Or. Admin. Code § 125-249-0170

Current through Register Vol. 63, No. 12, December 1, 2024

Section 125-249-0170 - Buy America

(1) For purposes of this Rule:

(a) "Manufactured product" means a preassembled item that is made of iron or steel and that a Contractor brings to a construction project for incorporation into a Public Improvement or Public Works or a preassembled item that is made of iron or steel and that the Oregon Department of Administrative Services or the Oregon Department of Transportation acquires for a public use.

(b) "Produced in the United States" means:

(A) For iron and steel products, other than manufactured products, that all manufacturing processes, from the initial melting stage through the application of coatings, occurred within the United States; and

(B) For manufactured products, that:

(i) The manufacture of the product occurred within the United States; and

(ii) The cost of the components of the product that are mined, produced or manufactured in the United States is more than 55 percent of the total cost of all components of the product. The Oregon Department of Administrative Services or the Oregon Department of Transportation may establish, by Rule, a different standard for determining the minimum amount of the product that must be manufactured within the United States.

(2) The Oregon Department of Administrative Services and the Oregon Department of Transportation must:

(a) Require in each Public Improvement Contract or Contract for Public Works with an estimated Contract price of $250,000 or more that steel, iron, coatings for steel and iron, and manufactured products that a Contractor purchases for or uses in the Public Improvement or Public Works, and that become part of a permanent structure, must be produced in the United States.

(b) Clearly and conspicuously require in all solicitation documents for any procurement related to the Public Improvement Contract or Contract for Public Works that any resulting Public Improvement Contract or Contract for Public Works will include the requirement set forth in this Rule.

(c) Reject any Bid or Proposal that does not affirmatively attest that the Bidder or Proposer read and understood the requirement set forth in this Rule.

(3)

(a) The requirement set forth in subsection (2) of this Rule does not apply if the Director of the Oregon Department of Administrative Services or the Director of the Oregon Department of Transportation, or either director's designee, finds in writing that:

(A) The requirement is inconsistent with the public interest;

(B) Steel, iron, coatings for steel and iron and manufactured products required for the Public Improvement or Public Works are not produced in the United States in sufficient and reasonably available quantities and with satisfactory quality; or

(C) Using steel, iron, coatings for steel and iron or manufactured products produced in the United States for the Public Improvement or the Public Works will increase the cost of the Public Improvement or Public Works by more than 25 percent.

(b) Before making its finding, the Director of the Oregon Department of Administrative Services or the Director of the Oregon Transportation, as appropriate, must:

(A) Issue a draft finding that includes a detailed written explanation of the basis for waiving the requirement;

(B) Give public notice of the draft finding at the earliest practicable time, in a manner that the director determines will give adequate notice to the public and to Contractors that intend to submit, or have submitted, Bids or Proposals for the Public Improvement or Public Works;

(C) Allow 7 calendar days for public comment on the draft finding; and

(D) If, after considering any public comment, the director determines to waive the requirement set forth in this Rule, the director shall provide public notice of the director's finding using the same method the director used to provide public notice of the draft finding.

(c) An Agency may request a waiver in a form and in a manner approved by the State Chief Procurement Officer, and must include sufficient findings of fact and justifications that will enable the State Chief Procurement Officer to make an independent judgment. If the director receives a request for a finding under this Rule, the director shall respond to the request within 15 days of receiving the request by:

(A) Issuing the draft finding described in this Rule; or

(B) Asking the person that submitted the request to provide any additional information the director requires to make the draft finding.

(d) The director may make a finding under this Rule that applies to a single Public Improvement Contract or Contract for Public Works, to a class of Public Improvement Contracts or Contracts for Public Works, or to a class of iron or steel products, coatings, or manufactured products.

(e) The director shall indicate the duration and applicability of the director's finding in the document in which the director waives the requirement.

(f) The director may review and continue, amend, or rescind the director's finding at any time.

(g) The director shall review any waiver under this Rule, at least every five years. Before continuing, amending, or rescinding a waiver, the director shall provide for public notice and comment using the same method used to provide public notice of the waiver.

(h) The State Chief Procurement Officer may delegate the duties of the Oregon Department of Administrative Services under this Rule to the head of a State Contracting Agency that enters into a Public Improvement Contract or Contract for Public Works under authority delegated from the Oregon Department of Administrative Services.

(4) The requirements of this Rule are subject to any applicable state and federal trade agreements.

Or. Admin. Code § 125-249-0170

DAS 5-2023, adopt filed 12/29/2023, effective 1/1/2024

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

Statutes/Other Implemented: ORS 279C & HB 3332, 2023 Leg. Session, Chapter 541, (2023 Laws)