Electronic Offers. When an Authorized Agency conducts an electronic
Procurement that provides that all Electronic Offers must be submitted by a particular
date and time, the Authorized Agency must receive the Electronic Offers in accordance
with these Division 247 Rules.
(6) Failure
of the E-Procurement System. In the event of a failure of ORPIN that interferes
with the ability of Persons to submit Electronic Offers, protest or to otherwise
participate in the Procurement, the Authorized Agency may cancel the Procurement
in accordance with OAR 125-247-0660, or may extend the date and time for receipt
of Electronic Offers by providing notice of the extension immediately after the
ORPIN becomes available.
Stat. Auth.: ORS
279A.065(5)(a) & 279A.070

Stats. Implemented:
ORS 279B.050 - 279B.090

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
125-247-0340
Reverse Auctions
(1) If the Authorized Agency desires to conduct a Reverse Auction as defined in OAR 125-247-0288, the Authorized Agency must follow the policy of the Department. The requirements of OAR 125-247-0288 apply to Reverse Auctions. In the event of conflict or ambiguity, the more specific requirements of OAR 125-247-0288 take precedence over the more general requirements of this Rule.
(2) Multiple Receipts of Offers during a Period of Time. When the Authorized Agency specifies that Persons may submit multiple Electronic Offers during a period of time, the Authorized Agency must accept Electronic Offers, and Persons may submit Electronic Offers, in accordance with the following:
(a) Following receipt of the first Electronic Offer after the day and time the Authorized Agency first receives Electronic Offers, the Authorized Agency must give notice to the initial Bidders and update on a real time basis:
(A) The prices of the other Bidders or the price of the most competitive Bidder;
(B) The rank of each Bidder (e.g., (i) "winning" or "not winning" or (ii) "1st, 2nd, or higher");
(C) The scores of the Bidders if the Authorized Agency chooses to use a scoring model that weighs non-price factors in addition to price; or
(D) Any combination of (A), (B) and (C) above. At any time before the date and time after which the Authorized Agency will no longer receive Electronic Offers, a Person may revise its Electronic Offer, except that a Person may not lower its price unless that price is below the then lowest Electronic Offer.
(b) A Person may not increase the price set forth in an Electronic Offer after the day and time that the Authorized Agency first accepts Electronic Offers.
(c) A Person may withdraw an Electronic Offer only in compliance with these division 247 Rules. If a Person withdraws an Electronic Offer, it may not later submit an Electronic Offer at a price higher than that set forth in the withdrawn Electronic Offer.
Stat. Auth.: ORS 279A.065(5)(a), 279A.070

Stats. Implemented: ORS 279B.050-279B.085

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

Bid and Proposal Preparation

125-247-0400
Offer Preparation
See OAR 137-047-0400.
Stat. Auth.: ORS 279A.065(5)(a),
279A.070

Stats. Implemented: ORS 279B.050-279B.085

Hist.: DAS 4-2004, f. 11-23-04,
cert. ef. 3-1-05; DAS 6-2008, f. & cert. ef. 7-2-08; DAS 3-2011, f. 12-22-11,
cert. ef. 1-1-12
125-247-0410
Offer Submission
See OAR 137-047-0410.
Stat. Auth.: ORS 279A.065(5)(a),
279A.070

Stats. Implemented: ORS 279B.050-279B.085

Hist.: DAS 4-2004, f. 11-23-04,
cert. ef. 3-1-05; DAS 6-2008, f. & cert. ef. 7-2-08; DAS 3-2011, f. 12-22-11,
cert. ef. 1-1-12
125-247-0420
Pre-Offer Conferences
See OAR 137-047-0420.
Stat. Auth.: ORS 279A.065(5)(a)
& 279A.070

Stats. Implemented: ORS 279B.050
- 279B.090

Hist.: DAS 4-2004, f. 11-23-04,
cert. ef. 3-1-05; DAS 3-2011, f. 12-22-11, cert. ef. 1-1-12
125-247-0430
Addenda to Solicitation Document
(1) Issuance; Receipt. The Authorized Agency may change a Solicitation Document only by Written Addenda. An Offeror must provide Written acknowledgment of receipt of all issued Addenda with its Offer, unless the Authorized Agency otherwise specifies in the Addenda.
(2) Notice and Distribution. The Authorized Agency must notify prospective Offerors of Addenda in a manner intended to foster competition and to make prospective Offerors aware of the Addenda. The Solicitation Document must specify how the Authorized Agency will provide notice of Addenda and how the Authorized Agency will make the Addenda available before Closing, and at each subsequent step or Phase of evaluation if the Authorized Agency will engage in a Multistep Competitive Sealed Bidding process in accordance with OAR 125-247-0255, or a Multi-tiered or Multistep Competitive Sealed Proposals process in accordance with 125-247-0260.
(3) Timelines; Extensions.
(a) The Authorized Agency must issue Addenda within a reasonable time to allow prospective Offerors to consider the Addenda in preparing their Offers. The Authorized Agency may extend the Closing if the Authorized Agency determines prospective Offerors need additional time to review and respond to Addenda. Except to the extent justified by a countervailing public interest, the Authorized Agency must not issue Addenda less than 3 Business Days before the Closing unless the Addendum also extends the Closing.
(b) Despite Subsection (3)(a) of this Rule, an Addendum that modifies the evaluation criteria, selection process or procedure for any step or Phase of competition under a Multistep Sealed Bidding or Multistep Sealed Proposals, issued in accordance with OAR 125-247-0255 or 125-247-0260, must be issued no fewer than five (5) Days before the beginning of that step or Phase of competition, unless the Authorized Agency determines that a shorter period is sufficient to allow the Offerors to prepare for that step or Phase of competition. The Authorized Agency must document the factors it considered in making that determination, which may include, without limitation, the Scope of the changes to the Solicitation Document, the location of the remaining eligible Proposers, or whether shortening the period between issuing an Addendum and the beginning of the next step or Phase of competition favors or disfavors any particular Proposer or Proposers.
(4) Request for Change or Protest. Unless a different deadline is set forth in the Addendum, an Offeror may submit a Written request for change or protest to the Addendum, as provided in OAR 125-247-0730, by the close of the Authorized Agency’s next business day after issuance of the Addendum, or up to the last day allowed to submit a request for change or protest under 125-247-0730, whichever date is later. If the date established in the previous sentence falls after the deadline for receiving protests to the Solicitation Document in accordance with 125-247-0730, then the Authorized Agency may only consider an Offeror’s request for change or protest to the Addendum, and the Authorized Agency must not consider a request for change or protest to matters not added or modified by the Addendum. Despite any provision of this subsection (4) of this Rule, an Authorized Agency is not required to provide a protest period for Addenda issued after initial Closing during a or multistep Procurement Process conducted according to ORS 279B.055 or 279B.060 and their respective rules.
Stat. Auth.: ORS 279A.065(5)(a) & 279A.070

Stats. Implemented: ORS 279B.050-279B.085

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
125-247-0440
Pre-Closing Modification or Withdrawal of Offers
See OAR 137-047-0440.
Stat. Auth.: ORS 279A.065(5)(a)
& 279A.070

Stats. Implemented: ORS 279B.050
- 279B.090

Hist.: DAS 4-2004, f. 11-23-04,
cert. ef. 3-1-05; DAS 3-2011, f. 12-22-11, cert. ef. 1-1-12
125-247-0450
Receipt, Opening, and
Recording of Offers
See OAR 137-047-0450.
Stat. Auth.: ORS 279A.065(5)(a)
& 279A.070

Stats. Implemented: ORS 279B.050
- 279B.090

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
125-247-0460
Late Offers, Late Withdrawals,
and Late Modifications
See OAR 137-047-0460.
Stat. Auth.: ORS 279A.065(5)(a)
& 279A.070

Stats. Implemented: ORS 279B.050
- 279B.090

Hist.: DAS 4-2004, f. 11-23-04,
cert. ef. 3-1-05; DAS 3-2011, f. 12-22-11, cert. ef. 1-1-12
125-247-0470
Mistakes
See OAR 137-047-0470.
Stat. Auth.: ORS 279A.065(5)(a)
& 279A.070

Stats. Implemented: ORS 279B.050
- 279B.090

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 3-2011, f. 12-22-11,
cert. ef. 1-1-12
125-247-0480
Time for Authorized Agency
Acceptance
See OAR 137-047-0480.
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 3-2011, f. 12-22-11, cert. ef. 1-1-12
125-247-0490
Extension of Time for
Acceptance of Offer
See OAR 137-047-0490.
Stat. Auth.: ORS 279A.065(5)(a)
& 279A.070

Stats. Implemented: ORS 279B.050
- 279B.090

Hist.: DAS 4-2004, f. 11-23-04,
cert. ef. 3-1-05; DAS 3-2011, f. 12-22-11, cert. ef. 1-1-12

Qualifications and Duties

125-247-0500
Responsibility of Offerors
(1) Determination. Before awarding a Contract, the Authorized Agency must determine that the Offeror submitting the lowest Bid or Proposal or most Advantageous Offer is Responsible. The Authorized Agency must use the standards set forth in ORS 279B.110 and OAR 125-247-0640(1)(c)(F) to determine if an Offeror is Responsible. In the event an Authorized Agency determines an Offeror is not Responsible, it must prepare a Written determination of non-Responsibility as required by ORS 279B.110 and must reject the Offer.
(2) Independent Contractor Status, Tax Compliance, and Requirements to Transact Business in Oregon. For these responsibilities of Offerors, see OAR 125-246-0330.
(3) Life Cycle Costing. See OAR 125-247-0170.
(4) Record of Performance and Integrity. Authorized Agencies must comply with ORS 279B.110.
Stat. Auth.: ORS 279A.065(5)(a) & 279A.070

Stats. Implemented: ORS 279B.110

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
125-247-0525
Qualified Products Lists
See OAR 137-047-0525.
Stat. Auth.: ORS 279A.065(5)(a)
& 279A.070

Stats. Implemented: ORS 279B.050-279B.085,
279B.115

Hist.: DAS 4-2004, f. 11-23-04,
cert. ef. 3-1-05; DAS 6-2008, f. & cert. ef. 7-2-08; DAS 3-2011, f. 12-22-11,
cert. ef. 1-1-12
125-247-0550
Prequalification of Prospective Offerors, Pre-negotiation of Contract Terms and Conditions, and Request for Qualifications (RFQ)
(1) Prequalification of Prospective Offerors. An Authorized Agency may prequalify prospective Offerors according to ORS 279B.120 and 279B.125. Despite the prohibition against revocation of prequalification in ORS 279B.120(3), an Authorized Agency may determine that a prequalified Offeror is not Responsible before Contract Award.
(2) Pre-negotiation of Contract Terms and Conditions. An Authorized Agency may pre-negotiate some or all Contract terms and conditions including prospective Proposer Contract forms such as license agreements, maintenance and support agreements or similar documents for use in future Procurements. Such pre-negotiation of Contract terms and conditions (including prospective Proposer forms) may be part of the prequalification process of a Proposer in Section (1) or the pre-negotiation may be a separate process and not part of a prequalification process. Unless required as part of the prequalification process, the failure of the Authorized Agency and the prospective Proposer to reach agreement on pre-negotiated Contract terms and conditions does not prohibit the prospective Proposer from responding to Procurements. An Authorized Agency may agree to different pre-negotiated Contract terms and conditions with different prospective Proposers. When an Authorized Agency has pre-negotiated different terms and conditions with Proposers or when permitted, Proposers offer different terms and conditions, an Authorized Agency may consider the terms and conditions in the Proposal evaluation process.
(3) Request for Qualifications (RFQ). For purposes of this Section, an RFQ may be used without the RFQ constituting a Prequalification according to Section (1) of this Rule, if the Authorized Agency establishes the RFQ to determine whether competition exists to perform the needed services or to establish a nonbinding, open list of qualified Contractors in addition to the general public and in order to expand the pool of qualified Contractors, before issuing a Request for Proposals (RFP). If an Authorized Agency establishes a closed, exclusive, or binding list of qualified Contractors, then the Authorized Agency must comply with Section (1) of this Rule. The Authorized Agency is not required to issue an RFQ and may elect to forego using an RFQ before issuing an RFP.
(a) At a minimum, the RFQ must describe the particular specialty desired, the qualifications the Contractor(s) must have in order to be considered, and the evaluation factors and their relative importance. The RFQ may require information including, but not limited to: the Contractor's particular capability to perform the required services; the number of experienced staff available to perform the required services, including specific qualifications and experience of personnel; a list of similar services the Contractor has completed, with references concerning past performance; and any other information deemed necessary by the Authorized Agency to evaluate Contractor qualifications.
(b) A qualifications pre-submission meeting, voluntary or mandatory, may be held for all interested Contractors to discuss the proposed services. The RFQ must include the date, time and place of the meeting(s).
(c) Unless the RFQ establishes that competition does not exist or unless the Solicitation process is canceled or all qualification statements are rejected, all respondents who met the published qualifications must receive a notice, or other materials as appropriate, in addition to the general public, of any required services and have an opportunity to submit a proposal in response to an Authorized Agency's subsequent RFP.
(d) All RFQs must:
(A) Be in Writing;
(B) Be posted on ORPIN;
(C) Provide that the Authorized Agency may, at any time during the Solicitation process, reject any or all Proposals or cancel the Solicitation without liability if it is in the public interest to do so; and
(D) Provide that the Authorized Agency is not responsible for any costs of any proposers incurred while submitting Proposals, and that all Proposers who respond to Solicitations do so solely at their own expense, unless compensation is expressly provided for in the Solicitation Document.
(e) According to ORS 200.035, the Authorized Agency must notify, in Writing, the Advocate for Minority, Women and Emerging Small Businesses of each Solicitation and contracting opportunity exceeding $5,000.
Stat. Auth.: ORS 279A.065(5)(a), 279A.070

Stats. Implemented: ORS 279.015, 279B.050-279B.085, 279B.120, 279B.125

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
125-247-0575
Debarment of Prospective Offerors
(1) See OAR 137-047-0575.
(2) Regardless
of OAR 137-047-0575, the Chief Procurement Officer is the Contracting Agency and
acts on behalf of the Director of the Department under ORS 279B.130 and 279B.425.
Stat. Auth.: ORS
279A.065(5)(a), 279A.070

Stats. Implemented:
ORS 279B.050-279B.085, 279B.130

Hist.: DAS
4-2004, f. 11-23-04, cert. ef. 3-1-05; 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
Offer Evaluation
and Award
125-247-0600
Offer Evaluation
and Award
(1) Authorized Agency
Evaluation. The Authorized Agency must evaluate Offers only as set forth in the
Solicitation Document, according to ORS 279B.055(6)(a) and 279B.060(6)(b), and in
accordance with applicable law. The Authorized Agency must not evaluate Offers using
any other requirement or criterion.
(a) Evaluation
of Bids.
(A) Nonresident
Bidders. In determining the lowest Responsive Bid, the Authorized Agency must apply
the reciprocal preference set forth in ORS 279A.120(2)(b) and OAR 125-246-0310 for
nonresident Bidders.
(B) Public
Printing. The Authorized Agency must, for the purpose of evaluating Bids, apply
the public printing preference set forth in ORS 282.210.
(C) Award
When Bids are Identical. If the Authorized Agency determines that one or more Bids
are identical under OAR 125-246-0300, the Authorized Agency must award a Contract
in accordance with the procedures set forth in OAR 125-246-0300.
(b) Evaluation
of Proposals.
(A) Award
When Proposals are Identical. If the Authorized Agency determines that one or more
Proposals are identical under OAR 125-246-0300, the Authorized Agency must award
a Contract in accordance with the procedures set forth in OAR 125-246-0300.
(B) Public
Printing. The Authorized Agency must for the purpose of evaluating Proposals apply
the public printing preference set forth in ORS 282.210.
(c) Recycled
Materials. When procuring Goods, the Authorized Agency must give preference for
Recycled Materials as set forth in ORS 279A.125 and OAR 125-246-0322.
(2) Clarification
of Bids or Proposals. After the Bid Opening, an Authorized Agency may conduct Discussions
with apparent Responsive Offerors for the purpose of clarification and to assure
full understanding of the Bids or Proposals. All Bids or Proposals, at the Authorized
Agency's sole discretion, needing clarification must be afforded such an opportunity.
The Authorized Agency must document clarification of any Bidder's Bid in the Procurement
File in accordance with OAR 125-246-0556.
(3) Negotiations
Prohibited or Allowed.
(a) Prohibition
in Competitive Sealed Bidding. An Authorized Agency must not negotiate with any
Bidder in a competitive sealed bidding according to ORS 279B.055 and related Rule.
After Award of the Contract, the Authorized Agency and Contractor may only modify
the Contract in accordance with OAR 125-247-0805. An Authorized Agency may conduct
Discussions in accordance with OAR 125-247-0255.
(b) Allowance
in Other Procurement Methods. An Authorized Agency may conduct Discussions or Negotiations
with one or more Offerors in Competitive Sealed Proposals, Small Procurements, Intermediate
Procurements, Emergency Procurements if applicable, and Special Procurements if
applicable, in accordance with ORS 279B.060(7) and (8), OAR 125-247-0260, 125-247-0270,
125-247-0287, and 125-247-0288. To the extent practical, an Authorized Agency must
negotiate in Sole-Source Procurements in accordance with OAR 125-247-0275. After
Award of the Contract, the Authorized Agency and Contractor may only modify the
Contract in accordance with OAR 125-247-0805.
(c) Other
Procurements. This Section (3) does not apply to Small Procurements, Emergency Procurements,
or Special Procurements which do not use Solicitations.
(4) Award.
(a) General.
If awarded, the Authorized Agency must award the Contract to the Responsible Bidder
submitting the lowest, Responsive Bid or the Responsible Proposer submitting the
most Advantageous, Responsive Proposal. The Authorized Agency may award by item,
groups of items or the entire Offer provided such Award is consistent with the Solicitation
Document and in the public interest.
(b) Multiple
Items. An Invitation to Bid or Request for Proposals may call for pricing of multiple
items of similar or related type with the Award based on individual line item, group
total of certain items, a "market basket" of items representative of the Authorized
Agency's expected purchases, or grand total of all items.
(c) Multiple
Awards; Bids.
(A) Despite
Subsection 4(a) of this Rule, an Authorized Agency may award multiple Contracts
under an Invitation to Bid in accordance with the criteria set forth in the Invitation
to Bid. A multiple Award may be made if the Award to two or more Bidders is beneficial
for adequate availability, delivery, service, competition, pricing, product capabilities,
skills, or other factors deemed significant by the Authorized Agency. Multiple Awards
may not be allowed for user preference unrelated to utility or economy. A notice
to prospective Bidders that multiple Contracts may be awarded for any Invitation
to Bid must not preclude the Authorized Agency from awarding a single Contract for
such Invitation to Bid.
(B) If an
Invitation to Bid permits the Award of multiple Contracts, the Authorized Agency
must specify in the Invitation to Bid the criteria it will use to choose from the
multiple Contracts when purchasing Supplies and Services. This criteria may include
consideration and evaluation of the terms and conditions agreed to by the Contractors.
(d) Multiple
Awards; Proposals.
(A) Despite
Subsection 4(a) of this Rule, an Authorized Agency may award multiple Contracts
under a Request for Proposals in accordance with the criteria set forth in the Request
for Proposals. A multiple Award may be made if the Award to two or more Proposers
is beneficial for adequate availability, delivery, service, competition, pricing,
product capabilities, skills, or other factors deemed significant by the Authorized
Agency. Multiple Awards may not be allowed for user preference unrelated to utility
or economy. A notice to prospective Proposers that multiple Contracts may be awarded
for any Request for Proposals must not preclude the Authorized Agency from awarding
a single Contract for such Request for Proposals.
(B) If a
Request for Proposals permits the Award of multiple Contracts, the Authorized Agency
must specify in the Request for Proposals the criteria it will use to choose from
the multiple Contracts when purchasing Supplies and Services. This criteria may
include consideration and evaluation of the terms and conditions agreed to by the
Contractors.
(e) Partial
Awards. If after evaluation of Offers, the Authorized Agency determines that an
acceptable Offer has been received for only parts of the requirements of the Solicitation
Document:
(A) The Authorized
Agency may award a Contract for the parts of the Solicitation Document for which
acceptable Offers have been received; or
(B) The Authorized
Agency may reject all Offers and may issue a new Solicitation Document on the same
or revised terms, conditions and Specifications.
(f) All or
None Offers. An Authorized Agency may award all or no Offers if the evaluation shows
an all or no Award to be the lowest cost for Bids or the most Advantageous for Proposals
of those submitted.
(g) Life
Cycle Costing. The Authorized Agency must follow OAR 125-247-0170.
Stat. Auth.: ORS
279A.065(5)(a) & 279A.070

Stats. Implemented:
ORS 279B.050-279B.085

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
125-247-0610
Notice of Intent to Award
(1) Notice of Intent to Award. The Authorized Agency must provide Written notice of its intent to award a Contract resulting from a formal Invitation to Bid or Request for Proposal to all Offerors according to ORS 279B.135 at least seven (7) Days before the Award of a Contract, unless the Authorized Agency determines that circumstances justify prompt execution of the Contract, in which case the Authorized Agency may provide a shorter notice period. The Authorized Agency must document the specific reasons for the shorter notice period in the Procurement File in accordance with OAR 125-246-0556.
(2) Finality. The Authorized Agency's Award must not be final until the later of the following:
(a) The expiration of the protest period provided according to OAR 125-247-0740; or
(b) The Authorized Agency provides Written responses to all timely-filed protests denying the protests and affirming the Award.
(3) The Authorized Agency may provide this notice through any reasonable means and, if functionality exists, through ORPIN in accordance with OAR 125-246-0500.
Stat. Auth.: ORS 279A.065(5)(a), 279A.070

Stats. Implemented: ORS 279B.050-279B.085, 279B.135

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
125-247-0620
Documentation of Award
See OAR 137-047-0620.
Stat. Auth.: ORS 279A.065(5)(a)
& 279A.070

Stats. Implemented: ORS 279B.050
- 279B.090

Hist.: DAS 4-2004, f. 11-23-04,
cert. ef. 3-1-05; DAS 3-2011, f. 12-22-11, cert. ef. 1-1-12
125-247-0630
Availability of Award Decisions
(1) Contract Documents. To the extent required by the Solicitation Document, the Authorized Agency must deliver to the successful Offeror a Contract, a Signed Purchase Order, Price Agreement, or other Contract documents as applicable.
(2) Availability of Award Decisions. A Person may obtain tabulations of awarded Bids or evaluation summaries of Proposals for a minimal charge, in person or by submitting to the Authorized Agency a Written request accompanied by payment. The requesting Person must provide the Solicitation Document number and enclose a self-addressed, stamped envelope. In addition, the Authorized Agency may make available tabulations of Bids and Proposals through ORPIN or the Authorized Agency's website.
(3) Availability of Procurement Files. After the notice of intent to award, the Authorized Agency must make Procurement Files available in accordance with applicable law, except where applicable law requires the Authorized Agency to make information contained in the Procurement Files available before any notice of intent to award. See the Public Records Law. A protestor of a Competitive Range in accordance with OAR 125-247-0260 is not entitled to obtain or review the Procurement Files related to the protest until after the notice of intent to award. See OAR 125-247-0720.
Stat. Auth.: ORS 279A.065(5)(a) & 279A.070

Stats. Implemented: ORS 279B.050-279B.090

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
125-247-0640
Rejection of an Offer
See OAR 137-047-0640.
Stat. Auth.: ORS 279A.065(5)(a)
& 279A.070

Stats. Implemented: ORS 279B.050-279B.090

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 3-2011, f. 12-22-11,
cert. ef. 1-1-12
125-247-0650
Rejection of All Offers
See OAR 137-047-0650.
Stat. Auth.: ORS 279A.065(5)(a)
& 279A.070

Stats. Implemented: ORS 279B.050-279B.085

Hist.: DAS 4-2004, f. 11-23-04,
cert. ef. 3-1-05; DAS 3-2011, f. 12-22-11, cert. ef. 1-1-12
125-247-0660
Cancellation of Procurement
or Solicitation
See OAR 137-047-0660.
Stat. Auth.: ORS 279A.065(5)(a)
& 279A.070

Stats. Implemented: ORS 279B.050-279B.085

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 3-2011, f. 12-22-11,
cert. ef. 1-1-12
125-247-0670
Disposition of Offers
if Solicitation Cancelled
See OAR 137-047-0670.
Stat. Auth.: ORS 279A.065(5)(a)
& 279A.070

Stats. Implemented: ORS 279B.050-279B.085

Hist.: DAS 4-2004, f. 11-23-04,
cert. ef. 3-1-05; DAS 3-2011, f. 12-22-11, cert. ef. 1-1-12

Specifications

125-247-0690
Policy
(1) As provided in ORS 279B.205 and
consistent with 279A.015, specifications must seek to promote optimal value and
suitability for the purposes intended and to reasonably encourage competition in
satisfying an Agency’s needs. Subject to 279B.405, the specification content
must be determined in the sole discretion of the Agency.
(2) Contractor Advantage;
General.
(a) Policy. As provided in
ORS 279B.210, it is the policy of the State of Oregon to encourage the development
of clear, precise and accurate Specifications in Solicitations for Public Contracts.
To that end, in developing Specifications, Agencies may consult, under contract
or otherwise, with technical experts, suppliers, prospective contractors and representatives
of the industries with which the Agencies contract, as set forth in ORS 279B.210.
(b) Application. In the event
of conflict or ambiguity arising from the general requirements of section (2) of
this Rule and the specific requirements of section (3) of this Rule, the specific
requirements take precedence over the general requirements.
(3) Contractor Advantage;
Services Contract; Exception. An Authorized Agency must comply with ORS 279B.040,
including but not limited to the following:
(a) No Appearance of Contractor
Advantage. If an Agency enters into a contract with a contractor to advise or assist
the Agency in developing specifications, a scope or statement of work, an invitation
to bid, a request for proposals or other solicitation documents and materials (Solicitation
Materials) related to a procurement (Procurement), the Agency may not accept an
Offer from that contractor or its affiliate that is related to the Procurement,
if a reasonable person would believe that, by giving the advice or assistance, the
contractor or affiliate would have or would appear to have an advantage in the Procurement.“Affiliate”
means a person that, directly or indirectly through one or more intermediaries,
controls, is controlled by or is under common control with a contractor described
in this section.
(b) Exception.
(A) Before awarding a contract
for the advice or assistance of a contractor described in subsection (3)(a), the
Agency must request an exception from the Chief Procurement Officer, if the Agency
wishes to later accept an Offer from the Provider.
(B) The Agency’s request
for the exception must include sufficient findings of fact and justifications that
will enable the Chief Procurement Officer to make an independent judgment.
(C) The Chief Procurement
Officer must determine whether:
(i) The Agency needs advice
or assistance from a contractor to develop the Solicitation Materials;
(ii) Accepting an Offer from
the contractor that gives the advice or assistance is the only practicable way in
which the Agency can conduct the Procurement successfully; and
(iii) Approving the exception:
(I) Is unlikely to encourage
favoritism in awarding public contracts or to substantially diminish competition
for public contracts; and
(II) Is reasonably expected
to result in substantial cost savings to the Agency; or the public or otherwise
substantially promotes the public interest in a manner that could not be practicably
realized by complying with the prohibition described in subsection (3)(a).
(D) If the Chief Procurement
Officer approves the Agency’s request, the Chief Procurement Officer must
prepare written findings and justifications for the approval.
(E) If the Chief Procurement
Officer disapproves the Agency’s request, the Chief Procurement Officer must:
(i) State the Chief Procurement
Officer’s reasons for the disapproval in a written notice to the Agency, and
(ii) Indicate whether the
disapproval extends only to the Agency’s acceptance of an Offer from a contractor
described in Subsection (3)(a) or whether the Chief Procurement Officer also disagrees
with the Agency’s stated need for advice or assistance from a contractor.
(F) The Chief Procurement
Officer’s approval or disapproval is final.
Stat. Auth.: ORS 279A.065(5)(a) &
279A.070
Stats. Implemented: ORS 279B.040,
279B.205 & 279B.210
Hist.: DAS 5-2006, f. &
cert. ef. 5-31-06; DAS 3-2012, f. 11-29-12, cert. ef. 12-1-12; DAS 3-2014, f. 12-29-14,
cert. ef. 1-1-15
125-247-0691
Brand Name or Equal Specification
(1) Applicability and Use. This Rule applies to Specifications for a Solicitation or class of Solicitations. For a Solicitation or class of Solicitations under ORS 279B.060, 279B.065, 279B.070, 279B.085, or 279A.200–279A.225, as provided in 279B.215:
(a) A brand name or equal Specification may be used when the use of a brand name or equal Specification is advantageous to the Agency, because the brand name describes the standard of quality, performance, functionality and other characteristics of the product needed by the Agency.
(b) The Agency is entitled to determine what constitutes a product that is equal or superior to the product specified, and any such determination is final.
(c) Nothing in this Subsection may be construed as prohibiting an Agency from specifying one or more comparable products as examples of the quality, performance, functionality or other characteristics of the product needed by the Agency.
(2) Determination. A brand name Specification may be prepared and used only if the Agency determines for a Solicitation or a class of Solicitations that only the identified brand name Specification will meet the needs of the Agency based on one or more of the following written determinations:
(a) That use of a brand name Specification is unlikely to encourage favoritism in the awarding of Public Contracts or substantially diminish competition for Public Contracts;
(b) That use of a brand name Specification would result in substantial cost savings to the Agency;
(c) That there is only one manufacturer or seller of the product of the quality, performance or functionality required; or
(d) That efficient utilization of existing Goods requires the acquisition of compatible Goods or Services.
(3) An Agency’s use of a brand name Specification may be subject to review only as provided in ORS 279B.405.
(4) Single Manufacturer, Multiple Sellers. An Authorized Agency may prepare and use a brand name or equal Specification for Supplies and Services available from only one manufacturer, but available through multiple sellers, if the Authorized Agency complies with Sections (1) and (2) of this Rule and the following requirements:
(a) If the total purchase is $5,000 or more but does not exceed $150,000 and Supplies and Services are not available under an existing Mandatory Use Contract, the Authorized Agency must obtain informal, competitive Quotes, Bids, or Proposals and document this process in the Procurement File according to ORS 279B.070 and OAR 125-247-0270;
(b) If the purchase exceeds $150,000, and the Supplies and Services are not available under an existing Price Agreement for information technology with competing products or a Mandatory Use Contract, an Authorized Agency must first request and obtain prior written authorization from the Chief Procurement Officer to proceed with the acquisition.
(5) Single Manufacturer, Multiple Purchases. If an Authorized Agency intends to make several purchases of brand name-specified Supplies and Services from a particular manufacturer or seller for a period not to exceed five (5) years, the Authorized Agency must so state this information in: the Procurement File; the Solicitation Document, if any; or a Public Notice of a solicitation on ORPIN. If the Authorized Agency estimates the total purchase amount to exceed $150,000, this estimate must also be stated in the Public Notice. This Section (5) does not apply to Department Price Agreements, also known as Mandatory Use Contracts.
(6) Nothing in this Rule exempts the Authorized Agency from obtaining the approval of the Attorney General for legal sufficiency according to ORS 291.047.
(7) All Authorized Agencies must comply with ORS 200.035 and related Department policy, despite this Rule.
Stat. Auth.: ORS 279A.065(5)(a), 279A.070

Stats. Implemented: ORS 279B.215

Hist.: 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

Legal Remedies

125-247-0700
Protests
and Judicial Review of Special Procurements
(1) See OAR 137-047-0700.
(2) Regardless
of OAR 137-047-0700, the Chief Procurement Officer is the Contract Review Authority
for the Contracting Agency.
Stat. Auth.: ORS
279A.065(5)(a) & 279A.070

Stats. Implemented:
ORS 279B.400

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 3-2012, f. 11-29-12, cert. ef. 12-1-12
125-247-0710
Protests
and Judicial Review of Sole-Source Procurements
(1) See OAR 137-047-0710.
(2) Regardless
of OAR 137-047-0710, the Designated Procurement Officer of the Authorized Agency
is the Contract Review Authority if the cumulative value of the Contract and amendments
does not exceed $150,000.00. The Chief Procurement Officer is the Contract Review
Authority if the cumulative value of the Contract and amendments exceeds $150,000.00.
Stat. Auth.: ORS
279A.065(5)(a) & 279A.070

Stats. Implemented:
ORS 279B.405

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 3-2012, f. 11-29-12, cert. ef. 12-1-12
125-247-0720
Protests
and Judicial Review of Multiple-Tiered and Multistep Solicitations
(1) See OAR 125-247-0720.
(2) Regardless
of OAR 137-047-0720, the Chief Procurement Officer is the Contracting Agency.
Stat. Auth.: ORS
279A.065(5)(a) & 279A.070

Stats. Implemented:
ORS 279B.405

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 3-2011, f. 12-22-11, cert. ef. 1-1-12; DAS 3-2012, f. 11-29-12, cert. ef. 12-1-12
125-247-0730
Protests
and Judicial Review of Solicitations
(1) Purpose. A prospective
Offeror may protest the Procurement Process or the Solicitation Document for a Contract
solicited under ORS 279B.055, 279B.060 and 279B.085 as set forth in ORS 279B.405(2).
According to ORS 279B.405(3), before seeking judicial review, a prospective Offeror
must file a Written protest with the Authorized Agency and exhaust all administrative
remedies.
(2) Delivery.
Unless otherwise specified in the Solicitation Document, a prospective Offeror must
deliver a Written protest to the Authorized Agency not less than seven (7) Days
prior to Closing.
(3) Content
of Protest. In addition to the information required by ORS 279B.405(4), a prospective
Offeror's Written protest must include a statement of the desired changes to the
Procurement Process or the Solicitation Document that the prospective Offeror believes
will remedy the conditions upon which the prospective Offeror based its protest.
(4) Authorized
Agency Response. The Authorized Agency may not consider a Prospective Offeror's
Solicitation protest submitted after the timeline established for submitting such
protest under this Rule, or such different time period as may be provided in the
Solicitation Document. The Authorized Agency must consider the protest if it is
timely filed and meets the conditions set forth in ORS 279B.405(4). The Authorized
Agency must issue a Written disposition of the protest no less than three (3) business
days before Bids, Proposals or Offers are due, unless a Written determination is
made by the Authorized Agency that circumstances exist that require a shorter time
limit, in accordance with the timeline set forth in ORS 279B.405(6). If the Authorized
Agency upholds the protest, in whole or in part, the Authorized Agency may in its
sole discretion either issue an Addendum reflecting its disposition under OAR 125-247-0430
or cancel the Procurement or Solicitation under OAR 125-247-0660.
(5) Extension
of Closing. If the Authorized Agency receives a protest from a prospective Offeror
in accordance with this Rule, the Authorized Agency may extend Closing if the Authorized
Agency determines an extension is necessary to consider and respond to the protest.
(6) Clarification.
Prior to the deadline for submitting a protest, a prospective Offeror may request
that the Authorized Agency clarify any provision of the Solicitation Document. The
Authorized Agency's clarification to an Offeror, whether orally or in Writing, does
not change the Solicitation Document and is not binding on the Authorized Agency
unless the Authorized Agency amends the Solicitation Document by Addendum.
(7) Judicial
Review. Judicial review of the Authorized Agency's decision relating to a Solicitation
protest must be in accordance with ORS 279B.405.
Stat. Auth.: ORS
279A.065(5)(a) & 279A.070

Stats. Implemented:
ORS 279B.405

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
125-247-0731
Protests
and Judicial Review of Qualified Products List Decisions
(1) See OAR 137-047-0745.
(2) Regardless
of OAR 137-047-0745, the Chief Procurement Officer is the Contracting Agency.
Stat. Auth.: ORS
279A.065(5)(a), 279A.070

Stats. Implemented:
ORS 279B.115

Hist.: 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
125-247-0740
Protests
and Judicial Review of Contract Award
(1) See OAR 137-047-0740.
(2) Regardless
of OAR 137-047-0740, the Chief Procurement Officer is the Contracting Agency.
Stat. Auth.: ORS
279A.065(5)(a) & 279A.070

Stats. Implemented:
ORS 279B.410 & 270B.415

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 3-2011, f. 12-22-11, cert. ef. 1-1-12;
DAS 3-2012, f. 11-29-12, cert. ef. 12-1-12
125-247-0750
Judicial
Review of Other Violations
(1) See OAR 137-047-0750.
(2) Regardless
of OAR 137-047-0750, the Chief Procurement Officer is the Contracting Agency.
Stat. Auth.: ORS
279A.065(5)(a) & 279A.070

Stats. Implemented:
ORS 279B.420

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; DAS 3-2011, f. 12-22-11, cert. ef. 1-1-12;
DAS 3-2012, f. 11-29-12, cert. ef. 12-1-12
125-247-0760
Review of
Prequalification and Debarment Decisions
(1) See OAR 137-047-0745.
(2) Regardless
of OAR 137-047-0745, the Chief Procurement Officer is the Contracting Agency.
Stat. Auth.: ORS
279A.065(5)(a) & 279A.070

Stats. Implemented:
ORS 279B.425

Hist.: DAS
4-2004, f. 11-23-04, cert. ef. 3-1-05; DAS 3-2011, f. 12-22-11, cert. ef. 1-1-12;
DAS 3-2012, f. 11-29-12, cert. ef. 12-1-12
125-247-0805
Amendments
to Contracts and Price Agreements
(1) See OAR 137-047-0800.
(2) Regardless of OAR 137-047-0800,
Authorized Agencies must comply with the following provisions:
(a) Authority. All Amendments
to Contracts must be signed by the authorized representatives of the parties to
the Contracts, except that Amendments to Ordering Instruments may be accepted by
the action of the Provider in accordance with the terms and conditions of the Ordering
Instruments. All Amendments must receive all required approvals before the Amendments
become binding on the Authorized Agency and before any service may be performed
or payment made, including but not limited to the Department of Justice legal sufficiency
review according to ORS 291.047.
(b) Approval.
(A) Authorized Agencies must
obtain prior Written approval of the Amendment by the Designated Procurement Officer
or delegate, or the Chief Procurement Officer or delegate, if the cumulative value
of the original Contract Price and all Amendments exceeds $150,000.00, or one hundred
twenty-five percent (125%) of the original Contract Price, whichever is greater.
(B) The approval in subsection
(b)(A) is not required if the Authorized Agency disclosed in the Solicitation Document
and in the Contract its plans for future Amendments, like phases or other expected
developments. Standard language used commonly in documents without variation (boilerplate)
does not disclose the Agency’s plans and expectations for future Amendments.
(C) The Designated Procurement
Officer or delegate, or the Chief Procurement Officer or delegate, must determine
and document that the proposed Amendment:
(i) Is not a material change
of the essential identity or main purpose of the Original Contract; and
(ii) Does not constitute
a new undertaking that should result in a new Procurement. The determination and
approval must be included in the Procurement File.
(c) Original Contract. The
Original Contract was awarded either:
(A) According to ORS 279B.055,
279B.060, 279B.065, 279B.070, 279B.075, 279B.080, 279B.085, or 279A.200 through
279A.220; or
(B) Other statutory law.
(d) Price Agreements. The
Department or its delegate may amend a Price Agreement as permitted by the Price
Agreement or applicable law.
(e) Intermediate Procurement.
See OAR 125-247-0270.
(f) Emergency Procurement.
See OAR 125-247-0280.
(g) Small Procurement. See
OAR 125-247-0265.
Stat. Auth.: ORS 279A.065(5)(a) &
279A.070
Stats. Implemented: ORS 279A.050,
279A.065(5), 279A.070 & 279A.140
Hist.: 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
125-247-0810
Termination
of Price Agreements
See OAR 137-047-0810.
Stat. Auth.: ORS
279A.065(5)(a), 279A.070

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

Hist.: DAS
3-2012, f. 11-29-12, cert. ef. 12-1-12


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