OAR 125-246-0100
Application; Commentary; Federal Law Prevails

(1) These Rules of the Department of Administrative Services (Department) are policy and procedure that apply to public contracting by:

(a) Agencies subject to these Rules;

(b) All contracting agencies, as defined in ORS 279A.010 (Definitions for Public Contracting Code); and

(c) All public agencies, as defined in ORS 279.835 (Definitions for ORS 279.835 to 279.855)(4); that are subject to the DAS rules adopted under:

(A) Oregon Constitution, Article I, Section 41, subsection 11, related to the use of inmate labor (125-247-0200 (Buy Decision and Methods of Source Selection));

(B) ORS 200.005 (Definitions) through 200.200 (Security for performance by emerging small business) related to Certification Office for Business Inclusion and Diversity (COBID) certified firms (see OAR 125-246-0200 (Affirmative Action; Limited Competition Permitted) through 125-246-0220 (Governor’s Policy Advisor for Economic and Business Equity));

(C) ORS 279.835 (Definitions for ORS 279.835 to 279.855) through 279.855 (Entities that may obtain goods and services through Oregon Department of Administrative Services) related to qualified nonprofit agencies for individuals with disabilities (see OAR 125-055-0005 (Definitions) through 125-055-0045 (Purchases under ORS 279.855));

(D) ORS 279A.140 (State procurement of goods and services)(2)(h) related to personal services contracts (see OAR 125-246-0335 (Authority and Standards for Personal Services Contracts) through 125-246-0353 (Reporting Requirements for Personal Services Contracts));

(E) ORS 279A.159 (Education and training or experience requirements for persons that conduct procurements or administer contracts for state contracting agencies) requiring education, training or experience for persons that conduct procurements or administer contracts for state contracting agencies (see OAR 125-246-0140 (Procurement Authority));

(F) ORS 279A.250 (Definitions for ORS 279A.250 to 279A.290) through 279A.290 (Miscellaneous receipts accounts) related to surplus property (OAR 125-050-0100 (State Surplus Property Definitions) through 125-050-0400 (Public Sales for Disposal of State Surplus Personal Property); 125-247-0200 (Buy Decision and Methods of Source Selection)); and

(G) 2015 Oregon Laws, Chapter 807 (HB 3099) requirements for review or approval by the State Chief Information Officer of any Procurement of Information Technology or Telecommunications (see OAR 125-247-0185 (Approval of Information Technology or Telecommunications Procurements); ORS 184.477; 279A.050 (Procurement authority); 279A.075 (Delegation); 279B.075 (Sole-source procurements)).

(d) Unless required by a specific law, the Secretary of State and State Treasurer are not subject to the Department Public Contracting Rules or policies.

(2) According to ORS 279A.065 (Model rules generally)(5), the Department adopts these Rules, including but not limited to selected and adapted Public Contract Model Rules. Except for those Public Contract Model Rules expressly adopted by the Department in OAR 125-246-0100 (Application; Commentary; Federal Law Prevails), 125-247-0100 (Applicability), 125-248-0100 (Application) and 125-249-0100 (Application; Federal Override; Effective Date), the Public Contract Model Rules adopted by the Attorney General do not apply to the Department or the Agencies. These Department Public Contracting Rules implement the Oregon Public Contracting Code.

(3) These Department Public Contracting Rules consist of the following four Divisions:

(a) Division 246, which applies to all Public Contracting;

(b) Division 247, which applies only to Public Contracting for Supplies and Services, and not to construction services procured through ORS 279C or Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services, or Related Services

(c) Division 248, which applies only to Public Contracting for Architectural, Engineering, Photogrammetric Mapping, Transportation Planning or Land Surveying Services and Related Services; and

(d) Division 249, which applies only to Public Contracting for construction services.

(4) If a conflict arises between these Division 246 Rules and Rules in Division 247, 248 or 249, the Rules in Divisions 247, 248 or 249 take precedence over these Division 246 Rules.

(5) Commentary on these Rules may be published by the Department to assist the Agencies by providing: examples, options, references, background, and other commentary. The Department’s commentary is not a Rule or interpretation of any Rule and has no legally-binding effect.

(6) Federal statutes and regulations prevail and govern, except as otherwise expressly provided in ORS 279C.800 (Definitions for ORS 279C.800 to 279C.870) through 279C.870 (Civil action to enforce payment of prevailing rates of wage) (Prevailing Wage Rate) and despite other provisions of the Public Contracting Code, under the following conditions:

(a) Federal funds are involved; and

(b) The federal statutes or regulations either:

(A) Conflict with any provision of ORS Chapters 279A, 279B, or 279C.005 through 279C.670 (Application of ORS 279C.650 to 279C.670); or

(B) Require additional conditions in Public Contracts not authorized by ORS Chapters 279A, 279B, or ORS 279C.005 through 279C.670 (Application of ORS 279C.650 to 279C.670).

(7) Adaptation of Model Rules for Agency Use. The following words found in those Model Rules expressly adopted by the Department are replaced by the words as defined in OAR 125-246-0110 (Definitions):

(a) “Contracting agency(ies)” is replaced by “Authorized Agency(ies), unless expressly stated otherwise.”

(b) “Goods or services” is replaced by “Supplies and Services.”

(8) Capitalization of Defined Terms. Uncapitalized terms in those Model Rules expressly adopted by the Department have the same meaning as the same terms that are capitalized and defined in OAR 125-246-0110 (Definitions).

(9) Department Policy. Agencies must comply with Department policies, if applicable.

(10) For purposes of these Division 246 Rules, the Department adopts the following Model Public Contract Rules, as revised and effective January 1, 2016: OAR 137-046-0140 (Solicitation Document Templates; Contract Forms and Contract Templates; Accountability for Advice), 137-046-0300 (Preference for Oregon Goods and Services), 137-046-0330 (Federally Funded Transit Projects — Preference for Exceeding Federal Buy America Requirements), 137-046-0400 (Authority for Cooperative Procurements), 137-046-0410 (Responsibilities of Administering Contracting Agencies and Purchasing Contracting Agencies), 137-046-0420 (Joint Cooperative Procurements), 137-046-0430 (Permissive Cooperative Procurements), 137-046-0440 (Advertisements of Intent to Establish Contracts through a Permissive Cooperative Procurement), 137-046-0450 (Interstate Cooperative Procurements), 137-046-0460 (Advertisements of Interstate Cooperative Procurements), 137-046-0470 (Protests and Disputes), 137-046-0480 (Contract Amendments).

Source: Rule 125-246-0100 — Application; Commentary; Federal Law Prevails, https://secure.sos.state.or.us/oard/view.action?ruleNumber=125-246-0100.

California:	Codes
Colorado:	C.R.S.
Nevada:	NRS
New York:	Laws
Oregon:	OAR, ORS
Texas:	Statutes
World:	Rome Statute, International Dictionary

OAR 125-246-0100 Application; Commentary; Federal Law Prevails

OAR 125-246-0100
Application; Commentary; Federal Law Prevails