Or. Admin. R. 291-160-0320

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

Section 291-160-0320 - Specialty Procurements by Contract Type

(1) Renegotiations of Existing Contracts with Incumbent Contractors. DOC may 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.

(a) Process and criteria.

(A) DOC 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.

(B) DOC will post notice on the 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 (public contract approval by the Oregon Attorney General).

(b) DOC will meet the following conditions in its renegotiations with incumbent Contractors:

(A) Favorable result. DOC will determine that, with all things considered, the renegotiated Contract is at least as favorable to DOC as the original Contract and document this in the procurement file. For example, DOC and the Contractor may adjust terms and conditions within the original Contract to meet different needs;

(B) Within the scope. The goods and services provided under the renegotiated Contract must be reasonably related to the original Contract's solicitation. For example, DOC may accept functionally equivalent substitutes for any goods and services in the original Contract's solicitation;

(C) Optional term or condition. If a Contractor offered to DOC 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), DOC 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 DOC and as only an option to DOC, then DOC may accept the option of a lower price under the Rejected Term or Condition. For example, if DOC initially rejected a Contractor's proposed condition that the price required a minimum order, any renegotiated Contract may not mandate this condition; but DOC 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, DOC will 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). DOC will document the results of the Market Norm research in the procurement file. Based upon this information, DOC will confirm that, if DOC 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 will DOC accept or follow any Market Norm that likely encourages favoritism or diminishes competition, even if it is accepted or expected in the market.

(2) Equipment or Infrastructure/Facility Repair and Overhaul. DOC may enter into a Contract for equipment or repair and overhaul of its institutions' infrastructure or facilities without competitive bidding.

(a) DOC may enter into Contracts for equipment or repair and overhaul of its institutions' infrastructure or facilities under 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.

(b) Process and criteria. DOC will use competitive methods where practicable to achieve Advantageous results for DOC and will document in 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, DOC will post notice on the electronic procurement system approved by the State Chief Procurement Officer. The resulting Contract must be in Writing and DOC will document in the procurement file the use of this specialty procurement to identify the sourcing method. Nothing in this rule waives the Department of Justice legal sufficiency review if applicable under ORS 291.047 (public contract approval by the Oregon Attorney General).

(3) Contracts for Price Regulated Items. DOC may, regardless of dollar value and without competitive bidding, contract for the direct purchase of goods and services where the rate or price for the goods and services being purchased is established by federal, state, or local regulatory authority.

(a) DOC will use competitive methods where practicable to achieve Advantageous results for DOC. DOC will document in the procurement file the reasons why a competitive process was deemed to be impractical.

(b) If the anticipated purchase exceeds $10,000 and a competitive method is used, DOC will post notice on the electronic procurement system approved by the State Chief Procurement Officer. The resulting Contract must be in Writing and DOC will document in the procurement file the use of this specialty procurement rule by number to identify the sourcing method.

(c) Nothing in this rule waives the Oregon Department of Justice legal sufficiency review if applicable under ORS 291.047 (public contract approval by the Oregon Attorney General).

(4) Purchase of Used Personal Property or Equipment. DOC may purchase Used Personal Property or Equipment without competitive bidding and without obtaining quotes, if, at the time of purchase, DOC determines and documents the purchase will be unlikely to encourage favoritism or diminish competition; and result in substantial cost savings or promote the public interest.

(a) For purchases of Used Personal Property or Equipment not exceeding $150,000, DOC will, where feasible, obtain three quotes, unless DOC determines and documents in the procurement file that a purchase without obtaining quotes will result in cost savings and Advantageous results for DOC and will not diminish competition or encourage favoritism. The cost of Used Personal Property or Equipment is inclusive of any freight, handling, and set up fees associated with the purchase of the property or equipment.

(b) For purchases of Used Personal Property or Equipment exceeding $150,000, DOC will obtain and keep a Written record of the source and number of quotes received.

(c) If an anticipated purchase exceeds $10,000 DOC will post notice on the electronic procurement system approved by the State Chief Procurement Officer. The resulting Contract must be in Writing and DOC will document in the procurement file the use of this specialty procurement rule by number to identify the sourcing method.

(d) Nothing in this rule waives the Oregon Department of Justice legal sufficiency review if applicable under ORS 291.047 (public contract approval by the Oregon Attorney General).

(5) Reverse Auctions. DOC may purchase goods and services through the use of a Reverse Auction by publishing a Solicitation Document describing the Reverse Auction requirements and Contract terms and conditions and soliciting online Bids from all interested bidders through an Internet-based program.

(a) DOC's Solicitation Document will 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 DOC 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.

(b) Prior to the start of a Reverse Auction, DOC will require all bidders to assent to the Contract terms and conditions, either in Writing or by an Internet "click" agreement. Thereafter, bidders will compete for the Award of a Contract by offering successively lower prices, being informed by the price(s), ranks, and scores, separately or in any combination thereof, disclosed by DOC. DOC will not disclose the identity of any bidders during the Reverse Auction process, and only the successively lower price(s), ranks, scores and related details, separately or in any combination thereof, will be revealed to the participants.

(c) DOC may cancel a Reverse Auction solicitation at any time if DOC determines that it is in DOC's or the State's best interest to do so, as determined by DOC.

(d) At the end of the Reverse Auction bidding process, DOC will Award a Contract to the lowest Responsible bidder or, in the case of multiple awards, to the lowest Responsible bidders according to OAR 291-160-0190, allowing DOC to test and determine the suitability of the goods and services before awarding the Contract.

(e) DOC will disclose the Reverse Auction process in the Solicitation Document. The Reverse Auction process will include the manner of giving notices of the price(s) offered, rank(s), score(s), and related details to the initial bidders.

(f) DOC will post notice of the Reverse Auction on the electronic procurement system approved by the State Chief Procurement Officer. The resulting Contract must be in Writing and DOC will document in the procurement file the use of this specialty procurement rule by number to identify the sourcing method.

(g) For each Reverse Auction solicitation, DOC may determine on a case-by-case basis whether prequalification of suppliers is needed. If prequalification is used, DOC will prequalify suppliers and provide an appeal process.

(h) Nothing in this rule waives the Oregon Department of Justice legal sufficiency review if applicable under ORS 291.047 (public contract approval by the Oregon Attorney General).

(6) SDVOB. Notwithstanding any other provision of these rules, DOC may directly Award a Contract that does not exceed $150,000 to a SDVOB.

(7) Federal Program Procurements. Notwithstanding any other provision of these rules, DOC may purchase goods and services through GSA Federal Programs or federal contracts (collectively, Federal Programs) without competitive sealed bidding, competitive sealed Proposals or other competition.

(a) Requirements. DOC will follow the following requirements in order to enter into Contracts through Federal Programs:

(A) DOC must have federal authority to purchase goods and services through Federal Programs;

(B) The purchase meets DOC's needs;

(C) The price and other terms of the purchase are Advantageous to DOC;

(D) DOC has complied with OAR 137-045-0010 to 137-045-0090, and if it is required, obtained a legal sufficiency review or exemption from the Oregon Department of Justice; and

(E) DOC has considered the following impacts upon local business:

(i) If the procurement is in excess of $10,000, DOC has given notice through the electronic procurement system approved by the State Chief Procurement Officer of its needs, reasons, and intent to procure through a Federal Program;

(ii) DOC has provided a reasonable time period under the circumstances for response to the notice and submission of Written comments to DOC; and

(iii) DOC has considered any comments and replied, if appropriate, before proceeding with its procurement through a Federal Program. This rule provides for an informal opportunity to comment to and be considered by DOC, instead of the formal notice requirements for solicitations in excess of $10,000 according to ORS 200.035.

(b) When DOC purchases supplies or services under this rule, a new Contract will be formed when a Contractor accepts an order from DOC. The Contract's terms and conditions will be incorporated by reference.

(c) DOC and Contractors participate voluntarily. Contractors providing services and supplies under this administrative rule will make direct deliveries to DOC.

(d) DOC may add any significant and substantial Contract terms and conditions that are required by state statutes or rules to any Contract created under this rule, provided the additional Contract terms and conditions do not conflict with the Federal Program's Contract terms and conditions. Examples of such terms and conditions include, but are not limited to:

(A) Prompt Payment. DOC may apply the terms and conditions of Oregon's prompt payment law to its Contracts, but if DOC fails to make this addition, then DOC may be subject to the Federal Prompt Payment Act, 31 U.S.C. sec. 3901 et seq., as implemented at 48 CFR § 32.9 of the Federal Acquisition Regulations (FARs);

(B) Commercial Terms. Patent indemnity and other commercial terms and conditions may be added if they do not conflict with the Federal Program's terms and conditions; or

(C) Conflict Resolution. DOC may revise the Contract's dispute resolution provision to use Alternative Dispute Resolution (ADR) to the extent authorized by law.

(8) Interstate, Interagency and Intergovernmental Agreements. Notwithstanding any other provision of these rules, DOC may purchase goods and services with a Public Agency, the United States, a United States governmental agency, an American Indian tribe or agency of an American Indian tribe as authorized under ORS chapter 190 without competitive sealed bidding, competitive sealed Proposals or other competition.

(9) Qualified Nonprofit Agencies for Individuals with Disabilities. Notwithstanding any other provision of these rules, DOC may purchase goods and services with qualified nonprofit agencies for individuals with disabilities as authorized under ORS chapter 279 without competitive sealed bidding, competitive sealed Proposals or other competition.

Or. Admin. R. 291-160-0320

DOC 11-2022, adopt filed 11/7/2022, effective 1/1/2023

Statutory/Other Authority: ORS 179.040, 421.438, 423.020, 423.030, 423.075

Statutes/Other Implemented: ORS 179.040, 421.438, 423.020, 423.030, 423.075