OAR 125-247-0690: Policy; Appearance of Contractor Advantage

(1) As provided in ORS 279B.205 and consistent with 279A.015, specifications must seek to promote optimal value and suitability for the purposes intended and to reasonably encourage competition in satisfying an Agency’s needs. Subject to 279B.405, the specification content must be determined in the sole discretion of the Agency. (2) Contractor Advantage; General. (a) Policy. As provided in ORS 279B.210, it is the policy of the State of Oregon to encourage the development of clear, precise and accurate Specifications in Solicitations for Public Contracts. To that end, in developing Specifications, Agencies may consult, under contract or otherwise, with technical experts, suppliers, prospective contractors and representatives of the industries with which the Agencies contract, as set forth in ORS 279B.210. (b) Application. In the event of conflict or ambiguity arising from the general requirements of section (2) of this Rule and the specific requirements of section (3) of this Rule, the specific requirements take precedence over the general requirements. (3) Contractor Advantage; Services Contract; Exception. An Authorized Agency must comply with ORS 279B.040, including but not limited to the following: (a) No Appearance of Contractor Advantage. If an Agency enters into a contract with a contractor to advise or assist the Agency in developing specifications, a scope or statement of work, an invitation to bid, a request for proposals or other solicitation documents and materials (Solicitation Materials) related to a procurement (Procurement), the Agency may not accept an Offer from that contractor or its affiliate that is related to the Procurement, if a reasonable person would believe that, by giving the advice or assistance, the contractor or affiliate would have or would appear to have an advantage in the Procurement. “Affiliate” means a person that, directly or indirectly through one or more intermediaries, controls, is controlled by or is under common control with a contractor described in this section. (b) Exception. (A) Before awarding a contract for the advice or assistance of a contractor described in subsection (3)(a), the Agency must request an exception from the State Chief Procurement Officer, if the Agency wishes to later accept an Offer from the Provider. (B) The Agency’s request for the exception must be in a form and delivered in a manner approved by the State Chief Procurement Officer, and must include sufficient findings of fact and justifications that will enable the State Chief Procurement Officer to make an independent judgment. (C) The State Chief Procurement Officer must determine whether: (i) The Agency needs advice or assistance from a contractor to develop the Solicitation Materials; (ii) Accepting an Offer from the contractor that gives the advice or assistance is the only practicable way in which the Agency can conduct the Procurement successfully; and (iii) Approving the exception: (I) Is unlikely to encourage favoritism in awarding public contracts or to substantially diminish competition for public contracts; and (II) Is reasonably expected to result in substantial cost savings to the Agency; or the public or otherwise substantially promotes the public interest in a manner that could not be practicably realized by complying with the prohibition described in subsection (3)(a). (D) If the State Chief Procurement Officer approves the Agency’s request, the State Chief Procurement Officer must prepare Written findings and justifications for the approval. (E) If the State Chief Procurement Officer disapproves the Agency’s request, the State Chief Procurement Officer must: (i) State the State Chief Procurement Officer’s reasons for the disapproval in a Written notice to the Agency, and (ii) Indicate whether the disapproval extends only to the Agency’s acceptance of an Offer from a contractor described in Subsection (3)(a) or whether the State Chief Procurement Officer also disagrees with the Agency’s stated need for advice or assistance from a contractor. (F) The State Chief Procurement Officer’s approval or disapproval is final.