74th OREGON LEGISLATIVE ASSEMBLY--2007 Regular Session
Enrolled
House Bill 2021
Sponsored by Representative SCHAUFLER; Senator GORDLY (Presession
filed.)
CHAPTER ................
AN ACT
Relating to prevailing rates of wage; creating new provisions;
and amending ORS 279C.360, 279C.365, 279C.815, 279C.825,
279C.830, 279C.838 and 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
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(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
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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.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 4. 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) - } { + (40 U.S.C. 3141 et seq.) + } 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
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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 5. 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 as { + determined under ORS
279C.815; + }
{ - 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. - }
{ + (2) The Commissioner of the Bureau of Labor and
Industries shall determine the site of the project in a manner
consistent with the term 'site of the work' as that term is used
in federal law and in regulations adopted or guidelines issued in
accordance with the Davis-Bacon Act;
(3) The commissioner shall determine in a manner that is
consistent with federal law and regulations adopted or guidelines
issued in accordance with the Davis-Bacon Act whether workers
transporting materials and supplies to and from the site of the
project are subject to the Davis-Bacon Act and are entitled to be
paid the prevailing rate of wage;
(4) Except as provided in subsection (1) of this section, the
commissioner, in consultation with the advisory committee
appointed under ORS 279C.820, may administer and enforce ORS
279C.800 to 279C.870 in a manner that is consistent with federal
law and regulations adopted or guidelines issued in accordance
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with the Davis-Bacon Act. The commissioner may provide a waiver
from a requirement set forth in ORS 279C.800 to 279C.870 if
necessary to achieve consistency with the Davis-Bacon Act and to
further the purposes of ORS 279C.805; and
(5) ORS 279C.800 to 279C.870 do not apply to workers enrolled
in skill training programs that are certified by the United
States Secretary of Transportation under the Federal-Aid Highway
Act (23 U.S.C. 113(c)). + }
SECTION 6. 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 7. ORS 279C.825 is amended to read:
279C.825. (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 - } { + public agency that awards + }
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
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(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. - }
{ + (3) The public agency shall pay the fee at the time the
public agency enters into the public works contract. + }
SECTION 8. { + Notwithstanding the maximum and minimum fee
amounts set forth in ORS 279C.825 (1)(b), for public works
contracts entered into on or after the effective date of this
2007 Act and before January 1, 2011, the fee charged and
collected may not be more than $7,500 or less than $250. + }
SECTION 9. { + (1) The Bureau of Labor and Industries shall
develop and adopt a plan to increase diversity statewide among
workers employed on projects subject to ORS 279C.800 to 279C.870.
The bureau shall develop the plan after conducting a statewide
public process to solicit proposals to increase diversity and
shall adopt the plan after considering proposals submitted to the
bureau.
(2) The bureau shall report each year to the Legislative
Assembly or to the appropriate legislative interim committee
concerning progress that results from the plan adopted under this
section and may submit recommendations for legislation or other
measures that will improve diversity among workers employed on
projects subject to ORS 279C.800 to 279C.870. The bureau shall
submit the first report no later than January 1, 2009. + }
SECTION 10. { + Section 8 of this 2007 Act and the amendments
to ORS 279C.360, 279.365, 279C.815, 279C.825, 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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Passed by House May 21, 2007
Repassed by House June 22, 2007
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate June 8, 2007
Repassed by Senate June 25, 2007
...........................................................
President of Senate
Enrolled House Bill 2021 (HB 2021-BCCA) Page 7
Received by Governor:
......M.,............., 2007
Approved:
......M.,............., 2007
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2007
...........................................................
Secretary of State
Enrolled House Bill 2021 (HB 2021-BCCA) Page 8