74th OREGON LEGISLATIVE ASSEMBLY--2007 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 147
 
                           A-Engrossed
 
                         House Bill 2021
                   Ordered by the House May 16
             Including House Amendments dated May 16
 
Sponsored by Representative SCHAUFLER (Presession filed.)
 
 
                             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.
 
  Makes public agency liable for workers' unpaid wages, fringe
benefits and liquidated damages when public agency fails to
include certain information about prevailing rates of wage in
specifications for public works contract.
   { +  Modifies provisions relating to prevailing wage when
public contracts for public works are subject to Davis-Bacon
Act. + }
 
                        A BILL FOR AN ACT
Relating to prevailing rates of wage; creating new provisions;
  and amending 279C.360, 279C.365, 279C.810, 279C.815, 279C.830,
  279C.838 and ORS 279C.855.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 279C.360 is amended to read:
  279C.360. (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) - }  { + 3141 et seq.) + }.
  SECTION 2. ORS 279C.365 is amended to read:
  279C.365. (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 - }  { +  3141 et seq. + }), 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 - }   { + 3141 et seq. + } 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.
  SECTION 3. ORS 279C.810 is amended to read:
  279C.810. (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.
   { +  (c) Projects regulated under the Davis-Bacon Act (40
U.S.C. 3141 et seq.), except that ORS 279C.838 does apply to
these projects. + }
  (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.
  SECTION 4. ORS 279C.815 is amended to read:
  279C.815. (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) - }   { + 3141 et seq.) + } 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.
  SECTION 5. ORS 279C.830 is amended to read:
  279C.830. (1)(a) The specifications for every contract for
public works { + , including public works subject to the
Davis-Bacon Act (40 U.S.C. 3141 et seq.), + } 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. { +
When the prevailing rates of wage are available electronically or
are accessible on the Internet, the rates may be incorporated
into the specifications by referring to the electronically
accessible or Internet-accessible rates and by providing adequate
information about how to access the rates. + }
  (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 { +
and 279C.840 + }.
  (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).
  SECTION 6. ORS 279C.838 is amended to read:
  279C.838. When a public works project is subject to   { - ORS
279C.800 to 279C.870 and - }  the Davis-Bacon Act (40 U.S.C.
 { - 276a): - }  { + 3141 et seq.), + }
    { - (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  { + determined under ORS 279C.815. + }
 { - 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 7. ORS 279C.855 is amended to read:
  279C.855. (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 - }   { + a + } 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.
   { +  (4) When a public works project is subject to the
Davis-Bacon Act (40 U.S.C. 3141 et seq.) and a public agency
fails to include the state and federal prevailing rates of wage
in the specifications for the contract for public works as
required under ORS 279C.830 (1)(a), or fails to include in the
specifications information showing which prevailing rate of wage
is higher for workers in each trade or occupation in each
locality as required under ORS 279C.830 (1)(b), the public agency
is liable to each affected worker for:
  (a) The worker's unpaid minimum wages, including fringe
benefits, in an amount that equals, for each hour worked, the
difference between the applicable higher rate of wage and the
lower rate of wage; and
  (b) An additional amount, equal to the amount of unpaid minimum
wages due under paragraph (a) of this subsection, as liquidated
damages.
  (5) + } The Commissioner of the Bureau of Labor and Industries
may enforce the provisions of   { - this subsection - }
 { + subsections (3) and (4) of this section + } 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.
  SECTION 8.  { + The amendments to ORS 279C.360, 279C.365,
279C.810, 279C.815, 279C.830, 279C.838 and 279C.855 by sections 1
to 7 of this 2007 Act apply only to public contracts for public
works, including public works subject to the Davis-Bacon Act (40
U.S.C. 3141 et seq.), first advertised or solicited on or after
the effective date of this 2007 Act. + }
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