72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 3192
House Bill 3092
Sponsored by Representative BARKER
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Modifies subcontractor disclosure requirements for bids on
public contracts. Modifies definition of lowest responsible
bidder.
A BILL FOR AN ACT
Relating to public contracting; amending ORS 279.027 and 279.029.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 279.027 is amended to read:
279.027. (1) A public contracting agency preparing bid
documents for a public contract shall, at a minimum, include:
(a) A statement that, if the contract is for a public work
subject to ORS 279.348 to 279.380 or the Davis-Bacon Act (40
U.S.C. 276a), no bid will be received or considered by the public
contracting agency unless the bid contains a statement by the
bidder as a part of its bid that the provisions of ORS 279.350 or
40 U.S.C. 276a are to be complied with;
(b) The date and time after which bids will not be received,
which shall be not less than five days after the date of the last
publication of the advertisement;
(c) The date that prequalification applications must be filed
under ORS 279.039 (1) and the class or classes of work for which
bidders must be prequalified if prequalification is a
requirement;
(d) The character of the work to be done or the material or
things to be purchased;
(e) The office where the specifications for the work, material
or things may be reviewed;
(f) The name and title of the person designated for receipt of
bids;
(g) The date, time and place that the public contracting agency
will publicly open the bids;
(h) A statement that each bid must identify whether the bidder
is a resident bidder, as defined in ORS 279.029;
(i) A statement that the public contracting agency may reject
any bid not in compliance with all prescribed public bidding
procedures and requirements and may reject for good cause any or
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 no bid for a construction contract shall
be received or considered by the public contracting agency unless
the bidder is registered with the Construction Contractors Board
or licensed by the State Landscape Contractors Board as required
by ORS 671.530.
(2) All bids made to the public contracting agency pursuant to
ORS 279.015 and 279.025 shall be:
(a) In writing.
(b) Filed with the person designated for receipt of bids by the
public contracting agency.
(c) Opened publicly by the public contracting agency at the
time designated in the advertisement.
(3)(a) Within four working hours after the date and time of the
deadline when the bids are due to the public contracting agency
for a public improvement, a bidder shall submit to the public
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; 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
public contracting agency shall designate a deadline for
submission of bids that has a date and time that is on Monday
through Thursday or that is on Friday prior to 12 noon.
(c) This subsection shall apply only to public improvements
with a contract value of more than $75,000.
(d) This subsection does not apply to public contracts for
public improvements that have been exempted from competitive
bidding requirements under ORS 279.015 (2).
(4) The disclosure of first-tier subcontractors under
subsection (3) of this section shall include:
(a) The name of each subcontractor; and
(b) The category of work that each subcontractor will be
performing.
(5) { - A public contracting agency shall accept the
subcontractor disclosure. The - } { + A + } public contracting
agency shall consider the bid of any contractor that does not
submit a subcontractor disclosure to the public contracting
agency to be a nonresponsive bid and may not award the contract
to the contractor. { - A public contracting agency is not
required to determine the accuracy or the completeness of the
subcontractor disclosure. - }
(6) After having been opened, the bids and the subcontractor
disclosures shall be filed for public inspection.
(7) 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 attached to all bids as
bid security unless the contract for which a bid is submitted has
been exempted from this requirement pursuant to ORS 279.033. Such
security shall not exceed 10 percent of the amount bid for the
contract.
SECTION 2. ORS 279.029 is amended to read:
279.029. (1) After the bids are opened as required by ORS
279.027, and after a determination is made that a contract is to
be awarded, the public contracting agency shall award the
contract to the lowest responsible bidder.
(2) In determining the lowest responsible bidder, a public
contracting agency shall:
(a) If the contract is for a public improvement, check the list
created by the Construction Contractors Board under ORS 701.227
for bidders who are not qualified to hold a contract for a public
improvement; and
(b) For the purpose of awarding the contract, add a percent
increase on the bid of a nonresident bidder equal to the percent,
if any, of the preference given to that bidder in the state in
which the bidder resides.
(3) The Oregon Department of Administrative Services on or
before January 1 of each year shall publish a list of states that
give preference to in-state bidders with the percent increase
applied in each such state. The public contracting agency may
rely on the names of states and percentages so published in
determining the lowest responsible bidder without incurring any
liability to any bidder.
(4) The successful bidder shall:
(a) Promptly execute a formal contract.
(b) If the contract is for a public improvement, execute and
deliver to the public contracting agency a good and sufficient
bond, to be approved by the public contracting agency, in a sum
equal to the contract price for the faithful performance of the
contract. In lieu of a surety bond, the public contracting agency
may permit the successful bidder to submit a cashier's check or
certified check in an amount equal to 100 percent of the contract
price. If the public improvement contract is with a single person
to provide both design and construction of a public improvement,
the obligation of the surety bond, or the obligation of the
bidder on the cashier's check or certified check, for the
faithful performance of the contract required by this paragraph,
shall be also 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 or the bidder on the cashier's check or certified check
shall not be liable after final completion of the contract, or
longer if defined 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.
(5) In cases of emergency, or where the interest or property of
the public contracting agency probably would suffer material
injury by delay or other cause, the requirement of furnishing a
good and sufficient bond for the faithful performance of any
public contract may be excused, if a declaration of such
emergency is made and concurred in by all members of the
governing board of the public contracting agency.
(6) As used in this section:
(a) 'Lowest responsible bidder' means the lowest bidder who is
not on the list established by the Construction Contractors Board
pursuant to ORS 701.227 and who has:
(A) Substantially complied with all prescribed public bidding
procedures and requirements;
(B) Met the standards of responsibility. In determining if a
prospective bidder has met the standards of responsibility, the
public contracting agency shall consider whether a prospective
bidder has:
(i) Available the appropriate financial, material, equipment,
facility and personnel resources and expertise, or ability to
obtain the resources and expertise, necessary to indicate the
capability of the prospective bidder to meet all contractual
responsibilities;
(ii) A satisfactory record of performance. The public
contracting agency shall document the record of performance of a
prospective bidder if the public contracting agency finds the
prospective bidder not to be responsible under this
sub-subparagraph;
(iii) A satisfactory record of integrity. The public
contracting agency shall document the record of integrity of a
prospective bidder if the public contracting agency finds the
prospective bidder not to be responsible under this
sub-subparagraph;
(iv) Qualified legally to contract with the public contracting
agency; { - and - }
{ + (v) A current, valid license issued by the Construction
Contractors Board; and + }
{ - (v) - } { + (vi) + } Supplied all necessary information
in connection with the inquiry concerning responsibility. If a
prospective bidder fails to promptly supply information requested
by the public contracting agency concerning responsibility, the
public contracting agency shall base the determination of
responsibility upon any available information, or may find the
prospective bidder not to be responsible; and
(C) Not been disqualified by the public contracting agency
under ORS 279.037.
(b) 'Resident bidder' means a bidder that has paid unemployment
taxes or income taxes in this state during the 12 calendar months
immediately preceding submission of the bid, has a business
address in this state and has stated in the bid whether the
bidder is a 'resident bidder' pursuant to this subsection.
(c) 'Nonresident bidder' means a bidder who is not a ' resident
bidder' as defined by paragraph (b) of this subsection.
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