USA Statutes : oregon
Title : TITLE 24 PUBLIC ORGANIZATIONS FOR COMMUNITY SERVICE
Chapter : Chapter 279C Public Contracting - Public Improvements and Related Contracts
ORS 279A.010 (1) contains general definitions
applicable throughout this chapter. [2003 c.794 §88] As used in ORS
279C.100 to 279C.125:
(1) “Architect” means a person who is registered and holds a valid
certificate in the practice of architecture in the State of Oregon, as
provided under ORS 671.010 to 671.220, and includes without limitation
the terms “architect,” “licensed architect” and “registered architect.”
(2) “Architectural, engineering and land surveying services” means
professional services that are required to be performed by an architect,
engineer or land surveyor.
(3) “Engineer” means a person who is registered and holds a valid
certificate in the practice of engineering in the State of Oregon, as
provided under ORS 672.002 to 672.325, and includes all terms listed in
ORS 672.002 (2).
(4) “Land surveyor” means a person who is registered and holds a
valid certificate in the practice of land surveying in the State of
Oregon, as provided under ORS 672.002 to 672.325, and includes all terms
listed in ORS 672.002 (5).
(5) “Personal services” means the services of a person or persons
that are designated by a state contracting agency with procurement
authority under ORS 279A.050 or a local contract review board as personal
services. “Personal services” includes architectural, engineering and
land surveying services procured under ORS 279C.105 or 279C.110 and
related services procured under ORS 279C.120.
(6) “Related services” means personal services, other than
architectural, engineering and land surveying services, that are related
to the planning, design, engineering or oversight of public improvement
projects or components thereof, including but not limited to landscape
architectural services, facilities planning services, energy planning
services, space planning services, environmental impact studies,
hazardous substances or hazardous waste or toxic substances testing
services, wetland delineation studies, wetland mitigation studies, Native
American studies, historical research services, endangered species
studies, rare plant studies, biological services, archaeological
services, cost estimating services, appraising services, material testing
services, mechanical system balancing services, commissioning services,
project management services, construction management services and owner’s
representative services or land-use planning services. [2003 c.794 §89;
2005 c.103 §10; 2005 c.445 §12](1) Except as provided in ORS 279A.140,
contracting agencies may enter into contracts for architectural,
engineering and land surveying services and related services. The Oregon
Department of Administrative Services shall enter into contracts for
architectural, engineering and land surveying services and related
services on behalf of state contracting agencies that are subject to ORS
279A.140. The provisions of this section do not relieve the contracting
agency of the duty to comply with ORS 279A.140, any other law applicable
to state contracting agencies, or any applicable city or county charter
provisions. Each contracting agency authorized to enter into contracts
for architectural, engineering and land surveying services and related
services shall adopt procedures for the screening and selection of
persons to perform those services under ORS 279C.110 or 279C.120.
(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 personal
services contracts or classes of personal services contracts as contracts
for architectural, engineering and land surveying services or related
services. [2003 c.794 §90; 2005 c.103 §11](1) A state contracting agency
shall select consultants to provide architectural, engineering or land
surveying services on the basis of qualifications for the type of
professional service required. A state contracting agency may solicit or
use pricing policies and proposals or other pricing information to
determine consultant compensation only after the agency has selected a
candidate pursuant to subsection (3) of this section.
(2) This section applies only if the architectural, engineering or
land surveying services contract is issued by a state contracting agency
and does not apply to any such contract issued by a local contracting
agency unless the following conditions apply:
(a) The local contracting agency receives moneys from the State
Highway Fund under ORS 366.762 or 366.800 or a grant or loan from the
state that will be used to pay for any portion of the design and
construction of the project;
(b) The total amount of any grants, loans or moneys from the State
Highway Fund and from the state for the project exceeds 10 percent of the
value of the project; and
(c) The value of the project exceeds $900,000.
(3) Subject to the requirements of subsections (1) and (2) of this
section, the procedures that a contracting agency creates for the
screening and selection of consultants and the selection of a candidate
under this section shall be within the sole discretion of the contracting
agency and may be adjusted to accommodate the contracting agency’s scope,
schedule and budget objectives for a particular project. Adjustments to
accommodate a contracting agency’s objectives may include provision for
the direct appointment of a consultant if the value of the project does
not exceed a threshold amount as determined by the contracting agency.
Screening and selection procedures may include a consideration of each
candidate’s:
(a) Specialized experience, capabilities and technical competence
that may be demonstrated by the proposed approach and methodology to meet
the project requirements;
(b) Resources available to perform the work and the proportion of
the candidate staff’s time that would be spent on the project, including
any specialized services, within the applicable time limits;
(c) Record of past performance, including but not limited to price
and cost data from previous projects, quality of work, ability to meet
schedules, cost control and contract administration;
(d) Ownership status and employment practices regarding minority,
women and emerging small businesses or historically underutilized
businesses;
(e) Availability to the project locale;
(f) Familiarity with the project locale; and
(g) Proposed project management techniques.
(4) If the screening and selection procedures created by a
contracting agency under subsection (3) of this section result in the
determination by the contracting agency that two or more candidates are
equally qualified, the contracting agency may select a candidate through
any process adopted by the contracting agency.
(5) The contracting agency and the selected candidate shall
mutually discuss and refine the scope of services for the project and
shall negotiate conditions, including but not limited to compensation
level and performance schedule, based on the scope of services. The
compensation level paid must be reasonable and fair to the contracting
agency as determined solely by the contracting agency. Authority to
negotiate a contract under this section does not supersede any provision
of ORS 279A.140 or 279C.520.
(6) If the contracting agency and the selected candidate are unable
for any reason to negotiate a contract at a compensation level that is
reasonable and fair to the contracting agency, the contracting agency
shall, either orally or in writing, formally terminate negotiations with
the selected candidate. The contracting agency may then negotiate with
another candidate. The negotiation process may continue in this manner
through successive candidates until an agreement is reached or the
contracting agency terminates the consultant contracting process.
(7) It is the goal of this state to promote a sustainable economy
in the rural areas of the state. In order to monitor progress toward this
goal, a state contracting agency to which this section applies shall keep
a record of the locations for the architectural, engineering and land
surveying services contracts and related services contracts to be
performed throughout the state, the locations of the selected consultants
and the direct expenses on each contract. This record shall include the
total number of contracts over a 10-year period for each consultant firm.
The record of direct expenses shall include all personnel travel expenses
as a separate and identifiable expense on the contract. Upon request, the
state contracting agency shall make these records available to the
public. [2003 c.794 §91; 2003 c.794 §92; 2005 c.509 §§1,3](1) As used in this section, “consultant” means an
architect, engineer or land surveyor.
(2) A local contracting agency may enter into an architectural,
engineering or land surveying services contract directly with a
consultant if the project described in the contract consists of work that
has been substantially described, planned or otherwise previously studied
or rendered in an earlier contract with the consultant that was awarded
under rules adopted under ORS 279A.065 and the new contract is a
continuation of that project.
(3) A local contracting agency may adopt criteria for determining
when this section applies to an architectural, engineering or land
surveying services contract. [2003 c.794 §94] (1) A
contracting agency may select consultants to perform related services:
(a) In accordance with screening and selection procedures adopted
under ORS 279C.105;
(b) On the basis of the qualifications of the consultants for the
types of related services required, under the requirements of ORS
279C.110; or
(c) On the basis of price competition, price and performance
evaluations, an evaluation of the capabilities of bidders to perform the
needed related services or an evaluation of the capabilities of the
bidders to perform the needed related services followed by negotiations
between the parties on the price for those related services.
(2) Subject to the requirements of subsection (1) of this section,
the procedures that a contracting agency adopts for the screening and
selection of consultants and the selection of a candidate under this
section is within the sole discretion of the contracting agency and may
be adjusted to accommodate the contracting agency’s scope, schedule and
budget objectives for a particular project. Adjustments to accommodate a
contracting agency’s objectives may include provision for the direct
appointment of a consultant if the value of the project does not exceed a
threshold amount as determined by the contracting agency. [2003 c.794 §95](1) The Department of Transportation, the
Oregon Department of Administrative Services or any other state
contracting agency shall adopt rules establishing a two-tiered selection
process for contracts with architects, engineers and land surveyors to
perform personal services contracts. The selection process shall apply
only if:
(a) A public improvement is owned and maintained by a local
government; and
(b) The Department of Transportation, the Oregon Department of
Administrative Services or another state contracting agency will serve as
the lead state contracting agency and will execute personal services
contracts with architects, engineers and land surveyors for work on the
public improvement project.
(2) The selection process required by subsection (1) of this
section must require the lead state contracting agency to select no fewer
than the three most qualified consultants when feasible in accordance
with ORS 279C.110.
(3) The local government is responsible for the final selection of
the consultant from the list of qualified consultants selected by the
lead state contracting agency or through an alternative process adopted
by the local government.
(4) Nothing in this section applies to the selection process used
by a local contracting agency when the contracting agency executes a
contract directly with architects, engineers or land surveyors. [2003
c.794 §96]PROCUREMENT OF CONSTRUCTION SERVICES(General Policies) It is the policy of the State of
Oregon that public improvement contracts awarded under this chapter must
be based on competitive bidding, except as otherwise specifically
provided in ORS 279C.335 for exceptions and formal exemptions from
competitive bidding requirements. [2003 c.794 §97](1) It is the
policy of the State of Oregon that contracting agencies shall make every
effort to construct public improvements at the least cost to the
contracting agency.
(2) Not less than 30 days prior to adoption of the contracting
agency’s budget for the subsequent budget period, each contracting agency
shall prepare and file with the Commissioner of the Bureau of Labor and
Industries a list of every public improvement known to the contracting
agency that the contracting agency plans to fund in the budget period,
identifying each improvement by name and estimating the total on-site
construction costs. The list shall also contain a statement as to whether
the contracting agency intends to perform the construction through a
private contractor. If the contracting agency intends to perform
construction work using the contracting agency’s own equipment and
personnel on a project estimated to cost more than $125,000, the
contracting agency shall also show that the contracting agency’s decision
conforms to the policy stated in subsection (1) of this section. The list
is a public record and may be revised periodically by the agency.
(3) Before a contracting agency constructs a public improvement
with its own equipment or personnel:
(a) If the estimated cost exceeds $125,000, the contracting agency
shall prepare adequate plans and specifications and the estimated unit
cost of each classification of work. The estimated cost of the work must
include a reasonable allowance for the cost, including investment cost,
of any equipment used. As used in this paragraph, “adequate” means
sufficient to control the performance of the work and to ensure
satisfactory quality of construction by the contracting agency personnel.
(b) The contracting agency shall cause to be kept and preserved a
full, true and accurate account of the costs of performing the work,
including all engineering and administrative expenses and the cost,
including investment costs, of any equipment used. The final account of
the costs is a public record.
(4) Subsections (2) and (3) of this section do not apply to a
contracting agency when the public improvement is to be used for the
distribution or transmission of electric power.
(5) For purposes of this section, resurfacing of highways, roads or
streets at a depth of two or more inches and at an estimated cost that
exceeds $125,000 is a public improvement. [2003 c.794 §98]If a contracting agency fails to adopt and apply a cost
accounting system that substantially complies with the model cost
accounting guidelines developed by the Oregon Department of
Administrative Services pursuant to section 3, chapter 869, Oregon Laws
1979, as determined by an accountant qualified to perform audits required
by ORS 297.210 and 297.405 to 297.555 (Municipal Audit Law), the
contracting agency may not construct a public improvement with the
contracting agency’s own equipment or personnel if the cost exceeds
$5,000. [2003 c.794 §99](1) Any clause in a public improvement
contract that purports to waive, release or extinguish the rights of a
contractor to damages or an equitable adjustment arising out of
unreasonable delay in performing the contract, if the delay is caused by
acts or omissions of the contracting agency or persons acting therefor,
is against public policy and is void and unenforceable.
(2) Subsection (1) of this section is not intended to render void
any contract provision that:
(a) Requires notice of any delay;
(b) Provides for arbitration or other procedures for settlement of
contract disputes; or
(c) Provides for reasonable liquidated damages. [2003 c.794 §100]
(1) Contracting agencies shall enter into contracts for minor alteration,
ordinary repair or maintenance of public improvements, as well as any
other construction contract that is not defined as a public improvement
under ORS 279A.010, in accordance with the provisions of ORS chapter
279B. This subsection does not apply to emergency contracts regulated
under ORS 279C.335.
(2) Nothing in this section relieves contracting agencies or
contractors of any other relevant requirements under this chapter,
including payment of prevailing wage rates when applicable.
(3) When construction services are not considered to be a public
improvement under this chapter because no funds of a public agency are
directly or indirectly used, except for participation that is incidental
or related primarily to project design or inspection, the benefiting
public body may nonetheless condition acceptance of the services on
receipt of such protections as the public body considers to be in the
public interest, including a performance bond, a payment bond and
appropriate insurance. [2003 c.794 §101]A contracting agency may not
award a public improvement contract, a contract for a public works, as
defined in ORS 279C.800, or a contract for personal services, as defined
in ORS 279C.100, to a nonresident bidder, as defined in ORS 279A.120,
that is an education service district. [2005 c.413 §2](Competitive Bidding; Contract Specifications; Exceptions; Exemptions)As used in ORS 279C.335, 279C.345 and
279C.350, “findings” means the justification for a contracting agency
conclusion that includes, but is not limited to, information regarding:
(1) Operational, budget and financial data;
(2) Public benefits;
(3) Value engineering;
(4) Specialized expertise required;
(5) Public safety;
(6) Market conditions;
(7) Technical complexity; and
(8) Funding sources. [2003 c.794 §102] (1) All
public improvement contracts shall be based upon competitive bids except:
(a) Contracts made with qualified nonprofit agencies providing
employment opportunities for disabled individuals under ORS 279.835 to
279.855.
(b) A public improvement contract exempt under subsection (2) of
this section.
(c) A public improvement contract with a value of less than $5,000.
(d) A contract not to exceed $100,000, or not to exceed $50,000 in
the case of a contract for a highway, bridge or other transportation
project, made under procedures for competitive quotes in sections 132 and
133, chapter 794, Oregon Laws 2003.
(e) Contracts for repair, maintenance, improvement or protection of
property obtained by the Department of Veterans’ Affairs under ORS
407.135 and 407.145 (1).
(f) Energy savings performance contracts entered into in accordance
with rules of procedure adopted under ORS 279A.065.
(g) A public improvement contract awarded under subsection (6) of
this section in response to an emergency.
(2) Subject to subsection (4)(b) of this section, the Director of
the Oregon Department of Administrative Services, a local contract review
board or, for contracts described in ORS 279A.050 (3)(b), the Director of
Transportation may exempt a public improvement contract or a class of
public improvement contracts from the competitive bidding requirements of
subsection (1) of this section upon approval of the following findings
submitted by the contracting agency seeking the exemption:
(a) It is unlikely that the exemption will encourage favoritism in
the awarding of public improvement contracts or substantially diminish
competition for public improvement contracts; and
(b) The awarding of public improvement contracts under the
exemption will result in substantial cost savings to the contracting
agency or, if the contracts are for public improvements described in ORS
279A.050 (3)(b), to the contracting agency or the public. In making the
finding, the Director of the Oregon Department of Administrative
Services, the Director of Transportation or the local contract review
board may consider the type, cost and amount of the contract, the number
of persons available to bid and such other factors as may be deemed
appropriate.
(3) In making findings to support an exemption for a class of
public improvement contracts, the contracting agency shall clearly
identify the class using the class’s defining characteristics. Those
characteristics shall include some combination of project descriptions or
locations, time periods, contract values, methods of procurement or other
factors that distinguish the limited and related class of public
improvement contracts from the contracting agency’s overall construction
program. The contracting agency may not identify a class solely by
funding source, such as a particular bond fund, or by the method of
procurement, but shall identify the class using characteristics that
reasonably relate to the exemption criteria set forth in subsection (2)
of this section.
(4) In granting exemptions under subsection (2) of this section,
the Director of the Oregon Department of Administrative Services, the
Director of Transportation or the local contract review board shall:
(a) When appropriate, direct the use of alternate contracting
methods that take account of market realities and modern practices and
are consistent with the public policy of encouraging competition.
(b) Require and approve or disapprove written findings by the
contracting agency that support the awarding of a particular public
improvement contract or a class of public improvement contracts, without
the competitive bidding requirement of subsection (1) of this section.
The findings must show that the exemption of a contract or class of
contracts complies with the requirements of subsection (2) of this
section.
(5)(a) Before final adoption of the findings required by subsection
(2) of this section exempting a public improvement contract or a class of
public improvement contracts from the requirement of competitive bidding,
a contracting agency shall hold a public hearing.
(b) Notification of the public hearing shall be published in at
least one trade newspaper of general statewide circulation a minimum of
14 days before the hearing.
(c) The notice shall state that the public hearing is for the
purpose of taking comments on the contracting agency’s draft findings for
an exemption from the competitive bidding requirement. At the time of the
notice, copies of the draft findings shall be made available to the
public. At the option of the contracting agency, the notice may describe
the process by which the findings are finally adopted and may indicate
the opportunity for any further public comment.
(d) At the public hearing, the contracting agency shall offer an
opportunity for any interested party to appear and present comment.
(e) If a contracting agency is required to act promptly due to
circumstances beyond the contracting agency’s control that do not
constitute an emergency, notification of the public hearing may be
published simultaneously with the contracting agency’s solicitation of
contractors for the alternative public contracting method, as long as
responses to the solicitation are due at least five days after the
meeting and approval of the findings.
(6) After declaring that an emergency exists in accordance with
rules adopted under ORS 279A.065, a contracting agency may award a public
improvement contract in response to the emergency without using a
competitive solicitation.
(7) A public improvement contract awarded under the competitive
bidding requirement of subsection (1) of this section may be amended only
in accordance with rules adopted under ORS 279A.065.
(8) Public improvement contracts excepted from competitive bid
requirements under subsection (1)(a), (c), (d), (e), (f) or (g) of this
section are not subject to the exemption requirements of subsection (2)
of this section. [2003 c.794 §103; 2005 c.103 §12; 2005 c.625 §58]Note 1: The amendments to 279C.335 by section 104, chapter 794,
Oregon Laws 2003, become operative July 1, 2009. See section 105, chapter
794, Oregon Laws 2003, as amended by section 19, chapter 103, Oregon Laws
2005. The text that is operative from July 1, 2009, until July 1, 2012,
including amendments by section 13, chapter 103, Oregon Laws 2005, and
section 59, chapter 625, Oregon Laws 2005, is set forth for the user’s
convenience.
279C.335. (1) All public improvement contracts shall be based upon
competitive bids except:
(a) Contracts made with qualified nonprofit agencies providing
employment opportunities for disabled individuals under ORS 279.835 to
279.855.
(b) A public improvement contract exempt under subsection (2) of
this section.
(c) A public improvement contract with a value of less than $5,000.
(d) Contracts for repair, maintenance, improvement or protection of
property obtained by the Department of Veterans’ Affairs under ORS
407.135 and 407.145 (1).
(e) Energy savings performance contracts entered into in accordance
with rules of procedure adopted under ORS 279A.065.
(f) A public improvement contract awarded under subsection (6) of
this section in response to an emergency.
(2) Subject to subsection (4)(b) of this section, the Director of
the Oregon Department of Administrative Services, a local contract review
board or, for contracts described in ORS 279A.050 (3)(b), the Director of
Transportation may exempt a public improvement contract or a class of
public improvement contracts from the competitive bidding requirements of
subsection (1) of this section upon approval of the following findings
submitted by the contracting agency seeking the exemption:
(a) It is unlikely that the exemption will encourage favoritism in
the awarding of public improvement contracts or substantially diminish
competition for public improvement contracts; and
(b) The awarding of public improvement contracts under the
exemption will result in substantial cost savings to the contracting
agency or, if the contracts are for public improvements described in ORS
279A.050 (3)(b), to the contracting agency or the public. In making the
finding, the Director of the Oregon Department of Administrative
Services, the Director of Transportation or the local contract review
board may consider the type, cost and amount of the contract, the number
of persons available to bid and such other factors as may be deemed
appropriate.
(3) In making findings to support an exemption for a class of
public improvement contracts, the contracting agency shall clearly
identify the class using the class’s defining characteristics. Those
characteristics shall include some combination of project descriptions or
locations, time periods, contract values, methods of procurement or other
factors that distinguish the limited and related class of public
improvement contracts from the contracting agency’s overall construction
program. The contracting agency may not identify a class solely by
funding source, such as a particular bond fund, or by the method of
procurement, but shall identify the class using characteristics that
reasonably relate to the exemption criteria set forth in subsection (2)
of this section.
(4) In granting exemptions under subsection (2) of this section,
the Director of the Oregon Department of Administrative Services, the
Director of Transportation or the local contract review board shall:
(a) When appropriate, direct the use of alternate contracting
methods that take account of market realities and modern practices and
are consistent with the public policy of encouraging competition.
(b) Require and approve or disapprove written findings by the
contracting agency that support the awarding of a particular public
improvement contract or a class of public improvement contracts, without
the competitive bidding requirement of subsection (1) of this section.
The findings must show that the exemption of a contract or class of
contracts complies with the requirements of subsection (2) of this
section.
(5)(a) Before final adoption of the findings required by subsection
(2) of this section exempting a public improvement contract or a class of
public improvement contracts from the requirement of competitive bidding,
a contracting agency shall hold a public hearing.
(b) Notification of the public hearing shall be published in at
least one trade newspaper of general statewide circulation a minimum of
14 days before the hearing.
(c) The notice shall state that the public hearing is for the
purpose of taking comments on the contracting agency’s draft findings for
an exemption from the competitive bidding requirement. At the time of the
notice, copies of the draft findings shall be made available to the
public. At the option of the contracting agency, the notice may describe
the process by which the findings are finally adopted and may indicate
the opportunity for any further public comment.
(d) At the public hearing, the contracting agency shall offer an
opportunity for any interested party to appear and present comment.
(e) If a contracting agency is required to act promptly due to
circumstances beyond the contracting agency’s control that do not
constitute an emergency, notification of the public hearing may be
published simultaneously with the contracting agency’s solicitation of
contractors for the alternative public contracting method, as long as
responses to the solicitation are due at least five days after the
meeting and approval of the findings.
(6) After declaring that an emergency exists in accordance with
rules adopted under ORS 279A.065, a contracting agency may award a public
improvement contract in response to the emergency without using a
competitive solicitation.
(7) A public improvement contract awarded under the competitive
bidding requirement of subsection (1) of this section may be amended only
in accordance with rules adopted under ORS 279A.065.
(8) Public improvement contracts excepted from competitive bid
requirements under subsection (1)(a), (c), (d), (e) or (f) of this
section are not subject to the exemption requirements of subsection (2)
of this section.Note 2: The amendments to 279C.335 by section 105a, chapter 794,
Oregon Laws 2003, become operative July 1, 2012. See section 105b,
chapter 794, Oregon Laws 2003. The text that is operative on and after
July 1, 2012, including amendments by section 14, chapter 103, Oregon
Laws 2005, and section 60, chapter 625, Oregon Laws 2005, is set forth
for the user’s convenience.
If a public improvement contract is
competitively bid and all responsive bids from responsible bidders exceed
the contracting agency’s cost estimate, the contracting agency, in
accordance with rules adopted by the contracting agency, may negotiate
with the lowest responsive, responsible bidder, prior to awarding the
contract, in order to solicit value engineering and other options to
attempt to bring the contract within the contracting agency’s cost
estimate. A negotiation with the lowest responsive, responsible bidder
under this section may not result in the award of the contract to that
bidder if the scope of the project is significantly changed from the
original bid proposal. Notwithstanding any other provision of law, the
records of a bidder used in contract negotiation under this section are
not subject to public inspection until after the negotiated contract has
been awarded or the negotiation process has been terminated. [2003 c.794
§106] (1)
Specifications for public improvement contracts may not expressly or
implicitly require any product by any brand name or mark, nor the product
of any particular manufacturer or seller unless the product is exempt
under subsection (2) of this section.
(2) The Director of the Oregon Department of Administrative
Services or a local contract review board may exempt certain products or
classes of products from subsection (1) of this section upon any of the
following findings:
(a) It is unlikely that the exemption will encourage favoritism in
the awarding of public improvement contracts or substantially diminish
competition for public improvement contracts;
(b) The specification of a product by brand name or mark, or the
product of a particular manufacturer or seller, would result in
substantial cost savings to the contracting agency;
(c) There is only one manufacturer or seller of the product of the
quality required; or
(d) Efficient utilization of existing equipment or supplies
requires the acquisition of compatible equipment or supplies. [2003 c.794
§107] (1) Exemptions granted by the
Director of the Oregon Department of Administrative Services under ORS
279C.335 (2) or 279C.345 (2) constitute rulemaking and not contested
cases under ORS chapter 183. However, an exemption granted with regard to
a specific public improvement contract by the Director of the Oregon
Department of Administrative Services, or an exemption granted by the
Director of Transportation with regard to a specific public improvement
contract or class of public improvement contracts described in ORS
279A.050 (3)(b), shall be granted by order. The order shall set forth
findings supporting the decision to grant or deny the request for the
exemption. The order is reviewable under ORS 183.484 and does not
constitute a contested case order. Jurisdiction for review of the order
is with the Circuit Court of Marion County. The court may award costs and
attorney fees to the prevailing party.
(2) Any person except the contracting agency or anyone representing
the contracting agency may bring a petition for a declaratory judgment to
test the validity of any rule adopted by the Director of the Oregon
Department of Administrative Services under ORS 279C.335 or 279C.345 in
the manner provided in ORS 183.400.
(3) Any person except the contracting agency or anyone representing
the contracting agency may bring an action for writ of review under ORS
chapter 34 to test the validity of an exemption granted under ORS
279C.335 or 279C.345 by a local contract review board. [2003 c.794 §108]Note: The amendments to 279C.350 by section 109, chapter 794,
Oregon Laws 2003, become operative July 1, 2012. See section 110, chapter
794, Oregon Laws 2003. The text that is operative on and after July 1,
2012, is set forth for the user’s convenience.
279C.350. (1) Exemptions granted by the Director of the Oregon
Department of Administrative Services under ORS 279C. 335 (2) or 279C.345
(2) constitute rulemaking and not contested cases under ORS chapter 183.
However, an exemption granted with regard to a specific public
improvement contract by the director shall be granted by order of the
director. The order shall set forth findings supporting the decision of
the director to grant or deny the request for the exemption. The order is
reviewable under ORS 183.484 and does not constitute a contested case
order. Jurisdiction for review of the order is with the Circuit Court of
Marion County. The court may award costs and attorney fees to the
prevailing party.
(2) Any person except the contracting agency or anyone representing
the contracting agency may bring a petition for a declaratory judgment to
test the validity of any rule adopted by the director under ORS 279C.335
or 279C.345 in the manner provided in ORS 183.400.
(3) Any person except the contracting agency or anyone representing
the contracting agency may bring an action for writ of review under ORS
chapter 34 to test the validity of an exemption granted under ORS
279C.335 or 279C.345 by a local contract review board.(1) Upon completion of and final payment for any
public improvement contract, or class of public improvement contracts
described in ORS 279A.050 (3)(b), in excess of $100,000 for which the
contracting agency did not use the competitive bidding process, the
contracting agency shall prepare and deliver to the Director of the
Oregon Department of Administrative Services, the local contract review
board or, for a class of public improvement contracts described in ORS
279A.050 (3)(b), the Director of Transportation an evaluation of the
public improvement contract or the class of public improvement contracts.
(2) The evaluation must include but is not limited to the following
matters:
(a) The actual project cost as compared with original project
estimates;
(b) The amount of any guaranteed maximum price;
(c) The number of project change orders issued by the contracting
agency;
(d) A narrative description of successes and failures during the
design, engineering and construction of the project; and
(e) An objective assessment of the use of the alternative
contracting process as compared to the findings required by ORS 279C.335.
(3) The evaluations required by this section:
(a) Must be made available for public inspection; and
(b) Must be completed within 30 days of the date the contracting
agency accepts:
(A) The public improvement project; or
(B) The last public improvement project if the project falls within
a class of public improvement contracts described in ORS 279A.050 (3)(b).
[2003 c.794 §111]Note: The amendments to 279C.355 by section 112, chapter 794,
Oregon Laws 2003, become operative July 1, 2012. See section 113, chapter
794, Oregon Laws 2003. The text that is operative on and after July 1,
2012, is set forth for the user’s convenience.
(1) Upon completion of and final payment for any public
improvement contract, or class of public improvement contracts, in excess
of $100,000 for which the contracting agency did not use the competitive
bidding process, the contracting agency shall prepare and deliver to the
Director of the Oregon Department of Administrative Services or the local
contract review board an evaluation of the public improvement contract or
the class of public improvement contracts.
(2) The evaluation shall include but is not limited to the
following matters:
(a) The actual project cost as compared with original project
estimates;
(b) The amount of any guaranteed maximum price;
(c) The number of project change orders issued by the contracting
agency;
(d) A narrative description of successes and failures during the
design, engineering and construction of the project; and
(e) An objective assessment of the use of the alternative
contracting process as compared to the findings required by ORS 279C.335.
(3) The evaluations required by this section:
(a) Must be made available for public inspection; and
(b) Must be completed within 30 days of the date the contracting
agency accepts:
(A) The public improvement project; or
(B) The last public improvement project if the project falls within
a class of public improvement contracts.(Solicitation; Contract Award; Rejection) (1) An
advertisement for public improvement contracts must be published at least
once in at least one newspaper of general circulation in the area where
the contract is to be performed and in as many additional issues and
publications as the contracting agency may determine. The Director of the
Oregon Department of Administrative Services, a local contract review
board or, for contracts described in ORS 279A.050 (3)(b), the Director of
Transportation, by rule or order, may authorize advertisements for public
improvement contracts to be published electronically instead of in a
newspaper of general circulation if the director or board determines that
electronic advertisements are likely to be cost-effective. If the public
improvement contract has an estimated cost in excess of $125,000, the
advertisement must be published in at least one trade newspaper of
general statewide circulation. The Director of the Oregon Department of
Administrative Services, the Director of Transportation or the local
contract review board may, by rule or order, require an advertisement to
be published more than once or in one or more additional publications.
(2) All advertisements for public improvement contracts must state:
(a) The public improvement project;
(b) The office where the specifications for the project may be
reviewed;
(c) The date that prequalification applications must be filed under
ORS 279C.430 and the class or classes of work for which bidders must be
prequalified if prequalification is a requirement;
(d) The date and time after which bids will not be received, which
must be at least five days after the date of the last publication of the
advertisement;
(e) The name and title of the person designated for receipt of bids;
(f) The date, time and place that the contracting agency will
publicly open the bids; and
(g) If the contract is for a public works subject to ORS 279C.800
to 279C.870 or the Davis-Bacon Act (40 U.S.C. 276a). [2003 c.794 §114;
2005 c.103 §14a](1) A contracting agency preparing solicitation documents for
a public improvement contract shall, at a minimum, include:
(a) The public improvement project;
(b) The office where the specifications for the project may be
reviewed;
(c) The date that prequalification applications must be filed under
ORS 279C.430 and the class or classes of work for which bidders must be
prequalified if prequalification is a requirement;
(d) The date and time after which bids will not be received, which
must be at least five days after the date of the last publication of the
advertisement, and may, in the sole discretion of the contracting agency,
direct or permit the submission and receipt of bids by electronic means;
(e) The name and title of the person designated for receipt of bids;
(f) The date, time and place that the contracting agency will
publicly open the bids;
(g) A statement that, if the contract is for a public works subject
to ORS 279C.800 to 279C.870 or the Davis-Bacon Act (40 U.S.C. 276a), no
bid will be received or considered by the contracting agency unless the
bid contains a statement by the bidder that ORS 279C.840 or 40 U.S.C.
276a will be complied with;
(h) A statement that each bid must identify whether the bidder is a
resident bidder, as defined in ORS 279A.120;
(i) A statement that the contracting agency may reject any bid not
in compliance with all prescribed public contracting procedures and
requirements and may reject for good cause all bids upon a finding of the
agency that it is in the public interest to do so;
(j) Information addressing whether a contractor or subcontractor
must be licensed under ORS 468A.720; and
(k) A statement that a bid for a public improvement contract may
not be received or considered by the contracting agency unless the bidder
is licensed by the Construction Contractors Board or the State Landscape
Contractors Board.
(2) All bids made to the contracting agency under ORS 279C.335 or
279C.400 must be:
(a) In writing;
(b) Filed with the person designated for receipt of bids by the
contracting agency; and
(c) Opened publicly by the contracting agency immediately after the
deadline for submission of bids.
(3) After having been opened, the bids must be made available for
public inspection.
(4) A surety bond, irrevocable letter of credit issued by an
insured institution as defined in ORS 706.008, cashier’s check or
certified check of each bidder shall be submitted with or posted for all
bids as bid security unless the contract for which a bid is submitted has
been exempted from this requirement under ORS 279C.390. The security may
not exceed 10 percent of the amount bid for the contract.
(5) Subsection (4) of this section applies only to public
improvement contracts with a value, estimated by the contracting agency,
of more than $100,000 or, in the case of contracts for highways, bridges
and other transportation projects, more than $50,000. [2003 c.794 §115;
2005 c.103 §15] (1)(a) Within two
working hours after the date and time of the deadline when bids are due
to a contracting agency for a public improvement contract, a bidder shall
submit to the contracting agency a disclosure of the first-tier
subcontractors that:
(A) Will be furnishing labor or will be furnishing labor and
materials in connection with the public improvement contract; and
(B) Will have a contract value that is equal to or greater than
five percent of the total project bid or $15,000, whichever is greater,
or $350,000 regardless of the percentage of the total project bid.
(b) For each contract to which this subsection applies, the
contracting agency shall designate a deadline for submission of bids that
has a date on a Tuesday, Wednesday or Thursday and a time between 2 p.m.
and 5 p.m., except that this paragraph does not apply to public contracts
for maintenance or construction of highways, bridges or other
transportation facilities.
(c) This subsection applies only to public improvement contracts
with a value, estimated by the contracting agency, of more than $100,000.
(d) This subsection does not apply to public improvement contracts
that have been exempted from competitive bidding requirements under ORS
279C.335 (2).
(2) The disclosure of first-tier subcontractors under subsection
(1) of this section must include the name of each subcontractor, the
category of work that each subcontractor will perform and the dollar
value of each subcontract. The information shall be disclosed in
substantially the following form:
___________________________________________________________________________
___FIRST-TIER SUBCONTRACTOR
DISCLOSURE FORMPROJECT NAME: ____________
BID #: _________
BID CLOSING: Date: _____Time: _____This form must be submitted at the location specified in the Invitation
to Bid on the advertised bid closing date and within two working hours
after the advertised bid closing time.List below the name of each subcontractor that will be furnishing labor
or will be furnishing labor and materials and that is required to be
disclosed, the category of work that the subcontractor will be performing
and the dollar value of the subcontract. Enter “NONE” if there are no
subcontractors that need to be disclosed. (ATTACH ADDITIONAL SHEETS IF
NEEDED.)
DOLLAR CATEGORY
NAME VALUE OF WORK
1) ________ $______ ________
_________ ______ ________
2) ________ $______ ________
_________ ______ ________
3) ________ $______ ________
_________ ______ ________
4) ________ $______ ________
_________ ______ ________
Failure to submit this form by the disclosure deadline will result in a
nonresponsive bid. A nonresponsive bid will not be considered for award.Form submitted by (bidder name): ______________________
Contact name: _______________
Phone no.: _________
___________________________________________________________________________
___
(3) A contracting agency shall accept the subcontractor disclosure.
The contracting agency shall consider the bid of any contractor that does
not submit a subcontractor disclosure to the contracting agency to be a
nonresponsive bid and may not award the contract to the contractor. A
contracting agency is not required to determine the accuracy or the
completeness of the subcontractor disclosure.
(4) After the bids are opened, the subcontractor disclosures must
be made available for public inspection.
(5) A contractor may substitute a first-tier subcontractor under
the provisions of ORS 279C.585.
(6) A subcontractor may file a complaint under ORS 279C.590 based
on the disclosure requirements of subsection (1) of this section. [2003
c.794 §116; 2005 c.103 §16] (1) After bids are opened and a
determination is made that a public improvement contract is to be
awarded, the contracting agency shall award the contract to the lowest
responsible bidder.
(2) At least seven days before the award of a public improvement
contract, unless the contracting agency determines that seven days is
impractical under rules adopted under ORS 279A.065, the contracting
agency shall issue to each bidder or post, electronically or otherwise, a
notice of the contracting agency’s intent to award a contract. This
subsection does not apply to a contract excepted or exempted from
competitive bidding under ORS 279C.335 (1)(c) or (d) or (6). The notice
and its manner of posting or issuance must conform to rules adopted under
ORS 279A.065.
(3) In determining the lowest responsible bidder, a contracting
agency shall do all of the following:
(a) Check the list created by the Construction Contractors Board
under ORS 701.227 for bidders who are not qualified to hold a public
improvement contract.
(b) Determine whether the bidder has met the standards of
responsibility. In making the determination, the contracting agency shall
consider whether a bidder has:
(A) Available the appropriate financial, material, equipment,
facility and personnel resources and expertise, or the ability to obtain
the resources and expertise, necessary to meet all contractual
responsibilities.
(B) A satisfactory record of performance. The contracting agency
shall document the record of performance of a bidder if the contracting
agency finds the bidder not to be responsible under this subparagraph.
(C) A satisfactory record of integrity. The contracting agency
shall document the record of integrity of a bidder if the contracting
agency finds the bidder not to be responsible under this subparagraph.
(D) Qualified legally to contract with the contracting agency.
(E) Supplied all necessary information in connection with the
inquiry concerning responsibility. If a bidder fails to promptly supply
information requested by the contracting agency concerning
responsibility, the contracting agency shall base the determination of
responsibility upon any available information, or may find the bidder not
to be responsible.
(c) Document the contracting agency’s compliance with the
requirements of paragraphs (a) and (b) of this subsection in
substantially the following form:
___________________________________________________________________________
___RESPONSIBILITY DETERMINATION FORMProject Name: ____________
Bid Number: ____________
Business Entity Name: ____________
CCB License Number: ____________
Form Submitted By (Contracting Agency): ____________
Form Submitted By (Contracting Agency Representative’s Name): ____________
Title: ____________
Date: ____________
(The contracting agency must submit this form with attachments, if
any, to the
Construction Contractors Board within 30 days after the date of contract
award.)
The contracting agency has (check all of the following):[ ] Checked the list created by the
Construction Contractors Board
under ORS 701.227 for bidders who
are not qualified to hold a public
improvement contract.
[ ] Determined whether the bidder has
met the standards of responsibility.
In so doing, the contracting agency
has considered whether the bidder:
[ ] Has available the appropriate
financial, material, equipment,
facility and personnel resources
and expertise, or the ability to
obtain the resources and expertise,
necessary to meet all contractual
responsibilities.
[ ] Has a satisfactory record of
performance.
[ ] Has a satisfactory record of
integrity.
[ ] Is qualified legally to contract with
the contracting agency.
[ ] Has supplied all necessary
information in connection with the
inquiry concerning responsibility.
[ ] Determined the bidder to be
(check one of the following):
[ ] Responsible under ORS 279C.375
(3)(a) and (b).
[ ] Not responsible under ORS 279C.375
(3)(a) and (b). (Attach documentation if the contracting agency finds the bidder
not to be responsible.)
___________________________________________________________________________
___
(d) Submit the form described in paragraph (c) of this subsection,
with any attachments, to the Construction Contractors Board within 30
days after the date the contracting agency awards the contract.
(4) The successful bidder shall:
(a) Promptly execute a formal contract; and
(b) Execute and deliver to the contracting agency a performance
bond and a payment bond when required under ORS 279C.380. [2003 c.794
§117; 2005 c.103 §17; 2005 c.376 §1]Note: The amendments to 279C.375 by section 18, chapter 103, Oregon
Laws 2005, become operative July 1, 2009. See section 105, chapter 794,
Oregon Laws 2003, as amended by section 19, chapter 103, Oregon Laws
2005. The text that is operative on and after July 1, 2009, is set forth
for the user’s convenience.
(1) Except as provided in ORS 279C.390, a successful bidder
for a public improvement contract shall promptly execute and deliver to
the contracting agency the following bonds:
(a) A performance bond in an amount equal to the full contract
price conditioned on the faithful performance of the contract in
accordance with the plans, specifications and conditions of the contract.
The performance bond must be solely for the protection of the contracting
agency that awarded the contract and any public agency or agencies for
whose benefit the contract was awarded. If the public improvement
contract is with a single person to provide both design and construction
of a public improvement, the obligation of the performance bond for the
faithful performance of the contract required by this paragraph must also
be for the preparation and completion of the design and related services
covered under the contract. Notwithstanding when a cause of action, claim
or demand accrues or arises, the surety is not liable after final
completion of the contract, or longer if provided for in the contract,
for damages of any nature, economic or otherwise and including corrective
work, attributable to the design aspect of a design-build project, or for
the costs of design revisions needed to implement corrective work. A
contracting agency may waive the requirement of a performance bond. A
contracting agency may permit the successful bidder to submit a cashier’s
check or certified check in lieu of all or a portion of the required
performance bond.
(b) A payment bond in an amount equal to the full contract price,
solely for the protection of claimants under ORS 279C.600.
(2) If the public improvement contract is with a single person to
provide construction manager and general contractor services, in which a
guaranteed maximum price may be established by an amendment authorizing
construction period services following preconstruction period services,
the contractor shall provide the bonds required by subsection (1) of this
section upon execution of an amendment establishing the guaranteed
maximum price. The contracting agency shall also require the contractor
to provide bonds equal to the value of construction services authorized
by any early work amendment in advance of the guaranteed maximum price
amendment. Such bonds must be provided before construction starts.
(3) Each performance bond and each payment bond must be executed
solely by a surety company or companies holding a certificate of
authority to transact surety business in this state. The bonds may not
constitute the surety obligation of an individual or individuals. The
performance and payment bonds must be payable to the contracting agency
or to the public agency or agencies for whose benefit the contract was
awarded, as specified in the solicitation documents, and shall be in a
form approved by the contracting agency.
(4) In cases of emergency, or when the interest or property of the
contracting agency or the public agency or agencies for whose benefit the
contract was awarded probably would suffer material injury by delay or
other cause, the requirement of furnishing a good and sufficient
performance bond and a good and sufficient payment bond for the faithful
performance of any public improvement contract may be excused, if a
declaration of such emergency is made in accordance with rules adopted
under ORS 279A.065.
(5) This section applies only to public improvement contracts with
a value, estimated by the contracting agency, of more than $100,000 or,
in the case of contracts for highways, bridges and other transportation
projects, more than $50,000. [2003 c.794 §118; 2005 c.103 §20] (1) A contracting
agency shall return the bid security of the successful bidder to the
bidder after the bidder:
(a) Executes the public improvement contract; and
(b) Delivers a good and sufficient performance bond, a good and
sufficient payment bond and any required proof of insurance.
(2) A bidder who is awarded a contract and who fails promptly and
properly to execute the contract and to deliver the performance bond, the
payment bond and the proof of insurance, when bonds or insurance are
required, shall forfeit the bid security that accompanied the successful
bid. The bid security shall be taken and considered as liquidated damages
and not as a penalty for failure of the bidder to execute the contract
and deliver the bonds and proof of insurance.
(3) The contracting agency may return the bid security of
unsuccessful bidders to them when the bids have been opened and the
contract has been awarded, and may not retain the bid security after the
contract has been duly signed. [2003 c.794 §119; 2005 c.103 §21] (1)
Subject to the provisions of subsection (2) of this section, the Director
of the Oregon Department of Administrative Services, a local contract
review board or, for contracts described in ORS 279A.050 (3)(b), the
Director of Transportation may exempt certain contracts or classes of
contracts from all or a portion of the requirement for bid security and
from all or a portion of the requirement that good and sufficient bonds
be furnished to ensure performance of the contract and payment of
obligations incurred in the performance.
(2) The contracting agency may require bid security and a good and
sufficient performance bond, a good and sufficient payment bond, or any
combination of such bonds, even though the public improvement contract is
of a class exempted by the Director of the Oregon Department of
Administrative Services, the local contract review board or, for
contracts described in ORS 279A.050 (3)(b), the Director of
Transportation.
(3) The Director of Transportation may:
(a) Exempt contracts or classes of contracts financed from the
proceeds of bonds issued under ORS 367.620 (3)(a) from the requirement
for bid security and from the requirement that a good and sufficient bond
be furnished to ensure performance of the contract; or
(b) Reduce the amount of the required performance bond for
contracts or classes of contracts financed from the proceeds of the bonds
issued under ORS 367.620 (3)(a) to less than 100 percent of the contract
price.
(4) Any recoverable damages that exceed the amount of the
performance bond required under subsection (3) of this section shall be
the sole responsibility of the Department of Transportation. [2003 c.794
§120; 2003 c.794 §120a] A contracting agency may reject any bid
not in compliance with all prescribed public bidding procedures and
requirements, and may, for good cause, reject all bids upon a finding of
the contracting agency it is in the public interest to do so. In any case
where competitive bids are required and all bids are rejected, and the
proposed project is not abandoned, new bids may be called for as in the
first instance. [2003 c.794 §121](Competitive Proposals) (1) When authorized or
required by an exemption granted under ORS 279C.335, a contracting agency
may award a public improvement contract by competitive proposals. A
contract awarded under this section may be amended only in accordance
with rules adopted under ORS 279A.065.
(2) Except as provided in ORS 279C.330 to 279C.355, 279C.360 to
279C.390, 279C.395 and 279C.430 to 279C.450, competitive proposals shall
be subject to the following requirements of competitive bidding:
(a) Advertisement under ORS 279C.360;
(b) Requirements for solicitation documents under ORS 279C.365;
(c) Disqualification due to a Construction Contractors Board
listing as described in ORS 279C.375 (3)(a);
(d) Contract execution and bonding requirements under ORS 279C.375
and 279C.380;
(e) Determination of responsibility under ORS 279C.375 (3)(b);
(f) Rejection of bids under ORS 279C.395; and
(g) Disqualification and prequalification under ORS 279C.430,
279C.435 and 279C.440.
(3) For the purposes of applying the requirements listed in
subsection (2) of this section to competitive proposals, when used in the
sections listed in subsection (2) of this section, “bids” includes
proposals, and “bid documents” and “invitation to bid” include requests
for proposals.
(4) Competitive proposals are not subject to the following
requirements of competitive bidding:
(a) First-tier subcontractor disclosure under ORS 279C.370; and
(b) Reciprocal preference under ORS 279A.120.
(5) When award of a public improvement contract advertised by the
issuance of a request for proposals may be made without negotiation, the
contracting agency may require proposal security that serves the same
function with respect to proposals as bid security serves with respect to
bids under ORS 279C.365 (4) and 279C.385, as follows:
(a) The contracting agency may require proposal security in a form
and amount as may be determined to be reasonably necessary or prudent to
protect the interests of the contracting agency.
(b) The contracting agency shall retain the proposal security if a
proposer who is awarded a contract fails to promptly and properly execute
the contract and provide any required bonds or insurance.
(c) The contracting agency shall return the proposal security to
all proposers upon the execution of the contract, or earlier in the
selection process.
(6) In all other respects, and subject to rules adopted under ORS
279A.065, references in this chapter to invitations to bid, bids or
bidders shall, to the extent practicable within the proposal process, be
deemed equally applicable to requests for proposals, proposals or
proposers. However, notwithstanding ORS 279C.375 (1), a contracting
agency may not be required to award a contract advertised under the
competitive proposal process based on price, but may award the contract
in accordance with ORS 279C.410 (8). [2003 c.794 §129; 2005 c.103 §23] In addition to
the general requirements of ORS 279C.365, a contracting agency preparing
a request for proposals shall include:
(1) All required contractual terms and conditions. The request for
proposals also may:
(a) Identify those contractual terms or conditions the contracting
agency reserves, in the request for proposals, for negotiation with
proposers;
(b) Request that proposers propose contractual terms and conditions
that relate to subject matter reasonably identified in the request for
proposals; and
(c) Contain or incorporate the form and content of the contract
that the contracting agency will accept, or suggested contract terms and
conditions that nevertheless may be the subject of negotiations with
proposers.
(2) The method of contractor selection, which may include but is
not limited to award without negotiation, negotiation with the highest
ranked proposer, competitive negotiations, multiple-tiered competition
designed either to identify a class of proposers that fall within a
competitive range or to otherwise eliminate from consideration a class of
lower ranked proposers, or any combination of methods, as authorized or
prescribed by rules adopted under ORS 279A.065.
(3) All evaluation factors that will be considered by the
contracting agency when evaluating the proposals, including the relative
importance of price and any other evaluation factors. [2003 c.794 §130] (1)
Notwithstanding the public records law, ORS 192.410 to 192.505:
(a) Proposals may be opened so as to avoid disclosure of contents
to competing proposers during, when applicable, the process of
negotiation.
(b) Proposals are not required to be open for public inspection
until after the notice of intent to award a contract is issued.
(2) For each request for proposals, the contracting agency shall
prepare a list of proposals.
(3) Notwithstanding any requirement to make proposals open to
public inspection after the contracting agency’s issuance of notice of
intent to award a contract, a contracting agency may withhold from
disclosure to the public trade secrets, as defined in ORS 192.501, and
information submitted to a public body in confidence, as described in ORS
192.502, that are contained in a proposal. The fact that proposals are
opened at a public meeting as defined in ORS 192.610 does not make their
contents subject to disclosure, regardless of whether the public body
opening the proposals fails to give notice of or provide for an executive
session for the purpose of opening proposals. If a request for proposals
is canceled after proposals are received, the contracting agency may
return a proposal to the proposer that made the proposal. The contracting
agency shall keep a list of returned proposals in the file for the
solicitation.
(4) As provided in the request for proposals, a contracting agency
may conduct discussions with proposers who submit proposals the agency
has determined to be closely competitive or to have a reasonable chance
of being selected for award. The discussions may be conducted for the
purpose of clarification to ensure full understanding of, and
responsiveness to, the solicitation requirements. The contracting agency
shall accord proposers fair and equal treatment with respect to any
opportunity for discussion and revision of proposals. Revisions of
proposals may be permitted after the submission of proposals and before
award for the purpose of obtaining best and final offers. In conducting
discussions, the contracting agency may not disclose information derived
from proposals submitted by competing proposers.
(5) When provided for in the request for proposals, the contracting
agency may employ methods of contractor selection including but not
limited to award based solely on the ranking of proposals, negotiation
with the highest ranked proposer, competitive negotiations,
multiple-tiered competition designed to identify a class of proposers
that fall within a competitive range or to otherwise eliminate from
consideration a class of lower ranked proposers, or any combination of
methods, as authorized or prescribed by rules adopted under ORS 279A.065.
When applicable, in any instance in which the contracting agency
determines that impasse has been reached in negotiations with a highest
ranked proposer, the contracting agency may terminate negotiations with
that proposer and commence negotiations with the next highest ranked
proposer.
(6) The cancellation of requests for proposals and the rejection of
proposals shall be in accordance with ORS 279C.395.
(7) At least seven days before the award of a public improvement
contract, unless the contracting agency determines that seven days is
impractical under rules adopted under ORS 279A.065, the contracting
agency shall issue to each proposer or post, electronically or otherwise,
a notice of intent to award.
(8) If a public improvement contract is awarded, the contracting
agency shall award a public improvement contract to the responsible
proposer whose proposal is determined in writing to be the most
advantageous to the contracting agency based on the evaluation factors
set forth in the request for proposals and, when applicable, the outcome
of any negotiations authorized by the request for proposals. Other
factors may not be used in the evaluation.
(9) The contracting agency may issue a request for information, a
request for interest, a request for qualifications or other preliminary
documents to obtain information useful in the preparation or distribution
of a request for proposals. [2003 c.794 §131; 2005 c.103 §24](Temporary provisions relating to competitive quotes)Note: Sections 132, 133 and 332a, chapter 794, Oregon Laws 2003,
provide:
Sec. 132. Competitive quotes for intermediate procurements. (1) A
public improvement contract estimated by the contracting agency not to
exceed $100,000, or not to exceed $50,000 in the case of contracts for
highways, bridges and other transportation projects, may be awarded in
accordance with intermediate procurement procedures for competitive
quotes established by rules adopted under section 10 of this 2003 Act
[279A.065]. A contract awarded under this section may be amended to
exceed the thresholds set forth in this subsection only in accordance
with rules adopted under section 10 of this 2003 Act.
(2) A procurement may not be artificially divided or fragmented so
as to constitute an intermediate procurement under this section or to
circumvent competitive bidding requirements under sections 88 to 179 of
this 2003 Act [ORS chapter 279C].
(3) Intermediate procurements under this section need not be made
through competitive bidding. However, nothing in this section may be
construed as prohibiting a contracting agency from conducting a
procurement that does not exceed the thresholds in subsection (1) of this
section under competitive bidding procedures. [2003 c.794 §132]
Sec. 133. Requirements for competitive quotes. (1) Rules adopted
under section 10 of this 2003 Act [279A.065] to govern competitive quotes
shall require the contracting agency to seek at least three informally
solicited competitive price quotes from prospective contractors. The
contracting agency shall keep a written record of the sources and amounts
of the quotes received. If three quotes are not reasonably available,
fewer will suffice, but in that event the contracting agency shall make a
written record of the effort made to obtain the quotes.
(2) If a contract is to be awarded by competitive quotes, the
contracting agency shall award the contract to the prospective contractor
whose quote will best serve the interests of the contracting agency,
taking into account price as well as any other applicable factors such
as, but not limited to, experience, specific expertise, availability,
project understanding, contractor capacity and responsibility. If an
award is not made to the prospective contractor offering the lowest price
quote, the contracting agency shall make a written record of the basis
for award. [2003 c.794 §133]
Sec. 332a. Sections 132 and 133 of this 2003 Act are repealed on
(Prequalification and Disqualification) (1) A contracting agency may
adopt a rule, resolution, ordinance or other regulation requiring
mandatory prequalification for all persons desiring to bid for public
improvement contracts that are to be let by the agency. The rule,
resolution, ordinance or other regulation authorized by this section must
include the time for submitting prequalification applications and a
general description of the type and nature of the contracts that may be
let. The prequalification application must be in writing on a standard
form prescribed under the authority of ORS 279A.050.
(2) When a contracting agency permits or requires prequalification
of bidders, a person who wishes to prequalify shall submit a
prequalification application to the contracting agency on a standard form
prescribed under subsection (1) of this section. Within 30 days after
receipt of a prequalification application, the contracting agency shall
investigate the applicant as necessary to determine if the applicant is
qualified. The determination shall be made in less than 30 days, if
practicable, if the applicant requests an early decision to allow the
applicant as much time as possible to prepare a bid on a contract that
has been advertised. In making its determination, the contracting agency
shall consider only the applicable standards of responsibility listed in
ORS 279C.375 (3)(b). The agency shall promptly notify the applicant
whether or not the applicant is qualified.
(3) If the contracting agency finds that the applicant is
qualified, the notice must state the nature and type of contracts that
the person is qualified to bid on and the period of time for which the
qualification is valid under the contracting agency’s rule, resolution,
ordinance or other regulation. If the contracting agency finds the
applicant is not qualified as to any contracts covered by the rule,
resolution, ordinance or other regulation, the notice must specify the
reasons found under ORS 279C.375 (3)(b) for not prequalifying the
applicant and inform the applicant of the right to a hearing under ORS
279C.445 and 279C.450.
(4) If a contracting agency has reasonable cause to believe that
there has been a substantial change in the conditions of a prequalified
person and that the person is no longer qualified or is less qualified,
the agency may revoke or may revise and reissue the prequalification
after reasonable notice to the prequalified person. The notice shall
state the reasons found under ORS 279C.375 (3)(b) for revocation or
revision of the prequalification of the person and inform the person of
the right to a hearing under ORS 279C.445 and 279C.450. A revocation or
revision does not apply to any public improvement contract for which
publication of an advertisement, in accordance with ORS 279C.360,
commenced before the date the notice of revocation or revision was
received by the prequalified person. [2003 c.794 §123; 2005 c.103 §25]If a person is
prequalified with the Department of Transportation or with the Oregon
Department of Administrative Services, the person is rebuttably presumed
qualified with any other contracting agency for the same kind of work.
When qualifying for the same kind of work with another contracting
agency, the person may submit proof of the prequalification in lieu of a
prequalification application as required by ORS 279C.430. [2003 c.794
§128](1)(a) A contracting agency may disqualify a person from
consideration for award of the contracting agency’s contracts for the
reasons listed in subsection (2) of this section after providing the
person with notice and a reasonable opportunity to be heard.
(b) In lieu of the disqualification process described in paragraph
(a) of this subsection, a contracting agency contracting for a public
improvement may petition the Construction Contractors Board to disqualify
a person from consideration for award of the contracting agency’s public
improvement contracts for the reasons listed in subsection (2) of this
section. The Construction Contractors Board shall provide the person with
notice and a reasonable opportunity to be heard.
(c) A contracting agency or the Construction Contractors Board may
not disqualify a person under this section for a period of more than
three years.
(2) A person may be disqualified from consideration for award of a
contracting agency’s contracts for any of the following reasons:
(a) The person has been convicted of a criminal offense as an
incident in obtaining or attempting to obtain a public or private
contract or subcontract, or in the performance of such contract or
subcontract.
(b) The person has been convicted under state or federal statutes
of embezzlement, theft, forgery, bribery, falsification or destruction of
records, receiving stolen property or any other offense indicating a lack
of business integrity or business honesty that currently, seriously and
directly affects the person’s responsibility as a contractor.
(c) The person has been convicted under state or federal antitrust
statutes.
(d) The person has committed a violation of a contract provision
that is regarded by the contracting agency or the Construction
Contractors Board to be so serious as to justify disqualification. A
violation may include but is not limited to a failure to perform the
terms of a contract or an unsatisfactory performance in accordance with
the terms of the contract. However, a failure to perform or an
unsatisfactory performance caused by acts beyond the control of the
contractor may not be considered to be a basis for disqualification.
(e) The person does not carry workers’ compensation or unemployment
insurance as required by statute.
(3) A contracting agency or the Construction Contractors Board
shall issue a written decision to disqualify a person under this section.
The decision shall:
(a) State the reasons for the action taken; and
(b) Inform the disqualified person of the appeal right of the
person under:
(A) ORS 279C.445 and 279C.450 if the decision to disqualify was
issued by a contracting agency; or
(B) ORS chapter 183 if the decision to disqualify was issued by the
Construction Contractors Board.
(4) A copy of the decision issued under subsection (3) of this
section must be mailed or otherwise furnished immediately to the
disqualified person. [2003 c.794 §122] Any person who wishes to
appeal disqualification shall, within three business days after receipt
of notice of disqualification, notify the contracting agency that the
person appeals the disqualification. Immediately upon receipt of the
notice of appeal:
(1) A state contracting agency shall notify the Director of the
Oregon Department of Administrative Services.
(2) All contracting agencies other than state contracting agencies
shall notify the appropriate local contract review board. [2003 c.794
§124](1) The procedure for appeal
from a disqualification or denial, revocation or revision of a
prequalification by a contracting agency shall be in accordance with this
section and is not subject to ORS chapter 183 except when specifically
provided by this section.
(2) Promptly upon receipt of notice of appeal from a contracting
agency as provided for by ORS 279C.445, the Director of the Oregon
Department of Administrative Services or the local contract review board
shall notify the person appealing and the contracting agency of the time
and place of the hearing. The director or board shall conduct the hearing
and decide the appeal within 30 days after receiving the notification
from the contracting agency. The director or board shall set forth in
writing the reasons for the decision.
(3) In the hearing the director or board shall consider de novo the
notice of disqualification or denial, revocation or revision of a
prequalification, the reasons listed in ORS 279C.440 (2) on which the
contracting agency based the disqualification or the standards of
responsibility listed in ORS 279C.375 (3)(b) on which the contracting
agency based the denial, revocation or revision of the prequalification
and any evidence provided by the parties. In all other respects, a
hearing before the director shall be conducted in the same manner as a
contested case under ORS 183.415 (3) to (6) and (9), 183.425, 183.440,
183.450 and 183.452.
(4) The director may allocate the director’s cost for the hearing
between the person appealing and the contracting agency whose
disqualification or prequalification decision is being appealed. The
allocation shall be based upon facts found by the director and stated in
the final order that, in the director’s opinion, warrant such allocation
of the costs. If the final order does not allocate the director’s costs
for the hearing, the costs shall be paid as follows:
(a) If the decision to disqualify or deny, revoke or revise a
prequalification of a person is upheld, the director’s costs shall be
paid by the person appealing the disqualification or prequalification
decision.
(b) If the decision to disqualify or deny, revoke or revise a
prequalification of a person as a bidder is reversed by the director, the
director’s costs shall be paid by the contracting agency whose
disqualification or prequalification decision is the subject of the
appeal.
(5) The decision of the director or board may be reviewed only upon
a petition, filed within 15 days after the date of the decision, in the
circuit court of the county in which the director or board has its
principal office. The circuit court shall reverse or modify the decision
only if it finds:
(a) The decision was obtained through corruption, fraud or undue
means.
(b) There was evident partiality or corruption on the part of the
director or board or any of its members.
(c) There was an evident material miscalculation of figures or an
evident material mistake in the description of any person, thing or
property referred to in the decision.
(6) The procedure provided in this section is the exclusive means
of judicial review of the decision of the director or board. The judicial
review provisions of ORS 183.480 and writs of review and mandamus as
provided in ORS chapter 34, and other legal, declaratory and injunctive
remedies, are not available.
(7) The circuit court may, in its discretion, stay the letting of
the contract that is the subject of the petition in the same manner as a
suit in equity. When the court determines that there has been an improper
disqualification or denial, revocation or revision of a prequalification
and the contract has been let, the court may proceed to take evidence to
determine the damages, if any, suffered by the petitioner and award such
damages as the court may find as a judgment against the director or
board. The court may award costs and attorney fees to the prevailing
party. [2003 c.794 §125; 2005 c.103 §26](Remedies)(1) Any bidder or
proposer adversely affected or any trade association of construction
contractors acting on behalf of a member of the association to protect
interests common to construction contractor members may commence a suit
in the circuit court for the county where the principal offices of a
contracting agency are located, for the purpose of requiring compliance
with, or prevention of violations of, ORS 279C.300 to 279C.470 or to
determine the applicability of ORS 279C.300 to 279C.470 to matters or
decisions of the contracting agency.
(2) The court may order such equitable relief as the court
considers appropriate in the circumstances. In addition to or in lieu of
any equitable relief, the court may award an aggrieved bidder or proposer
any damages suffered by the bidder or proposer as a result of violations
of ORS 279C.300 to 279C.470 for the reasonable cost of preparing and
submitting a bid or proposal. A decision of the contracting agency may
not be voided if other equitable relief is available.
(3) If the contracting agency is successful in defending the
contracting agency’s actions against claims of violation or potential
violation of ORS 279C.300 to 279C.470, the court may award to the
aggrieved contracting agency any damages suffered as a result of the suit.
(4) The court may order payment of reasonable attorney fees and
costs on trial and on appeal to a successful party in a suit brought
under this section.
(5) This section does not apply to personal services contracts
under ORS 279C.100 to 279C.125. [2003 c.794 §134](1) Any person that loses a competitive
bid or proposal for a contract involving the construction, repair,
remodeling, alteration, conversion, modernization, improvement,
rehabilitation, replacement or renovation of a building or structure may
bring an action for damages against another person who is awarded the
contract for which the bid or proposal was made if the person making the
losing bid or proposal can establish that the other person knowingly
violated ORS 279C.840, 656.017, 657.505 or 701.055 while performing the
work under the contract, or knowingly failed to pay to the Department of
Revenue all sums withheld from employees under ORS 316.167.
(2) A person bringing an action under this section must establish a
violation of ORS 279C.840, 316.167, 656.017, 657.505 or 701.055 by a
preponderance of the evidence.
(3) Upon establishing that the violation occurred, the person shall
recover, as liquidated damages, 10 percent of the total amount of the
contract or $5,000, whichever is greater.
(4) In any action under this section, the prevailing party is
entitled to an award of reasonable attorney fees.
(5) An action under this section must be commenced within two years
of the substantial completion of the construction, repair, remodeling,
alteration, conversion, modernization, improvement, rehabilitation,
replacement or renovation. For the purposes of this subsection,
“substantial completion” has the meaning given that term in ORS 12.135.
(6) A person may not recover any amounts under this section if the
defendant in the action establishes by a preponderance of the evidence
that the plaintiff:
(a) Was in violation of ORS 701.055 at the time of making the bid
or proposal on the contract;
(b) Was in violation of ORS 316.167, 656.017 or 657.505 with
respect to any employees of the plaintiff as of the time of making the
bid or proposal on the contract; or
(c) Was in violation of ORS 279C.840 with respect to any contract
performed by the plaintiff within one year before making the bid or
proposal on the contract at issue in the action. [2003 c.794 §135](1) If a court determines that a public
improvement contract is void because the contracting agency letting the
contract failed to comply with any statutory or regulatory competitive
bidding or other procurement requirements, and the contractor entered
into the contract without intentionally violating the laws regulating
public improvement contracts, then, unless the court determines that
substantial injustice would result, the contractor is entitled to
reimbursement for work performed under the contract as follows:
(a) If the work under the public improvement contract is
substantially complete, the contracting agency shall ratify the contract.
(b) If the work under the public improvement contract is not
substantially complete, the contracting agency shall ratify the contract
and the contract shall be deemed terminated. Upon termination, the
contractor shall be paid in accordance with ORS 279C.660, unless the
court determines that payment under ORS 279C.660 would be a substantial
injustice to the contracting agency or the contractor, in which case the
contractor shall be paid as the court deems equitable.
(c) For the purposes of this section, a ratified contract shall be
deemed valid, binding and legally enforceable, and the contractor’s
payment and performance bonds shall remain in full force and effect.
(2) Notwithstanding subsection (1) of this section, if a court
determines that a public improvement contract is void as a result of
fraudulent or criminal acts or omissions of the contractor or of both the
contracting agency letting the contract and the contractor, the
contractor is not entitled to reimbursement for work performed under the
contract.
(3) This section does not apply to a public improvement contract if:
(a) The contracting agency’s employee that awarded the public
improvement contract did not have the authority to do so under law,
ordinance, charter, contract or agency rule; or
(b) Payment is otherwise prohibited by Oregon law.
(4) The contractor and all subcontractors under a public
improvement contract are prohibited from asserting that the public
improvement contract is void for any reason described in this section.
[2003 c.794 §136]CONSTRUCTION CONTRACTS GENERALLY(Required Contract Conditions)As used in ORS 279C.500 to 279C.530,
unless the context otherwise requires, “person” includes the State
Accident Insurance Fund Corporation and the Department of Revenue. [2003
c.794 §137](1) Every public improvement contract shall
contain a condition that the contractor shall:
(a) Make payment promptly, as due, to all persons supplying to the
contractor labor or material for the performance of the work provided for
in the contract.
(b) Pay all contributions or amounts due the Industrial Accident
Fund from the contractor or subcontractor incurred in the performance of
the contract.
(c) Not permit any lien or claim to be filed or prosecuted against
the state or a county, school district, municipality, municipal
corporation or subdivision thereof, on account of any labor or material
furnished.
(d) Pay to the Department of Revenue all sums withheld from
employees under ORS 316.167.
(2) In addition to the conditions specified in subsection (1) of
this section, every public improvement contract shall contain a condition
that the contractor shall demonstrate that an employee drug testing
program is in place. [2003 c.794 §138; 2005 c.103 §27](1)
Every public improvement contract for demolition shall contain a
condition requiring the contractor to salvage or recycle construction and
demolition debris, if feasible and cost-effective.
(2) Every public improvement contract for lawn and landscape
maintenance shall contain a condition requiring the contractor to compost
or mulch yard waste material at an approved site, if feasible and
cost-effective. [2003 c.794 §139](1) Every public improvement contract shall contain a clause
or condition that, if the contractor fails, neglects or refuses to make
prompt payment of any claim for labor or services furnished to the
contractor or a subcontractor by any person in connection with the public
improvement contract as the claim becomes due, the proper officer or
officers representing the state or a county, school district,
municipality, municipal corporation or subdivision thereof, as the case
may be, may pay such claim to the person furnishing the labor or services
and charge the amount of the payment against funds due or to become due
the contractor by reason of the contract.
(2) Every public improvement contract shall contain a clause or
condition that, if the contractor or a first-tier subcontractor fails,
neglects or refuses to make payment to a person furnishing labor or
materials in connection with the public improvement contract within 30
days after receipt of payment from the contracting agency or a
contractor, the contractor or first-tier subcontractor shall owe the
person the amount due plus interest charges commencing at the end of the
10-day period that payment is due under ORS 279C.580 (4) and ending upon
final payment, unless payment is subject to a good faith dispute as
defined in ORS 279C.580. The rate of interest charged to the contractor
or first-tier subcontractor on the amount due shall equal three times the
discount rate on 90-day commercial paper in effect at the Federal Reserve
Bank in the Federal Reserve district that includes Oregon on the date
that is 30 days after the date when payment was received from the
contracting agency or from the contractor, but the rate of interest may
not exceed 30 percent. The amount of interest may not be waived.
(3) Every public improvement contract and every contract related to
the public improvement contract shall contain a clause or condition that,
if the contractor or a subcontractor fails, neglects or refuses to make
payment to a person furnishing labor or materials in connection with the
public improvement contract, the person may file a complaint with the
Construction Contractors Board, unless payment is subject to a good faith
dispute as defined in ORS 279C.580.
(4) The payment of a claim in the manner authorized in this section
does not relieve the contractor or the contractor’s surety from
obligation with respect to any unpaid claims. [2003 c.794 §140; 2005
c.103 §28] (1) Every public
contract subject to this chapter must contain a condition that a person
may not be employed for more than 10 hours in any one day, or 40 hours in
any one week, except in cases of necessity, emergency or when the public
policy absolutely requires it, and in such cases, except in cases of
contracts for personal services as defined in ORS 279C.100, the employee
shall be paid at least time and a half pay:
(a)(A) For all overtime in excess of eight hours in any one day or
40 hours in any one week when the work week is five consecutive days,
Monday through Friday; or
(B) For all overtime in excess of 10 hours in any one day or 40
hours in any one week when the work week is four consecutive days, Monday
through Friday; and
(b) For all work performed on Saturday and on any legal holiday
specified in ORS 279C.540.
(2) An employer must give notice in writing to employees who work
on a public contract, either at the time of hire or before commencement
of work on the contract, or by posting a notice in a location frequented
by employees, of the number of hours per day and days per week that the
employees may be required to work.
(3) In the case of contracts for personal services as defined in
ORS 279C.100, the contract shall contain a provision that the employee
shall be paid at least time and a half for all overtime worked in excess
of 40 hours in any one week, except for individuals under personal
services contracts who are excluded under ORS 653.010 to 653.261 or under
29 U.S.C. 201 to 209 from receiving overtime.
(4) In the case of a contract for services at a county fair or for
other events authorized by a county fair board, the contract must contain
a provision that employees must be paid at least time and a half for work
in excess of 10 hours in any one day or 40 hours in any one week. An
employer shall give notice in writing to employees who work on such a
contract, either at the time of hire or before commencement of work on
the contract, or by posting a notice in a location frequented by
employees, of the number of hours per day and days per week that
employees may be required to work.
(5)(a) Except as provided in subsection (4) of this section,
contracts for services must contain a provision that requires that
persons employed under the contracts shall receive at least time and a
half pay for work performed on the legal holidays specified in a
collective bargaining agreement or in ORS 279C.540 (1)(b)(B) to (G) and
for all time worked in excess of 10 hours in any one day or in excess of
40 hours in any one week, whichever is greater.
(b) An employer shall give notice in writing to employees who work
on a contract for services, either at the time of hire or before
commencement of work on the contract, or by posting a notice in a
location frequented by employees, of the number of hours per day and days
per week that the employees may be required to work. [2003 c.794 §141;
2005 c.103 §29](1) Solicitation documents for a public improvement
contract shall make specific reference to federal, state and local
agencies that have enacted ordinances, rules or regulations dealing with
the prevention of environmental pollution and the preservation of natural
resources that affect the performance of the contract. If the successful
bidder awarded the project is delayed or must undertake additional work
by reason of existing ordinances, rules or regulations of agencies not
cited in the public improvement contract or due to the enactment of new
or the amendment of existing statutes, ordinances, rules or regulations
relating to the prevention of environmental pollution and the
preservation of natural resources occurring after the submission of the
successful bid, the contracting agency may:
(a) Terminate the contract;
(b) Complete the work itself;
(c) Use nonagency forces already under contract with the
contracting agency;
(d) Require that the underlying property owner be responsible for
cleanup;
(e) Solicit bids for a new contractor to provide the necessary
services under the competitive bid requirements of this chapter; or
(f) Issue the contractor a change order setting forth the
additional work that must be undertaken.
(2) In addition to the obligation imposed under subsection (1) of
this section to refer to federal, state and local agencies with
ordinances, rules or regulations dealing with the prevention of
environmental pollution and the preservation of natural resources, a
solicitation document must also make specific reference to known
conditions at the construction site that may require the successful
bidder to comply with the ordinances, rules or regulations identified
under subsection (1) of this section.
(3) If the successful bidder encounters a condition not referred to
in the solicitation documents, not caused by the successful bidder and
not discoverable by a reasonable prebid visual site inspection, and the
condition requires compliance with the ordinances, rules or regulations
referred to under subsection (1) of this section, the successful bidder
shall immediately give notice of the condition to the contracting agency.
(4) Except in the case of an emergency and except as may otherwise
be required by any environmental or natural resource ordinance, rule or
regulation, the successful bidder may not commence work nor incur any
additional job site costs in regard to the condition encountered and
described in subsection (3) of this section without written direction
from the contracting agency.
(5) Upon request by the contracting agency, the successful bidder
shall estimate the emergency or regulatory compliance costs as well as
the anticipated delay and costs resulting from the encountered condition.
This cost estimate shall be promptly delivered to the contracting agency
for resolution.
(6) Within a reasonable period of time following delivery of an
estimate under subsection (5) of this section, the contracting agency may:
(a) Terminate the contract;
(b) Complete the work itself;
(c) Use nonagency forces already under contract with the
contracting agency;
(d) Require that the underlying property owner be responsible for
cleanup;
(e) Solicit bids for a new contractor to provide the necessary
services under the competitive bid requirements of this chapter; or
(f) Issue the contractor a change order setting forth the
additional work that must be undertaken.
(7)(a) If the contracting agency chooses to terminate the contract
under subsection (1)(a) or (6)(a) of this section, the successful bidder
shall be entitled to all costs and expenses incurred to the date of
termination, including overhead and reasonable profits, on the percentage
of the work completed. The contracting agency shall have access to the
contractor’s bid documents when making the contracting agency’s
determination of the additional compensation due to the contractor.
(b) If the contracting agency causes work to be done by another
contractor under subsection (1)(c) or (e) or (6)(c) or (e) of this
section, the initial contractor may not be held liable for actions or
omissions of the other contractor.
(c) The change order under subsection (1)(f) or (6)(f) of this
section shall include the appropriate extension of contract time and
compensate the contractor for all additional costs, including overhead
and reasonable profits, reasonably incurred as a result of complying with
the applicable statutes, ordinances, rules or regulations. The
contracting agency shall have access to the contractor’s bid documents
when making the contracting agency’s determination of the additional
compensation due to the contractor.
(8) Notwithstanding subsections (1) to (7) of this section, a
contracting agency:
(a) May allocate all or a portion of the known environmental and
natural resource risks to a contractor by listing such environmental and
natural resource risks with specificity in the solicitation documents; and
(b) In a local improvement district, may allocate all or a portion
of the known and unknown environmental and natural resource risks to a
contractor by so stating in the solicitation documents. [2003 c.794 §142](1) Every public improvement contract
shall contain a condition that the contractor shall promptly, as due,
make payment to any person, copartnership, association or corporation
furnishing medical, surgical and hospital care services or other needed
care and attention, incident to sickness or injury, to the employees of
the contractor, of all sums that the contractor agrees to pay for the
services and all moneys and sums that the contractor collected or
deducted from the wages of employees under any law, contract or agreement
for the purpose of providing or paying for the services.
(2) Every public contract subject to this chapter shall contain a
clause or condition that all subject employers working under the contract
are either employers that will comply with ORS 656.017 or employers that
are exempt under ORS 656.126. [2003 c.794 §143; 2005 c.103 §30] The Department
of Transportation shall adopt rules to require that public improvement
contracts entered into by the department include a price escalation and
de-escalation clause relating to steel material. As used in this section,
“steel material” includes structural and reinforcing steel, steel studs,
sheet piling, guardrail, ductile iron pipe and other steel products used
for the construction, reconstruction or major renovation of a road or
highway. [2005 c.557 §6]Note: Sections 2 to 4, chapter 557, Oregon Laws 2005, provide:
Sec. 2. (1) As used in this section, “steel material” includes
structural and reinforcing steel, steel studs, sheet piling, guardrail,
ductile iron pipe and other steel products used for the construction,
reconstruction or major renovation of a road or highway.
(2) When the Department of Transportation and a contractor have
entered into a public improvement contract that includes a steel
material, the department shall adjust the amount paid to the contractor
under the contract if the contractor requests an adjustment and
demonstrates that the market price of a steel material charged to the
contractor on the date the steel material was delivered to the contractor
was more than 10 percent above the market price of the steel material on
the contractor’s original bid quote.
(3) A contractor that requests an adjustment under subsection (2)
of this section has the burden of demonstrating the increased cost to the
contractor resulting from the price increase for the steel material. To
determine the increased cost to the contractor resulting from the
increased price of the steel material, the contractor shall subtract the
amount of the original bid quote from the amount on the invoice for the
steel material. If the contractor demonstrates that the market price of
the steel material has increased by more than 10 percent, the department
shall adjust the amount owed to the contractor and shall pay the
contractor for the amount of the contractor’s increased cost that exceeds
a 10 percent price increase for the steel material on or after the date
the price increase exceeded 10 percent.
(4) This section does not apply to local agency federally funded
projects in the Statewide Transportation Improvement Program.
(5) The department shall adopt rules to carry out this section.
[2005 c.557 §2]
Sec. 3. Section 2 of this 2005 Act applies to a public improvement
contract entered into by the Department of Transportation and a
contractor on or after April 1, 2003, and before October 1, 2005,
regardless of whether the contractor has finished performance under the
contract, unless application of section 2 of this 2005 Act to the
contract would impair the value of the contract to the contractor. [2005
c.557 §3]
Sec. 4. Sections 1 to 3 of this 2005 Act are repealed on January 2,
(Hours of Labor)(1) When labor is employed by
the state or a county, school district, municipality, municipal
corporation or subdivision thereof through a contractor, a person may not
be required or permitted to labor more than 10 hours in any one day, or
40 hours in any one week, except in cases of necessity or emergency or
when the public policy absolutely requires it, in which event, the person
so employed for excessive hours shall receive at least time and a half
pay:
(a)(A) For all overtime in excess of eight hours in any one day or
40 hours in any one week when the work week is five consecutive days,
Monday through Friday; or
(B) For all overtime in excess of 10 hours in any one day or 40
hours in any one week when the work week is four consecutive days, Monday
through Friday; and
(b) For all work performed on Saturday and on the following legal
holidays:
(A) Each Sunday.
(B) New Year’s Day on January 1.
(C) Memorial Day on the last Monday in May.
(D) Independence Day on July 4.
(E) Labor Day on the first Monday in September.
(F) Thanksgiving Day on the fourth Thursday in November.
(G) Christmas Day on December 25.
(2) An employer shall give notice in writing to employees who
perform work under subsection (1) of this section, either at the time of
hire or before commencement of work on the contract, or by posting a
notice in a location frequented by employees, of the number of hours per
day and days per week that employees may be required to work.
(3) For the purpose of this section, each time a legal holiday,
other than Sunday, listed in subsection (1) of this section falls on
Sunday, the succeeding Monday shall be recognized as a legal holiday.
Each time a legal holiday listed in subsection (1) of this section falls
on Saturday, the preceding Friday shall be recognized as a legal holiday.
(4) Subsections (1) to (3) of this section do not apply to a public
improvement contract or a contract for services if the contractor is a
party to a collective bargaining agreement in effect with any labor
organization.
(5) When specifically agreed to under a written labor-management
negotiated labor agreement, an employee may be paid at least time and a
half pay for work performed on any legal holiday specified in ORS 187.010
and 187.020 that is not listed in subsection (1) of this section.
(6) This section does not apply to contracts for personal services
as defined in ORS 279C.100, provided that persons employed under such
contracts shall receive at least time and a half pay for work performed
on the legal holidays specified in subsection (1)(b)(B) to (G) of this
section and for all overtime worked in excess of 40 hours in any one
week, except for individuals under personal services contracts who are
excluded under ORS 653.010 to 653.261 or under 29 U.S.C. 201 to 209 from
receiving overtime.
(7) Subsections (1) and (2) of this section do not apply to
contracts for services at a county fair or for other events authorized by
a county fair board if persons employed under the contract receive at
least time and a half for work in excess of 10 hours in any one day or 40
hours in any one week.
(8)(a) Subsections (1) and (2) of this section do not apply to
contracts for services. However, persons employed under such contracts
shall receive at least time and a half pay for work performed on the
legal holidays specified in a collective bargaining agreement or in
subsection (1)(b)(B) to (G) of this section and for all time worked in
excess of 10 hours in any one day or in excess of 40 hours in any one
week, whichever is greater.
(b) An employer shall give notice in writing to employees who work
on a contract for services, either at the time of hire or before
commencement of work on the contract, or by posting a notice in a
location frequented by employees, of the number of hours per day and days
per week that the employees may be required to work.
(9) Any contractor or subcontractor or contractor’s or
subcontractor’s surety that violates the provisions of this section is
liable to the affected employees in the amount of their unpaid overtime
wages and in an additional amount equal to the unpaid overtime wages as
liquidated damages. If the violation results from willful falsification
of payroll records, the contractor or subcontractor or contractor’s or
subcontractor’s surety is liable to the affected employees in the amount
of their unpaid overtime wages and an additional amount equal to twice
the unpaid overtime wages as liquidated damages.
(10) An action to enforce liability to employees under subsection
(9) of this section may be brought as an action on the contractor’s
payment bond as provided for in ORS 279C.610.
(11) In accordance with ORS chapter 183, the Commissioner of the
Bureau of Labor and Industries may adopt rules to carry out the
provisions of this section. [2003 c.794 §144; 2005 c.103 §31]When labor is employed by the state or a county, school
district, municipality, municipal corporation or subdivision thereof
through another as a contractor, any worker employed by the contractor
shall be foreclosed from the right to collect for any overtime provided
in ORS 279C.540 unless a claim for payment is filed with the contractor
within 90 days from the completion of the contract, providing the
contractor has:
(1) Caused a circular clearly printed in boldfaced 12-point type
and containing a copy of this section to be posted in a prominent place
alongside the door of the timekeeper’s office or in a similar place that
is readily available and freely visible to workers employed on the work.
(2) Maintained the circular continuously posted from the inception
to the completion of the contract on which workers are or have been
employed. [2003 c.794 §145](Retainage and Payments)As used in ORS 279C.550 to 279C.570, “retainage” means the difference between the amount earned by a
contractor on a public improvement contract and the amount paid on the
contract by the contracting agency. [2003 c.794 §146; 2005 c.103 §32] The withholding of retainage by
a contractor or subcontractor on public improvement contracts shall be in
accordance with ORS 701.420 and 701.430 except when the charter of the
contracting agency contains provisions requiring retainage by the
contracting agency of more than five percent of the contract price of the
work completed. [2003 c.794 §147] (1) Moneys retained by a contracting
agency under ORS 279C.570 (7) shall be:
(a) Retained in a fund by the contracting agency and paid to the
contractor in accordance with ORS 279C.570; or
(b) At the option of the contractor, paid to the contractor in
accordance with subsection (3) or (4) of this section and in a manner
authorized by the Director of the Oregon Department of Administrative
Services.
(2) If the contracting agency incurs additional costs as a result
of the exercise of the options described in subsection (1) of this
section, the contracting agency may recover such costs from the
contractor by reduction of the final payment. As work on the contract
progresses, the contracting agency shall, upon demand, inform the
contractor of all accrued costs.
(3) The contractor may deposit bonds or securities with the
contracting agency or in any bank or trust company to be held in lieu of
the cash retainage for the benefit of the contracting agency. In such
event the contracting agency shall reduce the retainage in an amount
equal to the value of the bonds and securities and pay the amount of the
reduction to the contractor in accordance with ORS 279C.570. Interest on
the bonds or securities shall accrue to the contractor.
(4) If the contractor elects, the retainage as accumulated shall be
deposited by the contracting agency in an interest-bearing account in a
bank, savings bank, trust company or savings association for the benefit
of the contracting agency. When the contracting agency is a state
contracting agency, the account shall be established through the State
Treasurer. Earnings on the account shall accrue to the contractor.
(5) Bonds and securities deposited or acquired in lieu of
retainage, as permitted by this section, shall be of a character approved
by the Director of the Oregon Department of Administrative Services,
including but not limited to:
(a) Bills, certificates, notes or bonds of the United States.
(b) Other obligations of the United States or its agencies.
(c) Obligations of any corporation wholly owned by the federal
government.
(d) Indebtedness of the Federal National Mortgage Association.
(6) The contractor, with the approval of the contracting agency,
may deposit a surety bond for all or any portion of the amount of funds
retained, or to be retained, by the contracting agency in a form
acceptable to the contracting agency. The bond and any proceeds therefrom
shall be made subject to all claims and liens and in the same manner and
priority as set forth for retainage under ORS 279C.550 to 279C.570 and
279C.600 to 279C.625. The contracting agency shall reduce the retainage
in an amount equal to the value of the bond and pay the amount of the
reduction to the contractor in accordance with ORS 279C.570. Whenever a
contracting agency accepts a surety bond from a contractor in lieu of
retainage, the contractor shall accept like bonds from any subcontractor
or supplier from which the contractor has retainage. The contractor shall
then reduce the retainage in an amount equal to the value of the bond and
pay the amount of the reduction to the subcontractor or supplier. [2003
c.794 §148] Unless otherwise
specifically included by statute, the provisions of ORS 279C.560 or
279C.625 apply only as between the contracting agency or public body and
the party with whom it contracts. [2003 c.794 §149](1) It is the
policy of the State of Oregon that all payments due on a public
improvement contract and owed by a contracting agency shall be paid
promptly. No contracting agency is exempt from the provisions of this
section.
(2) Contracting agencies shall make progress payments on the
contract monthly as work progresses on a public improvement contract.
Payments shall be based upon estimates of work completed that are
approved by the contracting agency. A progress payment is not considered
acceptance or approval of any work or waiver of any defects therein. The
contracting agency shall pay to the contractor interest on the progress
payment, not including retainage, due the contractor. The interest shall
commence 30 days after receipt of the invoice from the contractor or 15
days after the payment is approved by the contracting agency, whichever
is the earlier date. The rate of interest charged to the contracting
agency on the amount due shall equal three times the discount rate on
90-day commercial paper in effect at the Federal Reserve Bank in the
Federal Reserve district that includes Oregon on the date that is 30 days
after receipt of the invoice from the contractor or 15 days after the
payment is approved by the contracting agency, whichever is the earlier
date, but the rate of interest may not exceed 30 percent.
(3) Interest shall be paid automatically when payments become
overdue. The contracting agency shall document, calculate and pay any
interest due when payment is made on the principal. Interest payments
shall accompany payment of net due on public improvement contracts. The
contracting agency may not require the contractor to petition, invoice,
bill or wait additional days to receive interest due.
(4) When an invoice is filled out incorrectly, when there is any
defect or impropriety in any submitted invoice or when there is a good
faith dispute, the contracting agency shall so notify the contractor
within 15 days stating the reason or reasons the invoice is defective or
improper or the reasons for the dispute. A defective or improper invoice,
if corrected by the contractor within seven days of being notified by the
contracting agency, may not cause a payment to be made later than
specified in this section unless interest is also paid.
(5) If requested in writing by a first-tier subcontractor, the
contractor, within 10 days after receiving the request, shall send to the
first-tier subcontractor a copy of that portion of any invoice, request
for payment submitted to the contracting agency or pay document provided
by the contracting agency to the contractor specifically related to any
labor or materials supplied by the first-tier subcontractor.
(6) Payment of interest may be postponed when payment on the
principal is delayed because of disagreement between the contracting
agency and the contractor. Whenever a contractor brings formal
administrative or judicial action to collect interest due under this
section, the prevailing party is entitled to costs and reasonable
attorney fees.
(7) A contracting agency may reserve as retainage from any progress
payment on a public improvement contract an amount not to exceed five
percent of the payment. As work progresses, a contracting agency may
reduce the amount of the retainage and the contracting agency may
eliminate retainage on any remaining monthly contract payments after 50
percent of the work under the contract is completed if, in the
contracting agency’s opinion, such work is progressing satisfactorily.
Elimination or reduction of retainage shall be allowed only upon written
application by the contractor, and the application shall include written
approval of the contractor’s surety. However, when the contract work is
97.5 percent completed the contracting agency may, at the contracting
agency’s discretion and without application by the contractor, reduce the
retained amount to 100 percent of the value of the contract work
remaining to be done. Upon receipt of a written application by the
contractor, the contracting agency shall respond in writing within a
reasonable time.
(8) The retainage held by a contracting agency shall be included in
and paid to the contractor as part of the final payment of the contract
price. The contracting agency shall pay to the contractor interest at the
rate of 1.5 percent per month on the final payment due the contractor,
interest to commence 30 days after the work under the contract has been
completed and accepted and to run until the date when the final payment
is tendered to the contractor. The contractor shall notify the
contracting agency in writing when the contractor considers the work
complete and the contracting agency shall, within 15 days after receiving
the written notice, either accept the work or notify the contractor of
work yet to be performed on the contract. If the contracting agency does
not, within the time allowed, notify the contractor of work yet to be
performed to fulfill contractual obligations, the interest provided by
this subsection shall commence to run 30 days after the end of the 15-day
period.
(9)(a) The contracting agency shall pay, upon settlement or
judgment in favor of the contractor regarding any dispute as to the
compensation due a contractor for work performed under the terms of a
public improvement contract, the amount due plus interest at the rate of
two times the discount rate, but not to exceed 30 percent, on 90-day
commercial paper in effect at the Federal Reserve Bank in the Federal
Reserve district that includes Oregon on the date of the settlement or
judgment, and accruing from the later of:
(A) The due date of any progress payment received under the
contract for the period in which such work was performed; or
(B) Thirty days after the date on which the claim for the payment
under dispute was presented to the contracting agency by the contractor
in writing or in accordance with applicable provisions of the contract.
(b) Interest shall be added to and not made a part of the
settlement or judgment. [2003 c.794 §150; 2005 c.103 §33](Subcontractors) (1) A
contractor may not request payment from the contracting agency of any
amount withheld or retained in accordance with subsection (5) of this
section until such time as the contractor has determined and certified to
the contracting agency that the subcontractor has determined and
certified to the contracting agency that the subcontractor is entitled to
the payment of such amount.
(2) A dispute between a contractor and first-tier subcontractor
relating to the amount or entitlement of a first-tier subcontractor to a
payment or a late payment interest penalty under a clause included in the
subcontract under subsection (3) or (4) of this section does not
constitute a dispute to which the contracting agency is a party. The
contracting agency may not be included as a party in any administrative
or judicial proceeding involving such a dispute.
(3) Each public improvement contract awarded by a contracting
agency shall include a clause that requires the contractor to include in
each subcontract for property or services entered into by the contractor
and a first-tier subcontractor, including a material supplier, for the
purpose of performing a construction contract:
(a) A payment clause that obligates the contractor to pay the
first-tier subcontractor for satisfactory performance under its
subcontract within 10 days out of such amounts as are paid to the
contractor by the contracting agency under the contract; and
(b) An interest penalty clause that obligates the contractor, if
payment is not made within 30 days after receipt of payment from the
contracting agency, to pay to the first-tier subcontractor an interest
penalty on amounts due in the case of each payment not made in accordance
with the payment clause included in the subcontract under paragraph (a)
of this subsection. A contractor or first-tier subcontractor may not be
obligated to pay an interest penalty if the only reason that the
contractor or first-tier subcontractor did not make payment when payment
was due is that the contractor or first-tier subcontractor did not
receive payment from the contracting agency or contractor when payment
was due. The interest penalty shall be:
(A) For the period beginning on the day after the required payment
date and ending on the date on which payment of the amount due is made;
and
(B) Computed at the rate specified in ORS 279C.515 (2).
(4) The contract awarded by the contracting agency shall require
the contractor to include in each of the contractor’s subcontracts, for
the purpose of performance of such contract condition, a provision
requiring the first-tier subcontractor to include a payment clause and an
interest penalty clause conforming to the standards of subsection (3) of
this section in each of the first-tier subcontractor’s subcontracts and
to require each of the first-tier subcontractor’s subcontractors to
include such clauses in their subcontracts with each lower-tier
subcontractor or supplier.
(5)(a) The clauses required by subsections (3) and (4) of this
section are not intended to impair the right of a contractor or a
subcontractor at any tier to negotiate, and to include in the
subcontract, provisions that:
(A) Permit the contractor or a subcontractor to retain, in the
event of a good faith dispute, an amount not to exceed 150 percent of the
amount in dispute from the amount due a subcontractor under the
subcontract without incurring any obligation to pay a late payment
interest penalty, in accordance with terms and conditions agreed to by
the parties to the subcontract, giving such recognition as the parties
consider appropriate to the ability of a subcontractor to furnish a
performance bond and a payment bond;
(B) Permit the contractor or subcontractor to make a determination
that part or all of the subcontractor’s request for payment may be
withheld in accordance with the subcontract agreement; and
(C) Permit such withholdings without incurring any obligation to
pay a late payment interest penalty if:
(i) A notice conforming to the standards of subsection (8) of this
section has been previously furnished to the subcontractor; and
(ii) A copy of any notice issued by a contractor under
sub-subparagraph (i) of this subparagraph has been furnished to the
contracting agency.
(b) As used in this subsection, “good faith dispute” means a
documented dispute concerning:
(A) Unsatisfactory job progress.
(B) Defective work not remedied.
(C) Third-party claims filed or reasonable evidence that claims
will be filed.
(D) Failure to make timely payments for labor, equipment and
materials.
(E) Damage to the prime contractor or subcontractor.
(F) Reasonable evidence that the subcontract cannot be completed
for the unpaid balance of the subcontract sum.
(6) If, after making application to a contracting agency for
payment under a contract but before making a payment to a subcontractor
for the subcontractor’s performance covered by such application, a
contractor discovers that all or a portion of the payment otherwise due
the subcontractor is subject to withholding from the subcontractor in
accordance with the subcontract agreement, the contractor shall:
(a) Furnish to the subcontractor a notice conforming to the
standards of subsection (8) of this section as soon as practicable upon
ascertaining the cause giving rise to a withholding, but prior to the due
date for subcontractor payment;
(b) Furnish to the contracting agency, as soon as practicable, a
copy of the notice furnished to the subcontractor under paragraph (a) of
this subsection;
(c) Reduce the subcontractor’s progress payment by an amount not to
exceed the amount specified in the notice of withholding furnished under
paragraph (a) of this subsection;
(d) Pay the subcontractor as soon as practicable after the
correction of the identified subcontract performance deficiency;
(e) Make such payment within:
(A) Seven days after correction of the identified subcontract
performance deficiency unless the funds therefor must be recovered from
the contracting agency because of a reduction under paragraph (f)(A) of
this subsection; or
(B) Seven days after the contractor recovers such funds from the
contracting agency;
(f) Notify the contracting agency upon:
(A) Reduction of the amount of any subsequent certified application
for payment; or
(B) Payment to the subcontractor of any withheld amounts of a
progress payment, specifying:
(i) The amounts of the progress payments withheld under paragraph
(a) of this subsection; and
(ii) The dates that such withholding began and ended; and
(g) Be obligated to pay to the contracting agency an amount equal
to interest on the withheld payments computed in the manner provided in
ORS 279C.570 from the 11th day after receipt of the withheld amounts from
the contracting agency until:
(A) The day the identified subcontractor performance deficiency is
corrected; or
(B) The date that any subsequent payment is reduced under paragraph
(f)(A) of this subsection.
(7)(a) If a contractor, after making payment to a first-tier
subcontractor, receives from a supplier or subcontractor of the
first-tier subcontractor a written notice asserting a deficiency in such
first-tier subcontractor’s performance under the contract for which the
contractor may be ultimately liable and the contractor determines that
all or a portion of future payments otherwise due such first-tier
subcontractor is subject to withholding in accordance with the
subcontract agreement, the contractor may, without incurring an
obligation to pay a late payment interest penalty under subsection (6)(e)
of this section:
(A) Furnish to the first-tier subcontractor a notice conforming to
the standards of subsection (8) of this section as soon as practicable
upon making such determination; and
(B) Withhold from the first-tier subcontractor’s next available
progress payment or payments an amount not to exceed the amount specified
in the notice of withholding furnished under subparagraph (A) of this
paragraph.
(b) As soon as practicable, but not later than 10 days after
receipt of satisfactory written notification that the identified
subcontract performance deficiency has been corrected, the contractor
shall pay the amount withheld under paragraph (a)(B) of this subsection
to such first-tier subcontractor, or shall incur an obligation to pay a
late payment interest penalty to such first-tier subcontractor computed
at the rate specified in ORS 279C.570.
(8) A written notice of any withholding shall be issued to a
subcontractor, with a copy to the contracting agency of any such notice
issued by a contractor, specifying:
(a) The amount to be withheld;
(b) The specified causes for the withholding under the terms of the
subcontract; and
(c) The remedial actions to be taken by the subcontractor in order
to receive payment of the amounts withheld.
(9) Except as provided in subsection (2) of this section, this
section does not limit or impair any contractual, administrative or
judicial remedies otherwise available to a contractor or a subcontractor
in the event of a dispute involving late payment or nonpayment by a
contractor or deficient performance or nonperformance by a subcontractor.
(10) A contractor’s obligation to pay a late payment interest
penalty to a subcontractor under the clause included in a subcontract
under subsection (3) or (4) of this section is not intended to be an
obligation of the contracting agency. A contract modification may not be
made for the purpose of providing reimbursement of such late payment
interest penalty. A cost reimbursement claim may not include any amount
for reimbursement of such late payment interest penalty. [2003 c.794
§151; 2005 c.103 §34]A contractor whose bid is accepted
may substitute a first-tier subcontractor that was not disclosed under
ORS 279C.370 by submitting the name of the new subcontractor and the
reason for the substitution in writing to the contracting agency. A
contractor may substitute a first-tier subcontractor under this section
in the following circumstances:
(1) When the subcontractor disclosed under ORS 279C.370 fails or
refuses to execute a written contract after having had a reasonable
opportunity to do so after the written contract, which must be reasonably
based upon the general terms, conditions, plans and specifications for
the public improvement project or the terms of the subcontractor’s
written bid, is presented to the subcontractor by the contractor.
(2) When the disclosed subcontractor becomes bankrupt or insolvent.
(3) When the disclosed subcontractor fails or refuses to perform
the subcontract.
(4) When the disclosed subcontractor fails or refuses to meet the
bond requirements of the contractor that had been identified prior to the
bid submittal.
(5) When the contractor demonstrates to the contracting agency that
the subcontractor was disclosed as the result of an inadvertent clerical
error.
(6) When the disclosed subcontractor does not hold a license from
the Construction Contractors Board and is required to be licensed by the
board.
(7) When the contractor determines that the work performed by the
disclosed subcontractor is substantially unsatisfactory and not in
substantial accordance with the plans and specifications or that the
subcontractor is substantially delaying or disrupting the progress of the
work.
(8) When the disclosed subcontractor is ineligible to work on a
public improvement contract under applicable statutory provisions.
(9) When the substitution is for good cause. The Construction
Contractors Board shall define “good cause” by rule. “Good cause”
includes but is not limited to the financial instability of a
subcontractor. The definition of “good cause” must reflect the least-cost
policy for public improvements established in ORS 279C.305.
(10) When the substitution is reasonably based on the contract
alternates chosen by the contracting agency. [2003 c.794 §152](1)(a) A subcontractor disclosed under ORS 279C.370 may
file a complaint based on the subcontractor disclosure requirements under
ORS 279C.370 with the Construction Contractors Board about a contractor
if the contractor has substituted another subcontractor for the
complaining subcontractor.
(b) If more than one subcontractor files a complaint with the board
under paragraph (a) of this subsection relating to a single subcontractor
disclosure, the board shall consolidate the complaints into one
proceeding. If the board imposes a civil penalty under this section
against a contractor, the amount collected by the board shall be divided
evenly among all of the complaining subcontractors.
(c) Each subcontractor filing a complaint under paragraph (a) of
this subsection shall post a deposit of $500 with the board upon filing
the complaint.
(d) If the board determines that a contractor’s substitution was
not in compliance with ORS 279C.585, the board shall return the full
amount of the deposit posted under paragraph (c) of this subsection to
the complaining subcontractor.
(e) If the board determines that a contractor has not substituted a
subcontractor or that the contractor’s substitution was in compliance
with ORS 279C.585, the board shall award the contractor $250 of the
deposit and shall retain the other $250, which may be expended by the
board.
(2) Upon receipt of a complaint under subsection (1) of this
section, the board shall investigate the complaint. If the board
determines that a contractor has substituted a subcontractor in a manner
not in compliance with ORS 279C.585, the board may impose a civil penalty
against the contractor under subsections (3) to (5) of this section.
Civil penalties under this section shall be imposed in the manner
provided under ORS 183.745.
(3) If the board imposes a civil penalty under subsection (2) of
this section and it is the first time the board has imposed a civil
penalty under subsection (2) of this section against the contractor
during a three-year period, the board shall:
(a) Impose a civil penalty on the contractor of up to 10 percent of
the amount of the subcontract bid submitted by the complaining
subcontractor to the contractor or $15,000, whichever is less. Amounts
collected by the board under this paragraph shall be awarded to the
complaining subcontractor or subcontractors; and
(b) Impose a civil penalty on the contractor of up to $1,000.
Amounts collected by the board under this paragraph shall be retained by
the board and may be expended by the board.
(4) If the board imposes a civil penalty under subsection (2) of
this section and it is the second time the board has imposed a civil
penalty under subsection (2) of this section against the contractor
during a three-year period, the board may:
(a) Impose a civil penalty on the contractor of up to 10 percent of
the amount of the subcontract bid submitted by the complaining
subcontractor to the contractor or $15,000, whichever is less. Amounts
collected by the board under this paragraph shall be awarded to the
complaining subcontractor or subcontractors; and
(b) Impose a civil penalty on the contractor of up to $1,000 and
shall place the contractor on the list established under ORS 701.227 for
up to six months. Amounts collected by the board under this paragraph
shall be retained by the board and may be expended by the board.
(5) If the board imposes a civil penalty under subsection (2) of
this section and the board has imposed a civil penalty under subsection
(2) of this section against the contractor three or more times during a
three-year period, the board may:
(a) Impose a civil penalty on the contractor of up to 10 percent of
the amount of the subcontract bid submitted by the complaining
subcontractor to the contractor or $15,000, whichever is less. Amounts
collected by the board under this paragraph shall be awarded to the
complaining subcontractor or subcontractors; and
(b) Impose a civil penalty on the contractor of up to $1,000 and
shall place the contractor on the list established under ORS 701.227 for
up to one year. Amounts collected by the board under this paragraph shall
be retained by the board and may be expended by the board.
(6) Within 10 working days after receiving a complaint under
subsection (1) of this section, the board shall notify, in writing, any
contracting agency that is a party to the contract for which the
complaint has been filed that the complaint has been filed. [2003 c.794
§153](Action on Payment Bonds and Public Works Bonds)(1) A person claiming to
have supplied labor or materials for the performance of the work provided
for in a public contract, including any person having a direct
contractual relationship with the contractor furnishing the payment bond
or a direct contractual relationship with any subcontractor, or an
assignee of such person, or a person claiming moneys due the State
Accident Insurance Fund Corporation, the Unemployment Compensation Trust
Fund or the Department of Revenue in connection with the performance of
the contract, has a right of action on the contractor’s payment bond as
provided for in ORS 279C.380 and 279C.400 only if:
(a) The person or the assignee of the person has not been paid in
full; and
(b) The person gives written notice of claim, as prescribed in ORS
279C.605, to the contractor and the contracting agency.
(2) When, upon investigation, the Commissioner of the Bureau of
Labor and Industries has received information indicating that one or more
workers providing labor on a public works have not been paid in full at
the prevailing rate of wage or overtime wages, the commissioner has a
right of action first on the contractor’s public works bond required
under ORS 279C.836 and then, for any amount of a claim not satisfied by
the public works bond, on the contractor’s payment bond, as provided in
ORS 279C.380 and 279C.400. When an investigation indicates that a
subcontractor’s workers have not been paid in full at the prevailing rate
of wage or overtime wages, the commissioner has a right of action first
on the subcontractor’s public works bond and then, for any amount of a
claim not satisfied by the subcontractor’s public works bond, on the
contractor’s payment bond. The commissioner’s right of action exists
without necessity of an assignment and extends to workers on the project
who are not identified when the written notice of claim is given, but for
whom the commissioner has received information indicating that the
workers have provided labor on the public works and have not been paid in
full. The commissioner shall give written notice of the claim, as
prescribed in ORS 279C.605, to the contracting agency, the Construction
Contractors Board, the contractor and, if applicable, the subcontractor.
The commissioner may not make a claim for the same unpaid wages against
more than one bond under this section. [2003 c.794 §154; 2005 c.360 §3] (1) The notice of claim required by ORS
279C.600 must be sent by registered or certified mail or hand delivered
no later than 120 days after the day the person last provided labor or
furnished materials or 120 days after the worker listed in the notice of
claim by the Commissioner of the Bureau of Labor and Industries last
provided labor. The notice may be sent or delivered to the contractor or
subcontractor at any place the contractor or subcontractor maintains an
office or conducts business or at the residence of the contractor or
subcontractor.
(2) Notwithstanding subsection (1) of this section, if the claim is
for a required contribution to a fund of any employee benefit plan, the
notice required by ORS 279C.600 must be sent or delivered within 150 days
after the employee last provided labor or materials.
(3) The notice must be in writing substantially as follows:
___________________________________________________________________________
___
To (here insert the name of the contractor or subcontractor and the
name of the public body):
Notice hereby is given that the undersigned (here insert the name
of the claimant) has a claim for (here insert a brief description of the
labor or materials performed or furnished and the person by whom
performed or furnished; if the claim is for other than labor or
materials, insert a brief description of the claim) in the sum of (here
insert the amount) dollars against the (here insert public works bond or
payment bond, as applicable) taken from (here insert the name of the
principal and, if known, the surety or sureties upon the public works
bond or payment bond) for the work of (here insert a brief description of
the work concerning which the public works bond or payment bond was
taken). Such material or labor was supplied to (here insert the name of
the contractor or subcontractor).
_____________________
(here to be signed)
___________________________________________________________________________
___
(4) When notice of claim is given by the commissioner and if the
claim includes a worker who is then unidentified, the commissioner shall
include in the notice a statement that the claim includes an unidentified
worker for whom the commissioner has received information indicating that
the worker has not been paid in full at the prevailing rate of wage
required by ORS 279C.840 or overtime wages required by ORS 279C.540.
(5) The person making the claim or giving the notice shall sign the
notice. [2003 c.794 §155; 2005 c.360 §4](1) The Commissioner of the Bureau of Labor and
Industries or a person who has a right of action on the public works bond
or the payment bond under ORS 279C.600 and, where required, who has filed
and served the notice or notices of claim, as required under ORS 279C.600
and 279C.605, or that person’s assignee, may institute an action on the
contractor’s public works bond or payment bond in a circuit court of this
state or the federal district court of the district.
(2) The action shall be on the relation of the commissioner, the
claimant, or that person’s assignee, as the case may be, and shall be in
the name of the contracting agency that let the contract or, when
applicable, the public agency or agencies for whose benefit the contract
was let. It may be prosecuted to final judgment and execution for the use
and benefit of the commissioner or the claimant, or that person’s
assignee, as the fact may appear.
(3) The action shall be instituted no later than two years after
the person last provided labor or materials or two years after the worker
listed in the commissioner’s notice of claim last provided labor. [2003
c.794 §156; 2005 c.360 §5] All labor and
material liens have preference and are superior to all other liens and
claims of any kind or nature created by ORS 279C.500 to 279C.530 and
279C.600 to 279C.625. [2003 c.794 §157]A person providing medical, surgical or hospital care
services or other needed care and attention, incident to sickness or
injury, to the employees of a contractor or subcontractor on a public
contract is deemed to have performed labor on the public contract for the
purposes of ORS 279C.600 to 279C.625. [2003 c.794 §158] If the
public improvement contract is one for which a payment bond as provided
for in ORS 279C.380 and 279C.400 is required and the contractor fails to
pay for labor or materials or to pay claims due the Industrial Accident
Fund, the Unemployment Compensation Trust Fund or the Department of
Revenue and the officers of the public body that authorized the contract
fail or neglect to require the person entering into the contract to
execute the payment bond:
(1) The State of Oregon and the officers authorizing the contract
shall be jointly liable for the labor and materials used in the
performance of any work under the contract, and for claims due the
Industrial Accident Fund, the Unemployment Compensation Trust Fund and
the Department of Revenue, if the contract was entered into with the
State of Oregon.
(2) The public body and the officers authorizing the contract shall
be jointly liable for the labor and materials used in the performance of
any work under the contract and for claims due the Industrial Accident
Fund, the Unemployment Compensation Trust Fund and the Department of
Revenue, if the contract was entered into on behalf of a public body
other than the state. [2003 c.794 §159; 2005 c.103 §35](Termination of Contract for Public Interest Reasons)As used in ORS 279C.650 to 279C.670, “labor dispute” has the meaning given that term in ORS 662.010.
[2003 c.794 §160] If a
public contract is not terminated but work under the contract is
suspended by an order of a contracting agency for any reason considered
to be in the public interest other than a labor dispute or any
third-party judicial proceeding relating to the work other than a suit or
action filed in regards to a labor dispute, the contractor is entitled to
a reasonable extension of the contract time and reasonable compensation
for all costs resulting from the suspension plus a reasonable allowance
for overhead with respect to such costs. [2003 c.794 §161]When a public contract is terminated by mutual agreement,
provision shall be made for the payment of compensation to the
contractor. In addition to a reasonable amount of compensation for
preparatory work and for all costs and expenses arising out of
termination, the amount to be paid to the contractor:
(1) Shall be determined on the basis of the contract price in the
case of any fully completed separate item or portion of the work for
which there is a separate or unit contract price; and
(2) May, with respect to any other work, be a percent of the
contract price equal to the percentage of the work completed. [2003 c.794
§162]A contracting agency may provide in a
public improvement contract detailed provisions under which the
contractor shall be entitled, as a matter of right, to compensation upon
termination of the contract on account of any reason considered to be in
the public interest. [2003 c.794 §163]650 to
279C.670 do not apply to suspension of the work or termination of the
contract that occurs as a result of the contractor’s violation of
federal, state or local statutes, ordinances, rules or regulations in
existence at the time the contract was executed or as a result of
violations of the terms of the contract. [2003 c.794 §164]PREVAILING WAGE RATE As used in ORS
279C.800 to 279C.870, unless the context requires otherwise:
(1) “Fringe benefits” means the amount of:
(a) The rate of contribution irrevocably made by a contractor or
subcontractor to a trustee or to a third person under a plan, fund or
program; and
(b) The rate of costs to the contractor or subcontractor that may
be reasonably anticipated in providing benefits to workers pursuant to an
enforceable commitment to carry out a financially responsible plan or
program that is committed in writing to the workers affected, for medical
or hospital care, pensions on retirement or death, compensation for
injuries or illness resulting from occupational activity, or insurance to
provide any of the foregoing, for unemployment benefits, life insurance,
disability and sickness insurance or accident insurance, for vacation and
holiday pay, for defraying costs of apprenticeship or other similar
programs or for other bona fide fringe benefits, but only when the
contractor or subcontractor is not required by other federal, state or
local law to provide any of these benefits.
(2) “Locality” means the following district in which the public
works, or the major portion thereof, is to be performed:
(a) District 1, composed of Clatsop, Columbia and Tillamook
Counties;
(b) District 2, composed of Clackamas, Multnomah and Washington
Counties;
(c) District 3, composed of Marion, Polk and Yamhill Counties;
(d) District 4, composed of Benton, Lincoln and Linn Counties;
(e) District 5, composed of Lane County;
(f) District 6, composed of Douglas County;
(g) District 7, composed of Coos and Curry Counties;
(h) District 8, composed of Jackson and Josephine Counties;
(i) District 9, composed of Hood River, Sherman and Wasco Counties;
(j) District 10, composed of Crook, Deschutes and Jefferson
Counties;
(k) District 11, composed of Klamath and Lake Counties;
(L) District 12, composed of Gilliam, Grant, Morrow, Umatilla and
Wheeler Counties;
(m) District 13, composed of Baker, Union and Wallowa Counties; and
(n) District 14, composed of Harney and Malheur Counties.
(3) “Prevailing rate of wage” means the rate of hourly wage,
including all fringe benefits, paid in the locality to the majority of
workers employed on projects of similar character in the same trade or
occupation, as determined by the Commissioner of the Bureau of Labor and
Industries. In making such determinations, the commissioner shall rely on
an independent wage survey to be conducted once each year. However, if it
appears to the commissioner that the data derived from the survey alone
are insufficient to establish the rate, the commissioner also shall
consider additional information such as collective bargaining agreements,
other independent wage surveys and the prevailing rates of wage
determined by appropriate federal agencies or agencies of adjoining
states. If there is not a majority in the same trade or occupation paid
at the same rate, the average rate of hourly wage, including all fringe
benefits, paid in the locality to workers in the same trade or occupation
shall be the prevailing rate. If the wage paid by any contractor or
subcontractor to workers on any public works is based on some period of
time other than an hour, the hourly wage shall be mathematically
determined by the number of hours worked in that period of time.
(4) “Public agency” means the State of Oregon or any political
subdivision thereof or any county, city, district, authority, public
corporation or entity and any of their instrumentalities organized and
existing under law or charter.
(5) “Public works” includes, but is not limited to, roads,
highways, buildings, structures and improvements of all types, the
construction, reconstruction, major renovation or painting of which is
carried on or contracted for by any public agency to serve the public
interest but does not include the reconstruction or renovation of
privately owned property that is leased by a public agency. [2003 c.794
§165] The Legislative Assembly declares that the
purposes of the prevailing rate of wage law are:
(1) To ensure that contractors compete on the ability to perform
work competently and efficiently while maintaining community-established
compensation standards.
(2) To recognize that local participation in publicly financed
construction and family wage income and benefits are essential to the
protection of community standards.
(3) To encourage training and education of workers to industry
skills standards.
(4) To encourage employers to use funds allocated for employee
fringe benefits for the actual purchase of those benefits. [2003 c.794
§166] (1) As used in this section:
(a) “Funds of a public agency” does not include:
(A) Funds provided in the form of a government grant to a nonprofit
organization, unless the government grant is issued for the purpose of
construction;
(B) Building and development permit fees paid or waived by the
public agency;
(C) Staff resources of the public agency used to manage a project
or to provide a principal source of supervision, coordination or
oversight of a project; or
(D) Staff resources of the public agency used to design or inspect
one or more components of a project.
(b) “Nonprofit organization” means an organization or group of
organizations described in section 501(c)(3) of the Internal Revenue Code
that is exempt from income tax under section 501(a) of the Internal
Revenue Code.
(2) ORS 279C.800 to 279C.870 do not apply to:
(a) Projects for which the contract price does not exceed $50,000.
In determining the price of a project, a public agency:
(A) May not include the value of donated materials or work
performed on the project by individuals volunteering to the public agency
without pay; and
(B) Shall include the value of work performed by every person paid
by a contractor or subcontractor in any manner for the person’s work on
the project.
(b) Projects for which no funds of a public agency are directly or
indirectly used. In accordance with ORS chapter 183, the commissioner
shall adopt rules to carry out the provisions of this paragraph.
(3)(a) A public agency may not divide a public works project into
more than one contract for the purpose of avoiding compliance with ORS
279C.800 to 279C.870.
(b) When the commissioner determines that a public agency has
divided a public works project for the purpose of avoiding compliance
with ORS 279C.800 to 279C.870, the commissioner shall issue an order
compelling compliance.
(c) In making determinations under this subsection, the
commissioner shall consider:
(A) The physical separation of the project structures;
(B) The timing of the work on project phases or structures;
(C) The continuity of project contractors and subcontractors
working on project parts or phases; and
(D) The manner in which the public agency and the contractors
administer and implement the project. [2003 c.794 §172; 2005 c.153 §1;
2005 c.360 §8](1) As used in this section, “person”
includes any employer, labor organization or any official representative
of an employee or employer association.
(2)(a) The Commissioner of the Bureau of Labor and Industries shall
determine the prevailing rate of wage for workers in each trade or
occupation in each locality described in ORS 279C.800 at least once each
year by means of an independent wage survey and make this information
available at least twice each year. The commissioner may amend the rate
at any time.
(b) The commissioner shall compare the prevailing rate of wage
determined under paragraph (a) of this subsection with the federal
prevailing rate of wage required under the Davis-Bacon Act (40 U.S.C.
276a) and determine which rate is higher for workers in each trade or
occupation in each locality. The commissioner shall make this
information, showing which prevailing rate of wage is higher for workers
in each trade or occupation in each locality, available at the same time
as the commissioner makes information available under paragraph (a) of
this subsection.
(3) A person shall make such reports and returns to the Bureau of
Labor and Industries as the commissioner may require to determine the
prevailing rates of wage. The reports and returns shall be made upon
forms furnished by the bureau and within the time prescribed by the
commissioner. The person or an authorized representative of the person
shall certify to the accuracy of the reports and returns.
(4) Notwithstanding ORS 192.410 to 192.505, all reports and returns
or other information provided to the commissioner under this section are
confidential and not available for inspection by the public.
(5) In order to assist the commissioner in making determinations of
the prevailing rates of wage, the commissioner may enter into contracts
with public or private parties to obtain relevant data and information.
Any such contract may include provisions for the manner and extent of the
market review of affected trades and occupations and such other
requirements regarding timelines of reports, accuracy of data and
information and supervision and review as the commissioner may prescribe.
[2003 c.794 §173; 2005 c.360 §9] (1) The
Commissioner of the Bureau of Labor and Industries shall appoint an
advisory committee to assist the commissioner in the administration of
ORS 279C.800 to 279C.870.
(2) The advisory committee must include equal representation of
members from management and labor in the building and construction
industry who perform work on public works contracts and such other
interested parties as the commissioner shall appoint. [2003 c.794 §179] (1)(a) The Commissioner of the Bureau of
Labor and Industries, by rule, shall establish a fee to be paid by the
contractor to whom a public works contract subject to ORS 279C.800 to
279C.870 has been awarded. The fee shall be used to pay the costs of:
(A) Surveys to determine the prevailing rates of wage;
(B) Administering and providing investigations under and
enforcement of ORS 279C.800 to 279C.870; and
(C) Providing educational programs on public contracting law under
the Public Contracting Code.
(b) The fee shall be 0.1 percent of the contract price. However, in
no event may a fee be charged and collected that is more than $5,000 or
less than $100.
(2) The commissioner shall pay moneys received under this section
into the State Treasury. The moneys shall be credited to the Prevailing
Wage Education and Enforcement Account created by ORS 651.185.
(3) The contractor shall pay the fee at the time of the first
progress payment or 60 days after work on the contract has begun,
whichever date is earlier.
(4) Failure to make timely payment under subsection (3) of this
section shall subject the contractor to a civil penalty under ORS
279C.865 in such amount as the commissioner, by rule, shall specify.
[2003 c.794 §178](1)(a) The
specifications for every contract for public works shall contain a
provision stating the existing state prevailing rate of wage and, if
applicable, the federal prevailing rate of wage required under the
Davis-Bacon Act (40 U.S.C. 276a) that may be paid to workers in each
trade or occupation required for the public works employed in the
performance of the contract either by the contractor or subcontractor or
other person doing or contracting to do the whole or any part of the work
contemplated by the contract.
(b) If a public agency is required under paragraph (a) of this
subsection to include the state and federal prevailing rates of wage in
the specifications, the public agency also shall include in the
specifications information showing which prevailing rate of wage is
higher for workers in each trade or occupation in each locality, as
determined by the Commissioner of the Bureau of Labor and Industries
under ORS 279C.815 (2)(b).
(c) Every contract and subcontract shall contain a provision that
the workers shall be paid not less than the specified minimum hourly rate
of wage in accordance with ORS 279C.838.
(2) The specifications for every contract for public works between
a public agency and a contractor shall contain a provision stating that a
fee is required to be paid to the Commissioner of the Bureau of Labor and
Industries as provided in ORS 279C.825 (1). The contract shall contain a
provision that the fee shall be paid to the commissioner under the
administrative rule of the commissioner.
(3) The specifications for every contract for public works shall
contain a provision stating that the contractor and every subcontractor
must have a public works bond filed with the Construction Contractors
Board before starting work on the project, unless exempt under ORS
279C.836 (7) or (8). Every contract awarded by a contracting agency shall
contain a provision requiring the contractor:
(a) To have a public works bond filed with the Construction
Contractors Board before starting work on the project, unless exempt
under ORS 279C.836 (7) or (8).
(b) To include in every subcontract a provision requiring the
subcontractor to have a public works bond filed with the Construction
Contractors Board before starting work on the project, unless exempt
under ORS 279C.836 (7) or (8). [2003 c.794 §168; 2005 c.360 §10] Public
agencies shall notify the Commissioner of the Bureau of Labor and
Industries in writing, on a form prescribed by the commissioner, whenever
a contract subject to the provisions of ORS 279C.800 to 279C.870 has been
awarded. The notification shall be made within 30 days of the date that
the contract is awarded. The notification shall include a copy of the
disclosure of first-tier subcontractors that was submitted under ORS
279C.370. [2003 c.794 §175] (1) Except as provided in
subsection (7) or (8) of this section, before starting work on a contract
or subcontract for a public works project, a contractor or subcontractor
shall file with the Construction Contractors Board a public works bond
with a corporate surety authorized to do business in this state in the
amount of $30,000. The bond must provide that the contractor or
subcontractor will pay claims ordered by the Bureau of Labor and
Industries to workers performing labor upon public works projects. The
bond must be a continuing obligation, and the surety’s liability for the
aggregate of claims that may be payable from the bond may not exceed the
penal sum of the bond. The bond must remain in effect continuously until
depleted by claims paid under this section, unless the surety sooner
cancels the bond. The surety may cancel the bond by giving 30 days’
written notice to the contractor or subcontractor, to the board and to
the Bureau of Labor and Industries. When the bond is canceled, the surety
is relieved of further liability for work performed on contracts entered
into after the cancellation. The cancellation does not limit the surety’s
liability for work performed on contracts entered into before the
cancellation.
(2) Before permitting a subcontractor to start work on a public
works project, the contractor shall verify that the subcontractor has
filed a public works bond as required under this section or has elected
not to file a public works bond under subsection (7) of this section.
(3) A contractor or subcontractor is not required under this
section to file a separate public works bond for each public works
project for which the contractor or subcontractor has a contract.
(4) A person that is not required under ORS 279C.800 to 279C.870 to
pay prevailing rates of wage on a public works project is not required to
file a public works bond under this section.
(5) A public works bond required by this section is in addition to
any other bond the contractor or subcontractor is required to obtain.
(6) The board may, by rule, require a contractor or subcontractor
to obtain a new public works bond if a surety pays a claim out of an
existing public works bond. The new bond must be in the amount of
$30,000. The board may allow a contractor or subcontractor to obtain,
instead of a new bond, a certification that the surety remains liable for
the full penal sum of the existing bond, notwithstanding payment by the
surety on the claim.
(7)(a) A disadvantaged, minority, women or emerging small business
enterprise certified under ORS 200.055 may, for up to one year after
certification, elect not to file a public works bond as required under
subsection (1) this section. If a business enterprise elects not to file
a public works bond, the business enterprise shall give the board written
verification of the certification and written notice that the business
enterprise elects not to file the bond.
(b) A business enterprise that elects not to file a public works
bond under this subsection shall notify the public agency for whose
benefit the contract was awarded or, if the business enterprise is a
subcontractor, the contractor of the election before starting work on a
public works project. When a business enterprise elects not to file a
public works bond under this subsection, a claim for unpaid wages may be
made against the payment bond of the business enterprise or, if the
business enterprise is a subcontractor, the payment bond of the
contractor.
(c) An election not to file a public works bond expires one year
after the date the business enterprise is certified. After an election
has expired and before starting or continuing work on a contract or
subcontract for a public works project, the business enterprise shall
file a public works bond with the board as required under subsection (1)
of this section.
(8) In cases of emergency, or when the interest or property of the
public agency for whose benefit the contract was awarded probably would
suffer material injury by delay or other cause, the requirement for
filing a public works bond may be excused, if a declaration of the
emergency is made in accordance with rules adopted under ORS 279A.065.
(9) The board shall make available on a searchable public website
information concerning public works bonds filed with the board, claims
made on those bonds, elections made by certified business enterprises not
to file those bonds and the expiration date of each election. The board
may adopt rules necessary to perform the duties required of the board by
this section.
(10) The Commissioner of the Bureau of Labor and Industries, with
approval of the board, shall adopt rules that establish language for
public works bonds. [2005 c.360 §2] When a
public works project is subject to ORS 279C.800 to 279C.870 and the
Davis-Bacon Act (40 U.S.C. 276a):
(1) If the state prevailing rate of wage is higher than the federal
prevailing rate of wage, the contractor and every subcontractor on the
project shall pay at least the state prevailing rate of wage as required
by ORS 279C.800 to 279C.870; and
(2) If the federal prevailing rate of wage is higher than the state
prevailing rate of wage, the contractor and every subcontractor on the
project shall pay at least the federal prevailing rate of wage as
required by the Davis-Bacon Act. [2005 c.360 §7](1) The hourly rate of wage to be paid by
any contractor or subcontractor to workers upon all public works shall be
not less than the prevailing rate of wage for an hour’s work in the same
trade or occupation in the locality where the labor is performed. The
obligation of a contractor or subcontractor to pay the prevailing rate of
wage may be discharged by making the payments in cash, by the making of
contributions of a type referred to in ORS 279C.800 (1)(a), or by the
assumption of an enforceable commitment to bear the costs of a plan or
program of a type referred to in ORS 279C.800 (1)(b), or any combination
thereof, where the aggregate of any such payments, contributions and
costs is not less than the prevailing rate of wage.
(2) After a contract for public works is executed with any
contractor or work is commenced upon any public works, the amount of the
prevailing rate of wage is not subject to attack in any legal proceeding
by any contractor or subcontractor in connection with that contract.
(3) It is not a defense in any legal proceeding that the prevailing
rate of wage is less than the amount required to be in the specifications
of a contract for public works, or that there was an agreement between
the employee and the employer to work at less than the wage rates
required to be paid under this section.
(4) Every contractor or subcontractor engaged on a project for
which there is a contract for a public works shall keep the prevailing
rates of wage for that project posted in a conspicuous and accessible
place in or about the project. The Commissioner of the Bureau of Labor
and Industries shall furnish without charge copies of the prevailing
rates of wage to contractors and subcontractors.
(5) Every contractor or subcontractor engaged on a project for
which there is a contract for a public works to which the prevailing wage
requirements apply that also provides or contributes to a health and
welfare plan or a pension plan, or both, for the contractor or
subcontractor’s employees on the project shall post a notice describing
the plan in a conspicuous and accessible place in or about the project.
The notice preferably shall be posted in the same place as the notice
required under subsection (4) of this section. In addition to the
description of the plan, the notice shall contain information on how and
where to make claims and where to obtain further information.
(6)(a) Except as provided in paragraph (c) of this subsection, no
person other than the contractor or subcontractor may pay or contribute
any portion of the prevailing rate of wage paid by the contractor or
subcontractor to workers employed in the performance of a public works
contract.
(b) For the purpose of this subsection, the prevailing rate of wage
is the prevailing rate of wage specified in the contract.
(c) This subsection is not intended to prohibit payments to a
worker who is enrolled in any government-subsidized training or
retraining program.
(7) A person may not take any action that circumvents the payment
of the prevailing rate of wage to workers employed on a public works
contract, including, but not limited to, reducing an employee’s regular
rate of pay on any project not subject to ORS 279C.800 to 279C.870 in a
manner that has the effect of offsetting the prevailing rate of wage on a
public works project. [2003 c.794 §167](1) The contractor or the contractor’s surety and
every subcontractor or the subcontractor’s surety shall file certified
statements with the public agency in writing, on a form prescribed by the
Commissioner of the Bureau of Labor and Industries, certifying:
(a) The hourly rate of wage paid each worker whom the contractor or
the subcontractor has employed upon the public works; and
(b) That no worker employed upon the public works has been paid
less than the prevailing rate of wage or less than the minimum hourly
rate of wage specified in the contract.
(2) The certified statement shall be verified by the oath of the
contractor or the contractor’s surety or subcontractor or the
subcontractor’s surety that the contractor or subcontractor has read the
certified statement and knows the contents thereof and that the same is
true to the contractor or subcontractor’s knowledge.
(3) The certified statements shall set out accurately and
completely the payroll records for the prior week, including the name and
address of each worker, the worker’s correct classification, rate of pay,
daily and weekly number of hours worked, deductions made and actual wages
paid.
(4) The contractor or subcontractor shall deliver or mail each
certified statement required by subsection (1) of this section to the
public agency. Certified statements for each week during which the
contractor or subcontractor employs a worker upon the public works shall
be submitted once a month, by the fifth business day of the following
month. Information submitted on certified statements may be used only to
ensure compliance with the provisions of ORS 279C.800 to 279C.870.
(5) Each contractor or subcontractor shall preserve the certified
statements for a period of three years from the date of completion of the
contract.
(6) Certified statements received by a public agency are public
records subject to the provisions of ORS 192.410 to 192.505.
(7) Notwithstanding ORS 279C.555 or 279C.570 (7), if a contractor
is required to file certified statements under this section, the public
agency shall retain 25 percent of any amount earned by the contractor on
the public works until the contractor has filed with the public agency
certified statements as required by this section. The public agency shall
pay the contractor the amount retained under this subsection within 14
days after the contractor files the certified statements as required by
this section, regardless of whether a subcontractor has failed to file
certified statements as required by this section. The public agency is
not required to verify the truth of the contents of certified statements
filed by the contractor under this section.
(8) Notwithstanding ORS 279C.555, the contractor shall retain 25
percent of any amount earned by a first-tier subcontractor on a public
works until the subcontractor has filed with the public agency certified
statements as required by this section. The contractor shall verify that
the first-tier subcontractor has filed the certified statements before
the contractor may pay the subcontractor any amount retained under this
subsection. The contractor shall pay the first-tier subcontractor the
amount retained under this subsection within 14 days after the
subcontractor files the certified statements as required by this section.
Neither the public agency nor the contractor is required to verify the
truth of the contents of certified statements filed by a first-tier
subcontractor under this section. [2003 c.794 §169; 2005 c.360 §11](1) At any reasonable time the Commissioner of the Bureau of
Labor and Industries may enter the office or business establishment of
any contractor or subcontractor performing public works and gather facts
and information necessary to determine whether the prevailing rate of
wage is actually being paid by such contractor or subcontractor to
workers upon public works.
(2) Upon request by the commissioner, every contractor or
subcontractor performing work on public works shall make available to the
commissioner for inspection during normal business hours any payroll or
other records in the possession or under the control of the contractor or
subcontractor that are deemed necessary by the commissioner to determine
whether the prevailing rate of wage is actually being paid by such
contractor or subcontractor to workers upon public works. The
commissioner’s request must be made a reasonable time in advance of the
inspection.
(3) Notwithstanding ORS 192.410 to 192.505, any record obtained or
made by the commissioner under this section is not open to inspection by
the public.
(4) The commissioner may, without necessity of an assignment,
initiate legal proceedings against employers to enjoin future failures to
pay required prevailing rates of wage or overtime pay and to require the
payment of prevailing rates of wage or overtime pay due employees. The
commissioner is entitled to recover, in addition to other costs, such sum
as the court or judge may determine reasonable as attorney fees. If the
commissioner does not prevail in the action, the commissioner shall pay
all costs and disbursements from the Bureau of Labor and Industries
Account. [2003 c.794 §170] (1) Any contractor or
subcontractor or contractor’s or subcontractor’s surety that violates the
provisions of ORS 279C.840 is liable to the workers affected in the
amount of their unpaid minimum wages, including all fringe benefits as
defined in ORS 279C.800, and in an additional amount equal to the unpaid
wages as liquidated damages.
(2) Actions to enforce liability to workers under subsection (1) of
this section may be brought as actions on contractors’ bonds as provided
for in ORS 279C.610.
(3) If the public agency fails to include a provision that the
contractor and any subcontractor shall comply with ORS 279C.840 in the
advertisement for bids, the request for bids, the contract
specifications, the accepted bid or elsewhere in the contract documents,
the liability of the public agency for unpaid minimum wages, as described
in subsection (1) of this section, is joint and several with any
contractor or subcontractor that had notice of the requirement to comply
with ORS 279C.840. The Commissioner of the Bureau of Labor and Industries
may enforce the provisions of this subsection by a civil action under ORS
279C.850 (4), by a civil action on an assigned wage claim under ORS
652.330, or by an administrative proceeding on an assigned wage claim
under ORS 652.332. [2003 c.794 §171](1) When the Commissioner of the Bureau of Labor and
Industries, in accordance with the provisions of ORS chapter 183,
determines that a contractor or subcontractor has intentionally failed or
refused to pay the prevailing rate of wage to workers employed upon
public works, a subcontractor has failed to pay to its employees amounts
required by ORS 279C.840 and the contractor has paid those amounts on the
subcontractor’s behalf, or a contractor or subcontractor has
intentionally failed or refused to post the prevailing rates of wage as
required by ORS 279C.840 (4), the contractor, subcontractor or any firm,
corporation, partnership or association in which the contractor or
subcontractor has a financial interest shall be ineligible, for a period
not to exceed three years from the date of publication of the name of the
contractor or subcontractor on the ineligible list as provided in this
section, to receive any contract or subcontract for public works. The
commissioner shall maintain a written list of the names of those
contractors and subcontractors determined to be ineligible under this
section and the period of time for which they are ineligible. A copy of
the list shall be published, furnished upon request and made available to
contracting agencies.
(2) When the contractor or subcontractor is a corporation, the
provisions of subsection (1) of this section apply to any corporate
officer or corporate agent who is responsible for the failure or refusal
to pay or post the prevailing rate of wage or the failure to pay to a
subcontractor’s employees amounts required by ORS 279C.840 that are paid
by the contractor on the subcontractor’s behalf.
(3) For good cause shown, the commissioner may direct the removal
of the name of a contractor or subcontractor from the ineligible list.
(4) To assist the commissioner in determining whether the
contractor or subcontractor is paying the prevailing rate of wage, when a
prevailing rate of wage claim is filed, or evidence indicating a
violation has occurred, a contractor or subcontractor required to pay the
prevailing rate of wage to workers employed upon public works under ORS
279C.800 to 279C.870 shall send a certified copy of the payroll for those
workers when the commissioner requests the certified copy. [2003 c.794
§174] (1) In addition to any other penalty
provided by law, the Commissioner of the Bureau of Labor and Industries
may assess a civil penalty not to exceed $5,000 for each violation of any
provision of ORS 279C.800 to 279C.870 or any rule of the commissioner
adopted thereunder.
(2) Civil penalties under this section shall be imposed as provided
in ORS 183.745.
(3) All moneys collected as penalties under this section shall be
first applied toward reimbursement of costs incurred in determining
violations, conducting hearings and assessing and collecting the
penalties. The remainder, if any, of moneys collected as penalties under
this section shall be paid into the State Treasury and credited to the
General Fund and are available for general governmental expenses. [2003
c.794 §177](1) The Commissioner of the Bureau of Labor and Industries or any
other person may bring a civil action in any court of competent
jurisdiction to require a public agency under a public contract with a
contractor to withhold twice the wages in dispute if it is shown that the
contractor or subcontractor on the contract has intentionally failed or
refused to pay the prevailing rate of wage to workers employed on that
contract and to require the contractor to pay the prevailing rate of wage
and any deficiencies that can be shown to exist because of improper wage
payments already made. In addition to other relief, the court may also
enjoin the contractor or subcontractor from committing future violations.
The contractor or subcontractor involved shall be named as a party in all
civil actions brought under this section. In addition to other costs, the
court may award the prevailing party reasonable attorney fees at the
trial and on appeal. However, attorney fees may not may be awarded
against the commissioner under this section.
(2) The court shall require any party, other than the commissioner,
that brings a civil action under this section to post a bond sufficient
to cover the estimated attorney fees and costs to the public agency and
to the contractor or subcontractor of any temporary restraining order,
preliminary injunction or permanent injunction awarded in the action, in
the event that the party bringing the action does not ultimately prevail.
(3) In addition to any other relief, the court in a civil action
brought under this section may enjoin the public agency from contracting
with the contractor or subcontractor if the court finds that the
commissioner would be entitled to place the contractor or subcontractor
on the ineligible list established under ORS 279C.860 (1). If the court
issues such an injunction, the commissioner shall place the contractor or
subcontractor on the list for a period of three years, subject to the
provision of ORS 279C.860 (2). [2003 c.794 §176]
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