125-246-0360 Purchases Through Federal Programs (1) Exemption. An Authorized Agency may purchase certain authorized Supplies and Services through General Service Administration (GSA) federal programs or federal Contracts (Federal Programs) without Competitive Sealed Bidding, Competitive Sealed Proposals or other competition required under ORS 279B.050 to 279B.085, provided that the Authorized Agency has federal authorization to purchase through the Federal Program and follows the procedures set forth in this Rule. (2) Federal Authorization. (a) The Federal Programs named in ORS 279A.180 are accessible to Authorized Agencies for purchasing Supplies and Services. In addition, by this Rule, the Director of the Department (Director) hereby makes the determination according to ORS 279A.180, that the GSA Order of 2000 and any subsequent revisions or updating of this GSA Order of 2000 (GSA Orders) describe other Federal Programs that, under federal law, are similar to 10 U.S.C. 381 or Section 211 of the Electronic Government Act of 2002 in effectuating or promoting transfers of property to Authorized Agencies; therefore, Authorized Agencies may purchase through those Federal Programs described in a GSA Order without making individual requests for determination to the Director. (b) If an Authorized Agency desires to purchase through another Federal Program that is not expressly named in ORS 279A.180 or a GSA Order, the Authorized Agency must request in Writing a determination from the Director or the Director's designated representative. In the request, the Authorized Agency must document that the federal government has authorized states, including the Authorized Agency, to purchase through the proposed Federal Program. The request of the Authorized Agency and the determination by the Director or representative must be limited to those other Federal Programs described in ORS 279A.180 that, under federal law, are similar to 10 U.S.C. 381 or Section 211 of the Electronic Government Act of 2002 in effectuating or promoting transfers of property to Authorized Agencies. (c) If no federal authorization exists as described in Sections (2)(a) and (b) of the Rule, then an Authorized Agency is not permitted to purchase through any Federal Program. (3) Procedures. To purchase through a Federal Program, an Authorized Agency must document in its Procurement File that: (a) The federal authority for the Authorized Agency to purchase through the Federal Program, referring to ORS 279A.180, a GSA Order, or the State Chief Procurement Officer’s approval of an Authorized Agency's request. (b) The acquisition meets the Authorized Agency's needs; (c) The price and other terms of the acquisition are Advantageous to the State; (d) No mandatory Department Price Agreement for the authorized Supplies and Services exists, based upon the Authorized Agency's inquiry through OregonBuys or other Electronic Procurement System approved by the State Chief Procurement Officer; (e) The Authorized Agency has considered the acquisition's impact upon local business as follows: (A) If the Procurement is in excess of $10,000, the Authorized Agency has given timely notice through OregonBuys or other Electronic Procurement System approved by the State Chief Procurement Officer of its needs, reasons, and intent to procure through a Federal Program; (B) The Authorized Agency has provided a reasonable time period under the circumstances for individuals to respond to the notice and send Written comments to the Authorized Agency; and (C) The Authorized Agency has considered any comments and replied, if appropriate, before proceeding with its Procurement through a Federal Program. This Rule provides for an informal opportunity to comment to and be considered by the Authorized Agency, instead of the formal notice requirements for Solicitations in excess of $10,000 according to ORS 200.035. (f) State and local preference programs, including but not limited to Inmate Labor in accordance with the Oregon Constitution, Article I, Section 41, Products of Disabled Individuals Program of ORS 279.835 to 850, and state requirements Contracts under OAR 125-247-0296, are not waived or otherwise adversely affected by an acquisition through a Federal Program; (g) The Authorized Agency has complied with OAR 137-045-0010 to 137-045-0090, and if it is required, obtained a legal sufficiency review or exemption from the Department of Justice; and (h) The Authorized Agency is informed of its Federal Program's Procurement Process, including: (A) Voluntary and Direct Contract. The Authorized Agency and Contractors participate voluntarily. The Contractors make direct deliveries to the Authorized Agency and retain the right to decline orders on a case-by-case basis, for any reason, within a five-Day period of receipt of that order; (B) Funding Fee. The price of a Federal Program Contract includes a GSA industrial funding fee to cover GSA administrative costs to operate the Federal Program; (C) New Contract. When a Contractor accepts an order from an Authorized Agency, a new Contract is formed. The Contract's terms and conditions are incorporated by reference; and (D) Additional Terms and Conditions. The Authorized Agency may add to its Contract such significant, substantial contract terms and conditions as are required by State statutes or rules, if such additions do not conflict with the Federal Program's Contract terms and conditions. Examples of such terms and conditions include, but are not limited to: (i) Prompt Payment. The Authorized Agency may apply the terms and conditions of Oregon's prompt payment law to its Contracts, but if the Authorized Agency fails to make this addition, then the Authorized Agency may be subject to the Federal Prompt Payment Act, 31 U.S.C. sec. 3901 et seq., as implemented at subpart 32.9 of the Federal Acquisition Regulation (FAR); (ii) Commercial Terms. Patent indemnity and other commercial terms and conditions may be added if they do not conflict with the Federal Program's terms and conditions; and (iii) Conflict Resolution. The Authorized Agency may revise the Contract's dispute resolution provision to use Alternative Dispute Resolution (ADR) to the extent authorized by law. Statutory/Other Authority: ORS 279A.065(5)(a) & 279A.070 Statutes/Other Implemented: ORS 279A.180 History: DAS 5-2023, amend filed 12/29/2023, effective 01/01/2024 DAS 1-2023, amend filed 04/11/2023, effective 05/01/2023 DAS 6-2022, temporary amend filed 11/07/2022, effective 11/07/2022 through 05/05/2023 DAS 3-2019, amend filed 12/23/2019, effective 01/01/2020 DAS 2-2016, f. 12-22-16, cert. ef. 1-1-17 DAS 4-2013, f. 12-17-13, cert. ef. 1-1-14 DAS 3-2012, f. 11-29-12, cert. ef. 12-1-12 DAS 11-2009, f. 12-30-09, cert. ef. 1-1-10 DAS 5-2006, f. & cert. ef. 5-31-06 DAS 4-2004, f. 11-23-04, cert. ef. 3-1-05