125-246-0322 Preference for Recycled Materials (1) Notwithstanding provisions of law requiring an Authorized Agency to award a Contract to the lowest or best Offer of a Provider, and in accordance with ORS 279A.125 and Subsection (2) of this Section, an Authorized Agency charged with the Procurement of Goods for any public use must give preference to the Procurement of Goods manufactured from Recycled Materials whenever the Authorized Agency uses Competitive Sealed Bidding or Competitive Sealed Proposals pursuant to ORS 279B.055 or 279B.060, respectively, and as set forth in this Rule. (2) In comparing Goods from two or more Offerors, if at least one Provider offers Goods manufactured from Recycled Materials and at least one Provider does not, an Authorized Agency must select the Provider offering Goods manufactured from Recycled Materials if each of the following four conditions exists: (a) The Recycled Product is available; (b) The Recycled Product meets applicable standards; (c) The Recycled Product can be substituted for a comparable non-recycled product; and (d) The Recycled Product's costs do not exceed the costs of non-recycled products by more than five percent (5%), or a higher percentage if a Written determination is made by the Authorized Agency and set forth in the Solicitation Document. When making this determination, the Authorized Agency must consider the costs of the Goods following any adjustments the Authorized Agency makes to the price of the Goods after evaluation pursuant to OAR 125-246-0310. (3) For the purposes of this Section, an Authorized Agency must determine if Goods are manufactured from Recycled Materials in accordance with standards established by the Department . (4) Providers must certify in their Offers: (a) The minimum, if not exact, percentage of Recycled Product in all materials and supplies offered; and (b) Both the post-consumer and secondary waste content thereof. Providers may certify a zero percent Recycled Product content. This certification applies to Public Improvement products and all other Procurements. (5) To be eligible for a preference under ORS 279A.125 and this Rule: (a) The Provider must indicate which materials and supplies contain verifiable recycled content; and (b) Such products must meet the requirements of ORS 279A.125 and this Rule. (6) A preference under ORS 279A.125 will only be applied to those products in the Offer that contain verifiable recycled content. (7) Offers that contain false information about: (a) The percentage of Recycled Product, post-consumer and secondary waste content; or (b) Verifiable recycled content, must be rejected as nonresponsive, and the Provider offering false information may be deemed non-responsible. (8) Contracts awarded as a result of a preference under ORS 279A.125 are subject to such investigation, including but not limited to, audits, plant visitations, examination of invoices, laboratory analysis, and other documents, etc., as the Department deems necessary to confirm that the products supplied therein contain the percentages of Recycled Product, post-consumer and secondary waste stated in the Offer. (9) Failure to provide products containing the percentages of Recycled Product, post-consumer and secondary waste stated in the Offer may result in: (a) The Provider reimbursing the State for the portion of the Contract Price that is attributable to the preference applied under ORS 279A.125; (b) Contract termination; or (c) Both (a) and (b), or such other remedies as the Department deems appropriate. Statutory/Other Authority: ORS 279A.065(5)(a) & 279A.070 Statutes/Other Implemented: ORS 279A.125 History: DAS 3-2012, f. 11-29-12, cert. ef. 12-1-12 DAS 5-2006, f. & cert. ef. 5-31-06 DAS 4-2004, f. 11-23-04, cert. ef. 3-1-05