BABA Waiver Door Hardware Draft Findings-posted.pdf

DRAFT FINDINGS FOR A WAIVER OF

ORS 279C.303 “BUY AMERICA” REQUIREMENTS

OregonBuys # S-10700-00016801

Before the State Chief Procurement Officer of the

Department of Administrative Services (DAS) of the State of Oregon

Request for Waiver of ORS 279C.303 ) Buy America Requirements for ) Draft Waiver Findings Procurement of Door Hardware ) for all Public Improvement and Public ) Works projects undertaken by DAS. )

Draft Findings and Waiver Procedure:

• DAS State Procurement Services (DAS 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 will include that any affected party may comment on the draft findings by contacting SPS Customer Care at 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.

Applicability of Waiver (Select one) Single public improvement or public works contract for [insert project name].

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:

1) Door Hardware for DAS projects

Summary of Finding Process

DAS presently has a standardized list of door hardware to be used for maintenance projects as well as for Public Works and Public Improvement Projects. Pursuant to ORS 279C.303, the DAS must:

1) Require in each Public Improvement Contract or Contract for Public Works with an estimated contract price of $250,000 or more that steel, iron, coatings for steel and iron and manufactured products that a contractor purchases for or uses in the Public Improvement or Public Works, and that become part of a permanent structure, must be produced in the United States;

2) Note clearly and conspicuously in all Solicitation documents for any Procurement related to the Public Improvement Contract or Contract for Public Works, that any Public Improvement Contract or Contract for Public Works that results from the Procurement will include the ORS 279C.303 Buy America requirement; and

3) Reject any Bid or Proposal that does not affirmatively attest that the Bidder or Proposer read and understood the requirement.

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 research conducted by DAS Operations and Maintenance (O&M) for Brand Name Exceptions for door hardware, in addition to research done recently by DAS Planning and Construction Management (PCM) provides support for waiving the requirements of 279C.303 for door hardware to be used in all Public Works and Public Improvement projects conducted by DAS. The door hardware products currently listed under DAS construction standards for use on maintenance and Public Works/Public Improvement projects do not currently meet “… 55 percent of the total cost of all components of the product” as required by items Produced in the United States, as defined by ORS 279C.303 and OAR 125-249-0170 (1)(b), specifically (B)(ii).”

Basis of 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 door hardware to be used in Public Improvement or Public Works projects under DAS Procurement Authority:

Purchasing door hardware made in America would not serve the public interest primarily because DAS currently has preapproved/standardized door hardware that is specified in DAS construction standard. These items are used in all DAS managed facilities and changing them would require significant time and monetary investment.

Additional reasons that complying with 279C.303 is not in the best interest of the public include:

• Reliability – DAS has used current pre-approved parts for 25 years. These parts have proven to be reliable and their longevity helps greatly with our service workload. Reliability of new products is unknown.

• Functionality/Practicality –Some comparable products made in America are compatible with our secure Medeco keyway. Utilizing said products on projects that require compliance with Buy America (those projects over $250k) would create unnecessary costs along with other challenges. These include:

o Additional labor would be required to track which doors have which type of hardware.

o DAS has existing inventory of pre-approved door hardware but has limited space to store this inventory. Complying with 279C.303 requirements for large projects would necessitate finding additional storage space, as both the pre-approved and Buy America compliant items would need to be stocked.

o To eliminate these logistical challenges, DAS could elect to install only Buy America compliant hardware moving forward on all doors. However, this is impractical as it would require significant monetary investments in parts and labor to retrofit all existing door hardware (DAS manages ~10,000 physical openings). This would also have the negative effect of eliminating existing efficiencies around training (see below).

• Training – Our staff have worked with these types of hardware for many years, and know how to operate, troubleshoot, and install them. Moving fully or partially to products made in America would eliminate or reduce said efficiencies (respectively) that have been acquired over many years.