Or. Admin. Code § 125-055-0040

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

Section 125-055-0040 - General Provisions

(1) Contracting Authority. The Department and other Agencies must contract directly with an OFC for a Contract to qualify for the exception from the competitive procurement requirement in ORS 279A.025 for Contracts under the Oregon Forward Program. Contracts between multiple Agencies and an OFC satisfy this requirement that the Agencies must contract directly with an OFC.

(2) Contract Disputes. Contract performance issues and disputes arising out of Contracts entered into under the Oregon Forward Program, such as disputes concerning timely delivery of products or performance of services or compliance with specifications, must be resolved exclusively between the OFC and the Agency that is a party to the Contract, and will not be resolved by the Department (except where the Department is a party to the Contract with the OFC).

(3) Temporary Services for State Agencies. In each Contract for the provision of temporary services entered into by a state agency under the Oregon Forward Program, the OFC must monitor the prior and current work assignments of its employees who work under the Contract to ensure that no employee performs services for the state in excess of a total of 1,040 hours in a 12-month period. An Oregon Forward temporary service provider must obtain a written statement from the employee attesting to the total hours worked as a temporary employee for any state agency during the last 12 months. A state agency filling behind an employee on approved leave may continue beyond 1,040 hours in a 12-month period only when the temporary employee replaces a single employee on approved leave. The temporary appointment may not exceed the period of the approved leave.

(4) Competitive Public Contract Bidding by an OFC. If an OFC submits, to any Agency, a competitive bid, proposal, quote or other offer in a competitive procurement for a public Contract that is not subject to ORS 279.850(1)(c), then regardless of whether the offer was accepted, that OFC may not, at any time during the initial term of the Contract for which the OFC submitted a competitive offer, make any claim to the Agency that instituted the procurement for the Contract that the product or service that was the subject of the offer should have been subject to the requirements of the Oregon Forward Program.

(5) Selecting an Oregon Forward Provider. If only one OFC provider has been deemed suitable by DAS to provide a needed product or service, the Agency must contract with that provider. In cases where more than one Oregon Forward OFC provider has been determined suitable for an Agency's needs, an Agency may choose one of several methods to select an Oregon Forward provider.

(a) An Agency with knowledge of an OFC's performance, reputation or other factors, and a desire to contract with that Oregon Forward provider, may enter into a Contract with the selected OFC, subject to DAS price determination without a competitive solicitation process. Agencies are encouraged to retain successful Oregon Forward providers whenever possible to support the purpose of the program described in ORS 279.840 and to avoid disrupting employment of Individuals with Disabilities.

(b) An Agency may conduct a competitive procurement for a product or service between or among two or more OFCs under ORS 279.850(1)(c). The Agency may grant comparative evaluation points, percentages, or values in conducting the substantial equivalent of a request-for-proposals competition. Since the Price Determination is made by DAS after an OFC has been selected and after scope, specifications, terms and conditions have been negotiated between Agency and the chosen OFC, price may not be considered in the evaluation process as an OFC is not able to bind itself to any set Price due to the Price determination requirement under ORS 279.850(1) and OAR 125-055-0030(6). Evaluative factors that may be considered include:

(A) References from past or current customers;

(B) Experience fulfilling similar Contracts;

(C) Equipment and other resources as may be used to fulfill the statement of work;

(D) Wages, health care benefits, alternative dispute resolution services, and pension or other retirement arrangements that are better, in the aggregate, than the average wages, health care benefits, alternative dispute resolution services, and pension or other retirement arrangements that private employers provide to employees performing the same or similar job duties in the relevant industry in the county in which the selected OFC will deliver the products or perform the services. The value for any criteria related to compliance with all applicable local ordinances and resolutions that govern labor standards, and wages, health care, etc., may not exceed fifteen (15) percent of the total available criteria being considered for this competitive procurement process.

(E) Quality assurance procedures, systems, communication and other written plans for fulfilling the statement of work.

(6) An Agency may, under ORS 279.850(2)(b), disqualify an OFC from entering into a Oregon Forward agreement with the Agency after providing the OFC notice and a reasonable opportunity to be heard in accordance with subsections (a) and (b) of this section.

(a) The Agency must provide the OFC written notice of a proposed disqualification. The Agency shall deliver the notice by personal service or by registered or certified mail, return receipt requested. The notice must:

(A) State that the Agency intends to disqualify or suspend the OFC under ORS 279.850;

(B) State the reasons for the proposed disqualification;

(C) Include a statement of the OFC's right to a hearing if requested in writing within the time stated in the notice and that if the Agency does not receive the OFC's written request for a hearing within the time stated, the OFC will have waived its right to a hearing;

(D) Include a statement of the authority under which the hearing will be held;

(E) Include a reference to the particular sections of the statutes, rules, and Contract provisions involved;

(F) State the proposed disqualification period; and

(G) State that the OFC may be represented by legal counsel.

(b) Hearing. The Agency shall schedule a hearing in response to the Agency's receipt of the OFC's timely hearing request. Within a reasonable time prior to the hearing, the Agency must notify the OFC of the time and place of the hearing and provide information on the procedures, right of representation, and other rights related to the conduct of the hearing.

(c) Notice of Decision. The Agency must provide written notice of the disqualification determination to the OFC. The Agency shall deliver the notice by personal service or by registered or certified mail, return receipt requested. The notice must contain:

(A) The effective date and period of the disqualification;

(B) The grounds for the disqualification; and

(C) A statement of any OFC appeal rights and applicable appeal deadlines.

(7) For the purposes of ORS 279.850, a record of "repeatedly violating" local ordinances or resolutions that govern labor standards means reliable documentation, supported by substantial evidence, that the OFC violated applicable ordinances or resolutions more than two times within the requisite period. The requisite period under this section either is:

(i) within the then-current term of the OFC's agreement with Agency; or

(ii) within the previous three years.

(8) For the purposes of ORS 279.850, local ordinances or resolutions that govern labor standards means ordinances or resolutions, duly adopted by a local government body (as defined in ORS 174.116), that regulate employee working conditions. Working conditions consist of employee:

(a) Wage rates or salaries;

(b) Hours of labor, work days, leave, and workplace safety conditions;

(c) Health insurance or health care benefits;

(d) Retirement or pension benefits; and

(e) Dispute resolution procedures.

(9) An OFC must not enter into a public Contract with an Agency under the Oregon Forward Program unless the Contract complies with OAR 125-055-0005 to 125-055-0040 and the products or services that are the subject of the Contract are listed on the Procurement List. Any liabilities or expenses that may arise from the establishment of a Contract that violates this subsection will be those exclusively of the OFC and Agency.

(10) The Department reserves the right to extend any deadline or time within which an OFC or a party to any proceedings under OAR 125-055-0015 to 125-055-0040 must take any action under those rules if the affected party applies in writing for relief to the Department and demonstrates in writing that special circumstances warrant the grant of such relief. For the purpose of this subsection, special circumstances that warrant the grant of relief include emergencies that reasonably can be regarded as imposing an obstacle to theOFC's or party's ability to meet the deadline or achieve the correction of a violation of rules. Special circumstances are circumstances beyond the reasonable control of the individual or organization including, but not limited to, the illness or other incapacity of key officers of the organization seeking relief, emergency reorganizations or replacements of the corporate structure, board of directors or executive officers of the organization, acts of God and comparable practical impediments to an individual's or organization's ability to meet a deadline or achieve the correction of a violation of rules. The grant or denial of relief under this subsection must be determined by the Department official specifically delegated that task. The Department also reserves the right to waive or to permit the correction of minor or technical violations of OAR 125-055-0015 to 125-055-0040.

Or. Admin. Code § 125-055-0040

DAS 4-2003, f. & cert. ef. 9-8-03; DAS 6-2004(Temp), f. & cert. ef. 12-28-04 thru 6-24-05; DAS 8-2005, f. & cert. ef. 6-21-05; DAS 3-2010, f. & cert. ef. 10-8-10; DAS 4-2015, f. 12-29-15, cert. ef. 1-1-16; DAS 3-2018, amend filed 12/14/2018, effective 01/01/2019; DAS 2-2019, temporary amend filed 09/26/2019, effective 09/29/2019 through 03/26/2020; DAS 2-2020, amend filed 03/12/2020, effective 3/12/2020; DAS 3-2020, temporary amend filed 09/22/2020, effective 9/22/2020 through 3/20/2021; DAS 6-2020, amend filed 11/30/2020, effective 12/1/2020

Statutory/Other Authority: ORS 279.845(1) & 184.340

Statutes/Other Implemented: ORS 279A.025(4) & 279.835 - 279.855