Or. Admin. R. 125-247-0691

Current through Register Vol. 63, No. 8, August 1, 2024

Section 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 $25,000 or more but does not exceed $250,000 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 $250,000, 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 State 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 OregonBuys or other Electronic Procurement System approved by the State Chief Procurement Officer. If the Authorized Agency estimates the total purchase amount to exceed $250,000, 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 State Contracting Agencies must comply with ORS 200.035 and applicable related Department statewide policy, despite this Rule.

Or. Admin. R. 125-247-0691

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 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.215