Procurement

Page last updated: April 6, 2020

Exemptions

The following items under Statewide Price Agreement are currently unavailable due to Oregon's COVID-19 response. These items can now be purchased from suppliers outside of the normal Statewide Price Agreements:

 

​Item Exemption ​Start  Exemption ​End  ​Comments
​Hand sanitizer ​3/13/2020
​Protectant gloves
​3/13/2020
​Disinfectant wipes ​3/13/2020

Purchase orders during the emergency

Effective immediately, state buyers need to include federal terms and conditions in purchase orders cut in response to the COVID-19 emergency. Please insert the language below into your purchase order documents as applicable:

Agency is acquiring the goods or products under this PO for the purpose of responding to the state of emergency declared by the Governor on Saturday, March 7, 2020 and pursuant to the Major Disaster Declaration number DR4499OR as a direct result of the COVID-19. Agency intends to request reimbursement from FEMA for the costs. This PO is subject to the additional federal terms and conditions located at: https://www.oregon.gov/das/Procurement/Documents/COVIDFederalProvisions.pdfas may be applicable to this PO.

Vendor demonstrations

If you have on-site vendor demonstrations as a part of a solicitation, consider an alternative that aligns with social distancing and lack of ability to travel.  Skype and Adobe Connect are two easily accessed options. 

If you need to make changes to an inflight solicitation, consider issuing an addenda to provide for remote demonstrations.  Please be certain that all vendors are given the same opportunities (including the same method) to demo their solutions so that the playing field is even for all proposers.

Frequently asked questions

As we work through the COVID-19 pandemic and the Governor’s Declaration of Emergency over the next several weeks, all agencies should consult with the Department of Justice before taking actions to cancel contracts or issue stop work orders. The Department of Administrative Services, Procurement Services would also like to share the following general guidelines:

 

Active contracts

​To the extent agencies have active contracts, DOJ has advised us to carefully review contract documents, exhibits and attachments.  Contracts are integral documents; all provisions must work together. Talk with the project managers and discover the status of all open projects, and talk with the contractor. Constant communication is critical during this time.
​Carefully review agency needs under the specific contract in light of the situation:
  • Is the good or service critical for the agency’s response to the coronavirus?
  • Is the good or service critical for the agency’s mission? 
  • Is the good or service something that could be delayed?
​What about the contractor? Determine the contractor’s ability to continue to perform or potential limitations:
  • reduced work force
  • inability to obtain supplies
  • limitations imposed by government regulation
  • others?
State contracts provide many protections and remedies for the state if events curtail or prevent performance. Some of the more typical remedies are:

  • Agreed upon amendments or change orders – revising due dates on tasks and deliverables.
  • Performance provisions: many state agency contracts provide that the contractor may not favor other customers over the agency, to the agency’s detriment.
  • Stop work/suspension.
  • Compensation provisions: prices or rates are usually fixed, subject to specific processes for change.
  • Withholding payment.
  • Termination – for convenience, change in law, budget/non-appropriation issues, default.
​Many state contracts also include force majeure clauses to protect the state (and sometimes the contractor) from suffering from an event beyond a contracting party’s control. Usually a party uses a force majeure clause to excuse performance. Force majeure clauses vary widely and are fact specific.  Each contract must be carefully reviewed.

Questions to ask within the facts related to the contract and the COVID-19 emergency:
  • Is the contract specifically intended for emergency response? If so, force majeure should not operate to release the contractor’s obligation to perform.
  • Does the contractor have a right to stop performance? If so, in what circumstance and based upon what facts?  Look at the laundry list in the force majeure clause.  Is the current emergency listed? If not, is there a catch-all and does the current emergency fall into the catch-all?
  • Does the agency have a right in the contract to stop work or issue a suspension?  If so, for how long and under what process?  Be careful of the financial ramifications: often the stop work clauses provide that the agency must pay demobilization or remobilization charges.  And, will a contractor be able to reassign its personnel?
  • Does the agency have a right to withhold payment?
  • Does the agency have a right or an obligation to continue to pay?
  • Does the agency have a right to terminate? Be careful.  Review all of the agency’s termination rights.

What about agency performance?  If the agency is required to provide resources, can the agency perform without violating any of the Governor’s or the agency’s restrictions?  If not, does the force majeure clause excuse the agency’s performance?


Solicitations


​If you are in the beginning stage of a project, ask yourself the following questions:
  • Can or should the agency delay the project given agency needs and resources or vendor ability? If so, a delay may be wise – considering all other demands upon the agency due to the situation.
  • If the agency, cannot delay the project, consider whether the agency can conduct the procurement virtually.  Can the agency conduct all meetings, complete all work on the project, and conduct the solicitation, and receive all submittals (including solicitation security, bid bonds, etc.)  virtually?
  • Can the vending community respond virtually?
Electronic procurement is an option and permitted by the Public Contracting Code (ORS 279B.055 and ORS 279B.060) and DAS Contracting Rules and DOJ Contracting Rules (OAR 125-247-0330 and OAR 137-047-0330).  You must comply with all the statutes and rules related to the procurement, itself, along with the additional rules related to conducting a procurement electronically. 
  • ​Can the agency delay the solicitation?  If so, consider issuing an addendum to extend the closing time. 
  • If the agency cannot delay the solicitation, issue necessary addenda to modify any provisions of the solicitation that would require in-person participation. Be sensitive to time limitations for both the agency and the potential Offerors and the impact any change in the solicitation will have.
  • Issue necessary addenda to address what, if any, additional processes may be necessary for electronic filing: 
    • acceptance of electronic signatures
    • certifications of information (or certifications of true and accurate copies)
    • processes for receiving information and protecting confidentiality of submittals
    • descriptions of what meets the agency requirements
    • adding protections for the agency related to electronic delivery or more specifically the failure of receipt of information sent electronically
  • Recently released with pending pre-submittal conferences:  arrange for the conference to be held virtually [i.e.  via skype or other web meeting platform or conference call].  Make sure the platform or conference bridge is not unreasonably restricted and can accept the anticipated number of participants (including procurement and agency representatives).
  • If the agency anticipated sharing any documents for the pre-submittal conference, please make sure those are posted to ORPIN, if you can, or post a link to the documents in ORPIN well in advance of the meeting.
  • Solicitation Question/Answer or Protest Period:  if the solicitation does not provide for the electronic delivery of questions and protests of the solicitation, issue an addendum to revise the delivery options.
  • Questions/Protests Responses:  to the extent an agency has received questions or protests to the solicitation document, the Single Point of Contact should send documents electronically to the people necessary to compile a response and arrange for a virtual meeting to draft and finalize responses.
  • Evaluation Committee Meetings:  should be held virtually.
  • Demonstrations/Interviews:  to the extent possible, conduct virtually for all Offerors.  You may wish to set up a separate conference bridge or line for internal agency discussions.
    • If it is impossible or impracticable to conduct an effective demonstration virtually (and all Offerors are willing to travel), select a site that accommodate a small number of people (no more than 10 people in line with the CDC recommendation) that provides for the appropriate social distance (6 feet apart). Limit the number of agency personnel to the essential personnel. If an evaluation committee member cannot attend, check the solicitation document to see if the solicitation permits the Single Point of Contact to identify and change the evaluation committee members. Limit in person contact time.
    • If any Offeror is unable to travel or it is impossible to conduct a demonstration virtually, consult DOJ on approach.  Disparate treatment among Offerors is a potential basis for protest.
  • Notice of Intent to Award:  post on ORPIN, send notice to Offerors as set forth in the solicitation document.
  • Post Award, Contract Negotiation:  conduct all meetings virtually; transmit all documents electronically.  Make sure the contract includes a counterparts provision!
  • If any Offeror is unable to travel or it is impossible to conduct a demonstration virtually, consult DOJ on approach.  Disparate treatment among Offerors is a potential basis for protest.
    Notice of Intent to Award:  post on ORPIN, send notice to Offerors as set forth in the solicitation document.
    Post Award, Contract Negotiation:  conduct all meetings virtually; transmit all documents electronically.  Make sure the contract includes a counterparts provision!
  • ADDITIONAL ISSUE:  solicitation security (bid bonds, surety bonds, letters of credit, cashier’s checks or certified checks):  electronic submittal of solicitation security alone may not be sufficient. At some point, you will need physical possession of the security instrument. Make sure your solicitation details how physical delivery will be made.
  • ADDITIONAL ISSUE:  if your solicitation requires a public opening, you may conduct the public opening electronically.  If you elect to conduct the public opening in person, you must do so within the guidelines of public gatherings (less than 10 people) and with appropriate room for social distancing (participants 6 feet apart)


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