Chapter 415 Oregon Laws 2007
AN ACT
HB 2776
Relating to election by certain business enterprises not to obtain
public works bond; creating new provisions; and amending ORS 279C.830 and
279C.836.
Be It Enacted by the People of
the State of Oregon:
SECTION 1.
ORS 279C.836 is amended to read:
279C.836. (1) Except as
provided in subsection (7) [or (8)],
(8) or (9) 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) or (8) 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] four
years 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] four years 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) A contractor or
subcontractor may elect not to file a public works bond as required under
subsection (1) of this section for any public works project for which the
contract price does not exceed $100,000.
[(8)] (9) 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)] (10) 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)] (11) The Commissioner of the Bureau of Labor and
Industries, with approval of the board, shall adopt rules that establish
language for public works bonds.
SECTION 2.
ORS 279C.830 is amended to read:
279C.830. (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) or (9). 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) or (9).
(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) or (9).
SECTION 3. The
amendments to ORS 279C.830 and 279C.836 by sections 1 and 2 of this 2007 Act
apply to business enterprises certified before, on or after the effective date
of this 2007 Act and to contracts for projects first advertised, or if not
advertised then entered into, on or after the effective date of this 2007 Act.
Approved by the Governor June 13, 2007
Filed in the office of Secretary of State June 13, 2007
Effective date January 1, 2008
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