Or. Admin. Code § 137-045-0060

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

Section 137-045-0060 - Class Exemptions Based on Attorney General's Pre-Approval

(1) The Attorney General may exempt Public Contracts falling within a class from the legal sufficiency approval requirement. The Attorney General delegates to the Chief Counsel of the General Counsel Division and the Attorney-in-Charge of the Business Transactions Section the authority to exempt Public Contracts falling within a class, and to otherwise act on behalf of the Attorney General, in accordance with this rule. The Chief Counsel of the General Counsel Division may delegate this authority to Assistant Attorneys General, subject to any limitations established by the Chief Counsel.

(2) An Agency requesting an exemption for Public Contracts falling within a class must submit a written request to the Attorney General in the same manner that Agencies submit other requests for review and approval of Public Contracts under these Division 045 rules. The request must be signed by an executive officer of the Agency who is responsible for oversight of the subject Public Contracts and must be include:

(a) A statement that the exemption request is made pursuant to this rule;

(b) Citation to the requesting Agency's statutory authority for procuring and entering into the Public Contracts within the class;

(c) A description of the nature of the business proposed to be transacted under Public Contracts within the class, and the extent to which such business is or is not substantially the same from transaction to transaction within the class;

(d) A description of the circumstances in which the Public Contracts within the class will be used;

(e) Either:

(A) Samples of the proposed form or forms of the Public Contracts within the class, any form of amendment, and the form purchase order or other ordering instrument, if any, to be used in connection with the Public Contracts within the class; or

(B) A request that the Attorney General assist the Agency in developing the form or forms of the Public Contracts within the class, any form of amendment, and the form purchase order or other ordering instrument to be used in connection with the Public Contacts within the class;

and

(f) A description of the Agency's internal contract approval process and signatures required for the Public Contracts within the class.

(3) Following the submission of the request the Agency will provide any other information requested by the Assistant Attorney General responsible for reviewing and granting or denying the request for exemption.

(4) If the Attorney General determines that the degree of risk assumed by an Agency is not materially reduced by legal review and approval of individual Public Contracts falling within the class, the Attorney General will provide the Agency a written exemption, subject to any terms, conditions or limitations the Attorney General deems appropriate, which may include, but are not limited to:

(a) A limit on the duration of the exemption;

(b) Restrictions or conditions on the use of the forms of Public Contract, amendment, or purchase order or similar ordering instrument referenced in the written exemption;

(c) A requirement that the individual or individuals at the Agency who are responsible for entering into and administering the Public Contract subject to the exemption satisfactorily complete and periodically update any training related to review and administration of the type of contract or contracts subject to the exemption, or otherwise demonstrate to the satisfaction of the Attorney General that such individuals possess the appropriate training, certification, or experience to effectively enter into and administer the Public Contracts subject to the exemption.

(d) The extent to which the agency may, without further review by the Attorney General:

(A) Modify the terms and conditions of individual contracts subject to the exemption, including Technical Specifications or the Statement of Work;

(B) Select among alternative terms for specific provisions of the contracts subject to the exemption, and the conditions under which such alternative terms may be used; or

(C) Include provisions drafted by the Agency in any contract subject to the exemption without requiring additional review by the Attorney General, which provisions may include Technical Specifications or descriptions of the good, services, or activities that are the subject of any Public Contract subject to the exemption.

(5)

(a) An Agency granted an exemption under section 4 shall, at the Attorney General's request or according to a schedule and procedures set forth in the written exemption, submit to the Attorney General one or more exempted Public Contracts entered into under the exemption for review for compliance with the terms, conditions, or limitations established in the written exemption.

(b) Depending upon the results of any such review conducted under subsection 5(a), the Attorney General may take action, including, but not limited to:

(A) Provide comments to the Agency summarizing the results of the Attorney General's review;

(B) Require changes to preapproved provisions of the form of contract, amendment, or purchase order or similar ordering instruments subject to the exemption;

(C) Modify the conditions of the exemption to address any issues discovered during the Attorney General's review;

(D) Modify the conditions of the exemption or suspend the exemption indefinitely or until the Agency satisfies or completes, to the Attorney General's satisfaction, any remedial activities requested by the Attorney General to address any issues discovered during the review conducted under subsection (5)(a); or

(E) Terminate the exemption.

(c) The Attorney General's costs for conducting the activities specified in section (5) of this rule shall be at the expense of the Agency unless otherwise agreed.

(6) The expiration, revocation, or modification of an exemption granted under this rule shall not affect the validity of Public Contracts entered into under the exemption before the expiration, revocation or modification.

Or. Admin. Code § 137-045-0060

JD 4-1997(Temp), f. & cert. ef. 10-3-97; JD 5-1997(Temp), f. & cert. ef. 10-17-97; 137-045-0060 (Temp) repealed by DOJ 3-1998, f. & cert. ef. 4-1-98; DOJ 3-1998, f. & cert. ef. 4-1-98; DOJ 2-2001, f. & cert. ef. 1-18-01; DOJ 17-2003, f. & cert. ef. 12-9-03; DOJ 18-2007, f. 12-28-07, cert. ef. 1-1-08; DOJ 14-2009, f. 12-1-09, cert. ef. 1-1-10; DOJ 28-2023, amend filed 12/29/2023, effective 1/1/2024

Statutory/Other Authority: ORS 291.047(5)

Statutes/Other Implemented: ORS 291.047(5)(a)