BA-Waiver_S-10700-00017107-SDCRoofReplacement_DraftFindings.pdf

DRAFT FINDINGS FOR A WAIVER OF

ORS 279C.303 “BUY AMERICA” REQUIREMENTS

OregonBuys # S-10700-00017107 Before the State Chief Procurement Officer of the

Department of Administrative Services of the State of Oregon

Request for Waiver of ORS 279C.303 ) Buy America Requirements for ) Draft Waiver Findings Procurement of Sheet Metal )

Draft Findings and Waiver Procedure:

• Department of Administrative Services (“DAS”), State Procurement Services (“SPS”) will issue a public notice of these draft findings on the OregonBuys eProcurement system for a period of at least seven (7) calendar days.

• The public notice included that any affected party may comment on the proposed findings by contacting: EGS.PSCustomerCare@das.oregon.gov.

• After considering any public comment received, DAS SPS will issue a public notice of the Director’s Findings and Order; the public notice will be published on the OregonBuys eProcurement system.

mailto:EGS.PSCustomerCare@das.oregon.gov

Applicability of Waiver (Select one) Single public improvement or public works contract for State of Oregon Data Center Roof Replacement, ITB# S-10700-

00017107.

X

Class of Public Improvement Contracts or Contracts for Public Works

Exempted Contract Class:

Class of Iron or Steel Products, Coatings, or Manufactured Products

Exempted Item: _________________

Summary of Finding Process

DAS SPS issued a competitive sealed bid, Invitation to Bid (“ITB”) # S-10700-00017107 via OregonBuys on June 17, 2026, closed the bid on July 08, 2026, and established a Public Improvement contract for the State of Oregon Data Center Roof Replacement (the “Project”) on behalf of DAS Enterprise Asset Management (“DAS-EAM”). Pursuant to ORS 279C.303, DAS complied with the following:

1) Required in the resulting Public Improvement Contract that steel, iron, coatings for steel and iron and manufactured products that a contractor purchases for or uses in the Public Improvement, and that become part of a permanent structure, must be produced in the United States;

2) Noted clearly and conspicuously in ITB# S-10700-00017107 and all Solicitation documents related to the resulting Public Improvement Contract# PO-10700- 00063317 included the ORS 279C.303 Buy America requirements;

3) Rejected any Bid or Proposal that did not affirmatively attest that the Bidder or Proposer read and understood the requirement; and

4) Required Contractor to complete the Project no later than September 30, 2026, while meeting State Buy America requirements in ORS 279C.303 and OAR 125-249-0170 and Work to be performed in accordance with the Contract Documents

ORS 279C.303(2)(c) permits the Director of DAS as the primary public contract review authority for the State of Oregon, to waive the ORS 279C.303 Buy America requirement, if the Director finds in writing that:

• The requirement is inconsistent with the public interest;

• Steel, iron, coatings for steel and iron and manufactured products required for the Public Improvement or Public Works are not produced in the United States in sufficient and reasonably available quantities and with satisfactory quality; or

• Using steel, iron, coatings for steel and iron or manufactured products produced in the United States for the Public Improvement, or the Public Works will increase the cost of the Public Improvement or Public Works by more than 25 percent.

Before making the finding, the Director must:

• Issue a draft finding that includes a detailed written explanation of the basis for waiving the requirement;

• Give public notice of the draft finding at the earliest practicable time, in a manner that the director determines will give adequate notice to the public and to Contractors that intend to submit, or have submitted, Bids for the Public Improvement or Public Works;

• Allow seven (7) calendar days for public comment on the draft finding; and

• If, after considering any public comment, the Director determines to waive the requirement set forth in the rule, the Director shall provide public notice of the Director’s finding using the same method the Director used to provide public notice of the draft finding.

Pursuant to the statute, the Director may make a finding, waiving the requirements of ORS 279C.303(2)(a), that applies to a single Public Improvement Contract or Contract for Public Works, to a class of Public Improvement Contracts or Contracts for Public Works, or to a class of iron or steel products, coatings, or manufactured products. Further, should the Director waive the requirements of ORS 279C.303(2)(a), the Director may review and continue, amend, or rescind the finding at any time, with the Director required to review at least every five years.

Before continuing, amending, or rescinding a waiver, the Director must provide for public notice and comment using the same method used to provide public notice of the waiver.

DAS has adopted rules, OAR 125-249-0170, implementing ORS 279C.303. Pursuant to ORS 279C.303(2)(f) and OAR 125-246-0170(3)(a)(S) the Director has delegated its duties under ORS 279C.303(2)(c) and (d) to the State Chief Procurement Officer of DAS SPS.

Background

The scope of the Project, State of Oregon Data Center Roof Replacement, for ITB# S- 10700-00017107 included sheet metal for new flashing and trim as part of the roof replacement project. Thorough research by DAS EAM and the Contractor found sheet metal products that meet State Buy America requirements; however, low supplier inventory and high product demand mean suppliers need an estimated eight to ten weeks of lead time to fulfill product orders. This unexpected delay in material delivery creates a cascading impact that may push the Project into early summer 2027, increasing the risk of roof membrane failure in areas of reported leaks and damage to the building’s sensitive equipment. The ITB included a Final Completion date of September 30, 2026, to avoid extending construction into the late fall rainy season, when weather-related work delays and building damage from new leaks are a greater probability. To remain on schedule, the sheet metal flashing and trim must be delivered on site for installation prior to the Substantial Completion date of September 15, 2026. Additionally, extensive coordination with the building’s tenants has already been completed to schedule downtime for equipment and systems critical for Statewide operations, as well as to conduct the required background checks for contractor and subcontractor staff working on the Project.

The Contractor has worked with the Project Consultant to secure limited substitution materials which are State Buy America compliant, but only in enough quantities to keep the Project moving through the week of August 24, 2026. The Contractor has found an additional non-State Buy America compliant sheet metal product, available with only a one week lead time, which meets the Project specifications and scope for the roof replacement. Ultimately, the public’s interest is best served by utilizing the non-compliant State Buy America sheet metal product in the State of Oregon Data Center Roof Replacement project to protect the State’s investment of sensitive equipment and materials, and ensure the efficient use of State resources

Basis of Draft Finding (Check one)

☒ The requirement is inconsistent with the public interest.

Products required are not produced in the United States in sufficient and reasonably available quantities.

Using steel, iron, coatings for steel and iron or manufactured products produced in the United States will increase cost by more than 25 percent.

Draft Findings

The following findings support waiving the requirements of ORS 279C.303 Buy America for the use of non-State Buy America compliant roofing sheet metal, to be used in the State of Oregon Data Center Project Public Improvement Project (Contract PO 10700-00063317) under DAS Procurement Authority for the next 1 year upon issuance of the Waiver of ORS 279C.303 Buy America Requirements for Procurement of roofing sheet metal.

1. The extended material lead time for State Buy America compliant sheet metal delays critical work for a roof already proven to be vulnerable and which has experienced leaks.

The eight-to-ten-week lead time is the best estimate currently available but there is no supplier guarantee for a product delivery timeline due to evolving market conditions. This shift creates a cascading effect that will impact the Projects’ Substantial and Final Completion dates by several months, require substantial additional coordination for equipment downtime and non-tenant security access, and increase the likelihood of future weather-related disruptions.

2. A non-State Buy America sheet metal product has been identified which meets the technical specifications, has suppliers which only need one week lead time, and can be delivered to the Project site at no additional cost to the State.