Or. Admin. Code § 125-055-0040 - General Provisions
(1)
Contracting Authority. The Department and other Agencies must contract directly
with an OFC for a Contract to qualify for the exception from the competitive
procurement requirement in ORS 279A.025 for Contracts under the Oregon Forward
Program. Contracts between multiple Agencies and an OFC satisfy this
requirement that the Agencies must contract directly with an OFC.
(2) Contract Disputes. Contract performance
issues and disputes arising out of Contracts entered into under the Oregon
Forward Program, such as disputes concerning timely delivery of products or
performance of services or compliance with specifications, must be resolved
exclusively between the OFC and the Agency that is a party to the Contract, and
will not be resolved by the Department (except where the Department is a party
to the Contract with the OFC).
(3)
Temporary Services for State Agencies. In each Contract for the provision of
temporary services entered into by a state agency under the Oregon Forward
Program, the OFC must monitor the prior and current work assignments of its
employees who work under the Contract to ensure that no employee performs
services for the state in excess of a total of 1,040 hours in a 12-month
period. An Oregon Forward temporary service provider must obtain a written
statement from the employee attesting to the total hours worked as a temporary
employee for any state agency during the last 12 months. A state agency filling
behind an employee on approved leave may continue beyond 1,040 hours in a
12-month period only when the temporary employee replaces a single employee on
approved leave. The temporary appointment may not exceed the period of the
approved leave.
(4) Competitive
Public Contract Bidding by an OFC. If an OFC submits, to any Agency, a
competitive bid, proposal, quote or other offer in a competitive procurement
for a public Contract that is not subject to ORS 279.850(1)(c), then regardless
of whether the offer was accepted, that OFC may not, at any time during the
initial term of the Contract for which the OFC submitted a competitive offer,
make any claim to the Agency that instituted the procurement for the Contract
that the product or service that was the subject of the offer should have been
subject to the requirements of the Oregon Forward Program.
(5) Selecting an Oregon Forward Provider. If
only one OFC provider has been deemed suitable by DAS to provide a needed
product or service, the Agency must contract with that provider. In cases where
more than one Oregon Forward OFC provider has been determined suitable for an
Agency's needs, an Agency may choose one of several methods to select an Oregon
Forward provider.
(a) An Agency with
knowledge of an OFC's performance, reputation or other factors, and a desire to
contract with that Oregon Forward provider, may enter into a Contract with the
selected OFC, subject to DAS price determination without a competitive
solicitation process. Agencies are encouraged to retain successful Oregon
Forward providers whenever possible to support the purpose of the program
described in ORS 279.840 and to avoid disrupting employment of Individuals with
Disabilities.
(b) An Agency may
conduct a competitive procurement for a product or service between or among two
or more OFCs under ORS 279.850(1)(c). The Agency may grant comparative
evaluation points, percentages, or values in conducting the substantial
equivalent of a request-for-proposals competition. Since the Price
Determination is made by DAS after an OFC has been selected and after scope,
specifications, terms and conditions have been negotiated between Agency and
the chosen OFC, price may not be considered in the evaluation process as an OFC
is not able to bind itself to any set Price due to the Price determination
requirement under ORS 279.850(1) and OAR 125-055-0030(6). Evaluative factors
that may be considered include:
(A)
References from past or current customers;
(B) Experience fulfilling similar
Contracts;
(C) Equipment and other
resources as may be used to fulfill the statement of work;
(D) Wages, health care benefits, alternative
dispute resolution services, and pension or other retirement arrangements that
are better, in the aggregate, than the average wages, health care benefits,
alternative dispute resolution services, and pension or other retirement
arrangements that private employers provide to employees performing the same or
similar job duties in the relevant industry in the county in which the selected
OFC will deliver the products or perform the services. The value for any
criteria related to compliance with all applicable local ordinances and
resolutions that govern labor standards, and wages, health care, etc., may not
exceed fifteen (15) percent of the total available criteria being considered
for this competitive procurement process.
(E) Quality assurance procedures, systems,
communication and other written plans for fulfilling the statement of
work.
(6) An
Agency may, under ORS 279.850(2)(b), disqualify an OFC from entering into a
Oregon Forward agreement with the Agency after providing the OFC notice and a
reasonable opportunity to be heard in accordance with subsections (a) and (b)
of this section.
(a) The Agency must provide
the OFC written notice of a proposed disqualification. The Agency shall deliver
the notice by personal service or by registered or certified mail, return
receipt requested. The notice must:
(A) State
that the Agency intends to disqualify or suspend the OFC under ORS
279.850;
(B) State the reasons for
the proposed disqualification;
(C)
Include a statement of the OFC's right to a hearing if requested in writing
within the time stated in the notice and that if the Agency does not receive
the OFC's written request for a hearing within the time stated, the OFC will
have waived its right to a hearing;
(D) Include a statement of the authority
under which the hearing will be held;
(E) Include a reference to the particular
sections of the statutes, rules, and Contract provisions involved;
(F) State the proposed disqualification
period; and
(G) State that the OFC
may be represented by legal counsel.
(b) Hearing. The Agency shall schedule a
hearing in response to the Agency's receipt of the OFC's timely hearing
request. Within a reasonable time prior to the hearing, the Agency must notify
the OFC of the time and place of the hearing and provide information on the
procedures, right of representation, and other rights related to the conduct of
the hearing.
(c) Notice of
Decision. The Agency must provide written notice of the disqualification
determination to the OFC. The Agency shall deliver the notice by personal
service or by registered or certified mail, return receipt requested. The
notice must contain:
(A) The effective date
and period of the disqualification;
(B) The grounds for the disqualification;
and
(C) A statement of any OFC
appeal rights and applicable appeal deadlines.
(7) For the purposes of ORS 279.850, a record
of "repeatedly violating" local ordinances or resolutions that govern labor
standards means reliable documentation, supported by substantial evidence, that
the OFC violated applicable ordinances or resolutions more than two times
within the requisite period. The requisite period under this section either is:
(i) within the then-current term of the OFC's
agreement with Agency; or
(ii)
within the previous three years.
(8) For the purposes of ORS 279.850, local
ordinances or resolutions that govern labor standards means ordinances or
resolutions, duly adopted by a local government body (as defined in ORS
174.116), that regulate employee working conditions. Working conditions consist
of employee:
(a) Wage rates or
salaries;
(b) Hours of labor, work
days, leave, and workplace safety conditions;
(c) Health insurance or health care
benefits;
(d) Retirement or pension
benefits; and
(e) Dispute
resolution procedures.
(9) An OFC must not enter into a public
Contract with an Agency under the Oregon Forward Program unless the Contract
complies with OAR 125-055-0005 to 125-055-0040 and the products or services
that are the subject of the Contract are listed on the Procurement List. Any
liabilities or expenses that may arise from the establishment of a Contract
that violates this subsection will be those exclusively of the OFC and
Agency.
(10) The Department
reserves the right to extend any deadline or time within which an OFC or a
party to any proceedings under OAR 125-055-0015 to 125-055-0040 must take any
action under those rules if the affected party applies in writing for relief to
the Department and demonstrates in writing that special circumstances warrant
the grant of such relief. For the purpose of this subsection, special
circumstances that warrant the grant of relief include emergencies that
reasonably can be regarded as imposing an obstacle to theOFC's or party's
ability to meet the deadline or achieve the correction of a violation of rules.
Special circumstances are circumstances beyond the reasonable control of the
individual or organization including, but not limited to, the illness or other
incapacity of key officers of the organization seeking relief, emergency
reorganizations or replacements of the corporate structure, board of directors
or executive officers of the organization, acts of God and comparable practical
impediments to an individual's or organization's ability to meet a deadline or
achieve the correction of a violation of rules. The grant or denial of relief
under this subsection must be determined by the Department official
specifically delegated that task. The Department also reserves the right to
waive or to permit the correction of minor or technical violations of OAR
125-055-0015 to 125-055-0040.
Notes
Statutory/Other Authority: ORS 279.845(1) & 184.340
Statutes/Other Implemented: ORS 279A.025(4) & 279.835 - 279.855
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