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Oregon Bulletin

September 1, 2012

Oregon Health Authority, Chapter 943

Rule Caption: Public Contracting and Procurement Rules for the Oregon Health Authority.

Adm. Order No.: OHA 5-2012

Filed with Sec. of State: 8-1-2012

Certified to be Effective: 8-1-12

Notice Publication Date: 7-1-2012

Rules Adopted: 943-060-0000, 943-060-0010, 943-060-0020, 943-060-0030, 943-060-0040, 943-060-0050, 943-060-0060, 943-060-0070, 943-060-0080, 943-060-0090, 943-060-0100, 943-060-0110, 943-060-0120

Rules Repealed: 943-060-0050(T)

Subject: The Oregon Health Authority (Authority) developed these rules to implement the authority granted to the Authority under ORS 179.040 to enter into contracts for the planning, erection, completion, and furnishing of new buildings and additions to its institutions, as well as to establish contracts for goods and services necessary for the successful management and maintenance of the institutions within the Authority’s jurisdiction. ORS 279A.050 gives the Authority independent power to procure goods, services, personal services, construction materials, equipment, and supplies for the Authority’s institutions. In addition, ORS 279A.050 authorizes the Authority to make procurements in connection with the construction, demolition, exchange, maintenance, operation, and equipping of housing for persons with chronic mental illness. ORS 413.033 grants the Authority’s Director the ability to exercise all powers necessary to effectively and expeditiously carry out the procurement functions vested in OHA by ORS 179.040 and 279A.050.

Rules Coordinator: Evonne Alderete—(503) 932-9663

943-060-0000

Application

These rules (OAR 943-060-0000 to 943-060-0120) govern public contracting of the Oregon Health Authority and are subject to ORS chapters 279A, 279B, and 279C.

Stat. Auth.: ORS 413.042
Stats. Implemented: ORS 179.040, 279A.065, 413.033 & 413.042
Hist.: OHA 5-2012, f. & cert. ef. 8-1-12

943-060-0010

Definitions

Unless the context requires otherwise, the following definitions apply:

(1) “Authority” means the Oregon Health Authority.

(2) “Client” means any individual, family, or provider:

(a) For whom the Authority provides services and incidental or specialized goods, in any combination thereof, according to state, federal law, rule, and policy. Services and incidental goods include but are not limited to treatment, care, protection, and support without regard to the proximity of the services being provided;

(b) Who receives and utilizes services provided by the Authority primarily for that individual’s or family’s benefit;

(c) Who is under the custody, care, or both of the Authority; or

(d) Who provides direct care or services and is a proxy or representative of a non-provider client.

(3) “Client services” means any service that primarily supports a client, whether the client is the recipient of voluntary or mandatory services. Client services also means any goods that are incidental or specialized in relation to any service defined in this section. Client services does not include benefits or services provided as a condition of employment with the Authority. Client services may include but are not limited to:

(a) Housing, including assistance to pay rent, mortgage, or utilities;

(b) Nutrition;

(c) Clothing;

(d) Employment training or skills training to improve employability;

(e) Services for individuals with disabilities;

(f) Foster care or foster care facilities;

(g) Residential care or residential care facilities;

(h) Community housing;

(i) In-home care, including home delivered meals;

(j) Medical care, services and treatment, including but not limited to:

(A) Medical, dental, hospital, psychological, psychiatric, therapy, and vision;

(B) Alcohol and drug treatment;

(C) Smoking cessation;

(D) Drugs, prescriptions and non-prescription; or

(E) Nursing services and facilities.

(k) Transportation or relocation;

(L) Quality of life, living skills training;

(m) Personal care;

(n) Legal services and expert witness services;

(o) Religious practices, traditions and services, separately or in any combination thereof; and

(p) Educational services.

(4) “Designated Procurement Officer (DPO)” means the individual designated and authorized by the Authority’s Director to perform certain procurement functions described in these rules. If the Director does not authorize an individual as a DPO, then the Director acts in place of the DPO.

(5) “Director” means the Director of the Oregon Health Authority.

(6) “Electronic procurement system” means the Oregon Procurement Information Network (ORPIN) or other system approved by the Authority that individuals may access through the Internet that enables individuals to send electronic offers and enables the Authority to post electronic advertisements, receive electronic offers, and conduct other activities related to a procurement.

(7) “Emergency” means circumstances that:

(a) Could not have been reasonably foreseen;

(b) Create a substantial risk of loss, damage, or interruption of services or a substantial threat to property, public health, welfare, or safety; and

(c) Require prompt execution of a contract to remedy the condition.

(8) “Goods” means supplies, equipment, or materials, and any personal property, including any tangible, intangible, and intellectual property and rights and licenses in relation thereto, that the Authority is authorized by law to procure.

(9) “Oregon Procurement Information Network (ORPIN)” means the official publication forum for procurement notices and advertisements.

(10) “Personal services” means specialized skills, knowledge, and resources in the application of technical or scientific expertise, or the exercise of professional, artistic, or management discretion or judgment, including without limitation a contract for the services of an accountant, physician or dentist, educator, information technology professional, consultant, broadcaster, or artist (including a photographer, filmmaker, painter, weaver, or sculptor). Personal services also includes client services and services of an architect, engineer, land surveyor, or provider of related services as defined in ORS 279C.100.

(11) “Procurement” means the act of purchasing, leasing, renting, or otherwise acquiring or selling goods and services; architectural, engineering and land surveying services, and related services; and public improvements. Procurement includes each function and procedure undertaken or required to be undertaken by the Authority to enter into a public contract, administer a public contract and obtain the performance of a public contract under the public contracting code and these rules. Procurement includes contract administration.

(12) “Procurement file” means any solicitation, contract, amendment, work order, or contract administration files, separately or collectively.

(13) “Public contract” is defined in ORS 279A.010 and means a sale or other disposal, or a purchase, lease, rental, or other acquisition of goods and services, public improvements, public works, minor alterations, or ordinary repair or maintenance necessary to preserve a public improvement. Public contract does not include grants. For the purposes of these rules, public contract means a contract.

(14) “Services” mean services other than personal services designated under ORS 279A.055, except for state contracting agencies with procurement authority under ORS 279A.050 or 279A.140, services includes personal services as designated by the state contracting agencies.

(15) “Solicitation document” means the solicitation document and all documents either attached or incorporated by reference and any changes thereto, used for any of the methods according to ORS 279A.200 through 279A.220, 279B.055 through 279B.085, 279C.100 through 279C.125, or 279C.300 through 2729C.450.

(16) “Special procurement” means a sourcing method and may be a class special procurement, a contract-specific special procurement, or both.

(a) “Class special procurement” is defined in ORS 279B.085 and means a contracting procedure that differs from the procedures described in ORS 279B.055, 279B.060, 279B.065, and 279B.070 and is for the purpose of entering into a series of contracts over time for the acquisition of a specified class of goods and services.

(b) “Contract-specific special procurement” means a contracting procedure that differs from the procedures described in ORS 279B.055, 279B.060, 279B.065, and 279B.070 and is for the purpose of entering into a single contract or a number of related contracts for the acquisition of specified goods and services on a one-time basis or for a single project.

(17) “Statewide price agreement” means a price agreement issued by the Department of Administrative Services on behalf of all state agencies. Such agreements may be mandatory or voluntary for use. Such agreements may result from a cooperative procurement. The Authority may not purchase goods and services through federal programs if a statewide price agreement exists for the goods and services.

Stat. Auth.: ORS 179.040, 279A.065, 279A.070, 413.014, 413.033 & 413.042
Stats. Implemented: ORS 413.033
Hist.: OHA 5-2012, f. & cert. ef. 8-1-12

943-060-0020

Procurement Authority

(1) The Authority may enter into contracts for the planning, erection, completion, and furnishing of new buildings and additions to its institutions, and may establish contracts for goods and services of all kinds necessary for the successful management and maintenance of the institutions within the Authority’s jurisdiction. The Authority may procure goods, services, personal services, construction materials, equipment, and supplies for the Authority’s institutions. The Authority may also make procurements in connection with the construction, demolition, exchange, maintenance, operation, and equipping of housing for persons with chronic mental illness.

(2) The Director of the Authority may exercise all powers necessary to effectively and expeditiously carry out procurement functions.

Stat. Auth.: ORS 179.040, 279A.065, 279A.070, 413.033 & 413.042
Stats. Implemented: ORS 413.033
Hist.: OHA 5-2012, f. & cert. ef. 8-1-12

943-060-0030

Contractor Requirements

(1) No contract or other agreement for more than $1,000 may be entered into, renewed, or extended with any individual unless the individual certifies in writing, under penalty of perjury, that the individual is not in violation of any tax laws described in ORS 305.385.

(2) A contractor who is a corporation, partnership, or who has an assumed business name shall be registered with the Oregon Secretary of State in accordance with ORS chapters 58, 60, 62, 63, 65, 67, 70, and 648. This registration is the obligation of the contractor, not the Authority.

(a) Architects, engineers, and land surveyors shall be registered with the appropriate licensing boards under the provisions of ORS 671.020, 672.020, and 672.025.

(b) The statutory requirements for contractors to register with the Oregon Secretary of State may be subject to a limited number of exceptions under federal law. For example, sole proprietors or national banks, when they contract with the Authority, are not subject to the registration requirement.

(c) The contractor shall be registered at the time of the execution of the contract and thereafter.

Stat. Auth.: ORS 179.040, 279A.065, 279A.070, 413.033 & 413.042
Stats. Implemented: ORS 413.033
Hist.: OHA 5-2012, f. & cert. ef. 8-1-12

943-060-0040

Independent Contractors

(1) The Authority may, within the limits of its delegation and its legislatively approved budget, contract for personal services with providers who are independent contractors.

(2) “Independent contractor” means an individual who provides services to the Authority in which the Authority neither controls nor has the right to control the means or manner by which work is performed. The Authority may control the results of the services, but not control the means or manner of how a contractor performs the work.

(3) Within the parameters of employment, workers’ compensation, and other relevant state and federal laws, and after determining that the contract will not violate any collective bargaining agreements, the Authority may contract for personal services when:

(a) The work cannot be done in a reasonable time with Authority’s own workforce;

(b) An independent and impartial evaluation is required; or

(c) It will be less expensive to contract for the work.

(4) The Authority may not use personal services contracts to obtain and pay for the services of an employee. If a contractor is not an independent contractor, the Authority may not enter into a personal services contract with the contractor; instead, the Authority shall follow personnel policies for employment options.

(5) The Authority shall develop a statement of work for trade or personal services, including architectural, engineering and land surveying services, and related services, that will not result in an employee relationship with the potential contractor. Contractors shall complete an independent contractor certification either as a contract provision or on a form approved by the Office of Contracts and Procurement. If the contractor cannot certify independent contractor status, the Authority shall not contract with the contractor using a trade or personal services contract, including architectural, engineering and land surveying services, and related services, except as otherwise allowed in section (5)(f) of this rule.

(a) An independent contractor certification shall be part of each contract.

(b) If the contractor is a corporation, the independent contractor certification is still required.

(c) If the nature of the services or project is such that an employee/employer relationship will exist, the Authority shall hire the individual through normal personnel procedures.

(d) The contract shall include the contractor’s legal name and address. Either the contract or a separate cover sheet for the contract shall include the contractor’s social security or federal tax identification number.

(e) The contract shall provide that the contractor is responsible for federal social security, except those categories excluded by law, and for any federal or state taxes applicable to the contract payment.

(f) When a contractor cannot certify that the contractor meets the definition of independent contractor, is customarily engaged in an independently established business, and meets at least three of the requirements for such a business in accordance with ORS 670.600, the Authority may contract with the contractor only if the DPO approves the contract upon a determination that the contractor is an independent contractor and the contract will not result in undue risk to the state.

Stat. Auth.: ORS 179.040, 279A.065, 279A.070, 413.033 & 413.042
Stats. Implemented: ORS 279A.070, 413.033 & 670.600
Hist.: OHA 5-2012, f. & cert. ef. 8-1-12

943-060-0050

ORS 190 Agreements

(1) The Authority, when it enters into an agreement under ORS 190.110, 190.420, or 190.485, or an agreement under ORS 190.112 or 660.342, shall post a summary of the agreement on an applicable electronic procurement system within the 30-day period immediately following the effective date of the agreement.

(2) The summary shall include:

(a) Names of the parties to the agreement;

(b) Date of the agreement;

(c) Subject matter of the agreement; and

(d) The agency through which a person may obtain a copy of the agreement.

Stat. Auth.: ORS 179.040, 279A.065, 279A.070, 413.014, 413.033 & 413.042
Stats. Implemented: ORS 279A.140(2)(h)
Hist.: OHA 1-2012(Temp), f. & cert. ef. 2-17-12 thru 8-14-12; OHA 5-2012, f. & cert. ef. 8-1-12

943-060-0060

Contract Amendments

The Authority may amend a contract without additional competition in any of the following circumstances:

(1) The amendment is within the scope of the procurement as described in the solicitation documents, or if no solicitation documents, as described in the sole source notice or the approved special procurement or the contract, if any. The amendment is not within the scope of the procurement if the Authority determines that requested changes were not covered in the solicitation and would have likely increased competition or affected award of the contract.

(2) These rules would otherwise permit the Authority to award a contract without competition for the goods or services to be procured under the amendment.

(3) The amendment is necessary to comply with a change in law that affects performance of the contract.

(4) The amendment results from renegotiation of the terms and conditions, including the contract price, are advantageous to the Authority, subject to all of the following conditions:

(a) The goods or services to be provided under the amended contract are the same as the goods or services to be provided under the current contract;

(b) The Authority determines that, with all things considered, the amended contract is at least as favorable to Authority as the unamended contract; and

(c) The amended contract does not have a total term greater than allowed in the solicitation documents, if any, or if no solicitation documents, as described in the sole source notice or the approved special procurement, if any, after combining the initial and extended terms.

(5) The Authority may amend a contract, awarded from a solicitation, beyond its authorized term subject to the following conditions:

(a) The goods and services provided under the additional term must be reasonably related to the original contract’s solicitation;

(b) Circumstances, basis, and term requested for extension amendment are outlined by program staff; and

(c) The DPO approves the term extension.

Stat. Auth.: ORS 179.040, 279A.065, 279A.070, 413.033 & 413.042
Stats. Implemented: ORS 279A.050, 279A.065(5), 279A.070, 279A.140 & 413.033
Hist.: OHA 5-2012, f. & cert. ef. 8-1-12

943-060-0070

Payment Authorization for Cost Overruns for Services Contracts

(1) Payments on contracts for trade or personal services that exceed the maximum contract consideration (cost overruns) require approval of the DPO in accordance with section (2) of this rule. If the aggregated value of the contract, including cost overruns, exceeds $150,000, the cost overrun may also require approval from the Department of Justice under OAR 137-045-0010 to 137-045-0090.

(2) The Authority may grant approval of the payment of a cost overrun if:

(a) The original contract was duly executed and, if required, approved by the Attorney General;

(b) Payments relate to services that were provided during the term of the contract;

(c) The cost overrun is not associated with any change in the statement of work of the original contract;

(d) The cost overrun arose from extraordinary circumstances or conditions encountered in the course of contract performance that were not reasonably anticipated at the time of the original contract or the most recent amendment, if any. Such circumstances include but are not limited to emergencies arising in the course of the contract that require prompt action to protect the work already completed, compliance with official or judicial commands or directives issued during contract performance, or a need to ensure that the purpose of the contract will be realized;

(e) The cost overrun was incurred in good faith, results from the good faith performance by the contractor, and is not greater than the prescribed hourly rate or the reasonable value of the additional work or performance rendered; and

(f) The aggregated value of the contract, including the cost overrun, and the contract’s objective are within the Authority’s procurement authority and the Authority has funds available for payment under the contract.

(3) The Authority shall prepare a written report that describes the Authority’s discovery of the cost overrun, the reasons for the cost overrun, and the Authority’s satisfaction of the conditions set forth in section (2) of this rule. The Authority shall maintain the report in its procurement file and make the report available upon request.

(4) The DPO approves, in writing, the payment of the overrun or such portion of the overrun amount as the DPO determines may be paid consistent with the conditions of this rule. If the DPO has signed the contract, or has immediate supervisory responsibility over performance of the contract, the DPO shall designate an alternate delegate to grant or deny written approval of payment.

Stat. Auth.: ORS 179.040, 279A.065, 279A.070, 413.033 & 413.042
Stats. Implemented: ORS 279A.050 & 279A.065
Hist.: OHA 5-2012, f. & cert. ef. 8-1-12

943-060-0080

Purchases Through Federal Programs

(1) The Authority may purchase goods and services under the federal programs identified in ORS 279A.180 without competitive sealed bidding, competitive sealed proposals, or other competition required under ORS 279B.050 to 279B.085, provided that the Authority has federal authorization to purchase through the program.

(2) To purchase through a federal program, the DPO shall document in the contract file that:

(a) The acquisition meets the Authority’s requirements;

(b) The price and other terms of the acquisition are advantageous to Authority; and

(c) Required preference programs, outlined in OAR 943-060-0090(2)(a)-(d), were considered.

(3) The Authority may add to its contract such contract terms and conditions as required by state statutes or rules if such additions do not conflict with the federal program’s contract terms and conditions, including but not limited to prompt payment requirements, additional commercial terms, and conflict resolution.

Stat. Auth.: ORS 179.040, 279A.065, 279A.070, 413.033 & 413.042
Stats. Implemented: ORS 279A.180
Hist.: OHA 5-2012, f. & cert. ef. 8-1-12

943-060-0090

Buy Decision

(1) “Buy decision” means the decision to buy goods and services through socio-economic programs, agreements, or the open market.

(2) The Authority shall make its buy decision in the priority order set forth in sections (a) through (d). If a higher priority source satisfies a procurement, the Authority shall procure through that higher priority source and shall not elect to procure through a lower priority source.

(a) Surplus property. Promotes the efficient use of existing resources (OAR 125-050-0100 to 125-050-0400).

(b) Qualified rehabilitation facilities (QRFs). Assists individuals with disabilities through gainful employment (ORS 279.835 to 279.855 and OAR 125-055-0005 to 125-055-0045).

(c) Inmate labor (Oregon Constitution, Article I, section 41).

(d) Statewide price agreements. Promotes economy and efficiency through volume and strategic purchases.

(3) Section (2) of this rule does not apply to ORS 190 agreements that promote the use of existing state resources, including an interagency agreement, intergovernmental agreement, interstate agreement, international agreement, or tribal agreement. The Authority may elect to use an ORS 190 agreement at any time.

(4) If sections (2) and (3) of this rule do not apply, the Authority may procure goods and services through the open market, using the methods provided under the public contracting code, related rules, and policies.

(5) The Authority shall award a contract for goods and services by one of the following seven sourcing methods in accordance with the public procurement code and related rules:

(a) Competitive sealed bidding under ORS 279B.055;

(b) Competitive sealed proposals under ORS 279B.060;

(c) Small procurement under ORS 279B.065;

(d) Intermediate procurement under ORS 279B.070;

(e) Sole-source procurement under ORS 279B.075;

(f) Emergency procurement under ORS 279B.080; or

(g) Special procurement under ORS 279B.085.

Stat. Auth.: ORS 179.040, 279A.065, 279A.070, 413.033 & 413.042
Stats. Implemented: ORS 279B.050
Hist.: OHA 5-2012, f. & cert. ef. 8-1-12

943-060-0100

Special Procurements

(1) The Authority may award a contract as a special procurement as authorized by ORS 413.033.

(2) The DPO may approve or deny special procurement requests submitted on the designated form. The special procurement request shall identify whether it is for one or more particular contracts or class of contracts. A request for a special procurement concerns the procurement process only.

(3) Special procurement requests shall contain the following:

(a) Reasons why the Authority has elected to use a special procurement and how it will benefit the Authority or the public.

(b) Findings, market research, or other documentation that the special procurement:

(A) Is unlikely to encourage favoritism in the awarding of public contracts or to substantially diminish competition for public contracts, and

(B) Either:

(i) Is reasonably expected to result in substantial cost savings to the Authority or to the public; or

(ii) Otherwise substantially promotes the public interest in a manner that could not practicably be realized by complying with requirements that are applicable under ORS 279B.055, 279B.060, 279B.065, or 279B.070 or under any related rules.

(c) The alternative process designed by the Authority shall include a description of the goods and services that are the subject of the special procurement and a procurement process, including provisions for amendment and criteria for selection.

(d) The DPO may require any additional information the DPO determines reasonably necessary to evaluate the Authority’s request for approval of a special procurement.

(4) The special procurement approval is effective only after the DPO’s approval of the findings and completion of the public notice required under section (5) of this rule.

(5) The public notice process and requirements are as follows:

(a) The Authority shall give public notice of the approval of its special procurement as required under ORS 279B.085(5), unless otherwise directed by the DPO, in one or more, or in any combination of, the following manners:

(A) Publish notice on the Department of Administrative Services’s electronic procurement system (ORPIN);

(B) Place notice on any Authority electronic procurement system which it may establish and maintain;

(C) Place notice in a newspaper or trade journal of general circulation in the area where the work is to be performed; or

(D) Give direct written or electronic notice to potential providers known to the Authority.

(b) The public notice shall describe the goods and services or class of goods and services to be acquired through the special procurement.

(c) Public notice of the approval of the proposed special procurement shall be given at least seven days before the award, unless fewer days are specified in the notice.

(d) The Authority may request certain information be withheld from the public notice requirement of this rule in cases where confidentiality or security may be jeopardized only according to exception under the public records law (ORS 192.410 to 192.505).

(6) An affected individual may protest the approval of a special procurement in accordance with ORS 279B.400.

(7) Any solicitation or contract resulting from a special procurement approval shall contain a reference to the approved special procurement number.

(8) If the DPO provides written approval of the proposed special procurement, the Authority shall award any contract under the special procurement in accordance with the conditions of the approval and any subsequent amendments to the approval. The approval may include conditions, including but not limited to expiration, public notice, and dollar limitations, and may be revoked at any time by the DPO.

(9) If the Authority competitively solicits, it shall comply with the process described in the special procurement or the rules for that method of solicitation under ORS 279B.055 to 279B.075 and 279A.200 et seq.

(10) Nothing in this rule exempts the Authority from obtaining legal sufficiency approval from the Attorney General according to ORS 291.047.

(11) The Authority shall comply with ORS 200.035 and related policy, despite this rule.

(12) If the Authority intends to award a contract through a special procurement that calls for competition among prospective contractors, the Authority shall award the contract to the offeror the Authority determines to be the most advantageous to the Authority.

(13) The Authority shall comply with Oregon Laws 2012, chapter 53, section 4, including but not limited to:

(a) OAR 943-060-0100(12) that applies to all special procurements advertised or otherwise solicited on or after January 1, 2012.

(b) The Authority shall maintain records about its special procurements that enable the DPO to determine and provide the following information:

(A) The name of the program that conducted each special procurement;

(B) The number of special procurements conducted;

(C) The number of contracts awarded through each special procurement;

(D) A summary of the reasons the Authority decided to conduct each special procurement;

(E) A descriptive summary of the procurement procedure used to conduct the special procurement, noting whether the procedure was competitive or not;

(F) A listing of the number of offers the Authority received if the special procurement procedure was competitive;

(G) The contract price or estimated contract price for each contract awarded through a special procurement;

(H) A summary of the protests or other responses to the approval of each special procurement the Authority received; and

(I) A summary of the disposition of the protests or other responses described in section (12)(b)(H) of this rule.

Stat. Auth.: ORS 179.040, 279A.065, 279A.070, 413.033 & 413.042
Stats. Implemented: ORS 179.040, 279A, (OL 2012, ch. 53, ¦4), 279A.050 & 279B.085
Hist.: OHA 5-2012, f. & cert. ef. 8-1-12

943-060-0110

Special Procurements by Rule

(1) Client placement and client health care services.

(a) The Authority may use this special procurement to initiate client placement and client health care services as described in this rule prior to execution of a contract, per applicable policy. When the Authority determines a need exists to secure or maintain client placement services or to secure client health care services, the Authority may contract subject to the following definitions and conditions:

(A) “Client placement services” means securing, enhancing, or continuing the placement of a client in a structured family-like setting or residential setting operated by a qualified provider.

(B) “Client health care services” means health care services or provision of incidental or specialized supplies related to the health of a client. Client health care services include but are not limited to preventive, diagnostic, therapeutic, behavioral, rehabilitative, maintenance, palliative care, counseling, assessment, or procedure with respect to the physical or mental condition, or functional status of a client, or that affect a structure or function of the body, and the sale or dispensing of a drug, device, equipment, or other item in accordance with a prescription.

(C) Services that may prevent a placement or placement disruption but that cannot definitively be classified as client placement services by the Authority constitute client placement services and are subject to this special procurement.

(b) The Authority may not make any payments for client placement or client health care services before obtaining all requisite approvals of the contract or amendment to an existing contract.

(c) The Authority may:

(A) Use one of the defined source selection methods as found in ORS 279B. If the Authority elects to use one of the defined source selection methods, it shall conduct it in accordance with the public contracting code, rules, and Authority policies; or

(B) The Authority may elect to create its own source selection method. If the Authority elects to create its own source selection method, it shall document the file describing why the alternate method was selected.

(d) The Authority shall ensure all procurement personnel responsible for procuring client placement or client health care services are provided training on the conditions and limitations of this special procurement.

(2) Client services source selection.

(a) Under this class special procurement, the Authority is not required to use the source selection procedures in ORS 279B to procure client services.

(b) The Authority may competitively solicit for client services when there is known competition. Under these circumstances, the Authority may:

(A) Use one of the source selection methods in ORS 279B. If the Authority uses one of the source selection methods, it shall conduct the solicitation in accordance with the public contracting code, rules, and Authority policies; or

(B) The Authority may elect to create its own source selection method. If the Authority creates its own source selection method, it shall document the file describing why the alternate method was selected.

(3) Advertising contracts.

(a) The Authority may use this special procurement to purchase advertising, regardless of dollar value, without competitive bidding.

(b)The Authority shall use competitive methods where practicable to achieve best value and shall document in the procurement file the reasons why a competitive process was deemed to be impractical.

(4) Equipment repair and overhaul.

(a) The Authority may use this special procurement for equipment repair and overhaul, as described below.

(b) The Authority, having procurement authority according to ORS 413.033, may enter into a public contract for equipment repair or overhaul without competitive bidding, subject to the following conditions:

(A) Service or parts required are unknown and the cost cannot be determined without extensive preliminary dismantling or testing; and

(B) Service or parts required are for sophisticated equipment for which specially trained personnel are required and such personnel are available from only one source.

(c) The Authority shall use competitive methods where practicable to achieve best value and shall document in the procurement file the reasons why a competitive process was deemed to be impractical.

(5) Purchase of used personal property.

(a) Subject to the provisions of this special procurement, the Authority may purchase used property or equipment without competitive bidding and without obtaining competitive quotes.

(b) “Used personal property or equipment” means the property or equipment which has been placed in its intended use by a previous owner or user for a period of time recognized in the relevant trade or industry as qualifying the personal property or equipment as “used” at the time of the Authority purchase. Used personal property or equipment generally does not include property or equipment if the Authority was the previous user, whether under a lease, as part of a demonstration, trial or pilot project, or similar arrangement.

(c) For purchases of used personal property or equipment, the Authority shall, where feasible, obtain three quotes, unless the Authority has determined and documented that a purchase without obtaining quotes will result in cost savings to the Authority. The Authority shall obtain and keep a written record of the source and quotes received. If three quotes are not available, a written record shall be made of the attempt to obtain quotes.

(6) Speakers.

(a) The Authority may use this special procurement to enter into written agreements for speaker services, as described in this rule. When the Authority determines that a need exists to secure speaker services, the Authority may contract subject to the following definitions and conditions:

(A) “Speaker” means a provider in the role of a lecturer, presenter, keynote, or speechmaker on a topic in which he or she has expertise. A speaker addresses groups of people in a structured, deliberate manner intended to inform or influence the participants. A speaker’s role is different from the role of a trainer or facilitator.

(B) The Authority may contract with a speaker to provide lectures, presentations, or speeches one or multiple times and at a single or multiple locations.

(b) Under this class special procurement, the Authority is not required to use the source selection procedures in ORS 279B to procure speaker services when the value does not exceed $150,000.

(7) Seminar, training registration, and conference fees.

(a) The Authority may use this special procurement to enter into written agreements for seminars, training registrations, and conference fees when the Authority determines that a need exists. The Authority may contract subject to the following definitions and conditions:

(A) “Trainer” means a provider in a role that delivers professional training or seminar services that direct the growth of learners by making them qualified, informed, or proficient in a skill, task, attitude, system, or process. The trainer works from a structured design based on learning objectives. The provider may utilize coaching, instructing, and facilitating techniques to accomplish the learning objective. A trainer’s role is different from the role of a speaker or facilitator.

(B) The Authority may contract with a trainer with proprietary material essential to the business need.

(b) The Authority shall select trainers it considers most advantageous based on one or more of the following criteria:

(A) The knowledge, skills, and ability of each trainer that will provide the services;

(B) The trainer’s ability to provide services;

(C) Each trainer’s experience, level of expertise, and suitability to perform the training services required;

(D) Whether each trainer’s available personnel possess any required licenses or certifications required to perform the services for, or on behalf of, the Authority;

(E) The proprietary nature of the particular training program or materials needed by the Authority;

(F) Each trainer’s availability, capability, resources, and commitment to perform the training services at times and locations set by the Authority; or

(G) Other factors the Authority considers relevant to obtain the maximum training benefit.

(c) Under this class special procurement, the Authority is not required to use the source selection procedures in ORS 279B to procure trainer services when:

(A) The value does not exceed $150,000; and

(B) The trainer of the services owns an exclusive copyright in the training materials; or

(C) The training services are designed to be repeatedly delivered regardless of the audience and are not customized or developed specifically for each audience or event.

(8) Memberships.

(a) The Authority may use this special procurement to purchase dues or memberships in professional or community organizations, institutions, or associations, in accordance with OAR 137-045-0050(12), when the membership is for the benefit of the Authority.

(b) Under this class special procurement, the Authority is not required to use the source selection procedures in ORS 279B to procure memberships.

(9) Copyrighted materials.

(a) The Authority may use this special procurement to purchase copyrighted materials where there is only one known supplier available for such goods. This includes but is not limited to new books, workbooks, periodicals, subscriptions, curriculum materials, reference materials, and audio and visual media from a particular publisher or its designated distributor.

(b) Under this class special procurement, the Authority is not required to use the source selection procedures in ORS 279B to procure copyrighted materials.

(10) Software and hardware maintenance, licenses, and upgrades.

(a) The Authority may use this special procurement to directly enter into a contract or renew existing contracts for information technology hardware or software maintenance, licenses, and upgrades without competitive solicitation where the maintenance, upgrades, or licenses are either available from only one source or, if available from more than one provider, are obtained from the Authority’s current provider to utilize the pre-existing knowledge of the vendor regarding the specifics of the Authority’s hardware or software system.

(b) The Authority shall document in the procurement file the facts that justify either that maintenance, licenses, or upgrades were available from only one source or, if from more than one source, from the current vendor.

(11) Manufacturer direct supplies.

(a) The Authority may use this special procurement to purchase goods directly from a manufacturer if the cost from the manufacturer is the same or less than the cost the manufacturer charges to its distributors.

(b) The Authority may not use this special procurement when a statewide price agreement exists for the goods.

(12) Health care reform.

(a) The Authority may use this special procurement to enter into written agreements for consultant services to carry out the Governor’s and the Authority’s efforts to reform health care delivery via community based programs and other health care reform initiatives. When the Authority determines that a need exists to secure health care reform services, the Authority may contract subject to the following definitions and conditions:

(A) “Health care reform” means looking at ways of delivering health care services for Oregon families that improve the quality of care and develop ways to reduce the cost of health care.

(B) The Authority may contract with a consultant who has the specialized knowledge, skills, and abilities in the area of health care reform when:

(i) Federal guidelines or timelines require an expedited procurement process;

(ii) Assessments, development of policies, information systems, and other tools and documents are required to be conducted through independent analysis by third party consultants; or

(iii) The Authority risks losing federal funding or may fail to meet required deadlines to continue funding for the next phase of health care reform.

(b) The Authority is not required to use the source selection procedures in ORS 279B to procure health care reform consultant services when:

(A) The services do not exceed 12 months in duration; and

(B) The consultant is considered an expert in health care reform as determined by the Authority.

(c) The Authority will use the source selection requirements as found in ORS 279B when the consultant services do not meet the requirements under this special procurement.

(13) Accreditation services.

(a) The Authority may use this special procurement to obtain accreditation services when a program is required to have accreditation for certification of competency, authority, or credibility by an organization that is certified to grant the accreditation.

(b) The Authority is not required to use the source selection procedures in ORS 279B to procure accreditation services.

Stat. Auth.: ORS 179.040, 279A.065, 279A.070, 413.033 & 413.042
Stats. Implemented: ORS 279B.085
Hist.: OHA 5-2012, f. & cert. ef. 8-1-12

943-060-0120

Grant Authority

If the Authority is a grant recipient or grantor in an agreement, the definition of grant in ORS 279A.010 determines if the agreement is subject to the public procurement code and these rules. If the grantor or the Authority has substantial involvement in the program or activity of the Authority, the agreement is not a grant.

Stat. Auth.: ORS 179.040, 279A.065, 279A.070, 413.033 & 413.042
Stats. Implemented: ORS 279A.025
Hist.: OHA 5-2012, f. & cert. ef. 8-1-12


 

Rule Caption: Criminal and Abuse Checks and Appeal Rights for Authority Employees, Volunteers, Contractors and Providers.

Adm. Order No.: OHA 6-2012

Filed with Sec. of State: 8-9-2012

Certified to be Effective: 8-10-12

Notice Publication Date: 7-1-2012

Rules Adopted: 943-007-0001, 943-007-0335, 943-007-0501

Rules Repealed: 943-007-0001(T), 943-007-0335(T), 943-007-0501(T)

Subject: HB 2009 (2009) created the Oregon Health Authority and transferred to the Authority the Department of Human Services’ (Department) Divisions with respect to health and health care. HB 2100 allows the Authority to use abuse investigation reports when conducting background checks on individuals who are employed, seek employment, volunteer, or seek to be a volunteer, provide care, or seek to be a care provider on behalf of the Authority for clients of the Authority. The Authority needs to adopt and incorporate by reference the Department’s rules which provide the Authority with the legal authority to conduct background checks and screenings on behalf of the Authority.

 The Authority needs to adopt and incorporate by reference the Department’s rules in chapter 407-007-0000 to 0075; 407-007-0090 to 0100; 407-0200 to 0275; 407-007-0340 to 0370; and 407-007-0400 to 0460 for matters that involve Authority employees, volunteers, contractors or providers subject to criminal and abuse checks before the individual may work, volunteer be employed, hold the position, or provide services.

 The Authority is adopting OAR 943-007-0001 which allows the Authority to use reports of abuse and neglect when conducting background checks on subject individuals.

 The Authority is also adopting OAR 943-007-0501 which explains how an individual may contest a fitness determination and OAR 943-007-0335, which explains how providers may contest a Notice of Intent to Deny.

Rules Coordinator: Evonne Alderete—(503) 932-9663

943-007-0001

Criminal History Checks

Employees, volunteers, providers and contractors for the Oregon Health Authority (Authority) are subject to background checks and screening to determine if they have a history of criminal or abusive behavior such that they should not be allowed to work, volunteer, be employed, or otherwise perform in positions covered by these rules.

(1) The Authority adopts and incorporates by reference the rules established in: OAR 407-007-0000 to 0075 and 407-007-0090 to 0100 (Employees, Volunteers and Contractors); for those matters that involve employees, volunteers, or contractors of the Authority, except as otherwise provided in this rule.

(2) The Authority adopts and incorporates by reference the rules established in: OAR 407-007-0200 to 407-007- 0325; and 407-007-0340 to 407-007-0370 (Providers) for those matters that involve any entity or agency licensed, certified, registered, or otherwise regulated by the Authority, except as otherwise provided in this rule.

(3) The Authority adopts and incorporates by reference the rules established in OAR 407-007-0400 to 0460 for those matters that involve abuse checks for Authority employees, volunteers, and applicants for employment or volunteer positions, except as otherwise provided in this rule.

(4) Any reference to any rule from OAR 407-007-0000 to 407-007-0100 or from OAR 407-007-0400 to 407-007-0460 in rules or contracts of the Authority are deemed to be references to the requirements of this rule, and shall be construed to apply to employees, volunteers, or contractors of the Authority.

(5) References in OAR 407-007-0000 to 407-007-0460 to the Department of Human Services (Department) or to the Oregon Health Authority shall be construed to be references to either or both agencies.

(6) The Authority authorizes the Department to act on its behalf in carrying out background checks and screening associated with the administration of programs or activities administered by the Authority.

(7) The Authority shall conduct appeals of a Notice of Intent to Deny for potentially disqualifying abuse pursuant to OAR 943-007-0335. All other appeals shall be conducted by the Authority pursuant to OAR 943-007-0501.

Stat. Auth.: ORS 181.534, 181.537 & 413.042
Stats. Implemented: ORS 181.534, 181.537 & 183.341
Hist.: OHA 2-2012(Temp), f. & cert. ef. 5-7-12 thru 11-2-12; OHA 6-2012, f. 8-9-12, cert. ef. 8-10-12

943-007-0335

Decision and Appeal Rights for Providers with Potentially Disqualifying Abuse

(1) This rule applies only to:

(a) Background checks in which an SI has potentially disqualifying abuse under OAR 407-007-0290(11)(d) with no other potentially disqualifying convictions or conditions; and

(b) After a weighing test under OAR 407-007-0300, the Authority determines that more likely than not, SI poses a risk to the physical, emotional, or financial well-being of vulnerable individuals.

(2) The Authority shall provide the SI a written Notice of Intent to Deny.

(a) The Authority shall indicate on the Notice of Intent to Deny the date the final fitness determination was made and the date of the intended action if the SI fails to request an expedited hearing.

(b) The Authority shall mail the Notice of Intent to Deny to the SI using the mailing address provided by the SI by the next business day after the date of the final fitness determination.

(c) The Authority shall include a copy of the background check request and an Expedited Hearing Request form with the Notice of Intent to Deny.

(3) An SI may contest a Notice of Intent to Deny by requesting an expedited hearing. The expedited hearing process is conducted in accordance with ORS 183.411 to 183.497 and the Attorney General’s Uniform and Model Rules of Procedure for the Office of Administrative Hearings (OAH), OAR 137-003-0501 to 137-003-0700.

(4) To request an expedited hearing, the SI must submit a completed and signed Expedited Hearing Request form. The request for an expedited hearing must be received by the Authority within 10 calendar days after the date of the final fitness determination.

(5) An SI has the right to represent him or herself or have legal representation during the expedited hearing process. For the purpose of this rule, the term “SI” shall be considered to include the SI’s legal representative if the SI has provided the Authority with the information.

(a) An SI appealing a Notice of Intent to Deny regarding the position of homecare worker as defined in ORS 410.600 or personal support worker as defined in ORS 410.600 may be represented by a labor union representative pursuant to ORS 183.459.

(b) For all other SIs, the SI may not be represented by a lay representative.

(6) If the SI fails to request an expedited hearing within the allowed time, the Authority shall issue a Notice of Denial to the SI and to the QE. The SI shall have no further hearing rights under OAR 943-007-0501.

(7) If the SI requests an expedited hearing in a timely manner, the SI shall remain in the same status made in a preliminary fitness determination under OAR 407-007-0315 until the date of a final order or the Notice of Denial.

(8) The Authority may conduct an administrative review before referring the appeal to OAH.

(a) The SI must participate in the administrative review. Participation may include but is not limited to providing additional information or documents requested by the BCU within a specified amount of time.

(b) The administrative review is not open to the public.

(c) The Authority may make an informal disposition based on the administrative review and shall issue a final order and a notice of fitness determination.

(9) The Authority may be represented by a hearing representative in expedited hearings or by the Office of the Attorney General.

(a) The Authority shall provide the administrative law judge and the SI a complete copy of available information used during the background checks and fitness determinations. The claimant is entitled to reasonable notice of all hearing documents either through personal service, electronically, regular mail, or certified mail.

(b) An SI may not have access to confidential information contained in abuse investigation reports or other records collected or developed during the abuse check process without a protective order limiting further disclosure of the information.

(A) A protective order issued pursuant to this section must be issued by an administrative law judge as provided for in OAR 137-003-0570(8) or by a court of law.

(B) In conjunction with a protective order issued pursuant to this section, individually identifying information relating to clients, witnesses, and other individuals identified in abuse investigation reports or other records collected or developed during the abuse check process shall be redacted prior to disclosure, except for the information identifying the SI.

(10)The expedited hearing shall be conducted by the OAH by telephone within 10 business days from the receipt of the completed and signed Expedited Hearing Request form.

(a) The expedited hearing is not open to the public.

(b) The administrative law judge shall make a new fitness determination based on evidence and the record.

(c) The only remedy an administrative law judge may grant is a fitness determination that the subject individual is approved, approved with restrictions, or denied. Under no circumstances shall the Authority or the QE be required to place an SI in any position, nor shall the Authority or the QE be required to accept services or enter into a contractual agreement with an SI.

(12) The Authority shall issue a dismissal order in the following situations:

(a) The SI may withdraw an expedited hearing request verbally or in writing at any time before the issuance of a final order. A dismissal order due to the withdrawal is effective the date the withdrawal is received by the Authority or the OAH. The SI may cancel the withdrawal in writing within four calendar days after the date of withdrawal.

(b) The Authority shall dismiss a hearing request when the SI fails to participate in the administrative review. Failure to participate in the administrative review shall result in termination of hearing rights. The order is effective on the due date for participation in the administrative review.

(c) The Authority shall dismiss a hearing request when the SI fails to appear at the time specified for the expedited hearing. The order is effective on the date scheduled for the hearing.

(13) After an expedited hearing, the administrative law judge shall issue a final order within three business days.

(a) If the final order maintains the Authority’s intent to deny, the Authority shall issue a Notice of Denial by the next business day after the date of the final order. The SI shall have no further hearing rights under OAR 943-007-0501.

(b) If the final order reverses the Authority’s intent to deny to an approval or a restricted approval, the Authority shall issue a Notice of Fitness Determination by the next business day after the date of the final order unless the Authority formally stays the final order.

(14) Final orders, including dismissal and default orders, are subject to reconsideration or rehearing petitions within 60 calendar days after the order is served, pursuant to OAR 137-003-0675.

Stat. Auth.: ORS 181.534, 181.537 & 413.042
Stats. Implemented: ORS 181.534, 181.537 & 183.341
Hist.: OHA 2-2012(Temp), f. & cert. ef. 5-7-12 thru 11-2-12; OHA 6-2012, f. 8-9-12, cert. ef. 8-10-12

943-007-0501

Contesting a Final Fitness Determination

(1) A final fitness determination of denied or approved with restrictions is considered an adverse outcome. An SI with an adverse outcome may contest that outcome.

(2) If an SI is denied, the SI may not work, volunteer, be employed, hold the position, provide services or be employed, licensed, certified, or registered or otherwise perform in positions covered by these rules. An SI appealing a restricted approval may only work under the terms of the restriction during the appeal.

(3) If an adverse outcome is changed at any time during the appeal process, the change does not guarantee employment or placement.

(4) An SI may challenge the accuracy or completeness of information provided by the OSP, the FBI, or other agencies reporting information to the Authority, by appealing to the entity providing the information. These challenges are not subject to the Authority’s appeal process.

(5) The SI has the right to represent him or herself or have legal representation during the appeal process. The SI may not be represented by a lay person. In this rule, the term “SI” shall be considered to include the SI’s legal representative.

(a) An SI appealing an adverse outcome regarding the position of personal support worker as defined in ORS 410.600 may be represented by a labor union representative pursuant to ORS 183.459.

(b) For all other SIs, the SI may not be represented by a lay representative.

(6) An SI who is already employed by the Authority at the time of the final fitness determination may appeal through applicable personnel rules, policies, and collective bargaining provisions. The SI’s decision to do so is an election of remedies as to the rights of the SI with respect to the fitness determination and constitutes a waiver of the contested case process described in this rule.

(7) An SI may contest an adverse fitness determination by requesting a contested case hearing. The contested case hearing process is conducted pursuant to ORS 183.411 to 183.497 and the Attorney General’s Uniform and Model Rules of Procedure for the Office of Administrative Hearings (OAH), OAR 137-003-0501 to 137-003-0700.

(a) To request a contested case hearing the SI must complete and sign the Hearing Request form.

(b) The completed and signed form must be received by the Authority within the following time lines:

(A) For Authority employees and SIs offered employment by the Authority, no later than 15 calendar days after the effective date of action listed on the notice of the fitness determination.

(B) For all other SIs, no later than 45 calendar days after the effective date of action listed on the notice of the fitness determination.

(c) If a request for hearing is not timely, the Authority shall determine, based on a written statement from the SI and available information, if there is good cause to proceed with the appeal.

(d) The Authority may refer an untimely request to OAH for a hearing on the issue of timeliness.

(8) The Authority may conduct an administrative review before referring the appeal to OAH.

(a) The SI must participate in the administrative review. Participation may include but is not limited to providing additional information or additional documents requested by the Authority within a specified amount of time.

(b) The administrative review is not open to the public.

(9) The Authority may conduct additional criminal records or abuse checks during the contested case hearing process to update or verify the SI’s potentially disqualifying convictions or conditions and factors to consider in the weighing test. If needed, the Authority may amend the notice of fitness determination during the appeal process while still maintaining the original hearing rights and deadlines.

(10) The Authority shall be represented by a hearing representative in contested case hearings. The Authority may also be represented by the Department of Justice’s Office of the Attorney General.

(a) The Authority shall provide the administrative law judge and the SI a complete copy of available information used during the criminal records checks and fitness determinations. The notice of contested case and prehearing summary and all other documents shall be mailed by regular first class mail.

(b) SIs may not have access to confidential information contained in records collected or developed during the criminal records check process without a protective order limiting further disclosure of the information.

(A) A protective order issued pursuant to this section must be issued by an administrative law judge as provided for in OAR 137-003-0570(8) or by a court of law.

(B) In conjunction with a protective order issued pursuant to this section, individually identifying information relating to clients, witnesses, and other persons identified in abuse investigation reports or other records collected or developed during the criminal records check process shall be redacted prior to disclosure, except for the information identifying the SI.

(c) The contested case hearing is not open to the public.

(d) The administrative law judge shall make a new fitness determination based on the evidence and the contested case hearing record.

(e) The only remedy that an administrative law judge may grant is a fitness determination that the SI is approved, approved with restrictions (if allowed by rule), or denied. Under no circumstances shall the Authority or Qualified Entity (QE) be required to place an SI in any position, nor shall the Authority or QE be required to accept services or enter into a contractual agreement with an SI.

(f) For providers, a hearing pursuant to these rules may be conducted in conjunction with a licensure or certification hearing for the SI.

(11) The result of an appeal is a final order.

(a) The notice of fitness determination becomes the final order as if the SI never requested a hearing in the following situations:

(A) The SI failed to request a hearing in the time allotted in this rule. No other document shall be issued after the notice of fitness determination.

(B) The SI withdraws the request for hearing at any time during the appeal process.

(b) The Authority may make an informal disposition based on the administrative review. The Authority shall issue a final order and new notice of fitness determination. If the resulting fitness determination is an adverse outcome, the appeal shall proceed to a contested case hearing.

(c) The Authority shall issue a dismissal order in the following situations:

(A) The SI may withdraw a hearing request verbally or in writing at any time before the issuance of a final order. A dismissal order due to the withdrawal is effective the date the withdrawal is received by the Authority or OAH. The SI may cancel the withdrawal in writing within 14 calendar days after the date of withdrawal.

(B) The Authority shall dismiss a hearing request when the SI fails to participate in the administrative review. Failure to participate in the administrative review shall result in termination of hearing rights. The order is effective on the due date for participation in the administrative review. The Authority shall review a good cause request to reinstate hearing rights if received in writing by the Authority within 14 calendar days.

(C) The Authority shall dismiss a hearing request when the SI fails to appear at the time and place specified for the contested case hearing. The order is effective on the date scheduled for the hearing. The Authority shall review a good cause request to reinstate hearing rights if received in writing by the Authority within 14 calendar days of the order.

(d) After a hearing, the administrative law judge shall issue a proposed and final order.

(A) If no written exceptions are received by the Authority within 14 calendar days after the service of the proposed and final order, the proposed and final order shall become the final order.

(B) If timely written exceptions to the proposed and final order are received by the Authority, the Authority’s ‘s Director or designee shall consider the exceptions and serve a final order, or request a written response or a revised proposed and final order from the administrative law judge.

(12) Final orders, including dismissal and default orders, are subject to reconsideration or rehearing petitions within 60 calendar days after the final order is served, pursuant to OAR 137-003-0675.

(13) The Authority may provide the QE’s QED with the results of the appeal.

Stat. Auth.: ORS 181.534, 181.537 & 413.042
Stats. Implemented: ORS 181.534, 181.537 & 183.341
Hist.: OHA 22-2012(Temp), f. & cert. ef. 5-7-12 thru 11-2-12; OHA 6-2012, f. 8-9-12, cert. ef. 8-10-12

Notes
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2.) Copyright 2012 Oregon Secretary of State: Terms and Conditions of Use

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