73rd OREGON LEGISLATIVE ASSEMBLY--2005 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 1392
House Bill 2710
Sponsored by Representative HOLVEY; Representatives HANSEN,
SCHAUFLER
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.
Requires contractor and subcontractors on public works project
to pay state prevailing wage rates or federal prevailing wage
rates, whichever are higher, when project is subject to state and
federal prevailing wage rate laws.
A BILL FOR AN ACT
Relating to payment of prevailing wage rates when project is
subject to different prevailing wage rate laws; creating new
provisions; and amending ORS 279A.010 and 279C.810.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + 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. + }
SECTION 2. { + Section 1 of this 2005 Act is added to and made
a part of ORS 279C.800 to 279C.870. + }
SECTION 3. ORS 279C.810 is amended to read:
279C.810. (1) ORS 279C.800 to 279C.870 do not apply to:
(a) Projects for which the contract price does not exceed
$25,000.
{ - (b) Projects regulated under the Davis-Bacon Act (40
U.S.C. 276a). Notwithstanding such regulation, contractors and
subcontractors shall pay individuals employed as flaggers on the
projects not less than the prevailing rate of wage as determined
by the Commissioner of the Bureau of Labor and Industries for
that classification of work. As used in this paragraph, 'flagger
' means a person who controls the movement of vehicular traffic
through construction projects using sign, hand or flag
signals. - }
{ - (c)(A) - } { + (b)(A) + } 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.
(B) As used in this paragraph:
(i) 'Funds of a public agency' does not include funds provided
in the form of a government grant to a nonprofit organization,
unless the government grant is issued for the purpose of
construction.
(ii) '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)(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.
SECTION 4. ORS 279A.010 is amended to read:
279A.010. (1) As used in the Public Contracting Code, unless
the context or a specifically applicable definition requires
otherwise:
(a) 'Bidder' means a person that submits a bid in response to
an invitation to bid.
(b) 'Contracting agency' means a public body authorized by law
to conduct a procurement. 'Contracting agency' includes, but is
not limited to, the Director of the Oregon Department of
Administrative Services and any person authorized by a
contracting agency to conduct a procurement on the contracting
agency's behalf. 'Contracting agency' does not include the
judicial department or the legislative department.
(c) 'Days' means calendar days.
(d) 'Department' means the Oregon Department of Administrative
Services.
(e) 'Director' means the Director of the Oregon Department of
Administrative Services or a person designated by the director to
carry out the authority of the director under the Public
Contracting Code.
(f) 'Emergency' means circumstances that:
(A) Could not have been reasonably foreseen;
(B) Create a substantial risk of loss, damage or interruption
of services or a substantial threat to property, public health,
welfare or safety; and
(C) Require prompt execution of a contract to remedy the
condition.
(g) 'Energy savings performance contract' means a public
contract between a contracting agency and a qualified energy
service company for the identification, evaluation,
recommendation, design and construction of energy conservation
measures, including a design-build contract, that guarantee
energy savings or performance.
(h) 'Executive department' has the meaning given that term in
ORS 174.112.
(i)(A) 'Grant' means:
(i) An agreement under which a contracting agency receives
moneys, property or other assistance, including but not limited
to federal assistance that is characterized as a grant by federal
law or regulations, loans, loan guarantees, credit enhancements,
gifts, bequests, commodities or other assets, from a grantor for
the purpose of supporting or stimulating a program or activity of
the contracting agency and in which no substantial involvement by
the grantor is anticipated in the program or activity other than
involvement associated with monitoring compliance with the grant
conditions; or
(ii) An agreement under which a contracting agency provides
moneys, property or other assistance, including but not limited
to federal assistance that is characterized as a grant by federal
law or regulations, loans, loan guarantees, credit enhancements,
gifts, bequests, commodities or other assets, to a recipient for
the purpose of supporting or stimulating a program or activity of
the recipient and in which no substantial involvement by the
contracting agency is anticipated in the program or activity
other than involvement associated with monitoring compliance with
the grant conditions.
(B) 'Grant' does not include a public contract for a public
improvement, for public works, as defined in ORS 279C.800, or for
emergency work, minor alterations or ordinary repair or
maintenance necessary to preserve a public improvement, when
under the public contract a contracting agency pays, in
consideration for contract performance intended to realize or to
support the realization of the purposes for which grant funds
were provided to the contracting agency, moneys that the
contracting agency has received under a grant.
(j) 'Industrial oil' means any compressor, turbine or bearing
oil, hydraulic oil, metal-working oil or refrigeration oil.
(k) 'Judicial department' has the meaning given that term in
ORS 174.113.
(L) 'Legislative department' has the meaning given that term in
ORS 174.114.
(m) 'Local contract review board' means a local contract review
board described in ORS 279A.060.
(n) 'Local contracting agency' means a local government or
special government body authorized by law to conduct a
procurement. 'Local contracting agency' includes any person
authorized by a local contracting agency to conduct a procurement
on behalf of the local contracting agency.
(o) 'Local government' has the meaning given that term in ORS
174.116.
(p) 'Lowest responsible bidder' means the lowest bidder who:
(A) Has substantially complied with all prescribed public
contracting procedures and requirements;
(B) Has met the standards of responsibility set forth in ORS
279B.110 or 279C.375;
(C) Has not been debarred or disqualified by the contracting
agency under ORS 279B.130 or 279C.440; and
(D) If the advertised contract is a public improvement
contract, is not on the list created by the Construction
Contractors Board under ORS 701.227.
(q) 'Lubricating oil' means any oil intended for use in an
internal combustion crankcase, transmission, gearbox or
differential or an automobile, bus, truck, vessel, plane, train,
heavy equipment or machinery powered by an internal combustion
engine.
(r) 'Person' means a natural person capable of being legally
bound, a sole proprietorship, a corporation, a partnership, a
limited liability company or partnership, a limited partnership,
a for-profit or nonprofit unincorporated association, a business
trust, two or more persons having a joint or common economic
interest, any other person with legal capacity to contract or a
public body.
(s) 'Post-consumer waste' means a finished material that would
normally be disposed of as solid waste, having completed its life
cycle as a consumer item. 'Post-consumer waste' does not include
manufacturing waste.
(t) 'Price agreement' means a public contract for the
procurement of goods or services at a set price with:
(A) No guarantee of a minimum or maximum purchase; or
(B) An initial order or minimum purchase combined with a
continuing contractor obligation to provide goods or services in
which the contracting agency does not guarantee a minimum or
maximum additional purchase.
(u) 'Procurement' means the act of purchasing, leasing, renting
or otherwise acquiring goods or services. 'Procurement ' includes
each function and procedure undertaken or required to be
undertaken by a contracting agency to enter into a public
contract, administer a public contract and obtain the performance
of a public contract under the Public Contracting Code.
(v) 'Proposer' means a person that submits a proposal in
response to a request for proposals.
(w) 'Public body' has the meaning given that term in ORS
174.109.
(x) 'Public contract' means a sale or other disposal, or a
purchase, lease, rental or other acquisition, by a contracting
agency of personal property, services, including personal
services, public improvements, public works, minor alterations,
or ordinary repair or maintenance necessary to preserve a public
improvement. 'Public contract' does not include grants.
(y) 'Public contracting' means procurement activities described
in the Public Contracting Code relating to obtaining, modifying
or administering public contracts or price agreements.
(z) 'Public Contracting Code' or 'code' means ORS chapters
279A, 279B and 279C.
(aa) 'Public improvement' means a project for construction,
reconstruction or major renovation on real property by or for a
contracting agency. 'Public improvement' does not include:
(A) Projects for which no funds of a contracting agency are
directly or indirectly used, except for participation that is
incidental or related primarily to project design or inspection;
or
(B) Emergency work, minor alteration, ordinary repair or
maintenance necessary to preserve a public improvement.
(bb) 'Public improvement contract' means a public contract for
a public improvement. 'Public improvement contract' does not
include a public contract for emergency work, minor alterations,
or ordinary repair or maintenance necessary to preserve a public
improvement.
(cc) 'Recycled material' means any material that would
otherwise be a useless, unwanted or discarded material except for
the fact that the material still has useful physical or chemical
properties after serving a specific purpose and can, therefore,
be reused or recycled.
(dd) 'Recycled oil' means used oil that has been prepared for
reuse as a petroleum product by refining, rerefining, reclaiming,
reprocessing or other means, provided that the preparation or use
is operationally safe, environmentally sound and complies with
all laws and regulations.
(ee) 'Recycled paper' means a paper product with not less than:
(A) Fifty percent of its fiber weight consisting of secondary
waste materials; or
(B) Twenty-five percent of its fiber weight consisting of
post-consumer waste.
(ff) 'Recycled PETE' means post-consumer polyethylene
terephthalate material.
(gg) 'Recycled product' means all materials, goods and
supplies, not less than 50 percent of the total weight of which
consists of secondary and post-consumer waste with not less than
10 percent of its total weight consisting of post-consumer waste.
' Recycled product' includes any product that could have been
disposed of as solid waste, having completed its life cycle as a
consumer item, but otherwise is refurbished for reuse without
substantial alteration of the product's form.
(hh) 'Secondary waste materials' means fragments of products or
finished products of a manufacturing process that has converted a
virgin resource into a commodity of real economic value.
'Secondary waste materials' includes post-consumer waste. '
Secondary waste materials' does not include excess virgin
resources of the manufacturing process. For paper, 'secondary
waste materials' does not include fibrous waste generated during
the manufacturing process such as fibers recovered from waste
water or trimmings of paper machine rolls, mill broke, wood
slabs, chips, sawdust or other wood residue from a manufacturing
process.
(ii) 'Special government body' has the meaning given that term
in ORS 174.117.
(jj) 'State agency' means the executive department, except the
Secretary of State and the State Treasurer in the performance of
the duties of their constitutional offices.
(kk) 'State contracting agency' means an executive department
entity authorized by law to conduct a procurement.
(LL) 'State government' has the meaning given that term in ORS
174.111.
(mm) 'Used oil' has the meaning given that term in ORS
459A.555.
(nn) 'Virgin oil' means oil that has been refined from crude
oil and that has not been used or contaminated with impurities.
(2) Other definitions appearing in the Public Contracting Code
and the sections in which they appear are:
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
'
Adequate'
ORS 279C.305
'
Administering contracting
agency'
ORS 279A.200
'
Affirmative action'
ORS 279A.100
'
Architect'
ORS 279C.100
'
Architectural, engineering and
land surveying services'
ORS 279C.100
'
Bid documents'
ORS 279C.400
'
Bidder'
ORS 279B.415
'
Bids'
ORS 279C.400
'
Brand name'
ORS 279B.405
'
Brand name or equal
specification'
ORS 279B.200
'
Brand name specification'
ORS 279B.200
'
Class special procurement'
ORS 279B.085
'
Consultant'
ORS 279C.115
'
Contract-specific
special procurement'
ORS 279B.085
'
Cooperative procurement'
ORS 279A.200
'
Cooperative procurement group'
ORS 279A.200
'
Donee'
ORS 279A.250
'
Engineer'
ORS 279C.100
'
Established catalog price'
ORS 279B.005
'
Findings'
ORS 279C.330
'
Fire protection equipment'
ORS 279A.190
{ -
'
Flagger'
ORS 279C.810 - }
'
Fringe benefits'
ORS 279C.800
'
Funds of a public agency'
ORS 279C.810
'
Good cause'
ORS 279C.585
'
Good faith dispute'
ORS 279C.580
'
Goods'
ORS 279B.115
'
Goods and services'
or
'
goods or services'
ORS 279B.005
'
Interstate cooperative
procurement'
ORS 279A.200
'
Invitation to bid'
ORS 279B.005
and 279C.400
'
Joint cooperative procurement'
ORS 279A.200
'
Labor dispute'
ORS 279C.650
'
Land surveyor'
ORS 279C.100
'
Legally flawed'
ORS 279B.405
'
Locality'
ORS 279C.800
'
Nonprofit organization'
ORS 279C.810
'
Nonresident bidder'
ORS 279A.120
'
Not-for-profit organization'
ORS 279A.250
'
Original contract'
ORS 279A.200
'
Permissive cooperative
procurement'
ORS 279A.200
'
Person'
ORS 279C.500
and 279C.815
'
Personal services'
ORS 279C.100
'
Prevailing rate of wage'
ORS 279C.800
'
Procurement description'
ORS 279B.005
'
Property'
ORS 279A.250
'
Public agency'
ORS 279C.800
'
Public contract'
ORS 279A.190
'
Public contract for
goods or services'
ORS 279B.005
'
Public works'
ORS 279C.800
'
Purchasing contracting agency'
ORS 279A.200
'
Regularly organized fire
department'
ORS 279A.190
'
Related services'
ORS 279C.100
'
Request for proposals'
ORS 279B.005
'
Resident bidder'
ORS 279A.120
'
Responsible bidder'
ORS 279A.105
and 279B.005
'
Responsible proposer'
ORS 279B.005
'
Responsive bid'
ORS 279B.005
'
Responsive proposal'
ORS 279B.005
'
Retainage'
ORS 279C.550
'
Special procurement'
ORS 279B.085
'
Specification'
ORS 279B.200
'
State agency'
ORS 279A.250
'
Substantial completion'
ORS 279C.465
'
Surplus property'
ORS 279A.250
'
Unnecessarily restrictive'
ORS 279B.405
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
SECTION 5. { + Section 1 of this 2005 Act and the amendments
to ORS 279A.010 and 279C.810 by sections 3 and 4 of this 2005 Act
apply only to public contracts first advertised, but if not
advertised then entered into, on or after the effective date of
this 2005 Act. + }
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