USA Statutes : oregon
Title : TITLE 24 PUBLIC ORGANIZATIONS FOR COMMUNITY SERVICE
Chapter : Chapter 279A Public Contracting - General Provisions
ORS chapters 279A, 279B and 279C may be cited
as the Public Contracting Code. [2003 c.794 §1] (1) As used in
the Public Contracting Code, unless the context or a specifically
applicable definition requires otherwise:
(a) “Bidder” means a person that submits a bid in response to an
invitation to bid.
(b) “Contracting agency” means a public body authorized by law to
conduct a procurement. “Contracting agency” includes, but is not limited
to, the Director of the Oregon Department of Administrative Services and
any person authorized by a contracting agency to conduct a procurement on
the contracting agency’s behalf. “Contracting agency” does not include
the judicial department or the legislative department.
(c) “Days” means calendar days.
(d) “Department” means the Oregon Department of Administrative
Services.
(e) “Director” means the Director of the Oregon Department of
Administrative Services or a person designated by the director to carry
out the authority of the director under the Public Contracting Code.
(f) “Emergency” means circumstances that:
(A) Could not have been reasonably foreseen;
(B) Create a substantial risk of loss, damage or interruption of
services or a substantial threat to property, public health, welfare or
safety; and
(C) Require prompt execution of a contract to remedy the condition.
(g) “Energy savings performance contract” means a public contract
between a contracting agency and a qualified energy service company for
the identification, evaluation, recommendation, design and construction
of energy conservation measures, including a design-build contract, that
guarantee energy savings or performance.
(h) “Executive department” has the meaning given that term in ORS
174.112.
(i)(A) “Grant” means:
(i) An agreement under which a contracting agency receives moneys,
property or other assistance, including but not limited to federal
assistance that is characterized as a grant by federal law or
regulations, loans, loan guarantees, credit enhancements, gifts,
bequests, commodities or other assets, from a grantor for the purpose of
supporting or stimulating a program or activity of the contracting agency
and in which no substantial involvement by the grantor is anticipated in
the program or activity other than involvement associated with monitoring
compliance with the grant conditions; or
(ii) An agreement under which a contracting agency provides moneys,
property or other assistance, including but not limited to federal
assistance that is characterized as a grant by federal law or
regulations, loans, loan guarantees, credit enhancements, gifts,
bequests, commodities or other assets, to a recipient for the purpose of
supporting or stimulating a program or activity of the recipient and in
which no substantial involvement by the contracting agency is anticipated
in the program or activity other than involvement associated with
monitoring compliance with the grant conditions.
(B) “Grant” does not include a public contract for a public
improvement, for public works, as defined in ORS 279C.800, or for
emergency work, minor alterations or ordinary repair or maintenance
necessary to preserve a public improvement, when under the public
contract a contracting agency pays, in consideration for contract
performance intended to realize or to support the realization of the
purposes for which grant funds were provided to the contracting agency,
moneys that the contracting agency has received under a grant.
(j) “Industrial oil” means any compressor, turbine or bearing oil,
hydraulic oil, metal-working oil or refrigeration oil.
(k) “Judicial department” has the meaning given that term in ORS
174.113.
(L) “Legislative department” has the meaning given that term in ORS
174.114.
(m) “Local contract review board” means a local contract review
board described in ORS 279A.060.
(n) “Local contracting agency” means a local government or special
government body authorized by law to conduct a procurement. “Local
contracting agency” includes any person authorized by a local contracting
agency to conduct a procurement on behalf of the local contracting agency.
(o) “Local government” has the meaning given that term in ORS
174.116.
(p) “Lowest responsible bidder” means the lowest bidder who:
(A) Has substantially complied with all prescribed public
contracting procedures and requirements;
(B) Has met the standards of responsibility set forth in ORS
279B.110 or 279C.375;
(C) Has not been debarred or disqualified by the contracting agency
under ORS 279B.130 or 279C.440; and
(D) If the advertised contract is a public improvement contract, is
not on the list created by the Construction Contractors Board under ORS
701.227.
(q) “Lubricating oil” means any oil intended for use in an internal
combustion crankcase, transmission, gearbox or differential or an
automobile, bus, truck, vessel, plane, train, heavy equipment or
machinery powered by an internal combustion engine.
(r) “Person” means a natural person capable of being legally bound,
a sole proprietorship, a corporation, a partnership, a limited liability
company or partnership, a limited partnership, a for-profit or nonprofit
unincorporated association, a business trust, two or more persons having
a joint or common economic interest, any other person with legal capacity
to contract or a public body.
(s) “Post-consumer waste” means a finished material that would
normally be disposed of as solid waste, having completed its life cycle
as a consumer item. “Post-consumer waste” does not include manufacturing
waste.
(t) “Price agreement” means a public contract for the procurement
of goods or services at a set price with:
(A) No guarantee of a minimum or maximum purchase; or
(B) An initial order or minimum purchase combined with a continuing
contractor obligation to provide goods or services in which the
contracting agency does not guarantee a minimum or maximum additional
purchase.
(u) “Procurement” means the act of purchasing, leasing, renting or
otherwise acquiring goods or services. “Procurement” includes each
function and procedure undertaken or required to be undertaken by a
contracting agency to enter into a public contract, administer a public
contract and obtain the performance of a public contract under the Public
Contracting Code.
(v) “Proposer” means a person that submits a proposal in response
to a request for proposals.
(w) “Public body” has the meaning given that term in ORS 174.109.
(x) “Public contract” means a sale or other disposal, or a
purchase, lease, rental or other acquisition, by a contracting agency of
personal property, services, including personal services, public
improvements, public works, minor alterations, or ordinary repair or
maintenance necessary to preserve a public improvement. “Public contract”
does not include grants.
(y) “Public contracting” means procurement activities described in
the Public Contracting Code relating to obtaining, modifying or
administering public contracts or price agreements.
(z) “Public Contracting Code” or “code” means ORS chapters 279A,
279B and 279C.
(aa) “Public improvement” means a project for construction,
reconstruction or major renovation on real property by or for a
contracting agency. “Public improvement” does not include:
(A) Projects for which no funds of a contracting agency are
directly or indirectly used, except for participation that is incidental
or related primarily to project design or inspection; or
(B) Emergency work, minor alteration, ordinary repair or
maintenance necessary to preserve a public improvement.
(bb) “Public improvement contract” means a public contract for a
public improvement. “Public improvement contract” does not include a
public contract for emergency work, minor alterations, or ordinary repair
or maintenance necessary to preserve a public improvement.
(cc) “Recycled material” means any material that would otherwise be
a useless, unwanted or discarded material except for the fact that the
material still has useful physical or chemical properties after serving a
specific purpose and can, therefore, be reused or recycled.
(dd) “Recycled oil” means used oil that has been prepared for reuse
as a petroleum product by refining, rerefining, reclaiming, reprocessing
or other means, provided that the preparation or use is operationally
safe, environmentally sound and complies with all laws and regulations.
(ee) “Recycled paper” means a paper product with not less than:
(A) Fifty percent of its fiber weight consisting of secondary waste
materials; or
(B) Twenty-five percent of its fiber weight consisting of
post-consumer waste.
(ff) “Recycled PETE” means post-consumer polyethylene terephthalate
material.
(gg) “Recycled product” means all materials, goods and supplies,
not less than 50 percent of the total weight of which consists of
secondary and post-consumer waste with not less than 10 percent of its
total weight consisting of post-consumer waste. “Recycled product”
includes any product that could have been disposed of as solid waste,
having completed its life cycle as a consumer item, but otherwise is
refurbished for reuse without substantial alteration of the product’s
form.
(hh) “Secondary waste materials” means fragments of products or
finished products of a manufacturing process that has converted a virgin
resource into a commodity of real economic value. “Secondary waste
materials” includes post-consumer waste. “Secondary waste materials” does
not include excess virgin resources of the manufacturing process. For
paper, “secondary waste materials” does not include fibrous waste
generated during the manufacturing process such as fibers recovered from
waste water or trimmings of paper machine rolls, mill broke, wood slabs,
chips, sawdust or other wood residue from a manufacturing process.
(ii) “Special government body” has the meaning given that term in
ORS 174.117.
(jj) “State agency” means the executive department, except the
Secretary of State and the State Treasurer in the performance of the
duties of their constitutional offices.
(kk) “State contracting agency” means an executive department
entity authorized by law to conduct a procurement.
(LL) “State government” has the meaning given that term in ORS
174.111.
(mm) “Used oil” has the meaning given that term in ORS 459A.555.
(nn) “Virgin oil” means oil that has been refined from crude oil
and that has not been used or contaminated with impurities.
(2) Other definitions appearing in the Public Contracting Code and
the sections in which they appear are: (a)“Adequate”
ORS 279C.305
(b)“Administering contracting agency” ORS 279A.200
(c)“Affirmative action” ORS
279A.100
(d)
“Architect” ORS 279C.100
(e)“Architectural, engineering and land
surveying services”
ORS 279C.100
(f)“Bid documents” ORS
279C.400
(g)
“Bidder” ORS 279B.415
(h)
“Bids” ORS
279C.400
(i)“Brand name”
ORS 279B.405
(j)“Brand name or equal specification” ORS 279B.200
(k)“Brand name specification” ORS
279B.200
(L) “Class special procurement” ORS
279B.085
(m) “Consultant”
ORS 279C.115
(n)“Contract-specific special procurement” ORS 279B.085
(o)“Cooperative procurement” ORS
279A.200
(p)“Cooperative procurement group” ORS 279A.200
(q)
“Donee” ORS 279A.250
(r)
“Engineer” ORS 279C.100
(s)
“Findings” ORS 279C.330
(t)“Fire protection equipment” ORS
279A.190
(u)“Fringe benefits”
ORS 279C.800
(v)“Funds of a public agency” ORS
279C.810
(w) “Good cause”
ORS 279C.585
(x)“Good faith dispute” ORS
279C.580
(y)
“Goods” ORS 279B.115
(z)“Goods and services” or “goods or
services”
ORS 279B.005
(aa) “Interstate cooperative procurement” ORS 279A.200
(bb) “Invitation to bid”
ORS 279B.005
and 279C.400
(cc) “Joint cooperative procurement” ORS 279A.200
(dd) “Labor dispute” ORS
279C.650
(ee) “Land surveyor” ORS
279C.100
(ff) “Legally flawed”
ORS 279B.405
(gg)
“Locality” ORS 279C.800
(hh) “Nonprofit organization” ORS
279C.810
(ii)“Nonresident bidder” ORS
279A.120
(jj)“Not-for-profit organization” ORS
279A.250
(kk) “Original contract”
ORS 279A.200
(LL) “Permissive cooperative procurement” ORS 279A.200
(mm) “Person”
ORS 279C.500
and 279C.815
(nn) “Personal services”
ORS 279C.100
(oo) “Prevailing rate of wage” ORS
279C.800
(pp) “Procurement description” ORS
279B.005
(qq)
“Property” ORS 279A.250
(rr) “Public agency”
ORS 279C.800
(ss) “Public contract”
ORS 279A.190
(tt) “Public contract for goods or services”ORS 279B.005
(uu) “Public works”
ORS 279C.800
(vv) “Purchasing contracting agency” ORS 279A.200
(ww) “Regularly organized fire department” ORS 279A.190
(xx) “Related services”
ORS 279C.100
(yy) “Request for proposals” ORS
279B.005
(zz) “Resident bidder” ORS
279A.120
(aaa) “Responsible bidder” ORS
279A.105
and 279B.005
(bbb) “Responsible proposer” ORS
279B.005
(ccc) “Responsive bid” ORS
279B.005
(ddd) “Responsive proposal” ORS
279B.005
(eee) “Retainage”
ORS 279C.550
(fff) “Special procurement” ORS
279B.085
(ggg) “Specification”
ORS 279B.200
(hhh) “State agency”
ORS 279A.250
(iii) “Substantial completion” ORS
279C.465
(jjj) “Surplus property”
ORS 279A.250
(kkk) “Unnecessarily restrictive” ORS
279B.405[2003 c.794 §2; 2003 c.794 §2a; 2005 c.22 §199; 2005 c.103 §1a; 2005
c.153 §2; 2005 c.360 §13] It is the policy of the State of Oregon, in
enacting the Public Contracting Code, that a sound and responsive public
contracting system should:
(1) Simplify, clarify and modernize procurement practices so that
they reflect the marketplace and industry standards.
(2) Instill public confidence through ethical and fair dealing,
honesty and good faith on the part of government officials and those who
do business with the government.
(3) Promote efficient use of state and local government resources,
maximizing the economic investment in public contracting within this
state.
(4) Clearly identify rules and policies that implement each of the
legislatively mandated socioeconomic programs that overlay public
contracting and accompany the expenditure of public funds.
(5) Allow impartial and open competition, protecting both the
integrity of the public contracting process and the competitive nature of
public procurement. In public procurement, as set out in ORS chapter
279B, meaningful competition may be obtained by evaluation of performance
factors and other aspects of service and product quality, as well as
pricing, in arriving at best value.
(6) Provide a public contracting structure that can take full
advantage of evolving procurement methods as they emerge within various
industries, while preserving competitive bidding as the standard for
public improvement contracts unless otherwise exempted. [2003 c.794 §3] (1) Except as
otherwise provided in the Public Contracting Code, all public contracting
by a contracting agency is subject to this chapter.
(2) Except as provided in ORS 279C.320, public contracting
involving public improvements and other construction services is subject
to this chapter and ORS chapter 279C, but not ORS chapter 279B.
(3) Public contracting involving architects, engineers, land
surveyors and related services is subject to this chapter and ORS chapter
279C, but not ORS chapter 279B.
(4) Except as provided in ORS 279C.320, all other public
contracting is subject to this chapter and ORS 279B, but not ORS chapter
279C. [2003 c.794 §4; 2005 c.103 §2] (1) Except as
provided in subsections (2) to (4) of this section, the Public
Contracting Code applies to all public contracting.
(2) The Public Contracting Code does not apply to:
(a) Contracts between contracting agencies or between contracting
agencies and the federal government;
(b) Insurance and service contracts as provided for under ORS
414.115, 414.125, 414.135 and 414.145 for purposes of source selection;
(c) Grants;
(d) Contracts for professional or expert witnesses or consultants
to provide services or testimony relating to existing or potential
litigation or legal matters in which a public body is or may become
interested;
(e) Acquisitions or disposals of real property or interest in real
property;
(f) Sole-source expenditures when rates are set by law or ordinance
for purposes of source selection;
(g) Contracts for the procurement or distribution of textbooks;
(h) Procurements by a contracting agency from an Oregon Corrections
Enterprises program;
(i) The procurement, transportation or distribution of distilled
liquor, as defined in ORS 471.001, or the appointment of agents under ORS
471.750 by the Oregon Liquor Control Commission;
(j) Contracts entered into under ORS chapter 180 between the
Attorney General and private counsel or special legal assistants;
(k) Contracts for the sale of timber from lands owned or managed by
the State Board of Forestry and the State Forestry Department;
(L) Contracts for forest protection or forest related activities,
as described in ORS 477.406, by the State Forester or the State Board of
Forestry;
(m) Sponsorship agreements entered into by the State Parks and
Recreation Director in accordance with ORS 565.080 (4);
(n) Contracts entered into by the Housing and Community Services
Department in exercising the department’s duties prescribed in ORS
chapters 456 and 458, except that the department’s public contracting for
goods and services, as defined in ORS 279B.005, is subject to ORS chapter
279B;
(o) Contracts entered into by the State Treasurer in exercising the
powers of that office prescribed in ORS chapters 178, 286, 287, 288, 289,
293, 294 and 295, including but not limited to investment contracts and
agreements, banking services, clearing house services and
collateralization agreements, bond documents, certificates of
participation and other debt repayment agreements, and any associated
contracts, agreements and documents, regardless of whether the
obligations that the contracts, agreements or documents establish are
general, special or limited, except that the State Treasurer’s public
contracting for goods and services, as defined in ORS 279B.005, is
subject to ORS chapter 279B;
(p) Contracts, agreements or other documents entered into, issued
or established in connection with:
(A) The incurring of debt by a public body, including but not
limited to the issuance of bonds, certificates of participation and other
debt repayment obligations, and any associated contracts, agreements or
other documents, regardless of whether the obligations that the
contracts, agreements or other documents establish are general, special
or limited;
(B) The making of program loans and similar extensions or advances
of funds, aid or assistance by a public body to a public or private body
for the purpose of carrying out, promoting or sustaining activities or
programs authorized by law; or
(C) The investment of funds by a public body as authorized by law,
and other financial transactions of a public body that by their character
cannot practically be established under the competitive contractor
selection procedures of ORS 279B.050 to 279B.085;
(q) Contracts for employee benefit plans as provided in ORS 243.105
(1), 243.125 (4), 243.221, 243.275, 243.291, 243.303 and 243.565; or
(r) Any other public contracting of a public body specifically
exempted from the code by another provision of law.
(3) The Public Contracting Code does not apply to the public
contracting activities of:
(a) The Oregon State Lottery Commission;
(b) The Oregon University System and member institutions, except as
provided in ORS 351.086;
(c) The legislative department;
(d) The judicial department;
(e) Semi-independent state agencies listed in ORS 182.451 and
182.454, except as provided in ORS 279.835 to 279.855 and 279A.250 to
279A.290;
(f) Oregon Corrections Enterprises;
(g) The Oregon Film and Video Office, except as provided in ORS
279A.100 and 279A.250 to 279A.290;
(h) The Travel Information Council, except as provided in ORS
279A.250 to 279A.290;
(i) The Oregon 529 College Savings Network and the Oregon 529
College Savings Board;
(j) The Oregon Innovation Council; or
(k) Any other public body specifically exempted from the code by
another provision of law.
(4) ORS 279A.200 to 279A.225 and 279B.050 to 279B.085 do not apply
to contracts made with qualified nonprofit agencies providing employment
opportunities for disabled individuals under ORS 279.835 to 279.855.
[2003 c.794 §5; 2003 c.794 §5a; 2005 c.22 §200; 2005 c.103 §3; 2005 c.109
§3; 2005 c.297 §3; 2005 c.748 §12; 2005 c.777 §15] Except as
otherwise expressly provided in ORS 279C.800 to 279C.870, and
notwithstanding ORS 279C.005 to 279C.670 and this chapter and ORS chapter
279B, applicable federal statutes and regulations govern when federal
funds are involved and the federal statutes or regulations conflict with
any provision of ORS 279C.005 to 279C.670 or this chapter or ORS chapter
279B, or require additional conditions in public contracts not authorized
by ORS 279C.005 to 279C.670 or this chapter or ORS chapter 279B. [2003
c.794 §6]AUTHORITY (1) Except as otherwise provided in
the Public Contracting Code, a contracting agency shall exercise all
rights, powers and authority in accordance with the provisions of the
Public Contracting Code.
(2) Except as otherwise provided in the Public Contracting Code,
for state agencies the Director of the Oregon Department of
Administrative Services has all of the rights, powers and authority
necessary to carry out the provisions of the Public Contracting Code.
(3) Except as otherwise provided in the Public Contracting Code,
the Director of Transportation has all of the rights, powers and
authority to:
(a) Procure or supervise the procurement of all services and
personal services to construct, acquire, plan, design, maintain and
operate passenger terminal facilities and motor vehicle parking
facilities in connection with any public transportation system in
accordance with ORS 184.689 (5);
(b) Procure or supervise the procurement of all goods, services,
public improvements and personal services relating to the operation,
maintenance or construction of highways, bridges and other transportation
facilities that are subject to the authority of the Department of
Transportation; and
(c) Establish standards for, prescribe forms for and conduct the
prequalification of prospective bidders on public improvement contracts
related to the operation, maintenance or construction of highways,
bridges and other transportation facilities that are subject to the
authority of the Department of Transportation.
(4) Except as otherwise provided in the Public Contracting Code,
the Secretary of State has all of the rights, powers and authority to
procure or supervise the procurement of goods, services and personal
services related to programs under the direct authority of the Secretary
of State.
(5) Except as otherwise provided in the Public Contracting Code,
the State Treasurer has all of the rights, powers and authority to
procure or supervise the procurement of goods, services and personal
services related to programs under the authority of the State Treasurer.
(6) The following specific limited authorities are subject to the
provisions of the Public Contracting Code:
(a) The Department of Human Services to procure or supervise the
procurement of goods, services and personal services for the
construction, demolition, exchange, maintenance, operation and equipping
of housing:
(A) For the chronically mentally ill, subject to applicable
provisions of ORS 426.504; and
(B) For the purpose of providing care to individuals with mental
retardation or other developmental disabilities, subject to applicable
provisions of ORS 427.335;
(b) The State Department of Fish and Wildlife to procure or
supervise the procurement of all goods, services, public improvements and
personal services relating to dams, fishways, ponds and related fish and
game propagation facilities;
(c) The State Parks and Recreation Department to procure or
supervise the procurement of all goods, services, public improvements and
personal services relating to state parks;
(d) The Oregon Department of Aviation to procure or supervise the
procurement of all goods, services, public improvements and personal
services related to airports owned or operated by the state;
(e) The Economic and Community Development Department to procure or
supervise the procurement of all goods, services, personal services and
public improvements related to its foreign trade offices operating
outside the state;
(f) The Attorney General to enter into contracts as necessary to
exercise the authority granted in ORS chapter 180;
(g) The Housing and Community Services Department to procure or
supervise the procurement of goods, services and personal services;
(h) The Department of Corrections to procure or supervise the
procurement of goods, services and personal services for the construction
of all new buildings or additions for its institutions;
(i) The Department of Corrections, subject to any applicable
provisions of ORS 279A.120, 279A.125, 279A.145 and 283.110 to 283.395, to
procure or supervise the procurement of goods for its institutions;
(j) The Department of Veterans’ Affairs to procure or supervise the
procurement of real estate broker and principal real estate broker
services related to programs under the department’s authority; and
(k) Any state agency to make procurements when the agency is
specifically authorized by any provision of law other than the Public
Contracting Code to enter into a contract. [2003 c.794 §7; 2005 c.625 §61] (1) Except as provided in ORS
279A.140, a contracting agency may enter into personal services
contracts. The provisions of this section do not relieve a contracting
agency of the duty to comply with ORS 279A.140, any other law applicable
to state agencies or applicable city or county charter provisions.
(2) A state contracting agency with procurement authority under ORS
279A.050 or a local contract review board by ordinance, resolution,
administrative rule or other regulation may designate certain service
contracts or classes of service contracts as personal services contracts.
[2003 c.794 §8; 2005 c.103 §4] If the governing body of a
local contracting agency takes no action to provide otherwise, the
governing body is the local contract review board of that local
contracting agency. However, the governing body of a local contracting
agency may, by charter, ordinance or other local legislation, authorize a
body, board or commission other than the governing body to serve as the
local contract review board of the local contracting agency. The
governing body of a local contracting agency also may enter into
intergovernmental agreements under ORS chapter 190 to permit the local
contract review board of another local contracting agency or the Director
of the Oregon Department of Administrative Services to exercise authority
under ORS 279B.085. [2003 c.794 §9](1) The Attorney General shall prepare and maintain model rules
of procedure appropriate for use by all contracting agencies governing
public contracting under the Public Contracting Code and may devise and
publish forms for use therewith. The Attorney General shall adopt the
model rules in the manner provided by ORS chapter 183. Before adopting or
amending a model rule, the Attorney General shall consult with the
Director of the Oregon Department of Administrative Services, the
Director of Transportation, representatives of county governments,
representatives of city governments, representatives of school boards and
other knowledgeable persons.
(2) The Attorney General shall adopt model rules appropriate for
use by all contracting agencies to govern the procedures for entering
into energy savings performance contracts. Before adopting or amending a
rule under this subsection, the Attorney General shall consult with the
Oregon Department of Administrative Services, the State Department of
Energy, the Oregon University System, local contracting agencies and
other knowledgeable persons. The Attorney General may develop standard
contract forms for use with energy savings performance contracts.
(3) After each legislative session, the Attorney General shall
review all laws passed by the Legislative Assembly that affect public
contracting to determine if the model rules prepared under this section
should be modified by the adoption of a new rule or by the amendment or
repeal of an existing rule. If the Attorney General determines that a
modification of the model rules is necessary, the Attorney General shall
prepare the modification within such time as to allow the modification to
take effect no later than 120 days after the effective date of the
legislation that caused the rule to be modified. However, the Attorney
General may prepare a modification to take effect 121 or more days after
the effective date of the legislation if the Attorney General provides
notice designating the time period within which the modification will
take effect to the state agencies and persons listed in subsection (1) of
this section.
(4) A contracting agency that has not adopted its own rules of
procedure in accordance with subsection (5) of this section is subject to
the model rules adopted by the Attorney General under this section,
including all modifications to the model rules that the Attorney General
may adopt. This subsection does not apply to personal services contracts
of local contracting agencies except for contracts for architectural,
engineering and land surveying services and related services.
(5)(a) A contracting agency may adopt its own rules of procedure
for public contracts that:
(A) Specifically state that the model rules adopted by the Attorney
General under this section do not apply to the contracting agency; and
(B) Prescribe the rules of procedure that the contracting agency
will use for public contracts, which may include portions of the model
rules adopted by the Attorney General.
(b) A contracting agency that adopts rules under this section shall
review the rules each time the Attorney General modifies the model rules
under this section to determine whether the contracting agency should
modify its rules to ensure compliance with statutory changes. [2003 c.794
§10; 2003 c.794 §10a]In addition to rules adopted under ORS 279A. 065
(5), a contracting agency may, in the exercise of authority granted under
ORS 279A.050, adopt rules necessary to carry out the provisions of the
Public Contracting Code, including but not limited to rules for the
procurement, management, disposal and control of goods, services,
personal services and public improvements under the Public Contracting
Code. Each contracting agency authorized to enter into personal services
contracts shall create procedures for the screening and selection of
persons to perform personal services. [2003 c.794 §11; 2003 c.794 §11a] (1) Unless otherwise provided in the Public
Contracting Code, the exercise of all authorities in the code may be
delegated and subdelegated in whole or in part. Notwithstanding
delegations of authority under this section, a person’s or agency’s
exercise of the delegated authority is governed by the code and rules
adopted under the code.
(2) The Secretary of State, State Treasurer, Director of the Oregon
Department of Administrative Services and Director of Transportation and
other heads of state agencies with specific limited authority identified
in ORS 279A.050 (6) may delegate their authority to contract for and
manage public contracts for their offices or agencies. [2003 c.794 §12]MINORITIES, WOMEN AND EMERGING SMALL BUSINESSES (1) As
used in this section, “affirmative action” means a program designed to
ensure equal opportunity in employment and business for persons otherwise
disadvantaged by reason of race, color, religion, sex, national origin,
age or physical or mental disability.
(2) The provisions of the Public Contracting Code may not be
construed to prohibit a contracting agency from engaging in public
contracting practices designed to promote affirmative action goals,
policies or programs for disadvantaged or minority groups.
(3) In carrying out the policy of affirmative action, by
appropriate ordinance, resolution or rule, a contracting agency may limit
competition for a public contract for goods and services, or for any
other public contract estimated to cost $50,000 or less, to contracting
entities owned or controlled by persons described in subsection (1) of
this section. [2003 c.794 §13] (1) A
contracting agency may require a contractor to subcontract some part of a
contract to, or to obtain materials to be used in performing the contract
from, a business enterprise that is certified under ORS 200.055 as an
emerging small business.
(2) A contracting agency may require a contractor to subcontract
some part of a contract to, or to obtain materials to be used in
performing the contract from, a business enterprise that is certified
under ORS 200.055 as an emerging small business and that, as identified
by the contracting agency, is located in or draws its workforce from
economically distressed areas, as designated by the Economic and
Community Development Department.
(3) A contracting agency may require that a public contract be
awarded to a responsible bidder, as defined in ORS 200.005, who the
contracting agency determines has made good faith efforts as prescribed
in ORS 200.045 (3). For purposes of this subsection, “responsible bidder”
includes a responsible proposer that has made good faith efforts as
prescribed in ORS 200.045 (3). [2003 c.794 §14; 2005 c.103 §5] (1)
A bidder or proposer who competes for or is awarded a public contract may
not discriminate against a subcontractor in the awarding of a subcontract
because the subcontractor is a minority, women or emerging small business
enterprise certified under ORS 200.055.
(2) A contracting agency may debar or disqualify, under ORS
279B.130 or 279C.440, as appropriate, a bidder or proposer if the
contracting agency finds that the bidder or proposer has violated
subsection (1) of this section in the awarding of a subcontract in
connection with a contract advertised by the contracting agency or a
contract between the contracting agency and the bidder or proposer. A
debarred or disqualified bidder or proposer may appeal the debarment or
disqualification under ORS 279B.425 or ORS 279C.445 and 279C.450, as
appropriate.
(3) A contracting agency may not allege an occurrence of
discrimination in subcontracting as a basis for debarring or
disqualifying a bidder or proposer under subsection (2) of this section
more than three years after the alleged discriminatory conduct occurred
or more than three years after the contracting agency, in the exercise of
reasonable diligence, should have discovered the conduct, whichever is
later.
(4) A bidder or proposer shall certify in the documents
accompanying the bidder’s or proposer’s offer to enter into a public
contract that the bidder or proposer has not discriminated and will not
discriminate, in violation of subsection (1) of this section, against any
minority, women or emerging small business enterprise in obtaining any
required subcontract.
(5) After a contractor is awarded a public contract, if the
contractor violates the certification made under subsection (4) of this
section, the contracting agency may regard the violation as a breach of
contract that permits:
(a) Termination of the contract; or
(b) The contracting agency to exercise any remedies for breach of
contract that are reserved in the contract. [2003 c.794 §15]CONTRACT PREFERENCES(1) As used in this section:
(a) “Nonresident bidder” means a bidder who is not a resident
bidder.
(b) “Resident bidder” means a bidder that has paid unemployment
taxes or income taxes in this state during the 12 calendar months
immediately preceding submission of the bid, has a business address in
this state and has stated in the bid whether the bidder is a “resident
bidder” under this paragraph.
(2) For the purposes of awarding a public contract, a contracting
agency shall:
(a) Give preference to goods or services that have been
manufactured or produced in this state if price, fitness, availability
and quality are otherwise equal; and
(b) Add a percent increase to the bid of a nonresident bidder equal
to the percent, if any, of the preference given to the bidder in the
state in which the bidder resides.
(3) When a public contract is awarded to a nonresident bidder and
the contract price exceeds $10,000, the bidder shall promptly report to
the Department of Revenue on forms to be provided by the department the
total contract price, terms of payment, length of contract and such other
information as the department may require before the bidder may receive
final payment on the public contract. The contracting agency shall
satisfy itself that the requirement of this subsection has been complied
with before the contracting agency issues a final payment on a public
contract.
(4) The Oregon Department of Administrative Services on or before
January 1 of each year shall publish a list of states that give
preference to in-state bidders with the percent increase applied in each
state. A contracting agency may rely on the names of states and
percentages so published in determining the lowest responsible bidder
without incurring any liability to any bidder. [2003 c.794 §16] (1) Notwithstanding
provisions of law requiring a contracting agency to award a contract to
the lowest responsible bidder or best proposer or provider of a quotation
and subject to subsection (2) of this section, a contracting agency
charged with the procurement of goods for any public use shall give
preference to the procurement of goods manufactured from recycled
materials.
(2) A contracting agency shall give preference to goods that are
certified to be made from recycled materials if:
(a) The recycled product is available;
(b) The recycled product meets applicable standards;
(c) The recycled product can be substituted for a comparable
nonrecycled product; and
(d) The recycled product’s costs do not exceed the costs of
nonrecycled products by more than five percent, or a higher percentage if
a written determination is made by the contracting agency. [2003 c.794
§17]STATE PROCUREMENT (1) The
Oregon Department of Administrative Services shall conduct all
procurements and administer the contracting for goods, services and
personal services, including architectural, engineering and land
surveying services and related services, for state agencies unless a
state agency is specifically authorized by ORS 279A.050 or provisions of
law other than the Public Contracting Code to enter into a contract. The
authority described in this subsection may be delegated in whole or in
part in accordance with ORS 279A.075.
(2) The following requirements and procedures apply to all
contracts of state agencies:
(a) A personal services contract is not valid or effective without
the written approval of the department unless:
(A) The contract is authorized under ORS 279A.050; or
(B) The department has delegated authority to the contracting
agency under ORS 279A.075 to make the personal services contract.
(b) Neither the department nor a state agency may approve a
contract before the contract has been reviewed for legal sufficiency and
approved by the Attorney General, if the review and approval are required
under ORS 291.047 or 291.049.
(c) Unless otherwise provided by law, the department or a state
agency may enter into a public contract for any period of time, provided
that the term of the contract and conditions of renewal or extension are
included in the solicitation. Contracting agencies may stipulate in
contracts for goods or services that any payment and performance
obligations for succeeding fiscal periods are subject to the availability
and appropriation of funds for the obligations. A contract for goods or
services subject to this section may not be construed as violating any
applicable debt limitation or limitation on a contracting agency’s
expenditure authority.
(d) When funds are not appropriated or otherwise made available to
support continuation of the department’s or a state agency’s performance
of a contract in a subsequent fiscal period, the department or state
agency may cancel the contract and reimburse the contractor for the
reasonable value of any nonrecurring costs incurred but not amortized in
the price of the goods or services delivered under the contract. The
department or state agency may pay the reimbursement only from any
appropriations or funds then lawfully available for such purposes.
(e) Except as otherwise provided in this chapter, a contract of a
state agency will be deemed by the department to have been executed only
when all requisite approvals have been obtained.
(f) Any procurement or contract by the department for a state
agency must, when required by rules adopted by the department under ORS
279A.070, be made on the basis of a requisition by the state agency.
(g) The department may use moneys from the Oregon Department of
Administrative Services Operating Fund to procure goods, services and
personal services for the purpose of supplying requirements of state
agencies, the cost of which shall be reimbursed to the fund from charges
paid by state agencies on the basis of actual usage. Administrative costs
incurred in the operation of the fund may be paid from the fund and the
amount of such costs shall be added to the cost of the goods, services
and personal services as charged to the state agencies.
(h) The department shall adopt rules necessary to implement the
provisions of this subsection, including but not limited to rules
establishing:
(A) A reporting system for personal service contracts, including
architectural, engineering and land surveying services contracts and
related services contracts, that includes the following:
(i) A state agency shall submit to the department personal services
contract information as directed by the department. A state agency shall
file with the department a copy of each personal services contract
entered into by the state agency, including appropriate documentation as
required by the department. Whenever a state agency pays more in a
calendar year under a personal services contract for services
historically performed by state employees than the agency would have paid
to the agency’s employees performing the same work, the agency shall so
report to the department and include in the report a statement of
justification for the greater costs.
(ii) The department shall keep the copy of the contract and the
department’s documentation on file for three years, after which the
department may destroy the file. The department shall maintain a system
for filing copies of personal services contracts and documentation
submitted to the department under this paragraph. The department shall
submit a biennial report to the Legislative Assembly concerning the use
of personal services contracts by state agencies. The report must specify
the name of each state agency, the amount paid under each personal
services contract entered into by the agency, the name of the contractor,
the duration of the contract and the contract’s basic purpose. The report
must also include the total dollar figure of all personal services
contracts for each year of the preceding biennium.
(B) Procedures for the evaluation and award of personal services
contracts when the department authorizes a state agency to contract
directly for personal services, including architectural, engineering and
land surveying services and related services, in accordance with ORS
279B.050 or 279C.100 to 279C.125.
(3) The department shall notify all state agencies of the
requirements of this section. [2003 c.794 §18] The Oregon
Department of Administrative Services shall include recycled product
purchasing information within publications and training programs provided
to local governments requesting state government purchasing assistance.
[2003 c.794 §19](1) The Oregon Department of Administrative Services shall
provide guidelines to state agencies and contractors on the availability
of necessary goods that contain recycled PETE, as well as other recycled
plastic resin supplies and materials.
(2) The department shall identify suppliers able to provide
necessary goods containing recycled PETE, as well as other recycled
plastic resin supplies and materials. [2003 c.794 §20] No less than 35 percent of
state agency procurements of paper products may be from recycled paper
products. [2003 c.794 §21]INTERGOVERNMENTAL RELATIONS(Generally) Notwithstanding any
other provision of the Public Contracting Code, a procurement may be made
without competitive sealed bidding, competitive sealed proposals or other
competition required under ORS 279B.050 to 279B.085 provided that:
(1) The procurement is made in accordance with rules adopted by the
contracting agency for procurements under this section; and
(2) The procurement is made under 10 U.S.C. 381, the Electronic
Government Act of 2002 (P.L. 107-347) or other federal law that is, as
determined by the Director of the Oregon Department of Administrative
Services or a local contract review board, similar to 10 U.S.C. 381 or
section 211 of the Electronic Government Act of 2002 in effectuating or
promoting transfers of property to contracting agencies. [2003 c.794 §22](1) Notwithstanding the
competitive procurement requirements of ORS chapters 279B and 279C, a
local contracting agency may sell, transfer or dispose of personal
property in accordance with rules adopted under ORS 279A.070.
(2) Notwithstanding the competitive procurement requirements of ORS
chapters 279B and 279C, a local contracting agency may negotiate with one
or more private or public entities to establish contracts, agreements and
other cooperative arrangements for the use, operation, maintenance or
ultimate lawful disposition of personal property owned by or under the
control of the local contracting agency, including property acquired
under ORS 279A.260. Before approving such a contract, agreement or
arrangement, the governing body of the local contracting agency must make
a finding that the contract, agreement or arrangement will promote the
economic development of the local contracting agency, of the geographical
area in which the local contracting agency is situated or of other public
bodies that perform similar functions. [2003 c.794 §23](1) As used in this section:
(a) “Fire protection equipment” has the meaning given that term in
ORS 476.005.
(b) “Public contract” includes a sale at no cost.
(c) “Regularly organized fire department” has the meaning given
that term in ORS 652.050.
(2) Notwithstanding any other provision of the Public Contracting
Code, transfers of fire protection equipment under public contracts
between regularly organized fire departments may be made without
competitive sealed bidding, competitive sealed proposals or other
competition required in ORS 279B.050 to 279B.085, provided:
(a) The recipient regularly organized fire department makes a
written request for the fire protection equipment to the transferor
regularly organized fire department;
(b) The fire protection equipment is surplus to or unusable by the
transferor;
(c) The total fair market value of fire protection equipment
received by the recipient does not exceed $50,000 per calendar year; and
(d) The transferor holds a public hearing, with hearing notice
published in at least one trade newspaper of general statewide
circulation a minimum of 14 days before the hearing, and finds that the
public contract is in the public’s interest. [2003 c.794 §24](Cooperative Procurement) (1) As used in
ORS 279A.200 to 279A.225:
(a) “Administering contracting agency” means a contracting agency
that solicits and establishes the original contract for procurement of
goods, services or public improvements in a cooperative procurement.
(b) “Cooperative procurement” means a procurement conducted by or
on behalf of one or more contracting agencies. “Cooperative procurement”
includes but is not limited to multiparty contracts and price agreements.
(c) “Cooperative procurement group” means a group of contracting
agencies joined through an intergovernmental agreement for the purposes
of facilitating cooperative procurements.
(d) “Interstate cooperative procurement” means a permissive
cooperative procurement in which the administering contracting agency is
a governmental body, domestic or foreign, that is authorized under the
governmental body’s laws, rules or regulations to enter into public
contracts and in which one or more of the participating agencies are
located outside this state.
(e) “Joint cooperative procurement” means a cooperative procurement
in which the participating contracting agencies or the cooperative
procurement group and the agencies’ or group’s contract requirements or
estimated contract requirements for price agreements are identified.
(f) “Original contract” means the initial contract or price
agreement solicited and awarded during a cooperative procurement by an
administering contracting agency.
(g) “Permissive cooperative procurement” means a cooperative
procurement in which the purchasing contracting agencies are not
identified.
(h) “Purchasing contracting agency” means a contracting agency that
procures goods, services or public improvements from a contractor based
on the original contract established by an administering contracting
agency.
(2) As used in ORS 279A.210 (1)(a), 279A.215 (1)(a) and 279A.220
(1)(a), an administering contracting agency’s solicitation and award
process uses source selection methods “substantially equivalent” to those
identified in ORS 279B.055, 279B.060 or 279B.085 if the solicitation and
award process:
(a) Calls for award of a contract on the basis of a lowest
responsible bidder or a lowest and best bidder determination in the case
of competitive bids, or on the basis of a determination of the proposer
whose proposal is most advantageous based on evaluation factors set forth
in the request for proposals in the case of competitive proposals;
(b) Does not permit the application of any geographic preference
that is more favorable to bidders or proposers who reside in the
jurisdiction or locality favored by the preference than the preferences
provided in ORS 279A.120 (2); and
(c) Uses reasonably clear and precise specifications that promote
suitability for the purposes intended and that reasonably encourage
competition. [2003 c.794 §25] (1) A contracting
agency may participate in, sponsor, conduct or administer a joint
cooperative procurement for the procurement of any goods, services or
public improvements.
(2) A contracting agency may participate in, sponsor, conduct or
administer a permissive or interstate cooperative procurement for the
procurement of any goods or services, but not public improvements. [2003
c.794 §26; 2005 c.103 §6] (1) A joint cooperative
procurement is valid only if:
(a) The administering contracting agency’s solicitation and award
process for the original contract is an open and impartial competitive
process and uses source selection methods substantially equivalent to
those specified in ORS 279B.055, 279B.060 or 279B.085 or uses a
competitive bidding process substantially equivalent to the competitive
bidding process in ORS chapter 279C;
(b) The administering contracting agency’s solicitation and the
original contract or price agreement identifies the cooperative
procurement group or each participating purchasing contracting agency and
specifies the estimated contract requirements; and
(c) No material change is made in the terms, conditions or prices
of the contract between the contractor and the purchasing contracting
agency from the terms, conditions and prices of the original contract
between the contractor and the administering contracting agency.
(2) A joint cooperative procurement may not be a permissive
cooperative procurement. [2003 c.794 §27] (1) A contracting
agency may establish a contract or price agreement through a permissive
cooperative procurement only if:
(a) The administering contracting agency’s solicitation and award
process for the original contract is an open and impartial competitive
process and uses source selection methods substantially equivalent to
those specified in ORS 279B.055 or 279B.060;
(b) The administering contracting agency’s solicitation and the
original contract allow other contracting agencies to establish contracts
or price agreements under the terms, conditions and prices of the
original contract;
(c) The contractor agrees to extend the terms, conditions and
prices of the original contract to the purchasing contracting agency; and
(d) No material change is made in the terms, conditions or prices
of the contract or price agreement between the contractor and the
purchasing contracting agency from the terms, conditions and prices of
the original contract between the contractor and the administering
contracting agency.
(2)(a) A purchasing contracting agency shall provide public notice
of intent to establish a contract or price agreement through a permissive
cooperative procurement if the estimated amount of the procurement
exceeds $250,000.
(b) The notice of intent must include:
(A) A description of the procurement;
(B) An estimated amount of the procurement;
(C) The name of the administering contracting agency; and
(D) A time, place and date by which comments must be submitted to
the purchasing contracting agency regarding the intent to establish a
contract or price agreement through a permissive cooperative procurement.
(c) Public notice of the intent to establish a contract or price
agreement through a permissive cooperative procurement must be given in
the same manner as provided in ORS 279B.055 (4)(b) and (c).
(d) Unless otherwise specified in rules adopted under ORS 279A.070,
the purchasing contracting agency shall give public notice at least seven
days before the deadline for submission of comments regarding the intent
to establish a contract or price agreement through a permissive
cooperative procurement.
(3) If a purchasing contracting agency is required to provide
notice of intent to establish a contract or price agreement through a
permissive cooperative procurement under subsection (2) of this section:
(a) The purchasing contracting agency shall provide vendors who
would otherwise be prospective bidders or proposers on the contract or
price agreement, if the procurement were competitively procured under ORS
chapter 279B, an opportunity to comment on the intent to establish a
contract or price agreement through a permissive cooperative procurement.
(b) Vendors must submit comments within seven days after the notice
of intent is published.
(c) And if the purchasing contracting agency receives comments on
the intent to establish a contract or price agreement through a
permissive cooperative procurement, before the purchasing contracting
agency may establish a contract or price agreement through the permissive
cooperative procurement, the purchasing contracting agency shall make a
written determination that establishing a contract or price agreement
through a permissive cooperative procurement is in the best interest of
the purchasing contracting agency. The purchasing contracting agency
shall provide a copy of the written determination to any vendor that
submitted comments. [2003 c.794 §28] (1) A contracting
agency may establish a contract or price agreement through an interstate
cooperative procurement only if:
(a) The administering contracting agency’s solicitation and award
process for the original contract is an open and impartial competitive
process and uses source selection methods substantially equivalent to
those specified in ORS 279B.055 or 279B.060;
(b) The administering contracting agency’s solicitation and the
original contract allows other governmental bodies to establish contracts
or price agreements under the terms, conditions and prices of the
original contract; and
(c) The administering contracting agency permits the contractor to
extend the use of the terms, conditions and prices of the original
contract to the purchasing contracting agency.
(2) In addition to the requirements in subsection (1) of this
section:
(a) The purchasing contracting agency, or the cooperative
procurement group of which the purchasing contracting agency is a member,
must be listed in the solicitation of the administering contracting
agency as a party that may establish contracts or price agreements under
the terms, conditions and prices of the original contract, and the
solicitation must be advertised in Oregon; or
(b)(A) The purchasing contracting agency, or the cooperative
procurement group of which the purchasing contracting agency is a member,
shall advertise a notice of intent to establish a contract or price
agreement through an interstate cooperative procurement.
(B) The notice of intent must include:
(i) A description of the procurement;
(ii) An estimated amount of the procurement;
(iii) The name of the administering contracting agency; and
(iv) A time, place and date by which comments must be submitted to
the purchasing contracting agency regarding the intent to establish a
contract or price agreement through an interstate cooperative procurement.
(C) Public notice of the intent to establish a contract or price
agreement through an interstate cooperative procurement must be given in
the same manner as provided in ORS 279B.055 (4)(b) and (c).
(D) Unless otherwise specified in rules adopted under ORS 279A.070,
the purchasing contracting agency shall give public notice at least seven
days before the deadline for submission of comments regarding the intent
to establish a contract or price agreement through an interstate
cooperative procurement.
(3) If a purchasing contracting agency is required to provide
notice of intent to establish a contract or price agreement through an
interstate cooperative procurement under subsection (2) of this section:
(a) The purchasing contracting agency shall provide vendors who
would otherwise be prospective bidders or proposers on the contract or
price agreement, if the procurement were competitively procured under ORS
chapter 279B, an opportunity to comment on the intent to establish a
contract or price agreement through an interstate cooperative procurement.
(b) Vendors must submit comments within seven days after the notice
of intent is published.
(c) And if the purchasing contracting agency receives comments on
the intent to establish a contract or price agreement through an
interstate cooperative procurement, before the purchasing contracting
agency may establish a contract or price agreement through the interstate
cooperative procurement, the purchasing contracting agency shall make a
written determination that establishing a contract or price agreement
through an interstate cooperative procurement is in the best interest of
the purchasing contracting agency. The purchasing contracting agency
shall provide a copy of the written determination to any vendor that
submitted comments.
(4) For purposes of this section, an administering contracting
agency may be any governmental body, domestic or foreign, authorized
under its laws, rules or regulations to enter into contracts for the
procurement of goods and services for use by a governmental body. [2003
c.794 §29] (1) A protest regarding the
procurement process, the contents of solicitation documents or the award
or proposed award of an original contract may be directed only to the
administering contracting agency. The protest must be in accordance with
the provisions of ORS 279B.400 to 279B.425.
(2) A protest regarding the use of a cooperative procurement by a
purchasing contracting agency after the execution of an original contract
may be directed only to the purchasing contracting agency. The protest
must be in accordance with the provisions of ORS 279B.400 to 279B.425 and
is limited in scope to the purchasing contracting agency’s authority to
enter into a cooperative procurement contract.
(3) The decision of a local contracting agency to use a cooperative
procurement is reviewable in the circuit court of the county where the
principal offices of the local contracting agency are located. The
decision of a state contracting agency to use a cooperative procurement
shall be reviewable by the Circuit Court for Marion County or the circuit
court of the county where the principal offices of the state contracting
agency are located.
(4) Disputes regarding contract performance between a purchasing
contracting agency and a contractor may be resolved solely by the
purchasing contracting agency and the contractor. [2003 c.794 §30]STATE SURPLUS PROPERTY As used in ORS
279A.250 to 279A.290, unless the context requires otherwise:
(1) “Donee” means an entity eligible to acquire federal donation
property based upon federal regulations or eligible to acquire surplus
property in accordance with rules adopted by the Oregon Department of
Administrative Services. Entities eligible to acquire federal donation
property may also acquire surplus property other than federal donation
property.
(2) “Not-for-profit organization” means a nonprofit corporation as
defined in ORS 307.130.
(3) “Property” means personal property.
(4) “State agency” means every state officer, board, commission,
department, institution, branch or agency of state government whose costs
are paid wholly or in part from funds held in the State Treasury, and
includes the Legislative Assembly and the courts, including the officers
and committees of both, and the Secretary of State and the State
Treasurer in the performance of the duties of their constitutional
offices.
(5) “Surplus property” means property received by the Oregon
Department of Administrative Services or a state agency as surplus from
federal government units, state agencies, local governments, special
government bodies, not-for-profit organizations, other states and private
entities. [2003 c.794 §36]The Oregon Department of Administrative
Services may:
(1) Provide for the periodic inspection and appraisal of state
property;
(2) Provide for the maintenance of current and perpetual
inventories of state property; and
(3) Require any state agency to make reports of the property in the
agency’s custody at such intervals and in such form as the department
deems necessary. [2003 c.794 §37](1) Subject to the power of the Governor to terminate the
functions listed in this section, the Oregon Department of Administrative
Services may:
(a) Accept surplus property;
(b) Distribute surplus property to donees;
(c) Provide suitable facilities for the storage and distribution of
surplus property;
(d) Enter into reciprocal agreements and contracts with federal
government units, state agencies, local governments, special government
bodies, not-for-profit organizations, other states and private entities,
with respect to the utilization and exchange of property, facilities,
personnel and services, for the administration of the provisions of this
section in accordance with federal and state laws governing the
acquisition, distribution, utilization, disposal or sale of surplus
property;
(e) Expend funds in connection with the provisions of this section;
(f) Adopt rules for the acquisition, distribution, utilization,
disposal or sale of surplus property in accordance with federal and state
laws;
(g) Set charges, subject to federal and state laws, necessary to
recover all direct and indirect costs associated with acquiring,
purchasing, shipping, handling, warehousing, storing and distributing
surplus property;
(h) Cooperate with donees in locating, obtaining or warehousing
surplus property; and
(i) Obtain surplus property on behalf of donees.
(2) The department shall deposit all fees or charges collected or
received under this section in the Oregon Department of Administrative
Services Operating Fund.
(3) The governing board or the executive head of a donee may, by
order or resolution, confer upon any officer or employee thereof
authority to secure the acquisition of surplus property through the
department in accordance with federal and state laws governing the
acquisition, distribution, utilization, disposal or sale of surplus
property. [2003 c.794 §38](1) In addition to the other purposes for
which the Oregon Department of Administrative Services Operating Fund
established under ORS 283.076 may be used, the fund hereby is
appropriated continuously for and may be used for the purposes of this
section and ORS 279A.260. All claims approved by the Oregon Department of
Administrative Services for the purposes of this section and ORS 279A.260
shall be paid as provided in ORS 293.295 to 293.462. The department shall
draw warrants on the State Treasurer for the payment thereof payable out
of the fund. All moneys received under ORS 279A.260 shall be paid by the
department to the State Treasurer for credit to the fund.
(2) The Director of the Oregon Department of Administrative
Services may distribute in the form of cash dividends accumulated
surpluses in the fund that arise because the charges collected from
donees are in excess of the amount necessary to keep the activities under
this section and ORS 279A.260 on a self-sustaining basis. The director
shall pay the cash dividends to the donees referred to in ORS 279A.260
(1). Any dividend paid under this subsection shall be based on the ratio
of the charges collected from each donee during the preceding fiscal year
to the total charges collected from all donees for the fiscal year
immediately preceding the fiscal year in which the dividend is authorized
to be paid.
(3) Upon termination by the Governor of the functions of the
department under ORS 279A.260, any balance remaining in the fund that is
attributable to the activities under this section and ORS 279A.260 shall
be refunded pro rata to the donees referred to in ORS 279A.260 (1) upon
the basis of the total charges collected from each donee during the
preceding fiscal year, unless the director determines that the cost of
making the refund is excessive, in which case the unrefunded moneys shall
be paid to the Treasurer of the United States. [2003 c.794 §39]The Oregon Department of
Administrative Services may enter into contracts with any federal
government unit for the purpose of accepting gifts and for the
acquisition of surplus property upon such terms and conditions as may be
agreed upon, without regard to the provisions of law requiring the
posting of notices or public advertising for bids or the soliciting or
receiving of competitive bids. [2003 c.794 §40] The Oregon Department of
Administrative Services may lease any state property not needed for
public use, provided the law does not prohibit the leasing and the
authority to lease is not vested in any other state agency. [2003 c.794
§41] (1)(a)
Without requiring competitive bidding:
(A) The Oregon Department of Administrative Services may sell or
transfer surplus property to or transfer surplus property between donees.
Donees may be given preference to acquire surplus property. Property
acquired shall be used for public purpose or benefit and not for resale
to a private purchaser.
(B) The department, or a public or private person or entity
designated by the department, may transfer computers and related hardware
that are surplus, obsolete or unused to a common or union high school
district or education service district. The department, or its designee,
may not charge the school district a fee for the transfer.
(C) The department, or a public or private person or entity
designated by the department, may recycle or otherwise dispose of
property when the department determines the value and condition of the
property does not warrant the cost of a sale.
(b) Authorized transfers under this subsection include those made
with or without consideration.
(2) In accordance with ORS 279B.055 or 279B.060, the department may
sell surplus property.
(3) All proceeds derived from the disposal of property under this
section, except proceeds that may not under federal laws or regulations
be deposited in the manner provided by this section, shall be deposited
in the State Treasury to the credit of the Oregon Department of
Administrative Services Operating Fund.
(4) In addition to the other purposes for which the fund may be
used, the fund is appropriated continuously for and may be used for
paying the administrative costs incurred in the transfer or disposal of
property under subsections (1) and (2) of this section, and for paying
the amount due to the state agency whose property has been sold. The
total amount payable to the agency whose property has been sold shall be
the amount derived from the disposal of the property less the amount of
the administrative costs incurred in disposing of the property. Such
total amount may be deposited in the State Treasury to the credit of the
miscellaneous receipts account established under ORS 279A.290 for the
agency whose property has been sold.
(5) The cost of services for disposal of property under this
section that is not recoverable from the proceeds of a sale of the
property shall be charged to the state agency served and paid to the
department in the same manner as other claims against the agency are
paid. [2003 c.794 §42]All moneys
received from insurers and other sources as payment for the cost and
expense of repair and replacement of property of state agencies that has
been damaged, destroyed, lost or stolen, except the particular moneys as
may not under federal law or regulations be deposited in the manner
provided by this section, may be deposited in the State Treasury to the
credit of the miscellaneous receipts account established under ORS
279A.290 for the state agency whose property has been damaged, destroyed,
lost or stolen. [2003 c.794 §43] (1) The State Treasurer
may establish a miscellaneous receipts account for any state agency and
shall credit to the account any amounts paid into the State Treasury
under ORS 190.240 (1), 279A.280, 279A.285, 283.110 or 357.885 for the
state agency for which the account was established. The moneys credited
to the miscellaneous receipts account of a state agency established under
this section are appropriated continuously for the payment of the
expenses of the state agency, subject to the allotment system provided by
ORS 291.234 to 291.260.
(2) Laws enacted by the Legislative Assembly limiting expenditures
do not limit expenditures from miscellaneous receipts accounts
established under this section except when the law limiting expenditures
of a state agency specifically establishes a limit for expenditures from
the miscellaneous receipts account of the agency. [2003 c.794 §44; 2003
c.794 §44a]PENALTIES(1) The provisions of ORS 291.990 apply to ORS
279A.140, 279A.280 and 279B.270. Any violation of ORS 279A.140, 279A.280
or 279B.270 shall be punished as described in ORS 291.990.
(2) Any contractor, subcontractor, agent or person in authority or
in charge who violates any provision of ORS 279C.520 or 279C.540 as to
hours of labor shall be fined not less than $50 nor more than $1,000 or
imprisoned in the county jail for not less than five days nor more than
one year, or both.
(3) Any contractor or subcontractor subject to ORS 279C.840 who
fails to pay the prevailing rate of wage as required by ORS 279C.840
shall be punished by a fine of not more than $1,000 or by imprisonment in
the county jail for not more than six months, or both. [2003 c.794 §46]
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