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Oregon Bulletin

October 1, 2013

Department of Veterans’ Affairs, Chapter 274

Rule Caption: Relating to fees that may be charged for ordinary Conservator services.

Adm. Order No.: DVA 7-2013(Temp)

Filed with Sec. of State: 8-29-2013

Certified to be Effective: 8-30-13 thru 1-3-14

Notice Publication Date:

Rules Amended: 274-015-0010

Rules Suspended: 274-015-0010(T)

Subject: The 77th Oregon Legislative Assembly - 2013 Regular Session passed House Bill 2044 which allows the Oregon Department of Veterans Affairs, when appointed as a conservator, to set forth by rule reasonable compensation for ordinary and unusual services. Allows Department to charge up to 7% of income to the estate for ordinary services.

Rules Coordinator: Nicole Hoeft—(503) 373-2386

274-015-0010

Conservatorship Fees

(1) The Director of Veterans’ Affairs (DVA) may charge fees when acting as the Conservator of the estate of a protected person. The fees DVA may charge are as follows:

(a) For ordinary services, up to 7% of income to the estate;

(b) For unusual services:

(A) $ 40 per hour for real property management;

(B) $ Real property appraisal, actual cost;

(C) $ 50 per real property inspection.

(2) The sources of income upon which DVA will impose a fee are as follows:

(a) VA Compensation;

(b) VA Pension;

(c) VA Accumulated Benefits;

(d) VA Death Indemnity Compensation (DIC);

(e) VA Death Pension (Spouse, Child);

(f) VA Education;

(g) VA Rehabilitation;

(h) Social Security;

(i) State Retirement;

(j) Federal Civil Service Retirement (CSA);

(k) Worker’s Compensation;

(l) Railroad Retirement;

(m) Union Pension;

(n) Life Insurance Annuity;

(o) Private Disability Insurance;

(p) Military Retirement;

(q) Wages;

(r) Interest income earned through investments made by the State Treasurer.

(3) As used in applicable Oregon Law and this rule, unless otherwise required by context:

(a) “Ordinary services” means services performed routinely for or on behalf of protected persons for whom DVA acts as Conservator;

(b) “Unusual services” means services provided to protected persons that go beyond being ordinary or routine services. “Unusual services” include, but are not limited to, management of real property, real property appraisals, and real property inspections.

(4) In deciding whether all or a portion of the fees will be waived, the Director shall consider the following:

(a) Whether the protected person has at least $2,000 in cash and investment assets;

(b) Whether, after payment of a fee, the protected person would have sufficient funds to pay all outstanding bills, and have money remaining to pay for such basic needs as food, shelter, clothing, and medical care;

(c) Whether the protected person receives public assistance;

(d) Whether all foreseeable expenses have been taken into account in deciding what the needs of the protected person will be.

Stat. Auth.: ORS 113.085, 406.030, 406.040, 406.050(5), 406.050(6) & 406.100

Stats. Implemented: ORS 406.050, 406.100, 406.110 & 406.120

Hist.: DVA 9-1987, f. 11-25-87, ef. 12-1-87; DVA 4-1991, f. & cert. ef. 7-1-91; DVA 1-2012, f. & cert. ef. 2-22-12; DVA 3-2013(Temp), f. & cert. ef. 7-9-13 thru 1-3-14; DVA 7-2013(Temp), f. 8-29-13, cert. ef. 8-30-13 thru 1-3-14


Rule Caption: Procurement and contracting for the second Oregon Veterans’ Home

Adm. Order No.: DVA 8-2013(Temp)

Filed with Sec. of State: 9-9-2013

Certified to be Effective: 9-9-13 thru 3-1-14

Notice Publication Date:

Rules Adopted: 274-042-0005, 274-042-0010, 274-042-0015, 274-042-0020, 274-042-0025, 274-042-0030, 274-042-0035, 274-042-0040

Subject: The purpose of this temporary rule is to set out the procedures for procurement and contracting with respect to the operations and management of the second Oregon Veterans’ Home.

Rules Coordinator: Laurie Skillman—(503) 373-2016

274-042-0005

Purpose

The purpose of this Division is to establish the procedures for public contracts and procurements by the Department with respect to operation and management of the second Oregon Veterans’ Home. With respect to such public contracts and procurements, the Department is exempt from ORS 279A.140 and 279B.235 pursuant to ORS 408.375. Accordingly, the Department hereby establishes relevant standards, considerations and procedures with respect to such procurement and contracting activities. To the degree, if any, that the provisions of this Division 42 conflict with the provisions of OAR chapter 274, Division 5, the provisions of this Division 42 shall prevail.

Stat. Auth.: ORS 406.005 & 408.375

Stats. Implemented: ORS 408.365 – 408.380

Hist.: DVA 8-2013(Temp), f. & cert. ef. 9-9-13 thru 3-1-14

274-042-0010

Definitions

(1) Terms used in this Division have meanings as defined in ORS chapters 406, 407, 408 and in this rule unless the context requires a different meaning.

(2) As used in these rules, unless otherwise indicated by the context:

(a) “Consultant” means an individual or firm that has been found qualified to do specified types of work for the agency and with whom the Department may contract;

(b) “Competitive Procurement” is a formal procurement method whereby proposals or applicants are requested from a number of sources and the Request for Proposals or other solicitation document is widely published or otherwise distributed;

(c) “Noncompetitive Procurement” is procurement through solicitation of a proposal from only one source or on a first- come first-served basis;

(d) “Small Purchase Procurement Procedures” are those relatively simple and informal procurement methods whereby price or rate quotations are obtained from a number of sources and selection made on the basis of costs and other applicable criteria.

Stat. Auth.: ORS 406.005 & 408.375

Stats. Implemented: ORS 408.365 – 408.380

Hist.: DVA 8-2013(Temp), f. & cert. ef. 9-9-13 thru 3-1-14

274-042-0015

Basic Policy and Approach

(1) The model rules of the Attorney General adopted pursuant to ORS 279A.065 do not apply to the Department with respect to its public contracts and procurements regarding the operation and management of the second Oregon Veterans’ Home. The Department will, however, consider the Attorney General’s model rules for guidance in exercising its contracting and procurement discretion in this area. Other factors that the Department may consider include, but are not limited to:

(a) The subject matter of the proposed contract and appropriate means to ensure successful performance at competitive costs where practical;

(b) Specificity with respect to communication and reservation of rights in any procurement;

(c) Clarity in the naming and description of parties as well as consideration of appropriate preferences;

(c) Ascertaining and obtaining appropriate representations and warranties as to the qualifications of parties;

(d) Specificity with respect to consideration and applicable time periods;

(e) Specificity with respect to terms and covenants, particularly as to standards applicable to the performance of all work or delivery of goods;

(f) Identification of remedies and their suitability to protect Department and program interests;

(g) Identification of insurance and other risk mitigation terms and the appropriate balance of such measures with potential risks and costs;

(h) Requirements for compliance with applicable laws, including those applicable to funding sources and nondiscrimination;

(i) Use of appropriate terms with respect to standard provisions such as governing law, venue, waiver, exhibits, merger, etc.

(j) Applicable statutory provisions.

(2) Contracting and procurement procedures related to the second Oregon Veterans’ Home that cannot practically be established, including with resort to the competitive contractor selection procedures of ORS 279B.050 to 279B.085, will be accomplished in consultation with financial advisors, legal counsel and other appropriate professionals. As a general standard, the Department will seek to employ procedures as are practical to introduce competitive efficiencies and sound selections given the particular circumstances, complex regulations and governing law applicable to the operation and management of a skilled nursing facility such as the second Oregon Veterans’ Home.

(3) In contracting for consultant or other personal services, as well as goods or other services, the Department will consider factors including those described subsection (1) of this rule and employ the following procedures as applicable, except when the Director determines that an emergency or other good cause exists to excuse the Department from one or more of those procedures, such as when the personal services contract involves data processing services

(4) The Department will contract for consultant and other personal services when:

(a) The specialized skills, knowledge, and resources are not available within the Department; when the work cannot be done in a reasonable time within the Department’s own work force;

(b) An independent and impartial evaluation of a situation is required by a consultant or other provider with recognized professional expertise and stature in a field;

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

(d) The Department is directed by statute or otherwise to contract for services; or

(e) The Department otherwise determines that contracting for a consultant or other personal services will best serve the purpose of fulfilling its statutory or other duties. The Department may contract for other goods and services necessary or appropriate for the operation and management of the second Oregon Veterans’ Home. Contracts will be awarded only after the approval of the Director or his/her designee, subject to minimum limit exceptions.

(5) Agreements for the services of a contractor who is a member of the Public Employees’ Retirement System and who is employed in another public department usually will be by interagency agreement. Exceptions may be granted by the Director or his/her designee when such an agreement is impractical and when the work will be done on the contractor’s own time. Such exceptions normally will be processed as a personal services contract.

(6) The Department will seek to ensure competition and include performance standards to the extent it determines to be practicable when awarding personal services contracts or other agreements regarding the operation or management of the second Oregon Veterans’ Home.

(7) In selecting between two or more equally qualified bidders, preference will be given to individuals residing in Oregon and businesses that have an office in Oregon.

Stat. Auth.: ORS 406.005 & 408.375

Stats. Implemented: ORS 408.365 – 408.380

Hist.: DVA 8-2013(Temp), f. & cert. ef. 9-9-13 thru 3-1-14

274-042-0020

Procurement Method

(1) From September 9, 2013 through December 31, 2013, the Department will comply with the provisions of subsections (2) through (7) of this rule. Beginning January 1, 2014, the Department will comply with the provisions of subsections (8) through (13) of this rule.

(2) The department will comply with the requirements of ORS 200.035.

(3) The department may allow for preference of or limit competition for a public contract for goods and services or for any other public contract that does not exceed $75,000, to contracting entities owned or controlled by persons described in ORS 279A.100(1).

(4) The department may participate in, sponsor, conduct, or administer cooperative procurements pursuant to ORS 279A.200 through 279A.225.

(5) Small purchase procurement procedures described in OAR 274-042-0030 may be used for the procurement of goods and services that does not exceed $5,000 per agreement per fiscal year. Price or rate quotations will be sought from at least three qualified sources, if practical. This procedure does not govern program solicitations.

(6) Competitive procurement procedures as outlined in OAR 274-042-0025 will be used for goods and services, as well as personal service contracts that do not exceed $5,000 per agreement per fiscal year. Competitive procurement procedures may be used for contracts that do not exceed $5,000 whenever the Department determines that it would be prudent and advantageous to do so. Exceptions may be granted to accommodate one or more of the conditions described in section (3) of this rule with the approval of the Director.

(7) Noncompetitive procurement procedures may be used for goods and services, as well as personal services contracts if:

(a) The item or service is available only from a single source, or the sole source has special skills or special characteristics that are reasonably only available from that source or based upon the particular provider’s expertise, experience or situation;

(b) Public need or emergency weighs against the delay incurred by competitive solicitation;

(c) After solicitation of a number of sources, competition is determined inadequate; or

(d) The contract is a renewal of an existing contract, subject to approval by all required parties.

(8) The department will comply with the requirements of ORS 200.035.

(9) The department may allow for preference of or limit competition for a public contract for goods and services or for any other public contract that does not exceed $75,000, to contracting entities owned or controlled by persons described in ORS 279A.100(1).

(10) The department may participate in, sponsor, conduct, or administer cooperative procurements pursuant to ORS 279A.200 through 279A.225.

(11) Small purchase procurement procedures described in OAR 274-042-0030 may be used for the procurement of goods and services that does not exceed $10,000 per agreement per fiscal year. Price or rate quotations will be sought from at least three qualified sources, if practical. This procedure does not govern program solicitations.

(12) Competitive procurement procedures as outlined in OAR 274-042-0025 will be used for goods and services, as well as personal service contracts that do not exceed $10,000 per agreement per fiscal year. Competitive procurement procedures may be used for contracts that do not exceed $10,000 whenever the Department determines that it would be prudent and advantageous to do so. Exceptions may be granted to accommodate one or more of the conditions described in section (3) of this rule with the approval of the Director.

(13) Noncompetitive procurement procedures may be used for goods and services, as well as personal services contracts if:

(a) The item or service is available only from a single source, or the sole source has special skills or special characteristics that are reasonably only available from that source or based upon the particular provider’s expertise, experience or situation;

(b) Public need or emergency weighs against the delay incurred by competitive solicitation;

(c) After solicitation of a number of sources, competition is determined inadequate; or

(d) The contract is a renewal of an existing contract, subject to approval by all required parties.

Stat. Auth.: ORS 406.005 & 408.375

Stats. Implemented: ORS 408.365 – 408.380

Hist.: DVA 8-2013(Temp), f. & cert. ef. 9-9-13 thru 3-1-14

274-042-0025

Competitive Procurement Procedures

(1) A request for proposals (RFP) or similar solicitation (collectively, RFP) will be prepared for the contracts for which competitive procurement procedures will be used. The RFP will normally include, at a minimum, the following information:

(a) Date and hour by which proposals or other responses must be received;

(b) Return address where proposals or other responses must be received;

(c) Description of work;

(d) Evaluation criteria; and

(e) Department project manager’s name, address and phone number.

(2) The Department will notify persons who have indicated a desire to be notified of contracting opportunities or that have indicated expertise in the subject area, and any other persons deemed necessary, of projects for which an RFP may be issued. Notification of the project for which an RFP may be issued may be announced to the public and may be advertised in appropriate periodicals. The RFP will be sent to all persons responding to the notification in the required manner.

(3) Exceptions to section (2) of this rule may be granted by the Director or his/her designee when the RFP is preceded by a request for information (RFI). When an RFI is widely distributed to solicit information and interest in a proposed contract, eligibility for the subsequent RFP may be limited to parties responding to the RFI.

(4) Proposals will be evaluated in accordance with the evaluation criteria included in the RFP. An objective rating system will be used in the evaluation process. Records pertaining to the procurement process and selection of the consultant shall be maintained in the Department’s files.

(5) Exceptions to the notification procedures in sections (2) and (3) of this rule may be granted by the Director or his/her designee if warranted by time, cost, or other relevant considerations.

Stat. Auth.: ORS 406.005 & 408.375

Stats. Implemented: ORS 408.365 – 408.380

Hist.: DVA 8-2013(Temp), f. & cert. ef. 9-9-13 thru 3-1-14

274-042-0030

Small Purchase Procurement Procedures

(1) A statement of work and request for price or rate quotation shall be developed and submitted to prospective contractors with which the Department has had previous successful experience or which are believed by the Department to be qualified to offer the needed services. The statement of work and request for quotation may be communicated orally or in writing.

(2) At least three price quotations shall be obtained from qualified sources unless there are fewer than three qualified sources interested in the contract.

(3) Contractor selection shall be made on the basis of the cost estimate and other pertinent information such as qualifications, experience, reference check and project approach.

Stat. Auth.: ORS 406.005 & 408.375

Stats. Implemented: ORS 408.365 – 408.380

Hist.: DVA 8-2013(Temp), f. & cert. ef. 9-9-13 thru 3-1-14

274-042-0035

Contracting Procedure and Responsibility

The procedures for screening and selection of providers of goods or services, as well as personal service contractors, relating the responsible parties to their actions, are as follows:

(1) Contractor. Action required: Submit qualifications, credentials, costs estimates, project approach and other pertinent information relating to the project announcement.

(2) Department assigned personnel (may be contract officer). Action required:

(a) Determine that work on a project requires the services of a consultant;

(b) Prepare cost estimate for contract;

(c) Determine type of selection and screening process to be used to select a contractor and obtain approval of Director or his/her designee to begin contracting process for consultant services;

(d) Notify prospective contractors of matters for which competitive procurement or small purchase procurement procedures will be used as provided by OAR 274-042-0025 or 274-042-0030;

(e) Complete screening and selection procedure and tentatively select a contractor;

(f) Where different from assigned personnel, forward draft of contract to the Department’s contract officer for approval;

(g) Forward proposed contract that totals $100,000 or more to Attorney General for review and approval of legal sufficiency, unless contract form is subject to a group exemption and has previously been approved by Attorney General. The Department will forward proposed contracts for lesser amounts to the Attorney General for review where particular issues merit such review or there is an expectation that the contract amount may subsequently be amended to an aggregate amount at or over $100,000; and

(h) When notified by the contract officer, authorize contractor to begin work.

(3) Director or designee, (may be contract officer). Action required:

(a) Approves/disapproves contract, particularly scope and budget, as well as use of the contracting process;

(b) Makes direct and emergency appointments and grants exceptions as necessary and in accordance with Department rules;

(c) Approves/disapproves all subsequent amendments; and

(d) Signs approved contracts.

(4) Department contract officer. Action required:

(a) Reviews contract and selection process for compliance with Department rules and other applicable state and federal rules and regulations;

(b) Maintains a file on the selection and screening of applicants for consultant services.

(c) Obtains contractor’s signature on approved contract;

(d) Forwards one copy of final approved contract to contractor and retains a copy of the contract with original signatures for the Department’s contract file;

(e) Notifies contract manager (if different from contract officer) when contractor may begin work.

Stat. Auth.: ORS 406.005 & 408.375

Stats. Implemented: ORS 408.365 – 408.380

Hist.: DVA 8-2013(Temp), f. & cert. ef. 9-9-13 thru 3-1-14

274-042-0040

Discretionary Action

(1) As it deems necessary or appropriate for its purposes, the Department may waive or deviate from the foregoing provisions of this Division to the extent the Department’s statutory authority to employ its own procurement and contracting procedures allow. Factors that the Department may consider in waiving or deviating from such provision or in determining what other procurement or contracting procedures it will apply in a particular circumstance may include, but are not limited to:

(a) Serving program or other Department purposes;

(b) Collaborating with reputable and effective partners;

(c) Leveraging resources, experience, or services;

(d) Efficiently and effectively using department resources;

(e) Addressing exigent or unusual circumstances;

(f) Advancing the Department’s interests in the appropriate operation or management of the second Oregon Veterans’ Home;

(g) Promoting the coordination of relevant skills, resources, and efforts;

(h) Educating persons and entities concerning services needs or opportunities for veterans; and

(i) Ensuring compliance with department or other applicable standards.

(2) Included within this authority to waive or deviate from such procedures, or to apply other procurement or contracting procedures in particular circumstances, the Department may amend an existing contract without additional competition, inter alia, to extend its term, to modify the compensation, to delete services, or to add any services or goods within the scope of the relevant procurement provided the amendment, in the Department’s determination, is consistent with relevant factors identified in this Division or consistent with factors otherwise relevant to such action.

Stat. Auth.: ORS 406.005 & 408.375

Stats. Implemented: ORS 408.365 – 408.380

Hist.: DVA 8-2013(Temp), f. & cert. ef. 9-9-13 thru 3-1-14

Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2012.

2.) Copyright 2013 Oregon Secretary of State: Terms and Conditions of Use

Oregon Secretary of State • 136 State Capitol • Salem, OR 97310-0722
Phone: (503) 986-1523 • Fax: (503) 986-1616 • oregon.sos@state.or.us

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