Current through Register Vol. 63, No. 9, September 1, 2024
(1) "Buy Decision" means the decision to buy
Goods or Services through socio-economic programs, agreements, or the open
market.
(2) The Lottery may make
its Buy Decision in the priority order set forth in sections (a) through (c)
below. If a higher priority source can fulfill the needs of a particular
procurement, the Lottery may procure through that higher priority source and
may elect not to procure through a lower priority source.
(a) Inmate Labor: Procurements of Goods or
Services of Oregon inmates pursuant to the Oregon Constitution, Article I,
Section 41.
(b) Price Agreements:
This rule applies to Price Agreements that were acquired using a competitive
approach equivalent to the source selection methods described in OAR
177-038-0070(3). Price Agreements administered by State of Oregon through its
Department of Administrative Services, Federal General Service Administration
(GSA) federal programs, and Price Agreements entered into and administered as
Cooperative Procurements are examples of Price Agreements that may be used by
the Lottery. The use of a Price Agreement promotes economy and efficiency
through volume and strategic purchases.
(c) Lottery Procurement: Procurements
conducted by Lottery pursuant to these Division 38 rules.
(3) If the Lottery determines that it will
conduct a procurement to acquire Goods, Services, or both, the Lottery shall
Award a Contract for such Goods or Services by one of the following sourcing
methods:
(a) Small Procurements: Lottery may
Award a Contract for Goods or Services with an estimated Contract Price of
$50,000 or less without a competitive process. The Lottery may Award a Contract
under this subsection in any manner deemed practical or convenient by the
Lottery, including direct selection or Award. A procurement may not be
artificially divided or fragmented so as to constitute a Small Procurement
under this rule.
(b) Intermediate
Procurements: Lottery may Award Contract for Goods or Services with an
estimated Contract Price exceeding $50,000 but not in excess of $150,000 after
seeking three competitive Offers. The Lottery shall keep a written record of
the sources of the Offers received. If three Offers are not reasonably
available, fewer will suffice, but the Lottery shall make a written record of
the effort made to obtain three Offers. If Lottery, in good faith, estimated
that the Price resulting from the procurement would be equal to or less than
$150,000, and learned thereafter that all of the Offers exceeded $150,000,
Lottery may Award a Contract; provided that the Contract Price may not exceed
$165,000. A procurement may not be artificially divided or fragmented so as to
constitute an Intermediate Procurement under this rule.
(c) Large Procurements: Lottery
may Award a Contract for Goods or Services with an estimated Contract Price
that exceeds $150,000 after seeking three written solicited competitive Offers
provided in response to a written Solicitation Document issued by the Lottery.
The Lottery shall keep a written record of the sources of the Offers received.
If three Offers are not reasonably available, fewer will suffice, but the
Lottery shall make a written record of the effort made to obtain the
Offers.
(d) Sole Source
Procurements: The Lottery may Award a Contract for Goods or
Services without a competitive process when so directed by the Commission, or
if the Director, or a person designated in writing by the Director, determines
in writing, based on current market research, that the Goods or Services are
available from only one seller or source.
(e) Emergency Procurements: The Lottery may,
in its discretion, enter into a Contract without a competitive Solicitation if
an Emergency exists, subject to the following restrictions and qualifications:
(A) Emergency Contracts that are also Major
Procurements: Except as otherwise set forth in this rule, the Director may make
an Emergency procurement or enter into an Emergency Contract for a Major
Procurement only with the approval of the Commission. If the Emergency
procurement requires immediate approval of the Contract, the Commission may
conduct its meeting as provided in ORS
192.670 and
192.640(3).
By adopting these Division 38 rules, the Lottery Commission approves the award
of a Major Procurement that is also an Emergency Contract if (i) an Emergency
exists that can only be addressed by the execution of an Emergency Contract for
a Major Procurement, and it is impractical to assemble a quorum of the
Commission in time to address the Emergency.
(B) Extension of Emergency Contract: The
Director may enter into an extension of an Emergency Contract, including an
extension of an Emergency Contract for a Major Procurement, without the
approval of the Commission, where the original Contract or the declaration of
the Emergency specifically provides for the extension, and the extension does
not result in any change in the terms and conditions of the Contract other than
an extension to its term and dollar amounts associated with the extension. In
addition, if the Emergency Contract is also a Major Procurement, the Lottery
must also determine that the Contractor has maintained its status as an
approved Major Procurement vendor pursuant to OAR 177-037-0030 and OAR
177-037-0060.
(C) Director's
Report: The Director shall make reasonable efforts to report to the Commission
in writing any Emergency Contract by the next scheduled Commission meeting
following the Contract Award date. However, the Director's inability or failure
to report to the Commission within this time shall not affect the validity of
any Emergency Contract.
(f) Alternative Procurements: The Lottery may
Award a Contract as an Alternative Procurement in accordance with OAR
177-038-0090.
Statutory/Other Authority: ORS Chapter 461 & Oregon
Constitution, Article XV, §4(4)
Statutes/Other Implemented: ORS
461.400, ORS
461.410,
ORS
461.420,
ORS
461.430 & ORS
461.440