REQ-DASOBO-00049798_Approved.pdf

SP No. REQ-DASOBO-00049798_CMI_Intoxilyzer_OSP Page 1 of 7

REQUEST FOR SPECIAL PROCUREMENT No. REQ-DASOBO-00049798

PART A. Requesting Agency must complete Items 1 through 13.

1. Requesting Agency Name: The Department of Administrative Services, Procurement Services (DAS PS), on behalf of the Oregon State Police (OSP)

2. Date of Request: April 30, 2024 3. Agency Number: 10700

4. Agency Contact Name: Rachael Rosendahl 5. Phone: (971) 707-0137

6. Type of Request: __ Class Special Procurement _ X__ Contract-specific Special Procurement

7. Time Period Requested: From: June 1, 2024 To: December 31, 2034

8. Total Estimated Cost: $3,025,000

9. Title: Supplies and/or Services to be Acquired:

Breath testing instruments, specifically the Intoxilyzer 9000 (“I9000”) and any successor models, consumable supplies, related services and support.

10. Request, Background, Current Need, and Proposed Contracting Procedure:

a. Request:

DAS PS, on behalf of OSP, requests approval of this Special Procurement (SP) No. REQ-DASOBO-00049798 to direct award and negotiate a contract (Contract) with CMI, Inc. for the Intoxilyzer 9000 and any successor models, consumable supplies, and related services and support. The Contract will allow OSP to:

1. Purchase breath testing instruments as additional units are needed and replaced.

2. Modernize devices as they become obsolete in order to maintain uninterrupted services at current high levels of execution and reliability.

3. Seamlessly continue the State’s breath testing program with little to no operational changes.

The maximum payment amount of the anticipated Contract will not exceed $3,025,000. DAS PS and OSP will administer the resulting Contract for up to ten (10) years.

b. Background:

The mission of the Oregon State Police is to serve all people with a priority of safeguarding life, property, and natural resources by building upon a diverse, professional, and trustworthy workforce. The purpose of the Forensic Services Division (FSD) is to serve the people of Oregon with the highest standards or science, ethics, and professionalism in recovering, preserving, and analyzing physical evidence.

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Breath testing is the most non-invasive method to determine the Blood Alcohol Concentration (BAC) in individuals suspected of driving under the influence. Breath testing in the State of Oregon was first introduced via the implementation of the Harger Drunkometer in 1957. In 1978, the OSP FSD updated the State’s breath testing program, Implied Consent Program (ICP), with the Intoxilyzer 4011A, the first of three consecutive instruments that use infrared technology for the quantitation of ethanol in human breath.

The Intoxilyzer 8000 (I8000), first introduced in October 2006 is the instrument currently deployed throughout the State of Oregon for use by law enforcement agencies to aid in Driving Under the Influence of Intoxicants (DUII) investigations. The FSD oversees the support of 126 stationary I8000’s located throughout the State and are available for use by any law enforcement officer that has successfully passed the I8000 training program. The ICP also supports six instruments for the Oregon State Marine Board (OSMB) and 16 instruments at the Department of Public Safety, Standards and Training (DPSST). In total, the FSD currently manages 177 instruments.

The current I8000 program is significantly outdated and needs to be updated through the implementation of newer technology. When handling data collected from the I8000’s, MicroSoft (MS) Access databases requiring Windows 7 are used to generate reports and statistics to evaluate the performance of instruments and the health of the program in general. Because of the interface between the current software version that runs the instruments (v.4), Computerized Online Breath Record Archive (COBRA), ICP cannot migrate away from MS Access. A newer version of COBRA (v.5) has been developed, but it is not compatible with the I8000. Neither MS Access nor Windows 7 are supported by the OSP Information Technology (IT) department. If a different breath testing platform is adopted, there will be a significant learning curve experienced by all users resulting in extended time needed to master a new system, likely not compatible with the existing I8000 units as well. In addition, data downloaded from remote sites require an antiquated phone line, or Plain Old Telephone System (POTS) line. Phone companies are phasing these out, making it increasingly difficult to download data and certify the instruments on a regular basis. Similarly, the I8000 connects to printers using a 25-pin parallel cable. The only printer manufacturer that still makes printers containing a 25-pin connection is Brother. If this company decides to discontinue this feature on the one model they still manufacture, OSP FSD will not have a vendor to furnish replacement printers when the need arises. Lastly, OSP FSD was informed by CMI that the I8000 program is beginning to be phased out. Once this occurs, replacement parts will become difficult to obtain.

On August 15, 2022, OSP issued a Request for Information (RFI) No. S-25700-00004083 through OregonBuys to conduct market research in determining what new technology was available. Four (4) vendors responded to the RFI, supplying breath testing instrumentation information. Based upon the information reviewed by OSP FSD, only CMI’s Intoxilyzer 9000 met all of the agency’s breath testing technology requirements.

The Academy Standards Board (ASB) is an accredited organization within the American Academy of Forensic Science (AAFS) and was founded in 2015 to help establish science-based forensic standards and best-practice recommendations for a variety of disciplines, including Toxicology and Breath Testing. The development of these standards ensures that agencies such as OSP minimize bias in the justice system by obtaining and reporting data derived from scientifically accepted standards. In 2023, ASB published a

SP No. REQ-DASOBO-00049798_CMI_Intoxilyzer_OSP Page 3 of 7 first draft edition of standards for breath alcohol measuring instrument calibration; ASB Standard 055.

Under section 5, part 3 of Elements of a Calibration Method, the recommended calibration concentrations should consist of a minimum of four non-zero calibrators if measurement technology is linear, or six non-zero concentrations shall be used as calibrators if non-linear. The current I8000 program complies with this recommendation for linear measurement technology; a five-point calibration curve consisting of a 0.000% BAC ethanol calibrator and four different ethanol calibrator concentrations of 0.040% BAC, 0.080% BAC, 0.100% BAC, and 0.300% BAC. The I9000 is calibrated in an identical manner using a five-point linear calibration curve. There are instruments currently on the market that are programed to only use a single point calibration. If OSP FSD was required to switch to a different instrument that utilized a one-point calibration curve for ethanol determinations, this would represent a significant departure from the current methodology. If Standard 055 is adopted, the State of Oregon’s breath testing program will no longer be in compliance with this standard, and therefore, would be contrary to ASB’s recommendations.

c. Current Need:

For the reasons set forth in Sections 10.a. and 10.b., OSP is seeking a direct award contract with CMI, Inc.

for the purchase of the Intoxilyzer 9000 and any successor models during the term of the Contract.

Currently, there are 177 of the I8000 units in use that will need to be replaced. In addition to these units, the Implied Consent Program has only 19 instruments in reserve for use for regional training, deployment at special events, and/or replacement when a field instrument becomes inoperable. Currently there are 126 sites utilizing units and there are over a dozen additional sites expressing interest in hosting an instrument. Similarly, OSP FSD received a request for six (6) additional instruments at DPSST due to the increased Intoxilyzer training class sizes with class sizes of up to 60 participants. Lastly, the OSP Patrol Division has initiated a pilot program called the High Visibility Enforcement Unit (HVEU) where four (4) units are scheduled to be mounted within specially equipped Dodge Durango’s patrol vehicles. The HVEU program requests an additional four (4) instruments to be available for deployment during special events such as, DuneFest held in Southern Oregon or the Oregon Country Fair held in Lane County. To replace the current instruments and absorb the needed expansion of the program, the FSD foresees the need to acquire a minimum of 200 instruments to replace the I8000’s and expand the program to additional sites, as needed.

The total estimated cost for the Contract for ten (10) years is estimated at $3,025,000. The estimated cost breakdown is set out in Table 1 below:

Table 1:

Source Item Quantity Estimated Cost

Estimated Start-Up Cost

Estimated 10- Year Projected

Cost CMI Intoxilyzer 9000 220 $10,560 $2,323,200 $2,323,200 CMI 2D USB Barcode Reader 180 $600 $108,000 $205,200 CMI Breath Hose Assembly 20 $352 $7,040 $64,064 CMI Instrument Warranty 20 $825 $16,500 $165,000

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CMI Instrument Configuration & Training

1 $85,650 $85,650 $85,650

CMI Guth Simulators 25 $1,289 $32,225 $32,225 CMI COBRA Software 8 $750 $6,000 $6,000 Contingency Fund $143,661

Estimated Total Cost: $2,578,615 $3,025,000

d. Proposed Contracting Procedure:

1. As required by Oregon Administrative Rule (OAR) 125-247-0287, DAS PS will issue a public notice (Notice) of the approved SP on OregonBuys for a period of seven (7) Calendar Days.

2. The Notice will include provisions that any affected party may protest the approval of this SP Request.

3. DAS PS, working with OSP, will respond to and resolve all protests, if any.

4. If no protests to this approved SP are received and sustained, DAS PS, on behalf of OSP will proceed with direct award and negotiation of a Contract as described in Section 10.a. above.

5. DAS PS, working with OSP, will obtain Enterprise Information Services (EIS) endorsement before executing the Contract, as applicable.

6. Pursuant to OAR 137-045-0015, DAS PS, on behalf of OSP, will work with Oregon Department of

Justice (DOJ) and obtain its legal sufficiency approval prior to executing the Contract, as required.

11. Justification for use of Special Procurement: Describe the circumstances that justify the use of a Special Procurement. Attach relevant documentation.

1. The I9000 uses identical infrared technology to quantitate ethanol concentrations in human breath as that also used by the Intoxilyzer 4011A, Intoxilyzer 5000, and Intoxilyzer 8000.

a. Using an alternative device that does not use infrared technology for ethanol quantitation would potentially lead to both an increase in costs to OSP due to increased court testimonies resulting from Brown/O’Key and/or Daubert hearings, as well the number of hearings to determine the scientific admissibility of the evidence being presented to the court. It would also be expected that additional court time would be required to explain the reasons why the I8000 was replaced by completely different technology.

2. The use and operation of the I9000 is nearly identical to that of the existing I8000.

a. The only physical difference is that the I9000 has migrated to a touch screen, whereas the

I8000 uses a physical button to initiate starting the test.

b. The similarity between the existing device and the I9000 will drastically reduce training time for existing I8000 operators.

c. Language in OAR Chapter 257, Division 30 will require minimal changes.

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d. The I9000 meets the program requirements of transportability, whereas other devices on the market are bulkier and do not have handles or hand slots to easily transport the instrument.

3. CMI, Inc. is the current provider for all of the I8000 instruments through OSP, including their proprietary software, COBRA. OSP would likely need to replace all existing I8000 instruments to operate with a new software platform.

12. Findings to Satisfy the Required Standards: This proposed special procurement:

___X__ (a) will be unlikely to encourage favoritism in the awarding of public contracts or to substantially diminish competition for public contracts because:

As stated in Section 10.b., OSP issued an open RFI in OregonBuys, the State of Oregon’s eProcurement system of record, inviting all possible vendors to participate in the RFI process. Of the four (4) respondents, only CMI’s Intoxilyzer 9000 met the agency’s testing requirements and is the recommended unit to upgrade from the existing I8000 units and purchase additional needed units, while not incurring unnecessary costs and minimizing the disruption for the existing program, units, software, and operations.

and

_____ (b)(i) will result in substantial cost savings to the contracting agency or to the public because:

or

___X___ (b)(ii) will otherwise substantially promote the public interest in a manner that could not practicably be realized by complying with the requirements of ORS 279B.055, 279B.060, 279B.065, or 279B.070, or any rules adopted thereunder because:

Additional recommendations identified the I9000 as the instrument to replace the I8000 include:

• Contracting with CMI, Inc., whose technology has been scientifically evaluated and validated by the OSP FSD will result in substantial cost savings to the contracting agency.

o Moving to a different manufacturer other than CMI will require significant revisions to existing operational guides, training material, and OARs will be required. For example, it is estimated that to create new guides, training materials and OARs would take at least twice the expected time at a cost of approximately $23,504 to the Forensic Services Division (Using an average wage of $31.00/hr obtained from Salary.com.

• The continued purchase from a manufacturer of equipment that has already been validated will allow

OSP FSD to maintain uninterrupted services due to the similarities in instrument design, compatibility of training material, and day-to-day operational use between the Intoxilyzer 8000 and the Intoxilyzer 9000.

• If another instrument were identified as the replacement of the current I8000, it will require OSP FSD to maintain two distinctively different programs. Replacement of the I8000 units currently in the field (127 instruments) must be done in phases by selecting specific counties or regions and will take

SP No. REQ-DASOBO-00049798_CMI_Intoxilyzer_OSP Page 6 of 7 several months. It is not feasible for OSP FSD to terminate the I8000 statewide program and then initiate the new program.

Infrared (IR) spectrophotometry has been used by the State of Oregon’s breath testing program for over forty years. Maintaining public confidence in this program, its process, and technology is critical.

Single point calibration instruments on the market would not align with OSP FSD’s current program methodology for ethanol determinations. Similarly, if Standard 055 is adopted, the State of Oregon’s breath testing program will no longer be in compliance, which would be a detriment to the safety and wellbeing of Oregonians.

13. Signature: The actual signature of the Agency Head or designee (e.g., Designated Procurement Officer) is not required on the Request if it is submitted through OregonBuys. Agency may elect to attach a signed Request.

Signature: e.g. Electronically in OregonBuys _________________ Type Name: Date:

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PART B. The Department of Administrative Services completes Part B.

STATUTORY AND RULE AUTHORITY:

ORS 279B.085(2) states the Director of the Department of Administrative Services may approve a special procurement if the Director finds that a written request submitted under ORS 279B.085(4) demonstrates that the use of a special procurement as described in the request, or an alternative procedure prescribed by the Director will:

(a) Be unlikely to encourage favoritism in the awarding of public contracts or to substantially diminish competition for public contracts; and (b)(A) Result in substantial cost savings to the contracting agency or to the public; or

(B) Otherwise substantially promote the public interest in a manner that could not practicably be realized by complying with requirements that are applicable under ORS 279B.055, 279B.060, 279B.065 or 279B.070 or under any rules adopted thereunder.

OAR 125-246-0170 delegates the authority of the Director of the Department of Administrative Services to approve special procurements to the State Chief Procurement Officer. OAR 125-247-0285 through 125-247-0288 implement

ORS 279B.085.

OAR 125-247-0700(2) Protests and Judicial Review of Special Procurements designates the State Chief Procurement Officer as the Contract Review Authority.

FINDINGS: The findings are accepted, adopted, and incorporated by reference herein.

CONDITIONS OF APPROVAL:

1. Notice Period. The Authorized Agency shall post the Public Notice on OregonBuys. The Special Procurement may not be used until after the completion of the seven (7) day notice period required pursuant to OAR 125-247- 0287(4), and either:

a. No Written protests are received by the Contract Review Authority, State Chief Procurement Officer, from an Affected Person in response to the notice, or

b. If any protest is received during the notice period, then not until:

i. the State Chief Procurement Officer or delegate issues a written disposition of the protest in accordance with ORS 279B.400 and OAR 125-247-0700 and OAR 137-047-0700, and

ii. confirms in writing the first possible date of use of the Special Procurement.

2. ORS 279A.165 Requirements. Authorized Agency shall comply with the requirements of ORS 279A.165 and OAR 125-247-0287(12) regarding a report about this Special Procurement. Agency shall use a form and follow the instructions provided by the State Chief Procurement Officer or delegate.

3. Authorized Agency shall comply with all Enterprise Information Services (EIS) conditions and requirements prior to contract execution, if any.

APPROVED:

Jay Jackson, Procurement Policy Officer Date:

Department of Administrative Services, Procurement Services

06/10/2024