OAR 414-070-0350: Brand Name or Equal Specification

(1) Applicability and Use. This rule applies to Specifications for a Solicitation or class of Solicitations. For a Solicitation or class of Solicitations under ORS 279B.060, 279B.065, 279B.070, 279B.085, or 279A.200–279A.225, as provided in 279B.215: (a) A brand name or equal Specification may be used when the use of a brand name or equal Specification is advantageous to the Department, because the brand name describes the standard of quality, performance, functionality and other characteristics of the product needed by the Department. (b) The Department is entitled to determine what constitutes a product that is equal or superior to the product specified, and any such determination is final. (c) Nothing in this Subsection may be construed as prohibiting the Department from specifying one or more comparable products as examples of the quality, performance, functionality or other characteristics of the product needed by the Department. (2) Determination. A brand name Specification may be prepared and used only if the Department determines for a Solicitation or a class of Solicitations that only the identified brand name Specification will meet the needs of the Department, based on one or more of the following Written determinations: (a) That use of a brand name Specification is unlikely to encourage favoritism in the awarding of Public Contracts or substantially diminish competition for Public Contracts; (b) That use of a brand name Specification would result in substantial cost savings to the Department; (c) That there is only one manufacturer or seller of the product of the quality, performance or functionality required; or (d) That efficient utilization of existing Goods requires the acquisition of compatible Goods or Services. (3) The Department’s use of a brand name Specification may be subject to review only as provided in ORS 279B.405. (4) Single Manufacturer, Multiple Sellers. The Department may prepare and use a brand name or equal Specification for Supplies and Services available from only one manufacturer, but available through multiple sellers, if the Department complies with Sections (1) and (2) of this rule and the following requirements: (a) If the total purchase is $25,000 or more but does not exceed $250,000 and Supplies and Services are not available under an existing Mandatory Use Contract, the Department must obtain informal, competitive Quotes, Bids, or Proposals and document this process in the Procurement File according to ORS 279B.070 and OAR 137-047-0270; (b) If the purchase exceeds $250,000, and the Supplies and Services are not available under an existing Price Agreement for information technology with competing products or a Mandatory Use Contract, the Department must first request and obtain prior Written authorization from the Designated Procurement Director to proceed with the acquisition(5) Single Manufacturer, Multiple Purchases. If the Department intends to make several purchases of brand name-specified Supplies and Services from a particular manufacturer or seller for a period not to exceed five (5) years, the Department must so state this information in: the Procurement File; the Solicitation Document, if any; or a Public Notice of a solicitation on OregonBuys or other Electronic Procurement System. If the Department estimates the total purchase amount to exceed $250,000, this estimate must also be stated in the Public Notice. This Section (5) does not apply to Department of Administrative Services Price Agreements, also known as Mandatory Use Contracts. (5) Nothing in this rule exempts the Department from obtaining the approval of the Attorney General for legal sufficiency according to ORS 291.047. (6) The Department must comply with ORS 200.035 and applicable related Department statewide policy, despite this rule.