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SECRETARY OF STATE, BUSINESS SERVICES DIVISION
SECRETARY OF STATE, BUSINESS SERVICES DIVISION
DIVISION 1
PROCEDURAL RULES
167-001-0005
Model Rules of Procedure
Pursuant to ORS 183.341, the Secretary of State adopts for use by its Business Services Division the Attorney General's Model Rules of Procedure as amended and effective on January 1, 2010.
[ED. NOTE: The full text of the Attorney General’s Model Rules of Procedure is available from the Attorney General or Business Services Division.]
Stat. Auth.: ORS 183
Stats. Implemented: ORS 183
Hist.: SS 1-1992, f. & cert. ef. 8-17-92; BSD 1-2005(Temp), f. 2-25-05, cert. ef. 3-1-05 thru 8-28-05; BSD 2-2005, f. & cert. ef. 6-15-05; BSD 1-2010, f. & cert. ef. 7-7-10
167-001-0007
Application of Rules
These OAR chapter 167, division 001 rules apply to public contracts of the Secretary of State first advertised, but if not advertised then entered into, on or after January 1, 2010.
Stat. Auth.: ORS 279A.065 & 279A.070
Stats. Implemented: ORS 279A.020, 279A.030 & 279A.065
Hist.: BSD 1-2005(Temp), f. 2-25-05, cert. ef. 3-1-05 thru 8-28-05; BSD 2-2005, f. & cert. ef. 6-15-05; BSD 1-2010, f. & cert. ef. 7-7-10
167-001-0010
Notice of Proposed Rulemaking
Prior to the adoption, amendment or repeal of any permanent rule, the Secretary of State, Business Services Division, shall give notice of the intended action:
(1) In the Secretary of State's Bulletin referred to in ORS 183.360(3) at least 21 days prior to the effective date of the intended action.
(2) By mailing a copy of the notice to persons on the Secretary of State's Business Services Division mailing list established pursuant to ORS 183.335(8) at least 28 days before the effective date of the rule; and
(3) By mailing or furnishing a copy of the notice to:
(a) The Capitol Press Room;
(b) Associated Press; and
(c) Attorney General.
Stat. Auth.: ORS 183
Stats. Implemented: ORS 183
Hist.: SS 2-1992, f. & cert. ef. 10-13-92; BSD 1-1995, f. & cert. ef. 5-17-95; BSD 1-2005(Temp), f. 2-25-05, cert. ef. 3-1-05 thru 8-28-05; BSD 2-2005, f. & cert. ef. 6-15-05
167-001-0020
Purpose
The Divisions of the Oregon Secretary of State (Secretary) occasionally require the services of an outside party to accomplish all or part of a project. The Secretary intends that the Attorney General's Model Public Contracting Rules, Chapter 137, will govern all Secretary of State public contracting. It is the intent of the Secretary that these Model Rules will be accepted by default in accordance with the provisions of ORS 279A.065(4).
Stat. Auth.: ORS 279A.065
Stats. Implemented: ORS 279A.065
Hist.: SS 3-1992, f. & cert. ef. 10-13-92; BSD 1-2005(Temp), f. 2-25-05, cert. ef. 3-1-05 thru 8-28-05; BSD 2-2005, f. & cert. ef. 6-15-05
167-001-0030
Basic Policy
(1) The Secretary will contract for personal services when the specialized skills, knowledge or resources are not available within the Secretary of State's office; when the work cannot be done in a reasonable time with the Secretary's own work force; when it will be less expensive to contract for the work; or when an independent and impartial evaluation of a situation by recognized professionals is required. Contracts will be granted only after approval of the Secretary or his/her designee.
(2) Agreement for services of a contractor who is a member of the Public Employees' Retirement System and who is employed in another public agency may be by interagency agreement.
(3) For purposes of the Secretary, personal services means the services or type of services performed under a personal services contract. A contract for personal services means a contract, or a member of a class of contracts, other than a contract for the services of an Architect, Engineer, Land Surveyor or Provider of Related Services, which primary purpose is to acquire 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 consultant, broadcaster, artist (including a photographer, filmmaker, painter, weaver or sculptor) or consultant.
(4) Before conducting a procurement for certain Services exceeding $250,000.00 in value, the Secretary may be required to complete, a Feasibility Determination or a Cost Analysis under OAR 137-047-0250.
Stat. Auth.: ORS 279A.065 & 279A.070
Stats. Implemented: ORS 279A.015
Hist.: SS 3-1992, f. & cert. ef. 10-13-92; BSD 1-2005(Temp), f. 2-25-05, cert. ef. 3-1-05 thru 8-28-05; BSD 2-2005, f. & cert. ef. 6-15-05; BSD 1-2010, f. & cert. ef. 7-7-10
167-001-0040
Definitions
(1) "Competitive Negotiations" (Formal bidding) is a procurement method whereby proposals are requested from a number of sources and the Request for Proposals is publicized.
(2) "Non-Competitive Negotiation" (sole source) is a procurement through solicitation of a proposal from only one source.
(3) "Small Purchase Procedures" (informal bidding) are those relatively simply and informal procurement methods whereby price and rate quotations are obtained from at least three sources and selection is made on the basis of cost and other applicable criteria.
Stat. Auth.: ORS 279.051
Stats. Implemented: ORS 279.051
Hist.: SS 3-1992, f. & cert. ef. 10-13-92; BSD 1-1997(Temp), f. 11-26-97, cert. ef. 12-1-97 thru 3-31-98; BSD 1-1998, f. 4-2-98, cert. ef. 4-3-98
167-001-0050
Procurement Method
(1) Small purchase procedures may be used for the procurement of services costing not more than $75,000. Price or rate quotations shall be obtained from at least three qualified sources.
(2) Competitive negotiation shall be used for personal service contracts in excess of $75,000 per agreement per fiscal year and may be used for contracts of less than $75,000. Exceptions may be granted to accommodate one or more of the conditions described in section (3) of this rule with the approval of the Secretary.
(3) Non-competitive negotiation may be used for contracts if:
(a) The item or service is available only from a single source, or the sole source has special skills that are only available based upon his/her expertise or situation;
(b) Public need or emergency advises against a delay incident to competitive solicitation;
(c) After solicitation of a number of sources, competition is determined inadequate;
(d) The contract is a renewal of an existing contract, subject to approval by all required parties.
Stat. Auth.: ORS 279.051
Stats. Implemented: ORS 279.051
Hist.: SS 3-1992, f. & cert. ef. 10-13-92; BSD 2-1997(Temp) f. 11-26-97, cert. ef. 12-1-97 thru 3-31-98; BSD 2-1998, f. 4-2-98, cert. ef. 4-3-98
167-001-0060
Competitive Negotiation Procedures
(1) A Request for Proposal (RFP) shall be prepared for contracts for which competitive negotiation procedures will be used. The RFP shall include, at a minimum, the following information:
(a) Date and hour which proposals must be received;
(b) Description of work;
(c) Evaluation specific to contract criteria.
(2) Notification of the availability of the RFP shall be advertised in newspapers or periodicals as determined by the Board or Division.
(3) Proposals shall be evaluated in a manner consistent with the evaluation criteria included in the RFP by the Secretary or committee thereof. A written document stating why the selection was made will be on file at the Secretary of State's business office. These are public records and may be reviewed upon request.
(4) Sections (2) and (3) of this rule may be excepted from these competitive negotiation procedures if the Secretary determines it is warranted by time or cost considerations.
Stat. Auth.: ORS 279.051
Stats. Implemented: ORS 279.051
Hist.: SS 3-1992, f. & cert. ef. 10-13-92
167-001-0065
Small Purchases
The Secretary will conduct small purchases as defined in ORS 279B.065 as follows:
(1) Any procurement of goods or services not exceeding $5,000 may be awarded by using non-competitive negotiations.
(2) Any small procurement may be amended in accordance with OAR 137-047-0800, but the cumulative amendments shall not increase the total contract price to greater than $6,000.00.
(3) A procurement may not be artificially divided or fragmented so as to constitute a small procurement, pursuant to ORS 279B.065(2).
Stat. Auth.: ORS 279A.065
Stats. Implemented: ORS 279A.065
Hist.: BSD 1-2005(Temp), f. 2-25-05, cert. ef. 3-1-05 thru 8-28-05; BSD 2-2005, f. & cert. ef. 6-15-05
167-001-0070
Notification of the Advocate for Minority, Women, and Emerging Small Business
The Secretary of State will comply with the requirements of ORS 200.035.
Stat. Auth.: ORS 279A.065 & 279A.070
Stats. Implemented: ORS 279A.100 & 279A.105
Hist.: SS 3-1992, f. & cert. ef. 10-13-92; BSD 1-2005(Temp), f. 2-25-05, cert. ef. 3-1-05 thru 8-28-05; BSD 2-2005, f. & cert. ef. 6-15-05
167-001-0081
Reinstatement of Expired Contracts
(1) The Secretary of State, Business Services Division Chief Procurement Officer may approve reinstatement of an expired Personal Services Contract if the following conditions are met:
(a) Failure to renew or extend the Personal Services Contract would prevent the Secretary from carrying out the duties of the Secretary;
(b) Written request for reinstatement is submitted to the Business Services Division Chief Procurement Officer for approval within ninety (90) days after the expiration of the original contract;
(c) A written statement justifying the Contractor’s completion of the work after expiration of the contract, there is no change in the Statement of Work, and either;
(A) The reinstatement is exclusively for the purpose of permitting completion of the work or services for no additional compensation; or
(B) When services are of a continuing or repetitive nature which are compensated at an hourly, daily or similar periodic rate, the reinstatement either:
(i) Does not increase the rate of compensation; or
(ii) Does not increase the rate of compensation so as to exceed the rate of the increase determined by comparing the Portland, Oregon Metropolitan Area Consumer Price Index (all items) published immediately prior to the date the original contract was established with the same Index published immediately prior to the date of the reinstatement and extension.
(2) When a Personal Services Contract is reinstated pursuant to this section, the Secretary may compensate the Contractor, at the rate of compensation established in the original contract, for work performed in the interim between the expiration of the original contract and the execution and approval(s) of the extension or amendment.
(3) This rule authorizes only one reinstatement of a Personal Services Contract.
(1) No reinstatement of a Personal Services Contract shall modify the original contract except with respect to the time for performance.
(2) If the reinstatement of a Personal Services Contract pursuant to this rule raises the aggregate amount of compensation to a level that requires Attorney General approval under ORS 291.045 and 291.047, the Secretary shall obtain such approval or ratification before the extension becomes binding and before any services may be performed under the reinstated contract.
Stat. Auth.: ORS 279A.065 & 279A.070
Stats. Implemented: ORS 279A.050, 279A.065, 279A.070 & 279A.140
Hist.: BSD 1-2005(Temp), f. 2-25-05, cert. ef. 3-1-05 thru 8-28-05; BSD 2-2005, f. & cert. ef. 6-15-05; BSD 1-2010, f. & cert. ef. 7-7-10
167-001-0085
Legal Sufficiency Review
Unless exempted by the Attorney General under ORS 291.045 and 291.047, all personal service (including architectural and engineering services contracts) and information technology contracts, and all other public contracts in excess of $150,000.00, will require legal sufficiency review by the Department of Justice.
Stat. Auth.: ORS 291.045 & 291.047
Stats. Implemented: ORS 291.045 & 291.047
Hist.: BSD 1-2005(Temp), f. 2-25-05, cert. ef. 3-1-05 thru 8-28-05; BSD 2-2005, f. & cert. ef. 6-15-05; BSD 1-2010, f. & cert. ef. 7-7-10
167-001-0300
Electronic Public Notice
The Secretary may publish the advertisement (notice) for Offers on the Department of Administrative Services ORPIN Electronic Procurement System instead of publishing notice in a newspaper of general circulation as required by ORS 279B.055(4)(b). In addition, the Secretary may publish the advertisement on the Secretary's web-page.
Stat. Auth.: ORS 279A.065 & 279A.070
Stats. Implemented: ORS 279A.065, 279A.070 & 279B.055
Hist.: BSD 1-2005(Temp), f. 2-25-05, cert. ef. 3-1-05 thru 8-28-05; BSD 2-2005, f. & cert. ef. 6-15-05
167-001-0360
Purchases Through Federal Programs
(1) The Secretary may purchase supplies 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 Secretary has federal authorization to purchase through the program.
(2) To purchase through a Federal Program, the Secretary must document in its contract file that:
(a) The acquisition smeets the Secretary’s requirements;
(b) The price and other terms of the acquisition are advantageous to the Secretary;
(c) No other DAS price agreement for the supply or services exists, based upon the Secretary’s review of the contracts on ORPIN;
(d) Preference programs, including but not limited to the Inmate Work Program of ORS 279A.025(2)(i);
(e) The Secretary may add to its contract such contract terms and conditions as are required by State statute 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 279A.065 & 279A.070
Stats. Implemented: ORS 279A.180
Hist.: BSD 1-2005(Temp), f. 2-25-05, cert. ef. 3-1-05 thru 8-28-05; BSD 2-2005, f. & cert. ef. 6-15-05; BSD 1-2010, f. & cert. ef. 7-7-10
167-001-0600
Policy
These rules supplement and do not replace ORS 244.010 through ORS 244.400, for the purpose of applying the policy of ORS 244.010 to Oregon Secretary of State (Secretary) public contracting under the Public Contracting Code and related rules. The Secretary's public contracting is a public trust. The Secretary and contractors involved in public contracting must safeguard this public trust.
Stat. Auth.: ORS 279A.065(5)(a) & 279A.070
Stats. Implemented: ORS 279A.065(5)(a), 279A.070 & 279A.140
Hist.: BSD 1-2005(Temp), f. 2-25-05, cert. ef. 3-1-05 thru 8-28-05; BSD 2-2005, f. & cert. ef. 6-15-05
167-001-0605
Selection and Award of Public Contracts
(1) Secretary 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) Secretary 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 or member of the household of the public official 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 or members of the household of the public official on the same terms and conditions; and something of economic value given to a public official or the public official’s relative or member or the household of the public official for valuable consideration less than that required from others who are not public officials.
(3) Secretary officers, employees and agents are prohibited from using their official position for personal or financial gain.
(4) Secretary 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 279A.065(5)(a) & 279A.070
Stats. Implemented: ORS 279A.065(5)(a), 279A.070 & 279A.140
Hist.: BSD 1-2005(Temp), f. 2-25-05, cert. ef. 3-1-05 thru 8-28-05; BSD 2-2005, f. & cert. ef. 6-15-05; BSD 1-2010, f. & cert. ef. 7-7-10
167-001-0620
Specifications
Secretary staff and providers may not develop specifications that primarily benefit only one provider, directly or indirectly, to the detriment of the Secretary.
Stat. Auth.: ORS 279A.065(5)(a) & 279A.070
Stats. Implemented: ORS 279A.065(5)(a), 279A.070 & 279A.140
Hist.: BSD 1-2005(Temp), f. 2-25-05, cert. ef. 3-1-05 thru 8-28-05; BSD 2-2005, f. & cert. ef. 6-15-05
167-001-0625
Sole-Source
The Secretary may not select a sole-source procurement pursuant to ORS 279B.075 to avoid a competitive procurement if the purpose of the selection is to primarily benefit the provider, directly or indirectly, to the detriment of the Secretary 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.: BSD 1-2005(Temp), f. 2-25-05, cert. ef. 3-1-05 thru 8-28-05; BSD 2-2005, f. & cert. ef. 6-15-05
167-001-0630
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, in order to avoid competition.
Stat. Auth.: ORS 279A.065(5)(a) & 279A.070
Stats. Implemented: ORS 279A.065(5)(a), 279A.070 & 279B.065
Hist.: BSD 1-2005(Temp), f. 2-25-05, cert. ef. 3-1-05 thru 8-28-05; BSD 2-2005, f. & cert. ef. 6-15-05
167-001-0635
Agency and Provider Communications
(1) Secretary staff are encouraged to freely conduct market research in support of a procurement. This research includes but is not limited to: meetings, industry presentations, and demonstrations with any providers that may be able to meet a need for an approved procurement. Secretary staff are encouraged to meet with providers whose products or services can meet the Secretary's needs and to document the items discussed during the market research phase of Solicitation development. The research phase should end prior to a release of a solicitation or a request for quote, unless the solicitation provides for a different process that permits on-going research.
(2) Any communication between Secretary and providers after the solicitation release or request for a quote must only be made within the context of the solicitation document requirements, which may allow for discussions, negotiations, and addenda. Secretary purchasing staff are encouraged to respond to written inquiries by addenda or letter in a timely manner.
Stat. Auth.: ORS 279A.065(5)(a) & 279A.070
Stats. Implemented: ORS 279A.065(5)(a), 279A.070 & 279A.140
Hist.: BSD 1-2005(Temp), f. 2-25-05, cert. ef. 3-1-05 thru 8-28-05; BSD 2-2005, f. & cert. ef. 6-15-05
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