125-055-0020 Determination of Suitability of Product or Service (1) The Department will publish and maintain a Procurement List that identifies the products and services of OFCs suitable for procurement by Agencies. No Agency or OFC may enter into or renew a contract under the Oregon Forward Program for products or services not on the Procurement List. OFC products and services determined suitable will remain listed, subject to the Department’s examination of the OFC's annual report and compliance with subsection (2). (2) For a product or service to be suitable for addition to the Procurement List, each of the following criteria must be satisfied: (a) OFC Status. The organization’s OFC status must be current. (b) Ownership. An OFC must own the product or directly provide the service the OFC proposes to provide to Agencies through the Oregon Forward Program. For example, a product or service will not be suitable for procurement by Agencies where the OFC operates merely as a broker, distributor, licensor or sales agent for another person or entity in providing a product to an Agency. (c) Tied Products. An OFC's contract to provide a service cannot obligate an Agency to buy a product tied to that service unless the product is incidental to, or consumed in, the performance of the service. (d) No Excessive Prices. The price proposed by the OFC must not be excessive. When proposed pricing is determined by the Department to be excessive, the Department may require the OFC to demonstrate that the proposed pricing is not excessive. (e) Purpose. The OFC must demonstrate capacity to address the policy of the law as stated in ORS 279.840. To ensure that an OFC achieves this goal, the OFC must disclose to the Department: (A) The projected employment potential for Individuals with a Disability in connection with the proposed product or service; and (B) That appreciable value will be added to the products or services by Individuals with a Disability. The term "appreciable value" means a measurable addition of value, or an objectively observable improvement, enhancement or change, to the final product or service. No product or service may be suitable where the process of the manufacture, assembly or production of the product or the rendition of the service contains or is affected by any procedure, device or artifice under which the work of individuals with disabilities does not contribute, in a substantial, economically meaningful manner, to the value of the product or to the performance of the service, or under which the work of Individuals with a Disability is not a logical element of the chain of production. (f) Compensation. Individuals with a Disability must be compensated for their work at a rate of pay that is consistent with the applicable legal requirements of the state and federal governments. (g) Subcontractor Disclosure. Direct labor performed by subcontractors in the manufacture of a product or provision of a service to an Agency must be disclosed in the OFC’s direct labor ratios reported to the Department as required by OAR 125-055-0016(1). The OFC must disclose subcontractor utilization, partnerships or planned joint ventures, including: (A) the portion of the labor to be performed; (B) the equipment to be used or supplied by; and (C) the location of work performed by any subcontractor, partner or joint venturer (collectively, "subcontractor"). (h) Quality Standards and Delivery Schedules. The OFC must demonstrate the capability to meet the applicable specifications and to make the product or service available within the time required by the procuring Agency. (i) Additional Information. The Department reserves the right to request additional information such as start-up costs and estimated cost recovery, market research conducted by the OFC, and physical location of business space dedicated to the product or service. The Department may conduct on-site investigations of the OFC's work sites and production processes. (3) If the Department determines the product or service satisfies the criteria in subsection (2), it will notify the OFC of its decision. If the Department determines that the product or service does not satisfy the criteria in subsection (2), it will notify the OFC in writing of the criteria not satisfied. (4) The OFC may appeal the decision by submitting a written appeal to the Department within ten (10) calendar days from the date of the Department’s notice. The appeal must state the OFC's grounds for appealing the decision. On appeal, if the Department determines the product or service satisfies the criteria of subsection (2), it will notify the OFC of its decision. If on appeal, the Department does not find the product or service satisfies the criteria, it will provide the OFC a written decision stating the reasons for the determination. The Department's written decision under this subsection will constitute a final order under ORS 183.484. (5) The Department will post the suitability determination on the Department’s website and e-procurement system for thirty (30) calendar days. A person or entity who will be adversely affected by the listing in its ability to compete for public contracts for the proposed product or service may submit a written protest to the Department before the listing is effective. The protest must describe how the listing will adversely affect the person's or entity's ability to compete for public contracts for the proposed product or service and must demonstrate how the product or service fails to satisfy the criteria stated in subsection (2). The listing will become effective on the thirty-first day. (6) If the Department receives a written protest concerning the proposed listing, the Department will consider the protest and issue a written response to the protesting party. The Department will only consider protests made in writing and received before the close of business on the thirtieth day. In considering a timely protest, the Department may request further information from the protesting party and the OFC. (a) The Department's response to the protest will confirm, modify, or withdraw the proposed listing of the product or service. The Department will make its written determination available, by mail or by electronic means, to the protesting party and to the OFC. (b) A protesting party or OFC who is adversely affected or aggrieved by the Department's response under this subsection may request that the Department institute contested case proceedings under ORS 183.411 to 183.470. A written request for a contested case must be received by the Department within fourteen (14) calendar days of the date of the Department’s response. The request for a contested case must describe how the requesting party is adversely affected or aggrieved by the response and how the Department erred in its decision. The Department may grant or deny the request. If the Department grants the request, the contested case will be limited to the issues raised before the Department in the protest. (7) At any time during the suitability determination process, the Department, the OFC and protesting party may agree to informal dispute resolution measures such as non-binding arbitration or mediation in addition to the appeal procedures prescribed by subsections (4) through (6). (8) Existing Contractor. The placement of a product or service on the Procurement List will not operate to displace a contractor under an existing contract with an Agency. (9) Amending an Existing Suitability Determination. The OFC may submit a written request to the Department for modification of an existing suitability determination. The request must satisfy the criteria in subsection (2). (a) If the Department determines the information provided by the OFC satisfies the criteria in subsection (2), it will record an amendment to the existing suitability determination. The Department will follow the posting requirements of subsection (5). (b) If the Department determines the information provided by the OFC does not satisfy the criteria of subsection (2), it will send notice to the OFC. The OFC may appeal the Department’s decision under the process described in subsections (4) and (7). Statutory/Other Authority: ORS 279.845(1) & 184.340 Statutes/Other Implemented: ORS 279A.025(4) & 279.835 - 279.855 History: DAS 6-2020, amend filed 11/30/2020, effective 12/01/2020 DAS 3-2020, temporary amend filed 09/22/2020, effective 09/22/2020 through 03/20/2021 DAS 3-2010, f. & cert. ef. 10-8-10 DAS 8-2005, f. & cert. ef. 6-21-05 DAS 6-2004(Temp), f. & cert. ef. 12-28-04 thru 6-24-05 DAS 4-2003, f. & cert. ef. 9-8-03