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PARKS AND RECREATION DEPARTMENT

 

DIVISION 146

GENERAL PROVISIONS RELATED TO PUBLIC CONTRACTING

736-146-0010

Application

The Oregon Parks and Recreation Department adopts OAR 137-046-0100 through 137-046-0480 (effective January 1, 2008), the Department of Justice Model Rules, General Provisions Related to Public Contracting including the additional provision provided in these rules.

Stat. Auth.: ORS 279A.070
Stats. Implemented: ORS 279A.070 & 279A.065
Hist.: PRD 1-2007, f. & cert. ef. 2-7-07; PRD 12-2008, f. & cert. ef. 12-15-08; PRD 16-2009, f. & cert. ef. 12-4-09

736-146-0012

Definitions

(1) “Contract Administration” means all functions related to a given contract between OPRD and a contractor from the time the contract is awarded until the work is completed and accepted or the contract is terminated, payment has been made, and disputes have been resolved.

(2) "Designated Procurement Officer" (DPO) means the individual designated and authorized by the Director of the Oregon Parks and Recreation Department to perform certain procurement functions described in these rules.

Stat. Auth.: ORS 279A.065(5)(a) & 279A.070
Stats. Implemented: ORS 279A.050; 279A.065(5); 279A.070 & 279A.140
Hist.: PRD 1-2007, f. & cert. ef. 2-7-07; PRD 12-2008, f. & cert. e.f 12-15-08; PRD 16-2009, f. & cert. ef. 12-4-09

736-146-0015

Special Approvals for Public Contracts When Required

(1) When Attorney General legal sufficiency approval is required under ORS 291.047, the Oregon Parks and Recreation Department (OPRD) must seek legal approval.

(2) When OPRD contracts for services normally provided by another contracting agency or for services for which another contracting agency has statutory responsibilities, OPRD is required to seek the other contracting agency's approvals. Examples of these special approvals include, but are not limited to:

(a) Oregon Department of Administrative Services (DAS), State Services Division, Risk Management for providing tort liability coverage;

(b) DAS, State Services Division, Publishing and Distribution for printing services;

(c) DAS, State Data Center for telecommunications services;

(d) Office of the Treasurer, Debt Management Division, for bond counsel and financial advisory services (bond counsel services also require the approval of the Attorney General);

(e) DAS Enterprise Information Strategy and Policy Division for information-system related services.

(3) The Attorney General has sole authority to contract for attorney services. Exceptions may be granted in writing on a case-by-case basis only by the Attorney General.

(4) The Secretary of State Audits Division has sole authority to contract for financial auditing services. Exceptions may be granted in writing on a case-by-case basis only by the Secretary of State Audits Division.

Stat. Auth.: ORS 279A.065(5)(a), 279A.070
Stats. Implemented: ORS 279A.140(2)
Hist.: PRD 1-2007, f. & cert. ef. 2-7-07; PRD 12-2008, f. & cert. e.f 12-15-08; PRD 16-2009, f. & cert. ef. 12-4-09

736-146-0020

Reporting Requirements for Personal Services Contracts

The Department of Administrative Services (DAS) State Procurement Office maintains an electronic reporting system called the Oregon Procurement Information Network (ORPIN) and a report form for reporting personal services contracts. OPRD must submit this report form to the DAS State Procurement Office for each contract and subsequent contract amendment. The report form must include OPRD's name, not-to-exceed amount of the contract, the name of the contractor, the duration of the contract, and its basic purpose. OPRD will use the OPRIN system for reporting personal services contracts, including architectural, engineering and land surveying services contracts and related services contracts pursuant to ORS 729A.140(2)(h)(A)(I) unless directed otherwise by DAS State Procurement Office.

Stat. Auth.: ORS 279A.065(5)(a) & 279A.070
Stats. Implemented: ORS 279A.140(h)(A)
Hist.: PRD 1-2007, f. & cert. ef. 2-7-07; PRD 12-2008, f. & cert. e.f 12-15-08; PRD 16-2009, f. & cert. ef. 12-4-09

736-146-0050

Contract Administration; General Provisions

(1) OPRD conducts procurements for goods or services, including architectural, engineering, land surveying and related services, and public improvements, pursuant to ORS 279A.050 and ORS 279A.075.

(2) OPRD must appoint, in writing, a contract administrator as an OPRD representative for each contract. The contract administrator may delegate in writing a portion of the contract administrator's responsibilities to a technical representative for specific day-to-day administrative activities for each contract.

(3) OPRD must maintain a procurement file for procurements exceeding the intermediate procurement threshold for goods or services; the informal selection threshold for architectural, engineering, and land surveying services; and the intermediate procurement threshold for public improvements pursuant to OAR 137-047-0270, 137-048-0210, and 137-049-0160, respectively:

(a) Each procurement file must contain:

(A) Documentation required by law and the DOJ Model Rules;

(B) An executed contract, if awarded;

(b) OPRD must maintain procurement files, including all documentation, for a period not less than six years, except for 10 years beyond each contract’s expiration date for architectural, engineering, and land surveying services and related services or for another period in accordance with another provision of law.

Stat. Auth.: ORS 279A.065(5)(a) & 279A.070
Stats. Implemented: ORS 279A.050, 279A.065(5), 279A.070, 279A.140
Hist.: PRD 1-2007, f. & cert. ef. 2-7-07; PRD 12-2008, f. & cert. e.f 12-15-08; PRD 16-2009, f. & cert. ef. 12-4-09

736-146-0060

Payment Authorization of Cost Overruns for Goods or Services including Architectural, Engineering and Land Surveying Services and Related Services Contracts

(1) Payments on contracts that exceed the maximum contract consideration require approval from OPRD's designated procurement officer and may require approval from the Department of Justice pursuant to OAR 137-045-0010 et seq. Approval may be provided if there is compliance with all of the following:

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

(b) The original contract has not expired, been terminated, or been reinstated under OAR 736-147-0070 as of the date written approval to increase the contract amount is granted.

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

(d) The cost overrun arose out of extraordinary circumstances or conditions encountered in the course of contract performance that were reasonably not anticipated at the time the original contract or the most recent amendment, if any, was signed. Such circumstances include but are not limited to cost overruns that:

(A) Address emergencies arising in the course of the contract that require prompt action to protect the work already completed.

(B) Comply with official or judicial commands or directives issued during contract performance.

(C) 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 no greater than the prescribed hourly rate or the reasonable value of the additional work or performance rendered.

(f) Except for the cost overrun, the contract and its objective are within the statutory authority of OPRD and OPRD currently has funds available for payment under the contract.

(g) An officer or employee of OPRD has presented a written report to OPRD's designated procurement officer within 60 days of the discovery of the overrun that states the reasons for the cost overrun and demonstrates to the satisfaction of OPRD's designated procurement officer that the original contract and the circumstances of the overrun satisfy the conditions stated above.

(h) OPRD's designated procurement officer approves in writing the payment of the overrun, or such portion of the overrun amount as OPRD's designated procurement officer determines may be paid consistent with the conditions of this rule. If OPRD's designated procurement officer has signed the contract, or has immediate supervisory responsibility over performance of the contract, that person must designate an alternate delegate to grant or deny written approval of payment.

(2) OPRD must obtain an Attorney General's approval of the contract amendment, if such approval is required by ORS 291.047, before making any overrun payment.

Stat. Auth.: ORS 279A.065(5)(a) & 279A.070
Stats. Implemented: ORS 279A.065(5)(a), 279A.070 & 279A.140
Hist.: PRD 1-2007, f. & cert. ef. 2-7-07; PRD 12-2008, f. & cert. e.f 12-15-08; PRD 16-2009, f. & cert. ef. 12-4-09

736-146-0070

Ethics in Public Contracting -- Policy

Oregon public contracting is a public trust. OPRD and contractors involved in public contracting must safeguard this public trust.

Stat. Auth.: ORS 244.010 - 244.400, 279A.065(5)(a) & 279A.070
Stats. Implemented: ORS 244.010 - 244.400, 279A.065(5)(a), 279A.070 & 279A.140
Hist.: PRD 1-2007, f. & cert. ef. 2-7-07; PRD 12-2008, f. & cert. e.f 12-15-08; PRD 16-2009, f. & cert. ef. 12-4-09

736-146-0080

Ethics in Selection and Award of Public Contracts

(1) OPRD officers, employees or agents involved in the process of the selection and award of public contracts must carefully review the provisions of ORS 244.040.

(2) OPRD officers, employees and agents are prohibited from soliciting or receiving gifts, which means something of economic value given to a public official or the public official's relative without an exchange of valuable consideration of equivalent value, including the full or partial forgiveness of indebtedness, and which is not extended to others who are not public officials or the relatives of public officials on the same terms and conditions; and something of economic value given to a public official or the public official's relative for valuable consideration less than that required from others who are not public officials.

(3) OPRD officers, employees and agents are prohibited from using their official position for personal or financial gain.

(4) OPRD officers, employees and agents are prohibited from using confidential information gained in the course of the screening and selection procedures for personal or financial gain.

Stat. Auth.: ORS 244.010 - 244.400, 279A.065(5)(a) & 279A.070
Stats. Implemented: ORS 244.010 - 244.400, 279A.065(5)(a), 279A.070 & 279A.140
Hist.: PRD 1-2007, f. & cert. ef. 2-7-07; PRD 12-2008, f. & cert. e.f 12-15-08; PRD 16-2009, f. & cert. ef. 12-4-09

736-146-0090

Ethics in Appointments to Advisory Committees

OPRD's designated procurement officer or a delegate may appoint procurement advisory committees to assist with specifications, procurement decisions, and structural change that can take full advantage of evolving procurement methods as they emerge within various industries, while preserving competition pursuant to ORS 279A.015.

Stat. Auth.: ORS 279A.065(5)(a) & 279A.070
Stats. Implemented: ORS 279A.065(5)(a), 279A.070 & 279A.140
Hist.: PRD 1-2007, f. & cert. ef. 2-7-07; PRD 12-2008, f. & cert. e.f 12-15-08; PRD 16-2009, f. & cert. ef. 12-4-09

736-146-0100

Non-retaliation

Retaliation against anyone who complies with the Public Contracting Code and rules in this division related to ethics is prohibited. Any officer, employee or agent of OPRD or contractor who engages in retaliation action will be subject to penalties pursuant to ORS 279A.990, 244.350 to 244.400 and related rules. Also, any contractor who engages in a retaliation action may be debarred.

Stat. Auth.: ORS 279A.065(5)(a) & 279A.070
Stats. Implemented: ORS 279A.065(5)(a), 279A.070 & 279A.140
Hist.: PRD 1-2007, f. & cert. ef. 2-7-07; PRD 12-2008, f. & cert. e.f 12-15-08; PRD 16-2009, f. & cert. ef. 12-4-09

736-146-0110

Ethics in Specification Development

(1) OPRD and contractors must not develop specifications that primarily benefit a contractor, directly or indirectly, to the detriment of OPRD or the best interest of the state.

(2) OPRD must not develop specifications that inhibit or tend to discourage public contracting with qualified rehabilitation facilities (QRF) under ORS 279.835 through 279.855 and OAR 125-055-0005 through 125-055-0045 where those specifications inhibit or tend to discourage the acquisition of QRF-produced goods or services without reasonably promoting the satisfaction of bona fide, practical procurement needs of OPRD.

(3) OPRD and contractors must not develop specifications that inhibit or tend to discourage public contracting under other public procurement laws or policies of OPRD.

Stat. Auth.: ORS 279A.065(5)(a) & 279A.070
Stats. Implemented: ORS 279A.065(5)(a), 279A.070 & 279A.140
Hist.: PRD 1-2007, f. & cert. ef. 2-7-07; PRD 12-2008, f. & cert. e.f 12-15-08; PRD 16-2009, f. & cert. ef. 12-4-09

736-146-0120

Ethics in Sole Source

OPRD may not select a sole-source procurement pursuant to ORS 279B.075 and avoid a competitive procurement if the purpose of the selection is to primarily benefit the contractor, directly or indirectly, to the detriment of OPRD or the best interest of the state.

Stat. Auth.: ORS 279A.065(5)(a) & 279A.070
Stats. Implemented: ORS 279A.065(5)(a), 279A.070, 279B.075 & 279A.140
Hist.: PRD 1-2007, f. & cert. ef. 2-7-07; PRD 12-2008, f. & cert. e.f 12-15-08; PRD 16-2009, f. & cert. ef. 12-4-09

736-146-0130

Fragmentation

A procurement may not be artificially divided or fragmented so as to constitute a small procurement, pursuant to ORS 279B.065, or an intermediate procurement, pursuant to ORS 279B.070.

Stat. Auth.: ORS 279A.065(5)(a) & 279A.070
Stats. Implemented: ORS 279A.065(5)(a), 279A.070 & 279B.065
Hist.: PRD 1-2007, f. & cert. ef. 2-7-07; PRD 12-2008, f. & cert. e.f 12-15-08; PRD 16-2009, f. & cert. ef. 12-4-09

736-146-0140

Ethics in OPRD and Contractor Communications

(1) Research Phase. OPRD is encouraged to conduct research with contractors who can meet the state's needs. This research includes but is not limited to:

(a) Meetings;

(b) Industry presentations; and

(c) Demonstrations with contractors that, in OPRD's discretion, may be able to meet OPRD's needs.

(2) OPRD must document the items discussed during the research phase of solicitation development. The research phase ends the day of a solicitation release or request for a quote pursuant to an intermediate procurement, unless the solicitation or intermediate procurement provides for a different process that permits on-going research.

(3) Solicitation and Contracting Phase. Any communication between OPRD and contractors regarding a solicitation, that occurs after the solicitation release or request for a quote and before the award of a contract, must only be made within the context of the solicitation document or intermediate procurement requirements.

(4) Communication may allow for discussions, negotiations, addenda, contractor questions, and OPRD's answers to contractor questions about terms and conditions, specifications, amendments, or related matters. During this phase, telephone conversations and meetings must be documented in the procurement file. Written inquiries regarding the solicitation should be responded to by OPRD in writing.

(5) A record of all material communications regarding the solicitation by interested contractors must be made a part of the procurement file pursuant to OAR 736-146-0030.

Stat. Auth.: ORS 279A.065(5)(a) & 279A.070
Stats. Implemented: ORS 279A.065(5)(a), 279A.070 & 279A.140
Hist.: PRD 1-2007, f. & cert. ef. 2-7-07; PRD 12-2008, f. & cert. e.f 12-15-08; PRD 16-2009, f. & cert. ef. 12-4-09

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