OAR 274-005-0046
Bond Counsel and Financial Advisor Procurement and Contracting
(1)
Pursuant to ORS 286A.130 (Bond counsel services)(7), the Public Contracting Code does not apply to procurement processes and contracts for bond counsel or financial advisor services of the Department of Veterans’ Affairs.(2)
Subject to review and approval of the terms and conditions of bond counsel contracts by the State Treasurer and the Attorney General, the department is authorized to establish its own procedures for procurement of and contracting for the services of bond counsel so long as such contracts:(a)
Are for a period of not less than one year during any biennium in which there are bonds outstanding that were issued for the department or during any biennium in which the department expects the State Treasurer to issue bonds for a department program; and(b)
Do not authorize bond counsel to advise or represent the state on matters that are committed by statute to the Attorney General, except as allowed under ORS 286A.130 (Bond counsel services)(3).(3)
Subject to the approval of financial advisor contracts by the State Treasurer, the department is authorized to establish its own procedures for procurement of and contracting for the services of financial advisors.(4)
The department chooses to maintain maximum reasonable discretion in the procurement of services from bond counsel and financial advisors and the execution of contracts with same given the statutorily-recognized complex and often unique factors that may be relevant over time in such relationships. Neither the model rules of the Attorney General adopted pursuant to ORS 279A.065 (Model rules generally) nor OAR 274-005-0040 (Formal Process (Over $75,000)) nor other rules of this division govern the department’s procurement and contracting under this section. The department may act in such manner as is deemed by the department to best serve the purposes of the department and will consider the Attorney General’s model rules and the processes and standards identified in OAR 274-005-0040 (Formal Process (Over $75,000)) and other rules of this division for guidance in exercising its procurement and contracting discretion under this section. The department may consider other factors and employ other procedures as they may be deemed appropriate by the department in the procurement of or contracting for such services, including, but are not limited to factors and procedures such as:(a)
The value or importance of continuity of services;(b)
Unique or additive knowledge or experience of specific firms or persons;(c)
The subject matter of the proposed contract and appropriate means to ensure successful performance at competitive costs where practical;(d)
Specificity with respect to communication and reservation of rights in any procurement;(e)
Clarity in the naming and description of parties as well as consideration of appropriate preferences;(f)
Ascertaining and obtaining appropriate representations and warranties as to the qualifications of parties;(g)
Specificity with respect to consideration and applicable time periods;(h)
Specificity with respect to terms and covenants, particularly as to standards applicable to the performance of all work or delivery of goods;(i)
Identification of remedies and their suitability to protect Department and program interests; and(j)
Use of appropriate terms with respect to standard provisions such as governing law, venue, waiver, exhibits, merger, etc.(5)
As a general standard, the department will seek to employ procedures as are practical to introduce competitive efficiencies and sound selections given the particular circumstances, complex regulations and governing law applicable to such legal and financial considerations.
Source:
Rule 274-005-0046 — Bond Counsel and Financial Advisor Procurement and Contracting, https://secure.sos.state.or.us/oard/view.action?ruleNumber=274-005-0046.