Current through Register Vol. 63, No. 12, December 1, 2024
(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 Department, because the brand name describes the
standard of quality, performance, functionality and other characteristics of
the product needed by the Department.
(b) The Department 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 the Department from specifying one or more comparable
products as examples of the quality, performance, functionality or other
characteristics of the product needed by the Department.
(2) Determination. A brand name Specification
may be prepared and used only if the Department determines for a Solicitation
or a class of Solicitations that only the identified brand name Specification
will meet the needs of the Department, 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
Department;
(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)
The Department's use of a brand name Specification may be subject to review
only as provided in ORS 279B.405.
(4) Single Manufacturer, Multiple Sellers.
The Department 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 Department 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 Department must obtain informal,
competitive Quotes, Bids, or Proposals and document this process in the
Procurement File according to ORS 279B.070 and OAR 137-047-0270;
(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, the
Department must first request and obtain prior Written authorization from the
Designated Procurement Director to proceed with the acquisition(5) Single
Manufacturer, Multiple Purchases. If the Department 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
Department 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. If the Department 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 of
Administrative Services Price Agreements, also known as Mandatory Use
Contracts.
(5) Nothing
in this rule exempts the Department from obtaining the approval of the Attorney
General for legal sufficiency according to ORS 291.047.
(6) The Department must comply with ORS
200.035 and applicable related Department statewide policy, despite this
rule.
Statutory/Other Authority: ORS 279A.065(5)(a)
Statutes/Other Implemented: ORS 279A.065(5)(a), ORS 279B.215 & ORS 279A.070
