Or. Admin. Code § 125-247-0275 - Sole-Source Procurements

(1) Generally. An Authorized Agency with delegated Authority according to OAR 125-246-0170 may award a Contract without a competitive process through a Sole-Source Procurement according to the requirements of ORS 279B.075, this Rule, and the policy of the Department. The Authorized Agency must make a determination of a sole source based upon Written findings of fact that the Supplies and Services are available from only one source.

(2) Findings of Fact. Findings of fact required under OAR 125-247-0275(1) may include:

(a) Compatibility. The efficient utilization of existing Supplies and Services requires the acquisition of compatible Supplies and Services from only one source. For example, compatibility may be implicated when: Supplies are required to directly interface with or attach to equipment of the same manufacturer and no other manufacturer's Supplies will correctly interface with existing equipment; or when Services such as maintenance, warranty, project management, or systems integration are required to interface or integrate with existing Supplies and Services.

(b) Exchange of Software or Data. Specific Supplies and Services, which are available from only one source, may be required for the exchange of software or data with other public or private agencies. This finding may be particularly applicable when the Supplies and Services involve assets such as copyrights, patents, trademarks, and trade secrets.

(c) Pilot or Experimental Project. Supplies and Services are for the use in such projects, which may include but are not limited to research and economic development projects.

(d) Other findings that support the conclusion that Supplies and Services are available from only one source may include but are not limited to considerations of: unique design, availability, geographic location, exclusive authorized representative, cost of conversion, and warranty services.

(3) Market Research. ORS 279B.075 requires that the Authorized Agency "determines in writing" that the goods or services are "available from only one source." This means that the Authorized Agency must conduct and document its market research before public notice described in Section (4) or (5).

(4) Contracts up to $250,000. For all Contracts awarded through Sole-Source Procurements over $25,000 and not exceeding $250,000:

(a) The Authorized Agency must place a public notice on OregonBuys or other Electronic Procurement System approved by the State Chief Procurement Officer of its determination that the Supplies and Services or class of Supplies and Services are available from only one source.

(b) The public notice must describe the Supplies and Services to be acquired through a Sole-Source Procurement and identify the prospective Contractor and include the date, time and place that protests are due.

(c) The Authorized Agency must give Affected Persons at least seven calendar (7) Days from the date of the public notice of the determination that the Supplies or Services are available from only one source to protest the determination under OAR 125-247-0710. If the Department is conducting the Sole-Source Procurement, then the Department is the Authorized Agency for purposes of this Rule.

(d) The Authorized Agency must obtain the Written approval of that Agency's Designated Procurement Officer or delegatee before the Authorized Agency places a public notice on OregonBuys or other Electronic Procurement System approved by the State Chief Procurement Officer in accordance with this Section.

(5) Contracts over $250,000. For all Contracts exceeding $250,000:

(a) The Authorized Agency must place a public notice on OregonBuys or other Electronic Procurement System approved by the State Chief Procurement Officer in accordance with Subsections (4)(a)-(c); and if the Department is conducting the Sole-Source Procurement, then the Department is the Authorized Agency for purposes of this Rule; and

(b) The Authorized Agency must obtain the Written approval of the Chief Procurement Officer or delegatee before the Authorized Agency places a public notice on OregonBuys or other Electronic Procurement System approved by the State Chief Procurement Officer in accordance with this Section.

(6) Negotiation. According to ORS 279B.075 and to the extent reasonably practical, the Authorized Agency must negotiate with the sole source to obtain contract terms advantageous to the Authorized Agency.

(7) Protest. An Affected Person may protest the Authorized Agency's determination that the Supplies and Services or class of Supplies and Services are available from only one source in accordance with OAR 125-247-0710.

(8) Brand Name Requirements. If the findings of fact required under this Rule include a specification of a Brand Name, that specification must be in accordance with ORS 279B.215 and OAR 125-247-0691.

(9) Legal Sufficiency Review. When legal sufficiency review by the Attorney General is required under ORS 291.047, the Authorized Agency must seek this approval.

Notes

Or. Admin. Code § 125-247-0275

DAS 4-2004, f. 11-23-04, cert. ef. 3-1-05; DAS 5-2006, f. & cert. ef. 5-31-06; DAS 6-2008, f. & cert. ef. 7-2-08; DAS 11-2009, f. 12-30-09, cert. ef. 1-1-10; DAS 3-2012, f. 11-29-12, cert. ef. 12-1-12; DAS 2-2016, f. 12-22-16, cert. ef. 1/1/2017; DAS 3-2019, amend filed 12/23/2019, effective 1/1/2020; DAS 6-2022, temporary amend filed 11/07/2022, effective 11/7/2022 through 5/5/2023; DAS 1-2023, amend filed 04/11/2023, effective 5/1/2023; DAS 5-2023, amend filed 12/29/2023, effective 1/1/2024

Statutory/Other Authority: ORS 279A.065(5)(a) & 279A.070

Statutes/Other Implemented: ORS 279B.075