Current through Register Vol. 63, No. 9, September 1, 2024
(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.
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
