State Buy America- Draft Findings S-10700-00017797.pdf

V1.01

DRAFT FINDINGS FOR A WAIVER OF

ORS 279C.303 “BUY AMERICA” REQUIREMENTS

OregonBuys # S-10700-00017797 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 Floor Drains )

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 will include that any affected party may comment on the draft 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 Executive Building Parking Garage Security

Updates .

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-10700-00016426 via OregonBuys on March 31st, 2026, closed the bid on April 30th, 2026, and established a Public Improvement contract for the Executive Building Parking Garage Security Updates (the “Project”) on behalf of DAS Enterprise Asset Management (DAS-EAM). Pursuant to ORS 279C.303, the Department of Administrative Services (“DAS”) complied with the following requirements in the ITB:

1) Required 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 or Public Works, and that become part of a permanent structure, must be produced in the United States;

2) Noted clearly and conspicuously in solicitation ITB# S-10700-00016426 and the resulting Public Improvement Contract# PO-10700-00060764 (“Contract”) for including 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 the ORS 279C.303 and OAR 125-249-0170 State Buy America requirements as the 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 State Procurement Services (“DAS SPS”).

Background

The scope of the Project, Executive Building Parking Garage Security Updates, for ITB # S-10700-00016426 included roof drains as a part of the project. After thorough research, drains that were compliant with the State Buy America requirements were located and ordered by the contractor. After delays, the supplier of the drains informed the contractor and DAS EAM that State Buy America compliant drains would not be shipped until September 4th, 2026 from Alabama and may arrive on site around September 11th, 2026 (estimated). Such unforeseen delay in material delivery is affecting completion of the Project as specified in the Contract and it will be too late for the traffic coating prep and installation without requiring the newly installed surface to be cut and patched. Moreover, Substantial Completion Date August 31st, 2026 and Final Completion Date September 30th, 2026 set in the Contract were in order to avoid risk of having to work in weather conditions that would jeopardize the integrity of the parking structure. The timing of parking deck resurfacing is such that this portion of the project must begin on or around August 17th, 2026 in order to meet a mandatory resurfacing completion timeline of mid- September 2026. Drains that are meeting technical specifications and scope, except for the State Buy America compliant, can be delivered on site with no additional cost. Not having drains available while the new surface is being applied would mean the brand new surface would have to be cut and patched in order to install the State Buy America ORS 279C.303 compliant drains. This would degrade the condition of the newly installed surface resulting in a lower life expectancy; therefore, significantly reducing the value of the Project and state funds. The public interest is served by extending the life of the new surface to the maximum extent possible for no additional cost.

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 the use of a non-State Buy America compliant floor drain, to be used in the Executive Building Parking Garage Security Updates Public Works Project (Contract# PO-10700- 00060764) under DAS Procurement Authority for the next one (1) year upon issuance of the Waiver of ORS 279C.303 Buy America Requirements for procurement of floor drains.

1. Not having floor drains available while the new surface is being applied means that a brand new surface would have to be cut and patched. Applying and patching new surface applied for installing State Buy America compliant floor drains will result in lowering life expectancy, aesthetics, and functionality of the parking structure.

2. Drains that are meeting technical specifications and scope, except for the State

Buy America compliant, are available and can be delivered on site with no additional cost.