Or. Admin. Code § 125-247-0288

Current through Register Vol. 63, No. 11, November 1, 2024

Section 125-247-0288 - Special Procurements; by Rule

(1) Requirements.

(a) Authorized Agencies entering into a Contract under this Rule 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.

(b) 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.

(c) Nothing in this Rule relieves the Authorized Agency from any requirement to:

(A) Post notice on OregonBuys or other Electronic Procurement System approved by the State Chief Procurement Officer.

(B) Obtain the Department of Justice legal sufficiency approval;

(C) Provide Timely Notice to the Governor's Policy Advisor for Economic and Business Equity;

(D) Use Solicitation Document templates, Contract forms or Contract templates approved by DOJ and the State Chief Procurement Officer;

(E) Report all Special Procurements;

(F) Comply with the training and certification requirements of the Code, these Rules, and Department policies; and

(G) Comply with the reporting requirements of ORS 279A.165 and these Rules.

(2) 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.

(D) This Special Procurement for Client Placement Services and Client Health Care Services may include the following required or necessary to perform the Client Placement Services and Client Health Care Services under the Contract:

(i) Training and speaker services;

(I) "Training" means a provider in a role that provides professional training, seminar or conference services that direct the growth of learners by making them qualified, informed, or proficient in a skill, task, attitude, system, or process. The trainer works from a structured design based on learning objectives. The trainer may utilize coaching, instructing, and facilitating techniques to accomplish the learning objective.

(II) "Speaker" means a provider in the role of a lecturer, presenter, keynote, or speechmaker on a topic in which he or she has expertise; a Speaker addresses groups of people in a structured, deliberate, manner intended to inform or influence the participants. A Speaker's services is different from the services of a trainer or facilitator.

(ii) Memberships in professional or community organizations, institutions, or associations;

(iii) Accreditations or certifications; and

(iv) Copyrighted materials where there is only one known supplier available for such materials. This includes but is not limited to new books, workbooks, periodicals, subscriptions, curriculum materials, reference materials, and audio and visual media available only from a particular publisher or its designated distributor.

(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 State Chief Procurement Officer when acquiring Client Placement Services or Client Health Care Services according to this Rule. The State 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 $250,000. For revised Forms up to a cumulative value of $250,000 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. 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.

(3) Client Services Source Selection.

(a) An Authorized Agency with delegated Authority under OAR 125-246-0170 may use this Special Procurement Rule.

(b) The State Chief Procurement Officer waives the source selection requirements as found in OAR 125-247-0200 for Authorized Agencies to procure Client Services, as Client and Client Services are 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.

(d) This Special Procurement for Client Services may include the following required or necessary to perform the Client Services under the Contract:

(A) Training and speaker services;

(i) "Training" means a provider in a role that provides professional training, seminar or conference services that direct the growth of learners by making them qualified, informed, or proficient in a skill, task, attitude, system, or process. The trainer works from a structured design based on learning objectives. The trainer may utilize coaching, instructing, and facilitating techniques to accomplish the learning objective.

(ii) "Speaker" means a provider in the role of a lecturer, presenter, keynote, or speechmaker on a topic in which he or she has expertise; a Speaker addresses groups of people in a structured, deliberate, manner intended to inform or influence the participants. A Speaker's services is different from the services of a trainer or facilitator.

(B) Memberships in professional or community organizations, institutions, or associations;

(C) Accreditations or certifications; and

(D) Copyrighted materials where there is only one known supplier available for such materials. This includes but is not limited to new books, workbooks, periodicals, subscriptions, curriculum materials, reference materials, and audio and visual media available only from a particular publisher or its designated distributor.

(4) 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 OregonBuys or other Electronic Procurement System approved by the State Chief Procurement Officer. 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.

(5) 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 $10,000 and a competitive method is used, the Authorized Agency must post notice on OregonBuys or other Electronic Procurement System approved by the State Chief Procurement Officer. 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) 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 $10,000 and a competitive method is used, the Authorized Agency must post notice on OregonBuys or other Electronic Procurement System approved by the State Chief Procurement Officer. 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) 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.

(8) 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.

(9) 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 $10,000 and a competitive method is used, the Authorized Agency must post notice on OregonBuys or other Electronic Procurement System approved by the State Chief Procurement Officer, 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.

(10) 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 $250,000, 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 $250,000, 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 $250,000, an Authorized Agency must submit a Written request for a Written delegation of Authority from the State 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 $10,000 and a competitive method is used, the Authorized Agency must post notice on OregonBuys or other Electronic Procurement System approved by the State Chief Procurement Officer. 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.

(11) 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 OregonBuys.

(C) If the value exceeds $250,000, 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 (10) take precedence over the more general requirements of OAR 125-247-0330.

(12) Manufacturer Direct Goods and Services.

(a) 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 Goods and Services directly from a manufacturer if the cost from the manufacturer is less than the cost from the manufacturer's distributors and less than the cost from the open market.

(b) Nothing in this Rule relieves the Authorized Agency from any requirement to use a mandatory Department Price Agreement.

(13) Urgent Personal Services Contract Needs.

(a) Authorization and Application. 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 Urgent personal services, excluding Information Technology, as described in this Rule.

(b) "Urgent" means unforeseen or unavoidable circumstances that were reasonably unanticipated and preclude the Authorized Agency from seeking competitive quotes for contracts with a value not to exceed $25,000.

(c) "Services" has the meaning as defined in OAR 125-246-0110, and includes 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;

(d) "Services" does not include Client Services, defined in OAR 125-246-0110

(e) An Authorized Agency may directly award (without a competitive process) a Contract in an amount not to exceed $25,000, including all amendments.

(f) A Written statement of justification that describes the unforeseen or unavoidable circumstances that were reasonably unanticipated and preclude the Authorized Agency from conducting a competitive process for all Contracts in amounts in excess of $10,000, but not to exceed $25,000 must be approved by the Agency Designated Procurement Officer. A copy of the Written justification must be maintained in the Procurement File.

Or. Admin. Code § 125-247-0288

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 2-2016, f. 12-22-16, cert. ef. 1/1/2017; DAS 3-2018, amend filed 12/14/2018, effective 1/1/2019; DAS 3-2019, amend filed 12/23/2019, effective 1/1/2020; DAS 6-2022, temporary amend filed 11/07/2022, effective 11/7/2022 through 5/5/2023; DAS 1-2023, amend filed 04/11/2023, effective 5/1/2023; DAS 5-2023, amend filed 12/29/2023, effective 1/1/2024

Statutory/Other Authority: ORS 279A.065(5)(a) & 279A.070

Statutes/Other Implemented: ORS 279B.085