Or. Admin. Code § 125-247-0691 - Brand Name or Equal Specification
(1) Applicability and Use. This Rule applies
to Specifications for a Solicitation or class of Solicitations. For a
Solicitation or class of Solicitations under ORS 279B.060, 279B.065, 279B.070,
279B.085, or 279A.200-279A.225, as provided in 279B.215:
(a) A brand name or equal Specification may
be used when the use of a brand name or equal Specification is advantageous to
the Agency, because the brand name describes the standard of quality,
performance, functionality and other characteristics of the product needed by
the Agency.
(b) The Agency is
entitled to determine what constitutes a product that is equal or superior to
the product specified, and any such determination is final.
(c) Nothing in this Subsection may be
construed as prohibiting an Agency from specifying one or more comparable
products as examples of the quality, performance, functionality or other
characteristics of the product needed by the Agency.
(2) Determination. A brand name Specification
may be prepared and used only if the Agency determines for a Solicitation or a
class of Solicitations that only the identified brand name Specification will
meet the needs of the Agency based on one or more of the following Written
determinations:
(a) That use of a brand name
Specification is unlikely to encourage favoritism in the awarding of Public
Contracts or substantially diminish competition for Public Contracts;
(b) That use of a brand name Specification
would result in substantial cost savings to the Agency;
(c) That there is only one manufacturer or
seller of the product of the quality, performance or functionality required;
or
(d) That efficient utilization
of existing Goods requires the acquisition of compatible Goods or
Services.
(3) An
Agency's use of a brand name Specification may be subject to review only as
provided in ORS 279B.405.
(4)
Single Manufacturer, Multiple Sellers. An Authorized Agency may prepare and use
a brand name or equal Specification for Supplies and Services available from
only one manufacturer, but available through multiple sellers, if the
Authorized Agency complies with Sections (1) and (2) of this Rule and the
following requirements:
(a) If the total
purchase is $25,000 or more but does not exceed $250,000 and Supplies and
Services are not available under an existing Mandatory Use Contract, the
Authorized Agency must obtain informal, competitive Quotes, Bids, or Proposals
and document this process in the Procurement File according to ORS 279B.070 and
OAR 125-247-0270;
(b) If the
purchase exceeds $250,000, and the Supplies and Services are not available
under an existing Price Agreement for information technology with competing
products or a Mandatory Use Contract, an Authorized Agency must first request
and obtain prior Written authorization from the State Chief Procurement Officer
to proceed with the acquisition.
(5) Single Manufacturer, Multiple Purchases.
If an Authorized Agency intends to make several purchases of brand
name-specified Supplies and Services from a particular manufacturer or seller
for a period not to exceed five (5) years, the Authorized Agency must so state
this information in: the Procurement File; the Solicitation Document, if any;
or a Public Notice of a solicitation on OregonBuys or other Electronic
Procurement System approved by the State Chief Procurement Officer. If the
Authorized Agency estimates the total purchase amount to exceed $250,000, this
estimate must also be stated in the Public Notice. This Section (5) does not
apply to Department Price Agreements, also known as Mandatory Use
Contracts.
(6) Nothing in this Rule
exempts the Authorized Agency from obtaining the approval of the Attorney
General for legal sufficiency according to ORS 291.047.
(7) All State Contracting Agencies must
comply with ORS 200.035 and applicable related Department statewide policy,
despite this Rule.
Notes
Statutory/Other Authority: ORS 279A.065(5)(a) & 279A.070
Statutes/Other Implemented: ORS 279B.215
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