Or. Admin. Code § 125-247-0280 - Emergency Procurements
(1) An
Authorized Agency may award a Contract as an Emergency Procurement under ORS
279B.080. An Authorized Agency has delegated Authority to enter into an
Emergency Contract according to OAR 125-246-0170.
(2) An Authorized Agency may, in its
discretion, enter into a Contract without competitive Solicitation if an
Emergency exists. Emergency means circumstances that could not have been
reasonably foreseen that create a substantial risk of loss, damage,
interruption of services or threat to public health or safety that requires
prompt execution of a Contract to remedy the condition.
(3) Regardless of the dollar value of the
Contract, the Authorized Agency entering into an Emergency Contract must
encourage competition that is reasonable and appropriate under the Emergency
circumstances. However, for the emergency procurement of construction services
that are not Public Improvements, see ORS 279B.080(2).
(4) Regardless of the dollar value of the
Contract, the Authorized Agency entering into an Emergency Contract must,
either before or promptly after entering into an Emergency Contract, make and
retain in its Procurement File documentation of the nature of the Emergency
that includes:
(a) A brief description of the
Supplies and Services to be provided under the Contract, together with its cost
or anticipated cost;
(b) A brief
explanation of how the Contract, in terms of duration or Supplies and Services
provided under it, was restricted to the Scope reasonably necessary to
adequately deal only with the risk created or anticipated to be created by the
Emergency circumstances;
(c) A
description of the emergency circumstances that require the prompt performance
of the Contract, stating the anticipated harm from failure to establish the
Contract on an expedited basis; and
(d) Documentation of the measures taken under
Section (3) to encourage competition; the amounts of the Bids, Quotes or
Proposals obtained, if any; and the reason for selecting the
Contractor.
(5) The head
of the Authorized Agency, or a person designated under ORS 279A.075, must
authorize the conduct of the emergency procurement, and must review and approve
the documentation required by Section (4) of this Rule.
(6) Any Contract awarded under this Rule must
be awarded no later than sixty (60) days following the approval of the
documentation of the emergency unless the head of the Authorized Agency or
Person designated has granted an extension.
(7) Agencies must also comply with OAR
137-045-0070, Emergency Public Contract Exemption, if applicable. The
Authorized Agency must maintain a copy of any required report in the Authorized
Agency's Emergency Procurement File.
(8) For an Emergency Procurement of
construction services that are not Public Improvements, the Authorized Agency
must ensure competition for a contract for the emergency work that is
reasonable and appropriate under the emergency circumstances. In conducting the
Procurement, the Authorized Agency must set a solicitation time period that the
Authorized Agency determines to be reasonable under the emergency circumstances
and may issue Written or oral requests for Offers or make direct appointments
without competition in cases of extreme necessity.
(9) 2009 "Go Oregon!" Economic Stimulus
Package.
(a) Program. The 2009 "Go Oregon!"
Economic Stimulus Package, Enrolled Senate Bill 338, House Bill 5562 and
related legislative measures (Program), provides funding and direction to
identified Authorized Agencies for deferred maintenance, capital construction,
capital renewal, code compliance, safety, renovation, and other construction
projects (Projects). The Program's objective is to stimulate Oregon's economy
through job growth by providing opportunities to local businesses and certified
minority, women and emerging small businesses. The Director of the Department
has made a determination of emergency circumstances and documented the nature
of the Emergency under the Program (Emergency Determination). Most of the
Projects are not Public Improvements as defined in OAR 125-246-0110. ORS
279C.320 provides that ORS 279B.080 regulates these Projects.
(b) Application. Sections (2) through (6) of
this Rule do not apply to Procurements and Contracts under the
Program.
(c) Emergency
Documentation. The Emergency Determination documents the nature of the
Emergency on behalf of the Authorized Agencies to satisfy the requirement of
ORS 279B.080. No further documentation that an Emergency exists is required of
the Authorized Agencies.
(d)
Authorization. The Designated Procurement Officer, or designee, of the
Authorized Agency must authorize Procurements under the Program and may
determine whether to excuse the requirement of furnishing a good and sufficient
performance bond or payment bond.
(e) Procurement Processes. The Authorized
Agencies may conduct expedited Emergency Procurement processes, including but
not limited to: informal or formal requests for quotes, invitations to bid, and
requests for proposals; special procurements; and direct awards. Any of these
processes may be utilized regardless of project value.
(f) Project Documentation. The Authorized
Agency must retain in its Procurement File(s) the following documentation of
its Emergency Procurements and Contracts under the Program:
(A) Copies of all data requested by the
Department;
(B) A brief description
of the Project;
(C) A description
of how the particular contractor was selected and the measures taken to
encourage competition, if reasonable and appropriate under the emergency
circumstances.
(D) A statement by
the Designated Procurement Officer, or designee, excusing performance and
payment bonds for the Project in accordance with ORS 279C.380(4), if
applicable.
(g) Timing.
The documentation described in Section (9)(f) may occur a reasonable time after
the award of the Contract. No documentation is required before the award of the
Contract.
(10) Other
State Economic Stimulus Programs.
(a)
Application. For any other state economic stimulus program that is administered
by the Department or an Authorized Agency (State Program), Sections (9)(d)
through (g) replace Sections (2) through (6) of this Rule and apply to the
State Program on the following condition: the Department or Authorized Agency
determines that the State Program is in response to adverse economic
circumstances.
(b) Emergency
Determination and Documentation. The Director of the Department may make an
emergency determination and document the nature of the Emergency on behalf of
Authorized Agencies. Regardless of any determination by the Director of the
Department, an Authorized Agency may make an emergency determination and
document the nature of the Emergency on that Agency's behalf and in accordance
with ORS 279B.080.
(11)
Federal Economic Stimulus Programs.
(a)
Application. For any federal economic stimulus program that is administered by
the Department or an Authorized Agency (Federal Program), Sections (9)(d)
through (g) replace Sections (2) through (6) of this Rule and apply to the
Federal Program upon the following condition: the Department determines that
the Federal Program is in response to adverse economic circumstances.
(b) Emergency Determination and
Documentation. The Director of the Department may make an emergency
determination and document the nature of the Emergency on behalf of Authorized
Agencies. Regardless of any determination by the Director of the Department, an
Authorized Agency may make an emergency determination and document the nature
of the Emergency on that Agency's behalf and in accordance with ORS
279B.080.
(12) Amendment.
An Authorized Agency may modify a Contract awarded as an Emergency Procurement
if the emergency justification for entering into the Contract still exists, and
the Amendment is necessary to address the continuing emergency. This
modification may be made by change order or Amendment to address the conditions
described in the original declaration or an amended declaration that further
describes additional Work necessary and appropriate for related Emergency
circumstances.
Notes
Statutory/Other Authority: ORS 279A.065(5)(a) & 279A.070
Statutes/Other Implemented: ORS 279B.080 & 279C.320
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