Or. Admin. Code § 125-246-0360 - Purchases Through Federal Programs
(1) Exemption. An Authorized Agency may
purchase certain authorized Supplies and Services through General Service
Administration (GSA) federal programs or federal Contracts (Federal Programs)
without Competitive Sealed Bidding, Competitive Sealed Proposals or other
competition required under ORS 279B.050 to 279B.085, provided that the
Authorized Agency has federal authorization to purchase through the Federal
Program and follows the procedures set forth in this Rule.
(2) Federal Authorization.
(a) The Federal Programs named in ORS
279A.180 are accessible to Authorized Agencies for purchasing Supplies and
Services. In addition, by this Rule, the Director of the Department (Director)
hereby makes the determination according to ORS 279A.180, that the GSA Order of
2000 and any subsequent revisions or updating of this GSA Order of 2000 (GSA
Orders) describe other Federal Programs that, under federal law, are similar to
10 U.S.C. 381 or Section 211 of the Electronic Government Act of 2002 in
effectuating or promoting transfers of property to Authorized Agencies;
therefore, Authorized Agencies may purchase through those Federal Programs
described in a GSA Order without making individual requests for determination
to the Director.
(b) If an
Authorized Agency desires to purchase through another Federal Program that is
not expressly named in ORS 279A.180 or a GSA Order, the Authorized Agency must
request in Writing a determination from the Director or the Director's
designated representative. In the request, the Authorized Agency must document
that the federal government has authorized states, including the Authorized
Agency, to purchase through the proposed Federal Program. The request of the
Authorized Agency and the determination by the Director or representative must
be limited to those other Federal Programs described in ORS 279A.180 that,
under federal law, are similar to 10 U.S.C. 381 or Section 211 of the
Electronic Government Act of 2002 in effectuating or promoting transfers of
property to Authorized Agencies.
(c) If no federal authorization exists as
described in Sections (2)(a) and (b) of the Rule, then an Authorized Agency is
not permitted to purchase through any Federal Program.
(3) Procedures. To purchase through a Federal
Program, an Authorized Agency must document in its Procurement File that:
(a) The federal authority for the Authorized
Agency to purchase through the Federal Program, referring to ORS 279A.180, a
GSA Order, or the State Chief Procurement Officer's approval of an Authorized
Agency's request.
(b) The
acquisition meets the Authorized Agency's needs;
(c) The price and other terms of the
acquisition are Advantageous to the State;
(d) No mandatory Department Price Agreement
for the authorized Supplies and Services exists, based upon the Authorized
Agency's inquiry through OregonBuys or other Electronic Procurement System
approved by the State Chief Procurement Officer;
(e) The Authorized Agency has considered the
acquisition's impact upon local business as follows:
(A) If the Procurement is in excess of
$10,000, the Authorized Agency has given timely notice through OregonBuys or
other Electronic Procurement System approved by the State Chief Procurement
Officer of its needs, reasons, and intent to procure through a Federal
Program;
(B) The Authorized Agency
has provided a reasonable time period under the circumstances for individuals
to respond to the notice and send Written comments to the Authorized Agency;
and
(C) The Authorized Agency 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 the Authorized Agency, instead
of the formal notice requirements for Solicitations in excess of $10,000
according to ORS 200.035.
(f) State and local preference programs,
including but not limited to Inmate Labor in accordance with the Oregon
Constitution, Article I, Section 41, Products of Disabled Individuals Program
of ORS 279.835 to 850, and state requirements Contracts under OAR 125-247-0296,
are not waived or otherwise adversely affected by an acquisition through a
Federal Program;
(g) The Authorized
Agency 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 Department
of Justice; and
(h) The Authorized
Agency is informed of its Federal Program's Procurement Process, including:
(A) Voluntary and Direct Contract. The
Authorized Agency and Contractors participate voluntarily. The Contractors make
direct deliveries to the Authorized Agency and retain the right to decline
orders on a case-by-case basis, for any reason, within a five-Day period of
receipt of that order;
(B) Funding
Fee. The price of a Federal Program Contract includes a GSA industrial funding
fee to cover GSA administrative costs to operate the Federal Program;
(C) New Contract. When a Contractor accepts
an order from an Authorized Agency, a new Contract is formed. The Contract's
terms and conditions are incorporated by reference; and
(D) Additional Terms and Conditions. The
Authorized Agency may add to its Contract such significant, substantial
contract terms and conditions as are required by State statutes or rules, if
such additions do not conflict with the Federal Program's Contract terms and
conditions. Examples of such terms and conditions include, but are not limited
to:
(i) Prompt Payment. The Authorized Agency
may apply the terms and conditions of Oregon's prompt payment law to its
Contracts, but if the Authorized Agency fails to make this addition, then the
Authorized Agency may be subject to the Federal Prompt Payment Act, 31 U.S.C.
sec. 3901 et seq., as implemented at subpart 32.9 of the Federal Acquisition
Regulation (FAR);
(ii) 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;
and
(iii) Conflict Resolution. The
Authorized Agency may revise the Contract's dispute resolution provision to use
Alternative Dispute Resolution (ADR) to the extent authorized by law.
Notes
Statutory/Other Authority: ORS 279A.065(5)(a) & 279A.070
Statutes/Other Implemented: ORS 279A.180
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