74th OREGON LEGISLATIVE ASSEMBLY--2007 Regular Session
Enrolled
House Bill 2140
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Attorney General Hardy
Myers for Department of Justice)
CHAPTER ................
AN ACT
Relating to the Public Contracting Code; creating new provisions;
amending ORS 279A.010, 279A.025, 279A.050, 279A.200, 279B.005,
279B.050, 279B.080, 279B.085, 279B.130, 279B.200, 279B.270,
279B.405, 279B.415, 279C.320, 279C.335, 279C.345, 279C.350,
279C.355, 279C.365, 279C.375, 279C.390, 279C.400, 279C.405,
279C.410, 279C.460, 279C.800, 279C.810, 279C.815, 279C.830,
279C.836 and 279C.870 and sections 105, 105b, 110, 113 and 132,
chapter 794, Oregon Laws 2003; repealing section 332a, chapter
794, Oregon Laws 2003; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. 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,
Enrolled House Bill 2140 (HB 2140-C) Page 1
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) 'Goods' includes supplies, equipment, materials,
personal property, including any tangible, intangible and
intellectual property and rights and licenses in relation
thereto, and combinations of any of the items identified in this
paragraph.
(j) 'Goods and services' or 'goods or services' includes
combinations of any of the items identified in the definitions of
' goods' and 'services.' + }
{ - (i)(A) - } { + (k)(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) - } { + (L) + } 'Industrial oil' means any
compressor, turbine or bearing oil, hydraulic oil, metal-working
oil or refrigeration oil.
{ - (k) - } { + (m) + } 'Judicial department' has the
meaning given that term in ORS 174.113.
{ - (L) - } { + (n) + } 'Legislative department' has the
meaning given that term in ORS 174.114.
{ - (m) - } { + (o) + } 'Local contract review board' means
a local contract review board described in ORS 279A.060.
{ - (n) - } { + (p) + } '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) - } { + (q) + } 'Local government' has the meaning
given that term in ORS 174.116.
Enrolled House Bill 2140 (HB 2140-C) Page 2
{ - (p) - } { + (r) + } '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) - } { + (s) + } '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) - } { + (t) + } '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) - } { + (u) + } '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) - } { + (v) + } '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) - } { + (w) + } '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) - } { + (x) + } 'Proposer' means a person that
submits a proposal in response to a request for proposals.
{ - (w) - } { + (y) + } 'Public body' has the meaning given
that term in ORS 174.109.
{ - (x) - } { + (z) + } '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) - } { + (aa) + } 'Public contracting' means
procurement activities described in the Public Contracting Code
relating to obtaining, modifying or administering public
contracts or price agreements.
{ - (z) - } { + (bb) + } 'Public Contracting Code' or
'code' means ORS chapters 279A, 279B and 279C.
Enrolled House Bill 2140 (HB 2140-C) Page 3
{ - (aa) - } { + (cc) + } '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) - } { + (dd) + } '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) - } { + (ee) + } '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) - } { + (ff) + } '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) - } { + (gg) + } '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) - } { + (hh) + } 'Recycled PETE' means
post-consumer polyethylene terephthalate material.
{ - (gg) - } { + (ii) + } '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) - } { + (jj) + } '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.
{ + (kk) 'Services' mean services other than personal
services designated under ORS 279A.055, except that, for state
contracting agencies with procurement authority under ORS
279A.050 or 279A.140, 'services' includes personal services as
designated by the state contracting agencies. + }
{ - (ii) - } { + (LL) + } 'Special government body' has the
meaning given that term in ORS 174.117.
Enrolled House Bill 2140 (HB 2140-C) Page 4
{ - (jj) - } { + (mm) + } '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) - } { + (nn) + } 'State contracting agency' means
an executive department entity authorized by law to conduct a
procurement.
{ - (LL) - } { + (oo) + } 'State government' has the
meaning given that term in ORS 174.111.
{ - (mm) - } { + (pp) + } 'Used oil' has the meaning given
that term in ORS 459A.555.
{ - (nn) - } { + (qq) + } '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.
_______________________________________________________________
(a) '
Adequate'
ORS 279C.305
(b) '
Administering contracting
agency'
ORS 279A.200
(c) '
Affirmative action'
ORS 279A.100
(d) '
Architect'
ORS 279C.100
(e) '
Architectural, engineering
and land surveying
services'
ORS 279C.100
(f) '
Bid documents'
ORS 279C.400
(g) '
Bidder'
ORS 279B.415
(h) '
Bids'
ORS 279C.400
(i) '
Brand name'
ORS 279B.405
(j) '
Brand name or equal
specification'
ORS 279B.200
(k) '
Brand name
Enrolled House Bill 2140 (HB 2140-C) Page 5
specification'
ORS 279B.200
(L) '
Class special
procurement'
ORS 279B.085
(m) '
Consultant'
ORS 279C.115
(n) '
Contract-specific
special procurement'
ORS 279B.085
(o) '
Cooperative
procurement'
ORS 279A.200
(p) '
Cooperative procurement
group'
ORS 279A.200
(q) '
Donee'
ORS 279A.250
(r) '
Engineer'
ORS 279C.100
(s) '
Findings'
ORS 279C.330
(t) '
Fire protection
equipment'
ORS 279A.190
(u) '
Fringe benefits'
ORS 279C.800
(v) '
Funds of a public
agency'
ORS 279C.810
(w) '
Good cause'
ORS 279C.585
(x) '
Good faith dispute'
ORS 279C.580
(y) '
Goods'
ORS 279B.115
{ -
(z) '
Goods and services'
or - }
{ -
'
goods or services'
ORS 279B.005 - }
Enrolled House Bill 2140 (HB 2140-C) Page 6
{ +
(z) '
Housing'
ORS 279C.800 + }
(aa)'
Interstate cooperative
procurement'
ORS 279A.200
(bb)'
Invitation to bid'
ORS 279B.005
...............and 279C.400
(cc)'
Joint cooperative
procurement'
ORS 279A.200
(dd)'
Labor dispute'
ORS 279C.650
(ee)'
Land surveyor'
ORS 279C.100
(ff)'
Legally flawed'
ORS 279B.405
(gg)'
Locality'
ORS 279C.800
(hh)'
Nonprofit
organization'
ORS 279C.810
(ii)'
Nonresident bidder'
ORS 279A.120
(jj)'
Not-for-profit
organization'
ORS 279A.250
(kk)'
Original contract'
ORS 279A.200
(LL)'
Permissive cooperative
procurement'
ORS 279A.200
(mm)'
Person'
ORS 279C.500
...............and 279C.815
(nn)'
Personal services'
ORS 279C.100
(oo)'
Prevailing rate of
wage'
ORS 279C.800
(pp)'
Procurement
Enrolled House Bill 2140 (HB 2140-C) Page 7
description'
ORS 279B.005
(qq)'
Property'
ORS 279A.250
(rr)'
Public agency'
ORS 279C.800
(ss)'
Public contract'
ORS 279A.190
{ -
(tt)'
Public contract for - }
{ -
goods or services'
ORS 279B.005 - }
{ -
(uu) - }
{ +
(tt) + }
'
Public works'
ORS 279C.800
{ -
(vv) - }
{ +
(uu) + }
'
Purchasing contracting
agency'
ORS 279A.200
{ -
(ww) - }
{ +
(vv) + }
'
Regularly organized fire
department'
ORS 279A.190
{ -
(xx) - }
{ +
(ww) + }
'
Related services'
ORS 279C.100
{ -
(yy) - }
{ +
(xx) + }
'
Request for proposals'
ORS 279B.005
{ -
(zz) - }
{ +
(yy) + }
'
Enrolled House Bill 2140 (HB 2140-C) Page 8
Resident bidder'
ORS 279A.120
{ -
(aaa) - }
{ +
(zz) + }
'
Responsible bidder'
ORS 279A.105
...............and 279B.005
{ -
(bbb) - }
{ +
(aaa) + }
'
Responsible proposer'
ORS 279B.005
{ -
(ccc) - }
{ +
(bbb) + }
'
Responsive bid'
ORS 279B.005
{ -
(ddd) - }
{ +
(ccc) + }
'
Responsive proposal'
ORS 279B.005
{ -
(eee) - }
{ +
(ddd) + }
'
Retainage'
ORS 279C.550
{ -
(fff) - }
{ +
(eee) + }
'
Special procurement'
ORS 279B.085
{ -
(ggg) - }
{ +
(fff) + }
'
Specification'
ORS 279B.200
{ -
(hhh) - }
{ +
(ggg) + }
'
State agency'
ORS 279A.250
Enrolled House Bill 2140 (HB 2140-C) Page 9
{ -
(iii) - }
{ +
(hhh) + }
'
Substantial
completion'
ORS 279C.465
{ -
(jjj) - }
{ +
(iii) + }
'
Surplus property'
ORS 279A.250
{ -
(kkk) - }
{ +
(jjj) + }
'
Unnecessarily
restrictive'
ORS 279B.405
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
SECTION 2. ORS 279A.025 is amended to read:
279A.025. (1) Except as provided in subsections (2) to (4) of
this section, the Public Contracting Code applies to all public
contracting.
(2) The Public Contracting Code does not apply to:
(a) Contracts between { - contracting agencies or between
contracting agencies and the federal government; - } { + a
contracting agency and:
(A) Another contracting agency;
(B) The Oregon Health and Science University;
(C) The Oregon State Bar;
(D) A governmental body of another state;
(E) The federal government;
(F) An American Indian tribe or an agency of an American Indian
tribe;
(G) A nation, or a governmental body in a nation, other than
the United States; or
(H) An intergovernmental entity formed between or among:
(i) Governmental bodies of this or another state;
(ii) The federal government;
(iii) An American Indian tribe or an agency of an American
Indian tribe;
(iv) A nation other than the United States; or
(v) A governmental body in a nation other than the United
States.
(b) Agreements authorized by ORS chapter 190 or by a statute,
charter provision, ordinance or other authority for establishing
agreements between or among governmental bodies or agencies or
tribal governing bodies or agencies; + }
{ - (b) - } { + (c) + } Insurance and service contracts as
provided for under ORS 414.115, 414.125, 414.135 and 414.145 for
purposes of source selection;
{ - (c) - } { + (d) + } Grants;
Enrolled House Bill 2140 (HB 2140-C) Page 10
{ - (d) - } { + (e) + } Contracts for professional or
expert witnesses or consultants to provide services or testimony
relating to existing or potential litigation or legal matters in
which a public body is or may become interested;
{ - (e) - } { + (f) + } Acquisitions or disposals of real
property or interest in real property;
{ - (f) - } { + (g) + } Sole-source expenditures when rates
are set by law or ordinance for purposes of source selection;
{ - (g) - } { + (h) + } Contracts for the procurement or
distribution of textbooks;
{ - (h) - } { + (i) + } Procurements by a contracting
agency from an Oregon Corrections Enterprises program;
{ - (i) - } { + (j) + } The procurement, transportation or
distribution of distilled liquor, as defined in ORS 471.001, or
the appointment of agents under ORS 471.750 by the Oregon Liquor
Control Commission;
{ - (j) - } { + (k) + } Contracts entered into under ORS
chapter 180 between the Attorney General and private counsel or
special legal assistants;
{ - (k) - } { + (L) + } Contracts for the sale of timber
from lands owned or managed by the State Board of Forestry and
the State Forestry Department;
{ - (L) - } { + (m) + } Contracts for forest protection or
forest related activities, as described in ORS 477.406, by the
State Forester or the State Board of Forestry;
{ - (m) - } { + (n) + } Sponsorship agreements entered into
by the State Parks and Recreation Director in accordance with ORS
565.080 (4);
{ - (n) - } { + (o) + } Contracts entered into by the
Housing and Community Services Department in exercising the
department's duties prescribed in ORS chapters 456 and 458,
except that the department's public contracting for goods and
services { - , as defined in ORS 279B.005, - } is subject to
ORS chapter 279B;
{ - (o) - } { + (p) + } Contracts entered into by the State
Treasurer in exercising the powers of that office prescribed in
ORS chapters 178, 286, 287, 288, 289, 293, 294 and 295, including
but not limited to investment contracts and agreements, banking
services, clearing house services and collateralization
agreements, bond documents, certificates of participation and
other debt repayment agreements, and any associated contracts,
agreements and documents, regardless of whether the obligations
that the contracts, agreements or documents establish are
general, special or limited, except that the State Treasurer's
public contracting for goods and services { - , as defined in
ORS 279B.005, - } is subject to ORS chapter 279B;
{ - (p) - } { + (q) + } Contracts, agreements or other
documents entered into, issued or established in connection with:
(A) The incurring of debt by a public body, including but not
limited to the issuance of bonds, certificates of participation
and other debt repayment obligations, and any associated
contracts, agreements or other documents, regardless of whether
the obligations that the contracts, agreements or other documents
establish are general, special or limited;
(B) The making of program loans and similar extensions or
advances of funds, aid or assistance by a public body to a public
or private body for the purpose of carrying out, promoting or
sustaining activities or programs authorized by law; or
(C) The investment of funds by a public body as authorized by
law, and other financial transactions of a public body that by
Enrolled House Bill 2140 (HB 2140-C) Page 11
their character cannot practically be established under the
competitive contractor selection procedures of ORS 279B.050 to
279B.085;
{ - (q) - } { + (r) + } Contracts for employee benefit
plans as provided in ORS 243.105 (1), 243.125 (4), 243.221,
243.275, 243.291, 243.303 and 243.565; or
{ - (r) - } { + (s) + } Any other public contracting of a
public body specifically exempted from the code by another
provision of law.
(3) The Public Contracting Code does not apply to the
{ - public - } contracting activities of:
(a) The Oregon State Lottery Commission;
(b) The Oregon University System and member institutions,
except as provided in ORS 351.086;
(c) The legislative department;
(d) The judicial department;
(e) Semi-independent state agencies listed in ORS 182.451 and
182.454, except as provided in ORS 279.835 to 279.855 and
279A.250 to 279A.290;
(f) Oregon Corrections Enterprises;
(g) The Oregon Film and Video Office, except as provided in ORS
279A.100 and 279A.250 to 279A.290;
(h) The Travel Information Council, except as provided in ORS
279A.250 to 279A.290;
(i) The Oregon 529 College Savings Network and the Oregon 529
College Savings Board;
(j) The Oregon Innovation Council; { - or - }
{ + (k) The Oregon Utility Notification Center; or + }
{ - (k) - } { + (L) + } Any other public body specifically
exempted from the code by another provision of law.
(4) ORS 279A.200 to 279A.225 and 279B.050 to 279B.085 do not
apply to contracts made with qualified nonprofit agencies
providing employment opportunities for disabled individuals under
ORS 279.835 to 279.855.
SECTION 3. ORS 279A.050 is amended to read:
279A.050. { - (1) - } { + (1)(a) + } Except as otherwise
provided in the Public Contracting Code, a contracting agency
shall exercise all
{ - rights, powers and - } { + procurement + } authority in
accordance with the provisions of the Public Contracting Code.
{ + (b) When a contracting agency has authority under this
section to carry out functions described in this section, or has
authority to make procurements under a provision of law other
than the Public Contracting Code, the contracting agency is not
required to exercise that authority in accordance with the
provisions of the code if, under ORS 279A.025, the code does not
apply to the contract or contracting authority. + }
(2) Except as otherwise provided in the Public Contracting
Code, for state agencies the Director of the Oregon Department of
Administrative Services has all { - of the rights, powers
and - } { + the + } authority { - necessary - } to carry out
the provisions of the Public Contracting Code.
(3) Except as otherwise provided in the Public Contracting
Code, the Director of Transportation has all { - of the rights,
powers and - } { + the + } authority to:
(a) Procure or supervise the procurement of all services and
personal services to construct, acquire, plan, design, maintain
and operate passenger terminal facilities and motor vehicle
parking facilities in connection with any public transportation
system in accordance with ORS 184.689 (5);
Enrolled House Bill 2140 (HB 2140-C) Page 12
(b) Procure or supervise the procurement of all goods,
services, public improvements and personal services relating to
the operation, maintenance or construction of highways, bridges
and other transportation facilities that are subject to the
authority of the Department of Transportation; and
(c) Establish standards for, prescribe forms for and conduct
the prequalification of prospective bidders on public improvement
contracts related to the operation, maintenance or construction
of highways, bridges and other transportation facilities that are
subject to the authority of the Department of Transportation.
(4) Except as otherwise provided in the Public Contracting
Code, the Secretary of State has all { - of the rights, powers
and - } { + the + } authority to procure or supervise the
procurement of goods, services and personal services related to
programs under the
{ - direct - } authority of the Secretary of State.
(5) Except as otherwise provided in the Public Contracting
Code, the State Treasurer has all { - of the rights, powers
and - } { + the + } authority to procure or supervise the
procurement of goods, services and personal services related to
programs under the authority of the State Treasurer.
{ - (6) The following specific limited authorities are
subject to the provisions of the Public Contracting Code: - }
{ + (6) The state agencies listed in this subsection have all
the authority to do the following in accordance with the Public
Contracting Code: + }
(a) The Department of Human Services to procure or supervise
the procurement of goods, services and personal services for the
construction, demolition, exchange, maintenance, operation and
equipping of housing:
(A) For the chronically mentally ill, subject to applicable
provisions of ORS 426.504; and
(B) For the purpose of providing care to individuals with
mental retardation or other developmental disabilities, subject
to applicable provisions of ORS 427.335;
{ - (b) The State Department of Fish and Wildlife to procure
or supervise the procurement of all goods, services, public
improvements and personal services relating to dams, fishways,
ponds and related fish and game propagation facilities; - }
{ + (b) The State Department of Fish and Wildlife to procure
or supervise the procurement of construction materials,
equipment, supplies, services and personal services for public
improvements, public works or ordinary construction described in
ORS 279C.320 that is subject to the authority of the State
Department of Fish and Wildlife; + }
(c) The State Parks and Recreation Department to procure or
supervise the procurement of all goods, services, public
improvements and personal services relating to state parks;
{ - (d) The Oregon Department of Aviation to procure or
supervise the procurement of all goods, services, public
improvements and personal services related to airports owned or
operated by the state; - }
{ + (d) The Oregon Department of Aviation to procure or
supervise the procurement of construction materials, equipment,
supplies, services and personal services for public improvements,
public works or ordinary construction described in ORS 279C.320
that is subject to the authority of the Oregon Department of
Aviation; + }
(e) The Economic and Community Development Department to
procure or supervise the procurement of all goods, services,
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personal services and public improvements related to its foreign
trade offices operating outside the state;
{ - (f) The Attorney General to enter into contracts as
necessary to exercise the authority granted in ORS chapter
180; - }
{ - (g) - } { + (f) + } The Housing and Community Services
Department to procure or supervise the procurement of goods,
services and personal services { + as provided in ORS 279A.025
(2)(o) + };
{ - (h) The Department of Corrections to procure or supervise
the procurement of goods, services and personal services for the
construction of all new buildings or additions for its
institutions; - }
{ + (g) The Department of Corrections to procure or supervise
the procurement of construction materials, equipment, supplies,
services and personal services for public improvements, public
works or ordinary construction described in ORS 279C.320 that is
subject to the authority of the Department of Corrections; + }
{ - (i) - } { + (h) + } The Department of Corrections,
subject to any applicable provisions of ORS 279A.120, 279A.125,
279A.145 and 283.110 to 283.395, to procure or supervise the
procurement of goods for its institutions;
{ - (j) - } { + (i) + } The Department of Veterans' Affairs
to procure or supervise the procurement of real estate broker and
principal real estate broker services related to programs under
the department's authority; { - and - }
{ + (j) The Oregon Military Department to procure or
supervise the procurement of construction materials, equipment,
supplies, services and personal services for public improvements,
public works or ordinary construction described in ORS 279C.320
that is subject to the authority of the Oregon Military
Department; and + }
(k) Any state agency to { - make procurements - }
{ + conduct a procurement + } when the agency is specifically
authorized by any provision of law other than the Public
Contracting Code to enter into a contract.
{ + (7) Notwithstanding this section and ORS 279A.140 (1),
the Director of the Oregon Department of Administrative Services
has exclusive authority to procure or supervise the procurement
of all state agency information technology contracts and all
price agreements on behalf of the state agencies identified in
subsection (6)(a) to (j) of this section under which more than
one state agency may order goods, services or personal services
unless the director delegates this authority. This subsection
does not apply to contracts under which the contractor delivers
to the state agency information technology products or services
incidental to the performance of personal services contracts
described in ORS chapter 279C or construction contracts described
in ORS chapter 279C. A state agency identified in subsection (3)
or (6)(a) to (j) of this section may not establish a price
agreement or enter into a contract for goods, services or
personal services without the approval of the director if the
director has established a price agreement for the goods,
services or personal services. + }
SECTION 4. ORS 279A.200 is amended to read:
279A.200. (1) As used in ORS 279A.200 to 279A.225:
(a) 'Administering contracting agency' means a
{ - contracting agency - } { + governmental body in this state
or in another jurisdiction + } that solicits and establishes the
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original contract for { + the + } procurement of goods, services
or public improvements in a cooperative procurement.
(b) 'Cooperative procurement' means a procurement conducted
{ - by or - } on behalf of { - one or - } more
{ - contracting agencies - } { + than one governmental
body + }. 'Cooperative procurement' includes but is not limited
to { - multiparty - } { + multiagency + } contracts and price
agreements. { + 'Cooperative procurement' does not include an
agreement formed among only governmental bodies under ORS chapter
190 or by a statute, charter provision, ordinance or other
authority for establishing agreements between or among
governmental bodies or agencies or tribal governing bodies or
agencies. + }
(c) 'Cooperative procurement group' means a group of
{ - contracting agencies - } { + governmental bodies + }
joined through an intergovernmental agreement for the
{ - purposes - } { + purpose + } of facilitating cooperative
procurements.
(d) 'Interstate cooperative procurement' means a permissive
cooperative procurement in which the administering contracting
agency is a governmental body, domestic or foreign, that is
authorized under the governmental body's laws, rules or
regulations to enter into public contracts and in which one or
more of the participating { - agencies - } { + governmental
bodies + } are located outside this state.
(e) 'Joint cooperative procurement' means a cooperative
procurement in which the participating { - contracting
agencies - } { + governmental bodies + } or the cooperative
procurement group and the
{ - agencies' - } { + bodies' + } or group's contract
requirements or estimated contract requirements for price
agreements are identified.
(f) 'Original contract' means the initial contract or price
agreement solicited and awarded during a cooperative procurement
by an administering contracting agency.
(g) 'Permissive cooperative procurement' means a cooperative
procurement in which the purchasing contracting agencies are not
identified.
(h) 'Purchasing contracting agency' means a { - contracting
agency - } { + governmental body + } that procures goods,
services or public improvements from a contractor based on the
original contract established by an administering contracting
agency.
(2) As used in ORS 279A.210 (1)(a), 279A.215 (1)(a) and
279A.220 (1)(a), an administering contracting agency's
solicitation and award process uses source selection methods '
substantially equivalent' to those identified in ORS 279B.055,
279B.060 or 279B.085 if the solicitation and award process:
(a) Calls for award of a contract on the basis of a lowest
responsible bidder or a lowest and best bidder determination in
the case of competitive bids, or on the basis of a determination
of the proposer whose proposal is most advantageous based on
evaluation factors set forth in the request for proposals in the
case of competitive proposals;
(b) Does not permit the application of any geographic
preference that is more favorable to bidders or proposers who
reside in the jurisdiction or locality favored by the preference
than the preferences provided in ORS 279A.120 (2); and
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(c) Uses reasonably clear and precise specifications that
promote suitability for the purposes intended and that reasonably
encourage competition.
SECTION 5. ORS 279B.005 is amended to read:
279B.005. (1) As used in this chapter, unless the context or a
specifically applicable definition requires otherwise:
{ - (a) 'Goods and services' or 'goods or services' means
supplies, equipment, materials and services other than personal
services designated under ORS 279A.055 and any personal property,
including any tangible, intangible and intellectual property and
rights and licenses in relation thereto, that a contracting
agency is authorized by law to procure. 'Goods and services' or
'goods or services' includes combinations of any of the items
identified in this paragraph. - }
{ - (b) - } { + (a) + } 'Invitation to bid' means all
documents, whether attached or incorporated by reference, used
for soliciting bids.
{ - (c) - } { + (b) + } 'Procurement description' means the
words used in a solicitation to describe the goods or services to
be procured. ' Procurement description' includes specifications
attached to or made a part of the solicitation.
{ - (d) 'Public contract for goods or services' includes, for
state contracting agencies with procurement authority under ORS
279A.050, contracts for personal services as designated by the
state contracting agencies. - }
{ - (e) - } { + (c) + } 'Request for proposals' means all
documents, whether attached or incorporated by reference, used
for soliciting proposals.
{ - (f) - } { + (d) + } 'Responsible bidder' or
'responsible proposer ' means a person who meets the standards of
responsibility described in ORS 279B.110.
{ - (g) - } { + (e) + } 'Responsive bid' or 'responsive
proposal' means a bid or proposal that substantially complies
with the invitation to bid or request for proposals and all
prescribed procurement procedures and requirements.
(2) ORS 279A.010 { - (1) - } contains general definitions
applicable throughout this chapter.
SECTION 6. ORS 279B.050 is amended to read:
279B.050. (1) Except as provided in subsection (2) of this
section, a contracting agency shall award a public contract for
goods or services by competitive sealed bidding under ORS
279B.055 or competitive sealed proposals under ORS 279B.060.
(2) The requirements of subsection (1) of this section do not
apply to public contracts established as provided in ORS
279B.065, 279B.070, 279B.075, 279B.080 or 279B.085.
(3) Notwithstanding the applicability of ORS 279B.065,
279B.070, 279B.075, 279B.080 or 279B.085 to a public contract, a
contracting agency nevertheless may award the public contract
under subsection (1) of this section.
{ - (4) Notwithstanding that the term 'goods and services' as
defined in ORS 279B.005 does not include personal services: - }
{ - (a) - } { + (4) + } A local contracting agency may
elect, by rule, charter, ordinance or other appropriate
legislative action, to award contracts for personal services, as
designated under ORS 279A.055, under the procedures of ORS
279B.050 to 279B.085.
{ - (b) - } { + (5) + } State contracting agencies shall
solicit contracts for personal services in accordance with ORS
279B.050 to 279B.085.
SECTION 6a. ORS 279B.080 is amended to read:
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279B.080. { + (1) + } The head of a contracting agency, or a
person designated under ORS 279A.075, may make or authorize
others to make emergency procurements of goods or services in an
emergency. The contracting agency shall document the nature of
the emergency and describe the method used for the selection of
the particular contractor.
{ + (2) For an emergency procurement of construction services
that are not public improvements, the contracting agency shall
ensure competition for a contract for the emergency work that is
reasonable and appropriate under the emergency circumstances. In
conducting the procurement, the contracting agency shall set a
solicitation time period that the contracting agency determines
to be reasonable under the emergency circumstances and may issue
written or oral requests for offers or make direct appointments
without competition in cases of extreme necessity. + }
SECTION 7. ORS 279B.085 is amended to read:
279B.085. (1) As used in this section and ORS 279B.400:
(a) 'Class special procurement' means a contracting procedure
that differs from the procedures described in ORS 279B.055,
279B.060, 279B.065 and 279B.070 and is for the purpose of
entering into a series of contracts over time { - for the
acquisition of a specified class of goods or services - } { +
or for multiple projects + }.
(b) 'Contract-specific special procurement' means a contracting
procedure that differs from the procedures described in ORS
279B.055, 279B.060, 279B.065 and 279B.070 and is for the purpose
of entering into a single contract or a number of related
contracts { - for the acquisition of specified goods or
services - } on a one-time basis or for a single project.
(c) 'Special procurement' means, unless the context requires
otherwise, a class special procurement, a contract-specific
special procurement or both.
(2) Except as provided in subsection (3) of this section, to
seek approval of a special procurement, a contracting agency
shall submit a written request to the Director of the Oregon
Department of Administrative Services or the local contract
review board, as applicable, that describes the
{ - proposed - } contracting procedure, the goods or services
or the class of goods or services { - to be acquired
through - } { + that are the subject of + } the special
procurement and the circumstances that justify the use of a
special procurement under the standards set forth in subsection
(4) of this section.
(3) When the contracting agency is the office of the Secretary
of State or the office of the State Treasurer, to seek approval
of a special procurement, the contracting agency shall submit a
written request to the Secretary of State or the State Treasurer,
as applicable, that describes the { - proposed - } contracting
procedure, the goods or services or the class of goods or
services { - to be acquired through - } { + that are the
subject of + } the special procurement and the circumstances that
justify the use of a special procurement under the standards set
forth in subsection (4) of this section.
(4) The director, a local contract review board, the Secretary
of State or the State Treasurer may approve a special procurement
if the director, board, Secretary of State or State Treasurer
finds that a written request submitted under subsection (2) or
(3) of this section demonstrates that the use of a special
procurement as described in the request, or an alternative
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procedure prescribed by the director, board, Secretary of State
or State Treasurer { - , will - } :
(a) { - Be - } { + Is + } unlikely to encourage favoritism
in the awarding of public contracts or to substantially diminish
competition for public contracts; and
(b)(A) { + Is reasonably expected to + } result in substantial
cost savings to the contracting agency or to the public; or
(B) Otherwise substantially { - promote - }
{ + promotes + } the public interest in a manner that could not
practicably be realized by complying with requirements that are
applicable under ORS 279B.055, 279B.060, 279B.065 or 279B.070 or
under any rules adopted thereunder.
(5) Public notice of the approval of a { - proposed - }
special procurement must be given in the same manner as provided
in ORS 279B.055 (4).
(6) { - If a contract is awarded - } { + If a contracting
agency intends to award a contract + }through a special
procurement { + that calls for competition among prospective
contractors + }, the contracting agency shall award the contract
to the offeror { - whose offer - } the contracting agency
determines { - in writing - } to be the most advantageous to
the contracting agency.
(7) When the director, a local contract review board, the
Secretary of State or the State Treasurer approves a class
special procurement under this section, the contracting agency
may award contracts to acquire goods or services within the class
of goods or services in accordance with the terms of the approval
without making a subsequent request for a special procurement.
SECTION 8. ORS 279B.130 is amended to read:
279B.130. (1)(a) A contracting agency may debar a prospective
bidder or proposer from consideration for award of the
contracting agency's contracts for the reasons listed in
subsection (2) of this section after providing the prospective
bidder or proposer with notice and a reasonable opportunity to be
heard.
(b) A contracting agency may not debar a prospective bidder or
proposer under this section for more than three years.
(2) A prospective bidder or proposer may be debarred from
consideration for award of a contracting agency's contracts if:
(a) The prospective bidder or proposer has been convicted of a
criminal offense as an incident in obtaining or attempting to
obtain a public or private contract or subcontract or in the
performance of { - such - } { + a public or private + }
contract or subcontract.
(b) The prospective bidder or proposer has been convicted under
state or federal statutes of embezzlement, theft, forgery,
bribery, falsification or destruction of records, receiving
stolen property or any other offense indicating a lack of
business integrity or business honesty that currently, seriously
and directly affects the prospective bidder's or proposer's
responsibility as a contractor.
(c) The prospective bidder or proposer has been convicted under
state or federal antitrust statutes.
(d) The prospective bidder or proposer has committed a
violation of a contract provision { - and debarment for such a
violation was listed in the contract terms and conditions as a
potential penalty - } { + that is regarded by the contracting
agency or the Construction Contractors Board to be so serious as
to justify disqualification + }. A violation may include but is
not limited to a failure to perform the terms of a contract or an
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unsatisfactory performance in accordance with the terms of the
contract. However, a failure to perform or an unsatisfactory
performance caused by acts beyond the control of the contractor
may not be considered to be a basis for debarment.
(e) The prospective bidder or proposer does not carry workers'
compensation or unemployment insurance as required by statute.
(3) A contracting agency shall issue a written decision to
debar a prospective bidder or proposer under this section. The
decision must:
(a) State the reasons for the action taken; and
(b) Inform the debarred prospective bidder or proposer of the
appeal rights of the prospective bidder or proposer under ORS
279B.425.
(4) A copy of the decision issued under subsection (3) of this
section must be mailed or otherwise furnished immediately to the
debarred prospective bidder or proposer.
(5) A prospective bidder or proposer that wishes to appeal
debarment shall, within three business days after receipt of
notice of debarment, notify the contracting agency that the
prospective bidder or proposer appeals the debarment as provided
in ORS 279B.425.
SECTION 9. ORS 279B.200 is amended to read:
279B.200. As used in ORS 279B.200 to 279B.240:
(1) 'Brand name or equal specification' means a specification
that uses one or more manufacturers' names, makes, catalog
numbers or similar identifying characteristics to describe the
standard of quality, performance, functionality or other
characteristics needed to meet the contracting agency's
requirements and that authorizes bidders or proposers to offer
goods or services that are equivalent or superior to those named
or described in the specification.
(2) 'Brand name specification' means a specification limited to
one or more products, brand names, makes, manufacturer's names,
catalog numbers or similar identifying characteristics.
(3) 'Specification' means any description of the physical or
functional characteristics of, or of the nature of, goods or
services to be procured by a contracting agency. 'Specification '
may include a description of any requirement for inspecting,
testing or preparing goods or services for delivery. When a
solicitation required or authorized by ORS 279B.050 (4) { + or
(5) + } to be conducted under ORS 279B.055 or 279B.060 calls in
whole or in part for the performance of personal services as
designated under ORS 279A.055, 'specification' also includes any
description of the characteristics or nature of the personal
services.
SECTION 10. ORS 279B.270 is amended to read:
279B.270. (1) A state contracting agency procuring goods { - ,
materials, equipment - } or personal services shall:
(a) Review the contracting agency's current procurement
specifications in order to eliminate, wherever economically
feasible, discrimination against the procurement of recovered
resources or recycled materials.
(b) Provide incentives, wherever economically feasible, in all
procurement specifications issued by the contracting agency for
the maximum possible use of recovered resources and recycled
materials.
(c) Develop procurement practices that, to the maximum extent
economically feasible, ensure the procurement of materials that
are recycled or that may be recycled or reused when discarded.
Enrolled House Bill 2140 (HB 2140-C) Page 19
(d) Establish management practices that minimize the volume of
solid waste generated by reusing paper, envelopes, containers and
all types of packaging and by limiting the amount of materials
consumed and discarded.
(e) Use, or require persons with whom the contracting agency
contracts to use in the performance of the contract work, to the
maximum extent economically feasible, recycled paper and recycled
PETE products as well as other recycled plastic resin products.
(2) An invitation to bid or a request for proposals issued by a
state contracting agency under this chapter shall include the
following language: 'Vendors shall use recyclable products to the
maximum extent economically feasible in the performance of the
contract work set forth in this document. '
(3) Each state contracting agency shall strive to meet a
recycled product procurement level established by rule by the
Oregon Department of Administrative Services.
SECTION 11. ORS 279B.405 is amended to read:
279B.405. (1) As used in this section:
(a) 'Brand name' means a brand name specification as defined in
ORS 279B.200.
(b) 'Legally flawed' means that a solicitation document
contains terms or conditions that are contrary to law.
(c) 'Unnecessarily restrictive' means that specifications limit
competition arbitrarily, without reasonably promoting the
fulfillment of the procurement needs of a contracting agency.
{ - (2)(a) - } { + (2) + } A prospective bidder, proposer
or offeror for a public contract solicited under ORS 279B.055,
279B.060 or 279B.085 may file a protest with the contracting
agency if the prospective bidder, proposer or offeror believes
that the procurement process is contrary to law or that a
solicitation document is unnecessarily restrictive, is legally
flawed or improperly specifies a brand name. If a prospective
bidder, proposer or offeror fails to timely file such a protest,
the prospective bidder, proposer or offeror may not challenge the
contract on grounds under this subsection in any future legal or
administrative proceeding.
{ - (b) Notwithstanding paragraph (a) of this subsection, a
contract-specific special procurement under ORS 279B.085 may not
be protested, challenged or reviewed unless the approval of the
special procurement by the Director of the Oregon Department of
Administrative Services or a local contract review board, as
applicable, has been invalidated by a reviewing circuit court
under ORS 279B.400. - }
(3) The contracting agency, pursuant to rules adopted under ORS
279A.065, shall notify prospective bidders, proposers or offerors
of the time and manner in which a protest under this section may
be filed and considered. Before seeking judicial review, a
prospective bidder, proposer or offeror must file a protest with
the contracting agency and exhaust all available administrative
remedies.
(4) The contracting agency shall consider the protest if the
protest is timely filed and contains the following:
(a) Sufficient information to identify the solicitation that is
the subject of the protest;
(b) The grounds that demonstrate how the procurement process is
contrary to law or how the solicitation document is unnecessarily
restrictive, is legally flawed or improperly specifies a brand
name;
(c) Evidence or supporting documentation that supports the
grounds on which the protest is based; and
Enrolled House Bill 2140 (HB 2140-C) Page 20
(d) The relief sought.
(5) If the protest meets the requirements of subsection (4) of
this section, the contracting agency shall consider the protest
and issue a decision in writing. Otherwise, the contracting
agency shall promptly notify the prospective bidder, proposer or
offeror that the protest is untimely or that the protest failed
to meet the requirements of subsection (4) of this section and
give the reasons for the failure.
(6) The contracting agency shall issue a decision on the
protest in accordance with rules adopted under ORS 279A.065 no
{ - less - } { + fewer + } than three business days before
bids, proposals or offers are due, unless a written determination
is made by the agency that circumstances exist that
{ - require - } { + justify + } a shorter time limit.
(7) A decision of a contracting agency on a protest under this
section, including a protest of a special procurement, is subject
to judicial review only if the { - suit - } { + action + } or
writ of review is filed before the opening of bids, proposals or
offers.
(8)(a) A decision of a state contracting agency on a protest
under this section is reviewable by the Circuit Court for Marion
County or the circuit court for the county in which the principal
offices of the state contracting agency are located.
(b) A decision of a local contracting agency on a protest under
this section is reviewable by the circuit court for the county in
which the principal offices of the local contracting agency are
located.
(9) If judicial review of a contracting agency's decision on a
protest under this section is sought, the contracting agency may
not proceed with contract execution unless the contracting agency
determines that there is a compelling governmental interest in
proceeding or that the goods and services are urgently needed. If
the contracting agency makes such a determination, the
contracting agency shall set forth the reasons for the
determination in writing and immediately provide them to the
prospective bidder, proposer or offeror that filed the protest.
Thereafter, after joining the contractor as a party to the
litigation and upon motion from the person filing the protest,
the court may nonetheless stay the performance of the contract if
the court finds that the contracting agency's determination of
the existence of a compelling governmental interest in proceeding
with contract execution, or the contracting agency's
determination that the goods or services were urgently needed,
was not supported by substantial evidence or constituted a
manifest abuse of discretion. In granting a stay, the court may
require the person seeking the stay to post a bond in an amount
sufficient to protect the contracting agency and the public from
costs associated with delay in contract performance.
(10) In its review, the court shall give due deference to any
factual decision made by the contracting agency and may not
substitute its judgment for that of the contracting agency, but
shall review all questions of law de novo. Thereafter:
(a) If a contract has not been executed and the court rules in
favor of the party that sought judicial review, the court shall
remand the procurement process to the contracting agency for a
determination of whether and how to continue with the procurement
process in light of the court's decision.
(b) In addition to the relief provided for in paragraph (a) of
this subsection, if a contract has been executed, the court shall
include in its order a determination whether the party that
Enrolled House Bill 2140 (HB 2140-C) Page 21
signed the contract with the contracting agency is entitled to
reimbursement under the conditions of, and calculated in the same
manner as provided in, ORS 279C.470. Notwithstanding that ORS
279C.470 otherwise applies only to public improvement contracts,
under this paragraph the court shall apply ORS 279C.470 to both
public improvement contracts and other public contracts of
contracting agencies.
(c) The court may award costs and attorney fees to the
prevailing party.
SECTION 12. ORS 279B.415 is amended to read:
279B.415. (1) As used in this section, 'bidder' includes a
person who submits a proposal to a public contracting agency
pursuant to a request for proposals.
(2) A decision by a state contracting agency on a protest of a
contract award is reviewable by the Circuit Court for Marion
County or the circuit court for the county in which the principal
offices of the state contracting agency are located. A decision
by a local contracting agency on a protest of a contract award is
reviewable by the circuit court for the county in which the
principal offices of the local contracting agency are located.
(3) To obtain review, a complainant { - shall file a
complaint with the court - } { + must commence an action + }
before the contract that is the subject of the protest is
approved by the Attorney General, if required by ORS 291.047, and
executed by the contracting agency. In the complaint, the
complainant shall state the nature of the complainant's interest,
the facts showing how the complainant is adversely affected or
aggrieved by the contracting agency's decision and the basis upon
which the decision should be reversed or remanded. The
complainant shall join as parties all bidders that would be in
line for an award of the contract ahead of the complainant. If
injunctive relief is sought, the court may require the person
seeking a stay to post a bond in an amount sufficient to protect
the contracting agency and the public from costs associated with
delay in execution of the contract.
(4) When judicial review is sought, the contracting agency may
not proceed with contract execution unless the contracting agency
determines that there is a compelling governmental interest in
proceeding or that the goods and services are urgently needed.
If the contracting agency makes such a determination, the
contracting agency shall set forth the reasons for the
determination in writing and immediately provide them to the
complainant. Thereafter, upon motion from the complainant, the
court may nonetheless stay the performance of the contract if the
court finds that the contracting agency's determination of the
existence of a compelling governmental interest in proceeding
with contract execution, or the contracting agency's
determination that the goods or services were urgently needed,
was not supported by substantial evidence or constituted a
manifest abuse of discretion. In granting a stay, the court may
require the person seeking the stay to post a bond in an amount
sufficient to protect the contracting agency and the public from
costs associated with delay in contract performance.
(5) The court shall review the matter without a jury and shall
consider only those grounds the complainant raised in the protest
to the contracting agency.
(6) The court shall remand the matter to the contracting agency
for a further decision if:
(a) Substantial evidence does not exist to support the
contracting agency's decision. Substantial evidence exists to
Enrolled House Bill 2140 (HB 2140-C) Page 22
support a finding of fact when the record, viewed as a whole,
would permit a reasonable person to make that finding;
(b) The contracting agency's decision was outside the range of
discretion delegated to the contracting agency by law;
(c) The decision was inconsistent with a contracting agency
rule, an officially stated contracting agency position or an
officially stated prior contracting agency practice, if the
inconsistency is not explained by the contracting agency; or
(d) The decision was in violation of a constitutional or
statutory provision.
(7)(a) In addition to remanding the decision to the contracting
agency, the court may order such ancillary relief, such as the
cost of bid preparation, as the court finds necessary to redress
the effects of official action wrongfully taken or withheld.
Ancillary relief does not include the award of a contract to the
complainant or the award of lost profits or other damages.
(b) If a contract has not been executed and the court rules in
favor of the complainant, the court shall remand the matter to
the contracting agency for a determination whether to continue
with the procurement process in light of the court's decision.
(c) If a contract has been executed, in addition to the relief
provided for in paragraph (a) of this subsection, the court shall
include in its order a determination whether the party that
signed the contract with the contracting agency is entitled to
reimbursement under the conditions of, and calculated in the same
manner as provided in, ORS 279C.470. Notwithstanding that ORS
279C.470 otherwise applies only to public improvement contracts,
under this paragraph the court shall apply ORS 279C.470 to both
public improvement contracts and other public contracts of
contracting agencies.
(d) The court may award costs and attorney fees to the
prevailing party.
SECTION 13. ORS 279C.320 is amended to read:
279C.320. (1) Contracting agencies shall enter into contracts
for { + emergency work, + } minor alteration, ordinary repair or
maintenance of public improvements, as well as any other
construction contract that is not defined as a public improvement
under ORS 279A.010, in accordance with the provisions of ORS
chapter 279B. { - This subsection does not apply to emergency
contracts regulated under ORS 279C.335. - } { + Contracts for
emergency work are regulated under ORS 279B.080. + }
(2) Nothing in this section relieves contracting agencies or
contractors of any other relevant requirements under this
chapter, including payment of prevailing wage rates when
applicable.
(3) When construction services are not considered to be a
public improvement under this chapter because no funds of a
public agency are directly or indirectly used, except for
participation that is incidental or related primarily to project
design or inspection, the benefiting public body may nonetheless
condition acceptance of the services on receipt of such
protections as the public body considers to be in the public
interest, including a performance bond, a payment bond and
appropriate insurance.
SECTION 14. ORS 279C.335 is amended to read:
279C.335. (1) All public improvement contracts shall be based
upon competitive bids except:
(a) Contracts made with qualified nonprofit agencies providing
employment opportunities for disabled individuals under ORS
279.835 to 279.855.
Enrolled House Bill 2140 (HB 2140-C) Page 23
(b) A public improvement contract exempt under subsection (2)
of this section.
(c) A public improvement contract with a value of less than
$5,000.
(d) A contract not to exceed $100,000 { - , or not to exceed
$50,000 in the case of a contract for a highway, bridge or other
transportation project, - } made under procedures for
competitive quotes in sections 132 and 133, chapter 794, Oregon
Laws 2003.
(e) Contracts for repair, maintenance, improvement or
protection of property obtained by the Department of Veterans'
Affairs under ORS 407.135 and 407.145 (1).
(f) Energy savings performance contracts entered into in
accordance with rules of procedure adopted under ORS 279A.065.
{ - (g) A public improvement contract awarded under
subsection (6) of this section in response to an emergency. - }
(2) Subject to subsection (4)(b) of this section, 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 may exempt a public
improvement contract or a class of public improvement contracts
from the competitive bidding requirements of subsection (1) of
this section upon approval of the following findings submitted by
the contracting agency { + or, if a state agency is not the
contracting agency, the state agency + } seeking the exemption:
(a) It is unlikely that the exemption will encourage favoritism
in the awarding of public improvement contracts or substantially
diminish competition for public improvement contracts { + . + }
{ - ; and - }
(b) The awarding of public improvement contracts under the
exemption will { + likely + } result in substantial cost savings
to the contracting agency { + , to the state agency based upon
the justification and information described in ORS 279C.330 + }
or, if the contracts are for public improvements described in ORS
279A.050 (3)(b), to the contracting agency or the public. In
making the finding, the Director of the Oregon Department of
Administrative Services, the Director of Transportation or the
local contract review board may consider the type, cost and
amount of the contract, the number of persons available to bid
and such other factors as may be deemed appropriate.
{ + (c) As an alternative to the finding described in
paragraph (b) of this subsection, when a contracting agency or
state agency seeks an exemption that would allow the use of an
alternate contracting method that the agency has not previously
used, the agency may make a finding that identifies the project
as a pilot project for which the agency intends to determine
whether the use of the alternate contracting method actually
results in substantial cost savings to the contracting agency, to
the state agency or, if the contract is for a public improvement
described in ORS 279A.050 (3)(b), to the contracting agency or
the public. The agency shall include an analysis and conclusion
regarding actual cost savings, if any, in the evaluation required
under ORS 279C.355. + }
(3) In making findings to support an exemption for a class of
public improvement contracts, the contracting agency { + or
state agency + } shall clearly identify the class using the
class's defining characteristics. Those characteristics shall
include some combination of project descriptions or locations,
time periods, contract values, methods of procurement or other
factors that distinguish the limited and related class of public
Enrolled House Bill 2140 (HB 2140-C) Page 24
improvement contracts from the { - contracting - } agency's
overall construction program. The { - contracting - } agency
may not identify a class solely by funding source, such as a
particular bond fund, or by the method of procurement, but shall
identify the class using characteristics that reasonably relate
to the exemption criteria set forth in subsection (2) of this
section.
(4) In granting exemptions under subsection (2) of this
section, the Director of the Oregon Department of Administrative
Services, the Director of Transportation or the local contract
review board shall:
(a) When appropriate, direct the use of alternate contracting
methods that take account of market realities and modern
practices and are consistent with the public policy of
encouraging competition.
(b) Require and approve or disapprove written findings by the
contracting agency { + or state agency + } that support the
awarding of a particular public improvement contract or a class
of public improvement contracts, without the competitive bidding
requirement of subsection (1) of this section. The findings must
show that the exemption of a contract or class of contracts
complies with the requirements of subsection (2) of this section.
(5)(a) Before final adoption of the findings required by
subsection (2) of this section exempting a public improvement
contract or a class of public improvement contracts from the
requirement of competitive bidding, a contracting agency { + or
state agency + } shall hold a public hearing.
(b) Notification of the public hearing shall be published in at
least one trade newspaper of general statewide circulation a
minimum of 14 days before the hearing.
(c) The notice shall state that the public hearing is for the
purpose of taking comments on the { - contracting agency's - }
draft findings for an exemption from the competitive bidding
requirement. At the time of the notice, copies of the draft
findings shall be made available to the public. At the option of
the contracting agency { + or state agency + }, the notice may
describe the process by which the findings are finally adopted
and may indicate the opportunity for any further public comment.
(d) At the public hearing, the contracting agency { + or state
agency + } shall offer an opportunity for any interested party to
appear and present comment.
(e) If a contracting agency { + or state agency + } is
required to act promptly due to circumstances beyond the
{ - contracting - } agency's control that do not constitute an
emergency, notification of the public hearing may be published
simultaneously with the
{ - contracting - } agency's solicitation of contractors for
the alternative public contracting method, as long as responses
to the solicitation are due at least five days after the meeting
and approval of the findings.
{ - (6) After declaring that an emergency exists in
accordance with rules adopted under ORS 279A.065, a contracting
agency may award a public improvement contract in response to the
emergency without using a competitive solicitation. - }
{ + (6) The purpose of an exemption is to exempt one or more
public improvement contracts from competitive bidding
requirements. The representations in and the accuracy of the
findings, including any general description of the resulting
public improvement contract, are the bases for approving the
findings and granting the exception. The findings may describe
Enrolled House Bill 2140 (HB 2140-C) Page 25
anticipated features of the resulting public improvement
contract, but the final parameters of the contract are those
characteristics or specifics announced in the solicitation
document. + }
(7) A public improvement contract awarded under the competitive
bidding requirement of subsection (1) of this section may be
amended only in accordance with rules adopted under ORS 279A.065.
(8) Public improvement contracts excepted from competitive bid
requirements under subsection (1)(a), (c), (d), (e) { - , (f) or
(g) - } { + or (f) + } of this section are not subject to the
exemption requirements of subsection (2) of this section.
SECTION 15. ORS 279C.335, as amended by section 104, chapter
794, Oregon Laws 2003, section 13, chapter 103, Oregon Laws 2005,
and section 59, chapter 625, Oregon Laws 2005, is amended to
read:
279C.335. (1) All public improvement contracts shall be based
upon competitive bids except:
(a) Contracts made with qualified nonprofit agencies providing
employment opportunities for disabled individuals under ORS
279.835 to 279.855.
(b) A public improvement contract exempt under subsection (2)
of this section.
(c) A public improvement contract with a value of less than
$5,000.
{ + (d) A contract not to exceed $100,000 made under
procedures for competitive quotes in sections 132 and 133,
chapter 794, Oregon Laws 2003. + }
{ - (d) - } { + (e) + } Contracts for repair, maintenance,
improvement or protection of property obtained by the Department
of Veterans' Affairs under ORS 407.135 and 407.145 (1).
{ - (e) - } { + (f) + } Energy savings performance
contracts entered into in accordance with rules of procedure
adopted under ORS 279A.065.
{ - (f) A public improvement contract awarded under
subsection (6) of this section in response to an emergency. - }
(2) Subject to subsection (4)(b) of this section, 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 may exempt a public
improvement contract or a class of public improvement contracts
from the competitive bidding requirements of subsection (1) of
this section upon approval of the following findings submitted by
the contracting agency { + or, if a state agency is not the
contracting agency, the state agency + } seeking the exemption:
(a) It is unlikely that the exemption will encourage favoritism
in the awarding of public improvement contracts or substantially
diminish competition for public improvement contracts { + . + }
{ - ; and - }
(b) The awarding of public improvement contracts under the
exemption will { + likely + } result in substantial cost savings
to the contracting agency { + , to the state agency based upon
the justification and information described in ORS 279C.330 + }
or, if the contracts are for public improvements described in ORS
279A.050 (3)(b), to the contracting agency or the public. In
making the finding, the Director of the Oregon Department of
Administrative Services, the Director of Transportation or the
local contract review board may consider the type, cost and
amount of the contract, the number of persons available to bid
and such other factors as may be deemed appropriate.
Enrolled House Bill 2140 (HB 2140-C) Page 26
{ + (c) As an alternative to the finding described in
paragraph (b) of this subsection, when a contracting agency or
state agency seeks an exemption that would allow the use of an
alternate contracting method that the agency has not previously
used, the agency may make a finding that identifies the project
as a pilot project for which the agency intends to determine
whether the use of the alternate contracting method actually
results in substantial cost savings to the contracting agency, to
the state agency or, if the contract is for a public improvement
described in ORS 279A.050 (3)(b), to the contracting agency or
the public. The agency shall include an analysis and conclusion
regarding actual cost savings, if any, in the evaluation required
under ORS 279C.355. + }
(3) In making findings to support an exemption for a class of
public improvement contracts, the contracting agency { + or
state agency + } shall clearly identify the class using the
class's defining characteristics. Those characteristics shall
include some combination of project descriptions or locations,
time periods, contract values, methods of procurement or other
factors that distinguish the limited and related class of public
improvement contracts from the { - contracting - } agency's
overall construction program. The { - contracting - } agency
may not identify a class solely by funding source, such as a
particular bond fund, or by the method of procurement, but shall
identify the class using characteristics that reasonably relate
to the exemption criteria set forth in subsection (2) of this
section.
(4) In granting exemptions under subsection (2) of this
section, the Director of the Oregon Department of Administrative
Services, the Director of Transportation or the local contract
review board shall:
(a) When appropriate, direct the use of alternate contracting
methods that take account of market realities and modern
practices and are consistent with the public policy of
encouraging competition.
(b) Require and approve or disapprove written findings by the
contracting agency { + or state agency + } that support the
awarding of a particular public improvement contract or a class
of public improvement contracts, without the competitive bidding
requirement of subsection (1) of this section. The findings must
show that the exemption of a contract or class of contracts
complies with the requirements of subsection (2) of this section.
(5)(a) Before final adoption of the findings required by
subsection (2) of this section exempting a public improvement
contract or a class of public improvement contracts from the
requirement of competitive bidding, a contracting agency { + or
state agency + } shall hold a public hearing.
(b) Notification of the public hearing shall be published in at
least one trade newspaper of general statewide circulation a
minimum of 14 days before the hearing.
(c) The notice shall state that the public hearing is for the
purpose of taking comments on the { - contracting agency's - }
draft findings for an exemption from the competitive bidding
requirement. At the time of the notice, copies of the draft
findings shall be made available to the public. At the option of
the contracting agency { + or state agency + }, the notice may
describe the process by which the findings are finally adopted
and may indicate the opportunity for any further public comment.
Enrolled House Bill 2140 (HB 2140-C) Page 27
(d) At the public hearing, the contracting agency { + or state
agency + } shall offer an opportunity for any interested party to
appear and present comment.
(e) If a contracting agency { + or state agency + } is
required to act promptly due to circumstances beyond the
{ - contracting - } agency's control that do not constitute an
emergency, notification of the public hearing may be published
simultaneously with the
{ - contracting - } agency's solicitation of contractors for
the alternative public contracting method, as long as responses
to the solicitation are due at least five days after the meeting
and approval of the findings.
{ - (6) After declaring that an emergency exists in
accordance with rules adopted under ORS 279A.065, a contracting
agency may award a public improvement contract in response to the
emergency without using a competitive solicitation. - }
{ + (6) The purpose of an exemption is to exempt one or more
public improvement contracts from competitive bidding
requirements. The representations in and the accuracy of the
findings, including any general description of the resulting
public improvement contract, are the bases for approving the
findings and granting the exception. The findings may describe
anticipated features of the resulting public improvement
contract, but the final parameters of the contract are those
characteristics or specifics announced in the solicitation
document. + }
(7) A public improvement contract awarded under the competitive
bidding requirement of subsection (1) of this section may be
amended only in accordance with rules adopted under ORS 279A.065.
(8) Public improvement contracts excepted from competitive bid
requirements under subsection (1)(a), (c), (d), (e) or (f) of
this section are not subject to the exemption requirements of
subsection (2) of this section.
SECTION 16. Section 105, chapter 794, Oregon Laws 2003, as
amended by section 19, chapter 103, Oregon Laws 2005, is amended
to read:
{ + Sec. 105. + } The amendments to ORS 279C.335 by section
104, chapter 794, Oregon Laws 2003, and the amendments to ORS
279C.375 by section 18 { + , chapter 103, Oregon Laws 2005, + }
{ - of this 2005 Act - } become operative on { - July 1,
2009 - } { + the effective date of this 2007 Act + }.
SECTION 17. ORS 279C.335, as amended by sections 104 and 105a,
chapter 794, Oregon Laws 2003, sections 13 and 14, chapter 103,
Oregon Laws 2005, and sections 59 and 60, chapter 625, Oregon
Laws 2005, is amended to read:
279C.335. (1) All public improvement contracts shall be based
upon competitive bids except:
(a) Contracts made with qualified nonprofit agencies providing
employment opportunities for disabled individuals under ORS
279.835 to 279.855.
(b) A public improvement contract exempt under subsection (2)
of this section.
(c) A public improvement contract with a value of less than
$5,000.
{ + (d) A contract not to exceed $100,000 made under
procedures for competitive quotes in sections 132 and 133,
chapter 794, Oregon Laws 2003. + }
{ - (d) - } { + (e) + } Contracts for repair, maintenance,
improvement or protection of property obtained by the Department
of Veterans' Affairs under ORS 407.135 and 407.145 (1).
Enrolled House Bill 2140 (HB 2140-C) Page 28
{ - (e) - } { + (f) + } Energy savings performance
contracts entered into in accordance with rules of procedure
adopted under ORS 279A.065.
{ - (f) A public improvement contract awarded under
subsection (6) of this section in response to an emergency. - }
(2) Subject to subsection (4)(b) of this section, the Director
of the Oregon Department of Administrative Services { + , + }
{ - or - } a local contract review board { + or, for contracts
described in ORS 279A.050 (3)(b), the Director of
Transportation + } may exempt a public improvement contract or a
class of public improvement contracts from the competitive
bidding requirements of subsection (1) of this section upon
approval of the following findings submitted by the contracting
agency { + or, if a state agency is not the contracting agency,
the state agency + } seeking the exemption:
(a) It is unlikely that the exemption will encourage favoritism
in the awarding of public improvement contracts or substantially
diminish competition for public improvement contracts { + . + }
{ - ; and - }
(b) The awarding of public improvement contracts under the
exemption will { + likely + } result in substantial cost savings
to the contracting agency { + , to the state agency based upon
the justification and information described in ORS 279C.330 or,
if the contracts are for public improvements described in ORS
279A.050 (3)(b), to the contracting agency or the public + }. In
making the finding, the Director { + of the Oregon Department of
Administrative Services, the Director of Transportation + } or
the local contract review board may consider the type, cost and
amount of the contract, the number of persons available to bid
and such other factors as may be deemed appropriate.
{ + (c) As an alternative to the finding described in
paragraph (b) of this subsection, when a contracting agency or
state agency seeks an exemption that would allow the use of an
alternate contracting method that the agency has not previously
used, the agency may make a finding that identifies the project
as a pilot project for which the agency intends to determine
whether the use of the alternate contracting method actually
results in substantial cost savings to the contracting agency, to
the state agency or, if the contract is for a public improvement
described in ORS 279A.050 (3)(b), to the contracting agency or
the public. The agency shall include an analysis and conclusion
regarding actual cost savings, if any, in the evaluation required
under ORS 279C.355. + }
(3) In making findings to support an exemption for a class of
public improvement contracts, the contracting agency { + or
state agency + } shall clearly identify the class using the
class's defining characteristics. Those characteristics shall
include some combination of project descriptions or locations,
time periods, contract values, methods of procurement or other
factors that distinguish the limited and related class of public
improvement contracts from the { - contracting - } agency's
overall construction program. The { - contracting - } agency
may not identify a class solely by funding source, such as a
particular bond fund, or by the method of procurement, but shall
identify the class using characteristics that reasonably relate
to the exemption criteria set forth in subsection (2) of this
section.
(4) In granting exemptions under subsection (2) of this
section, the Director { + of the Oregon Department of
Enrolled House Bill 2140 (HB 2140-C) Page 29
Administrative Services, the Director of Transportation + } or
the local contract review board shall:
(a) When appropriate, direct the use of alternate contracting
methods that take account of market realities and modern
practices and are consistent with the public policy of
encouraging competition.
(b) Require and approve or disapprove written findings by the
contracting agency { + or state agency + } that support the
awarding of a particular public improvement contract or a class
of public improvement contracts, without the competitive bidding
requirement of subsection (1) of this section. The findings must
show that the exemption of a contract or class of contracts
complies with the requirements of subsection (2) of this section.
(5)(a) Before final adoption of the findings required by
subsection (2) of this section exempting a public improvement
contract or a class of public improvement contracts from the
requirement of competitive bidding, a contracting agency { + or
state agency + } shall hold a public hearing.
(b) Notification of the public hearing shall be published in at
least one trade newspaper of general statewide circulation a
minimum of 14 days before the hearing.
(c) The notice shall state that the public hearing is for the
purpose of taking comments on the { - contracting agency's - }
draft findings for an exemption from the competitive bidding
requirement. At the time of the notice, copies of the draft
findings shall be made available to the public. At the option of
the contracting agency { + or state agency + }, the notice may
describe the process by which the findings are finally adopted
and may indicate the opportunity for any further public comment.
(d) At the public hearing, the contracting agency { + or state
agency + } shall offer an opportunity for any interested party to
appear and present comment.
(e) If a contracting agency { + or state agency + } is
required to act promptly due to circumstances beyond the
{ - contracting - } agency's control that do not constitute an
emergency, notification of the public hearing may be published
simultaneously with the
{ - contracting - } agency's solicitation of contractors for
the alternative public contracting method, as long as responses
to the solicitation are due at least five days after the meeting
and approval of the findings.
{ - (6) After declaring that an emergency exists in
accordance with rules adopted under ORS 279A.065, a contracting
agency may award a public improvement contract in response to the
emergency without using a competitive solicitation. - }
{ + (6) The purpose of an exemption is to exempt one or more
public improvement contracts from competitive bidding
requirements. The representations in and the accuracy of the
findings, including any general description of the resulting
public improvement contract, are the bases for approving the
findings and granting the exception. The findings may describe
anticipated features of the resulting public improvement
contract, but the final parameters of the contract are those
characteristics or specifics announced in the solicitation
document. + }
(7) A public improvement contract awarded under the competitive
bidding requirement of subsection (1) of this section may be
amended only in accordance with rules adopted under ORS 279A.065.
(8) Public improvement contracts excepted from competitive bid
requirements under subsection (1)(a), (c), (d), (e) or (f) of
Enrolled House Bill 2140 (HB 2140-C) Page 30
this section are not subject to the exemption requirements of
subsection (2) of this section.
SECTION 18. Section 105b, chapter 794, Oregon Laws 2003, is
amended to read:
{ + Sec. 105b. + } The amendments to { - section 103 of
this 2003 Act - } { + ORS 279C.335 + } by section 105a { + ,
chapter 794, Oregon Laws 2003, + } { - of this 2003 Act - }
become operative on { - July 1, 2012 - } { + the effective
date of this 2007 Act + }.
SECTION 19. ORS 279C.345 is amended to read:
279C.345. (1) Specifications for public improvement contracts
may not expressly or implicitly require any product by any brand
name or mark, nor the product of any particular manufacturer or
seller unless the product is exempt under subsection (2) of this
section.
(2) The Director of the Oregon Department of Administrative
Services { + , + } { - or - } a local contract review board
{ + or, for contracts described in ORS 279A.050 (3)(b), the
Director of Transportation + } may exempt certain products or
classes of products from subsection (1) of this section upon any
of the following findings:
(a) It is unlikely that the exemption will encourage favoritism
in the awarding of public improvement contracts or substantially
diminish competition for public improvement contracts;
(b) The specification of a product by brand name or mark, or
the product of a particular manufacturer or seller, would result
in substantial cost savings to the contracting agency;
(c) There is only one manufacturer or seller of the product of
the quality required; or
(d) Efficient utilization of existing equipment or supplies
requires the acquisition of compatible equipment or supplies.
SECTION 20. ORS 279C.350, as amended by section 109, chapter
794, Oregon Laws 2003, is amended to read:
279C.350. (1) Exemptions granted by the Director of the Oregon
Department of Administrative Services under ORS 279C.335 (2) or
279C.345 (2) constitute rulemaking and not contested cases under
ORS chapter 183. However, an exemption granted with regard to a
specific public improvement contract by the Director { + of the
Oregon Department of Administrative Services, or an exemption
granted by the Director of Transportation with regard to a
specific public improvement contract or class of public
improvement contracts described in ORS 279A.050 (3)(b), + } shall
be granted by order { - of the director - } . The order shall
set forth findings supporting the decision { - of the
director - } to grant or deny the request for the exemption. The
order is reviewable under ORS 183.484 and does not constitute a
contested case order. Jurisdiction for review of the order is
with the Circuit Court of Marion County. The court may award
costs and attorney fees to the prevailing party.
(2) Any person except the contracting agency or anyone
representing the contracting agency may bring a petition for a
declaratory judgment to test the validity of any rule adopted by
the Director { + of the Oregon Department of Administrative
Services + } under ORS 279C.335 or 279C.345 in the manner
provided in ORS 183.400.
(3) Any person except the contracting agency or anyone
representing the contracting agency may bring an action for writ
of review under ORS chapter 34 to test the validity of an
exemption granted under ORS 279C.335 or 279C.345 by a local
contract review board.
Enrolled House Bill 2140 (HB 2140-C) Page 31
SECTION 21. Section 110, chapter 794, Oregon Laws 2003, is
amended to read:
{ + Sec. 110. + } The amendments to { - section 108 of this
2003 Act - } { + ORS 279C.350 + } by section 109 { + , chapter
794, Oregon Laws 2003, + } { - of this 2003 Act - } become
operative on { - July 1, 2012 - } { + the effective date of
this 2007 Act + }.
SECTION 22. ORS 279C.355 is amended to read:
279C.355. (1) Upon completion of and final payment for any
public improvement contract, or class of public improvement
contracts { - described in ORS 279A.050 (3)(b) - } , in excess
of $100,000 for which the contracting agency did not use the
competitive bidding process, the contracting agency shall prepare
and deliver to the Director of the Oregon Department of
Administrative Services, the local contract review board or, for
{ - a class of - } public improvement contracts described in
ORS 279A.050 (3)(b), the Director of Transportation an evaluation
of the public improvement contract or the class of public
improvement contracts.
(2) The evaluation must include but is not limited to the
following matters:
(a) The actual project cost as compared with original project
estimates;
(b) The amount of any guaranteed maximum price;
(c) The number of project change orders issued by the
contracting agency;
(d) A narrative description of successes and failures during
the design, engineering and construction of the project; and
(e) An objective assessment of the use of the alternative
contracting process as compared to the findings required by ORS
279C.335.
(3) The evaluations required by this section:
(a) Must be made available for public inspection; and
(b) Must be completed within 30 days of the date the
contracting agency accepts:
(A) The public improvement project; or
(B) The last public improvement project if the project falls
within a class of public improvement contracts { - described in
ORS 279A.050 (3)(b) - } .
SECTION 23. ORS 279C.355, as amended by section 112, chapter
794, Oregon Laws 2003, is amended to read:
279C.355. (1) Upon completion of and final payment for any
public improvement contract, or class of public improvement
contracts, in excess of $100,000 for which the contracting agency
did not use the competitive bidding process, the contracting
agency shall prepare and deliver to the Director of the Oregon
Department of Administrative Services { + , + } { - or - } the
local contract review board { + or, for public improvement
contracts described in ORS 279A.050 (3)(b), the Director of
Transportation + } an evaluation of the public improvement
contract or the class of public improvement contracts.
(2) The evaluation { - shall - } { + must + } include but
is not limited to the following matters:
(a) The actual project cost as compared with original project
estimates;
(b) The amount of any guaranteed maximum price;
(c) The number of project change orders issued by the
contracting agency;
(d) A narrative description of successes and failures during
the design, engineering and construction of the project; and
Enrolled House Bill 2140 (HB 2140-C) Page 32
(e) An objective assessment of the use of the alternative
contracting process as compared to the findings required by ORS
279C.335.
(3) The evaluations required by this section:
(a) Must be made available for public inspection; and
(b) Must be completed within 30 days of the date the
contracting agency accepts:
(A) The public improvement project; or
(B) The last public improvement project if the project falls
within a class of public improvement contracts.
SECTION 24. Section 113, chapter 794, Oregon Laws 2003, is
amended to read:
{ + Sec. 113. + } The amendments to { - section 111 of this
2003 Act - } { + ORS 279C.355 + } by section 112 { + , chapter
794, Oregon Laws 2003, + } { - of this 2003 Act - } become
operative on { - July 1, 2012 - } { + the effective date of
this 2007 Act + }.
SECTION 25. 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
{ + project + } subject to { + the state prevailing rates of
wage under + } ORS 279C.800 to 279C.870 { + , + } { - or - }
the { + federal prevailing rates of wage under the + }
Davis-Bacon Act (40 U.S.C. 276a) { + or both the state and
federal prevailing rates of wage + }, no bid will be received or
considered by the contracting agency unless the bid contains a
statement by the bidder that ORS { + 279C.838 or + } 279C.840 or
40 U.S.C. 276a 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.
Enrolled House Bill 2140 (HB 2140-C) Page 33
{ + (2) A contracting agency may provide solicitation
documents by electronic means. + }
{ - (2) - } { + (3) + } 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) - } { + (4) + } After having been opened, the bids
must be made available for public inspection.
{ - (4) - } { + (5) + } 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) - } { + (6) + } Subsection { - (4) - }
{ + (5) + } 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 26. ORS 279C.375 is amended to read:
279C.375. (1) After bids are opened and a determination is made
that a public improvement contract is to be awarded, the
contracting agency shall award the contract to the lowest
responsible bidder.
(2) At least seven days before the award of a public
improvement contract, unless the contracting agency determines
that seven days is impractical under rules adopted under ORS
279A.065, the contracting agency shall issue to each bidder or
post, electronically or otherwise, a notice of the contracting
agency's intent to award a contract. This subsection does not
apply to a contract excepted or exempted from competitive bidding
under ORS 279C.335 (1)(c) or (d) { - or (6) - } . The notice
and its manner of posting or issuance must conform to rules
adopted under ORS 279A.065.
(3) In determining the lowest responsible bidder, a contracting
agency shall do all of the following:
(a) Check the list created by the Construction Contractors
Board under ORS 701.227 for bidders who are not qualified to hold
a public improvement contract.
(b) Determine whether the bidder has met the standards of
responsibility. In making the determination, the contracting
agency shall consider whether a bidder has:
(A) Available the appropriate financial, material, equipment,
facility and personnel resources and expertise, or the ability to
obtain the resources and expertise, necessary to meet all
contractual responsibilities.
(B) A satisfactory record of performance. The contracting
agency shall document the record of performance of a bidder if
the contracting agency finds the bidder not to be responsible
under this subparagraph.
(C) A satisfactory record of integrity. The contracting agency
shall document the record of integrity of a bidder if the
contracting agency finds the bidder not to be responsible under
this subparagraph.
(D) Qualified legally to contract with the contracting agency.
Enrolled House Bill 2140 (HB 2140-C) Page 34
(E) Supplied all necessary information in connection with the
inquiry concerning responsibility. If a bidder fails to promptly
supply information requested by the contracting agency concerning
responsibility, the contracting agency shall base the
determination of responsibility upon any available information,
or may find the bidder not to be responsible.
(c) Document the contracting agency's compliance with the
requirements of paragraphs (a) and (b) of this subsection in
substantially the following form:
_________________________________________________________________
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
RESPONSIBILITY DETERMINATION FORM
Project Name: ________
Bid Number: ________
Business Entity Name: ________
CCB License Number: ________
Form Submitted By (Contracting Agency): ________
Form Submitted By (Contracting Agency Representative's Name):
________
Title: ________
Date: ________
(The contracting agency must submit this form with
attachments, if any, to the Construction Contractors Board within
30 days after the date of contract award.)
The contracting agency has (check all of the following):
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
? Checked the list created by the
Construction Contractors Board
under ORS 701.227 for bidders who
are not qualified to hold a public
improvement contract.
? Determined whether the bidder has
met the standards of responsibility.
In so doing, the contracting agency
has considered whether the bidder:
? Has available the appropriate
financial, material, equipment,
facility and personnel resources
and expertise, or the ability to
obtain the resources and expertise,
necessary to meet all contractual
responsibilities.
? Has a satisfactory record of
performance.
? Has a satisfactory record of
integrity.
? Is qualified legally to contract with
the contracting agency.
? Has supplied all necessary
Enrolled House Bill 2140 (HB 2140-C) Page 35
information in connection with the
inquiry concerning responsibility.
? Determined the bidder to be
(check one of the following):
? Responsible under ORS 279C.375
(3)(a) and (b).
? Not responsible under ORS 279C.375
(3)(a) and (b).
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
(Attach documentation if the contracting agency finds the
bidder not to be responsible.)
_________________________________________________________________
(d) Submit the form described in paragraph (c) of this
subsection, with any attachments, to the Construction Contractors
Board within 30 days after the date the contracting agency awards
the contract.
(4) The successful bidder shall:
(a) Promptly execute a formal contract; and
(b) Execute and deliver to the contracting agency a performance
bond and a payment bond when required under ORS 279C.380.
{ + (5) Based on competitive bids, a contracting agency may
award a public improvement contract or may award multiple public
improvement contracts when specified in the invitation to
bid. + }
SECTION 27. ORS 279C.375, as amended by section 18, chapter
103, Oregon Laws 2005, is amended to read:
279C.375. (1) After bids are opened and a determination is made
that a public improvement contract is to be awarded, the
contracting agency shall award the contract to the lowest
responsible bidder.
(2) At least seven days before the award of a public
improvement contract, unless the contracting agency determines
that seven days is impractical under rules adopted under ORS
279A.065, the contracting agency shall issue to each bidder or
post, electronically or otherwise, a notice of the contracting
agency's intent to award a contract. This subsection does not
apply to a contract excepted or exempted from competitive bidding
under ORS 279C.335 (1)(c) or { - (6) - } { + (d) + }. The
notice and its manner of posting or issuance must conform to
rules adopted under ORS 279A.065.
(3) In determining the lowest responsible bidder, a contracting
agency shall do all of the following:
(a) Check the list created by the Construction Contractors
Board under ORS 701.227 for bidders who are not qualified to hold
a public improvement contract.
(b) Determine whether the bidder has met the standards of
responsibility. In making the determination, the contracting
agency shall consider whether a bidder has:
(A) Available the appropriate financial, material, equipment,
facility and personnel resources and expertise, or the ability to
obtain the resources and expertise, necessary to meet all
contractual responsibilities.
(B) A satisfactory record of performance. The contracting
agency shall document the record of performance of a bidder if
the contracting agency finds the bidder not to be responsible
under this subparagraph.
Enrolled House Bill 2140 (HB 2140-C) Page 36
(C) A satisfactory record of integrity. The contracting agency
shall document the record of integrity of a bidder if the
contracting agency finds the bidder not to be responsible under
this subparagraph.
(D) Qualified legally to contract with the contracting agency.
(E) Supplied all necessary information in connection with the
inquiry concerning responsibility. If a bidder fails to promptly
supply information requested by the contracting agency concerning
responsibility, the contracting agency shall base the
determination of responsibility upon any available information,
or may find the bidder not to be responsible.
(c) Document the contracting agency's compliance with the
requirements of paragraphs (a) and (b) of this subsection in
substantially the following form:
_________________________________________________________________
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
RESPONSIBILITY DETERMINATION FORM
Project Name: ________
Bid Number: ________
Business Entity Name: ________
CCB License Number: ________
Form Submitted By (Contracting Agency): ________
Form Submitted By (Contracting Agency Representative's Name):
________
Title: ________
Date: ________
(The contracting agency must submit this form with
attachments, if any, to the Construction Contractors Board within
30 days after the date of contract award.)
The contracting agency has (check all of the following):
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
? Checked the list created by the
Construction Contractors Board
under ORS 701.227 for bidders who
are not qualified to hold a public
improvement contract.
? Determined whether the bidder has
met the standards of responsibility.
In so doing, the contracting agency
has considered whether the bidder:
? Has available the appropriate
financial, material, equipment,
facility and personnel resources
and expertise, or the ability to
obtain the resources and expertise,
necessary to meet all contractual
responsibilities.
? Has a satisfactory record of
performance.
Enrolled House Bill 2140 (HB 2140-C) Page 37
? Has a satisfactory record of
integrity.
? Is qualified legally to contract with
the contracting agency.
? Has supplied all necessary
information in connection with the
inquiry concerning responsibility.
? Determined the bidder to be
(check one of the following):
? Responsible under ORS 279C.375
(3)(a) and (b).
? Not responsible under ORS 279C.375
(3)(a) and (b).
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
(Attach documentation if the contracting agency finds the
bidder not to be responsible.)
_________________________________________________________________
(d) Submit the form described in paragraph (c) of this
subsection, with any attachments, to the Construction Contractors
Board within 30 days after the date the contracting agency awards
the contract.
(4) The successful bidder shall:
(a) Promptly execute a formal contract; and
(b) Execute and deliver to the contracting agency a performance
bond and a payment bond when required under ORS 279C.380.
{ + (5) Based on competitive bids, a contracting agency may
award a public improvement contract or may award multiple public
improvement contracts when specified in the invitation to
bid. + }
SECTION 28. ORS 279C.390 is amended to read:
279C.390. (1) Subject to the provisions of subsection (2) of
this section, the Director of the Oregon Department of
Administrative Services, { + a state contracting agency with
procurement authority under ORS 279A.050, + } a local contract
review board or, for contracts described in ORS 279A.050 (3)(b),
the Director of Transportation may exempt certain contracts or
classes of contracts from all or a portion of the requirement for
bid security and from all or a portion of the requirement that
good and sufficient bonds be furnished to ensure performance of
the contract and payment of obligations incurred in the
performance.
(2) The contracting agency may require bid security and a good
and sufficient performance bond, a good and sufficient payment
bond, or any combination of such bonds, even though the public
improvement contract is of a class exempted { - by the Director
of the Oregon Department of Administrative Services, the local
contract review board or, for contracts described in ORS 279A.050
(3)(b), the Director of Transportation - } { + under subsection
(1) of this section + }.
(3) The Director of Transportation may:
(a) Exempt contracts or classes of contracts financed from the
proceeds of bonds issued under ORS 367.620 (3)(a) from the
requirement for bid security and from the requirement that a good
and sufficient bond be furnished to ensure performance of the
contract; or
(b) Reduce the amount of the required performance bond for
contracts or classes of contracts financed from the proceeds of
Enrolled House Bill 2140 (HB 2140-C) Page 38
the bonds issued under ORS 367.620 (3)(a) to less than 100
percent of the contract price.
(4) Any recoverable damages that exceed the amount of the
performance bond required under subsection (3) of this section
shall be the sole responsibility of the Department of
Transportation.
SECTION 29. ORS 279C.400 is amended to read:
279C.400. (1) When authorized or required by an exemption
granted under ORS 279C.335, a contracting agency may { + solicit
and + } award a public improvement contract { + , or may award
multiple public improvement contracts when specified in the
request for proposals, + } by { + requesting and evaluating + }
competitive proposals. A contract awarded under this section may
be amended only in accordance with rules adopted under ORS
279A.065.
(2) Except as provided in ORS 279C.330 to 279C.355, 279C.360 to
279C.390, 279C.395 and 279C.430 to 279C.450, competitive
proposals shall be subject to the following requirements of
competitive bidding:
(a) Advertisement under ORS 279C.360;
(b) Requirements for solicitation documents under ORS 279C.365;
(c) Disqualification due to a Construction Contractors Board
listing as described in ORS 279C.375 (3)(a);
(d) Contract execution and bonding requirements under ORS
279C.375 and 279C.380;
(e) Determination of responsibility under ORS 279C.375 (3)(b);
(f) Rejection of bids under ORS 279C.395; and
(g) Disqualification and prequalification under ORS 279C.430,
279C.435 and 279C.440.
(3) For the purposes of applying the requirements listed in
subsection (2) of this section to competitive proposals, when
used in the sections listed in subsection (2) of this section,
'bids ' includes proposals, and 'bid documents' and 'invitation
to bid' include requests for proposals.
(4) Competitive proposals are not subject to the following
requirements of competitive bidding:
(a) First-tier subcontractor disclosure under ORS 279C.370; and
(b) Reciprocal preference under ORS 279A.120.
(5) { - When award of a public improvement contract
advertised by the issuance of a request for proposals may be made
without negotiation, - } The contracting agency may require
proposal security that serves the same function with respect to
proposals as bid security serves with respect to bids under ORS
279C.365 { - (4) - } { + (5) + } and 279C.385, as follows:
(a) The contracting agency may require proposal security in a
form and amount as may be determined to be reasonably necessary
or prudent to protect the interests of the contracting agency.
(b) The contracting agency shall retain the proposal security
if a proposer who is awarded a contract fails to promptly and
properly execute the contract and provide any required bonds or
insurance.
(c) The contracting agency shall return the proposal security
to all proposers upon the execution of the contract, or earlier
in the selection process.
(6) In all other respects, and subject to rules adopted under
ORS 279A.065, references in this chapter to invitations to bid,
bids or bidders shall, to the extent practicable within the
proposal process, be deemed equally applicable to requests for
proposals, proposals or proposers. However, notwithstanding ORS
279C.375 (1), a contracting agency may not be required to award a
Enrolled House Bill 2140 (HB 2140-C) Page 39
contract advertised under the competitive proposal process based
on price, but may award the contract in accordance with ORS
279C.410 (8).
SECTION 30. ORS 279C.405 is amended to read:
279C.405. { + (1) A contracting agency may issue a request for
information, a request for interest, a request for qualifications
or other preliminary documents to obtain information useful in
the preparation or distribution of a request for proposals.
(2) + } In addition to the general requirements of ORS
279C.365, a contracting agency preparing a request for proposals
shall include:
{ - (1) - } { + (a) + } All required contractual terms and
conditions. The request for proposals also may:
{ - (a) - } { + (A) + } Identify those contractual terms or
conditions the contracting agency reserves, in the request for
proposals, for negotiation with proposers;
{ - (b) - } { + (B) + } Request that proposers propose
contractual terms and conditions that relate to subject matter
reasonably identified in the request for proposals; and
{ - (c) - } { + (C) + } Contain or incorporate the form and
content of the contract that the contracting agency will accept,
or suggested contract terms and conditions that nevertheless may
be the subject of negotiations with proposers.
{ - (2) - } { + (b) + } The method of contractor selection,
which may include but is not limited to award without
negotiation, negotiation with the highest ranked proposer,
competitive negotiations, multiple-tiered competition designed
either to identify a class of proposers that fall within a
competitive range or to otherwise eliminate from consideration a
class of lower ranked proposers, or any combination of methods,
as authorized or prescribed by rules adopted under ORS 279A.065.
{ - (3) - } { + (c) + } All evaluation factors that will be
considered by the contracting agency when evaluating the
proposals, including the relative importance of price and any
other evaluation factors.
SECTION 31. ORS 279C.410 is amended to read:
279C.410. (1) Notwithstanding the public records law, ORS
192.410 to 192.505:
(a) Proposals may be opened so as to avoid disclosure of
contents to competing proposers during, when applicable, the
process of negotiation.
(b) Proposals are not required to be open for public inspection
until after the notice of intent to award a contract is issued.
(2) For each request for proposals, the contracting agency
shall prepare a list of proposals.
(3) Notwithstanding any requirement to make proposals open to
public inspection after the contracting agency's issuance of
notice of intent to award a contract, a contracting agency may
withhold from disclosure to the public trade secrets, as defined
in ORS 192.501, and information submitted to a public body in
confidence, as described in ORS 192.502, that are contained in a
proposal. The fact that proposals are opened at a public meeting
as defined in ORS 192.610 does not make their contents subject to
disclosure, regardless of whether the public body opening the
proposals fails to give notice of or provide for an executive
session for the purpose of opening proposals. If a request for
proposals is canceled after proposals are received, the
contracting agency may return a proposal to the proposer that
made the proposal. The contracting agency shall keep a list of
returned proposals in the file for the solicitation.
Enrolled House Bill 2140 (HB 2140-C) Page 40
(4) As provided in the request for proposals, a contracting
agency may conduct discussions with proposers who submit
proposals the agency has determined to be closely competitive or
to have a reasonable chance of being selected for award. The
discussions may be conducted for the purpose of clarification to
ensure full understanding of, and responsiveness to, the
solicitation requirements. The contracting agency shall accord
proposers fair and equal treatment with respect to any
opportunity for discussion and revision of proposals. Revisions
of proposals may be permitted after the submission of proposals
and before award for the purpose of obtaining best and final
offers. In conducting discussions, the contracting agency may not
disclose information derived from proposals submitted by
competing proposers.
(5) When provided for in the request for proposals, the
contracting agency may employ methods of contractor selection
including but not limited to award based solely on the ranking of
proposals, negotiation with the highest ranked proposer,
competitive negotiations, multiple-tiered competition designed to
identify a class of proposers that fall within a competitive
range or to otherwise eliminate from consideration a class of
lower ranked proposers, or any combination of methods, as
authorized or prescribed by rules adopted under ORS 279A.065.
When applicable, in any instance in which the contracting agency
determines that impasse has been reached in negotiations with a
highest ranked proposer, the contracting agency may terminate
negotiations with that proposer and commence negotiations with
the next highest ranked proposer.
(6) The cancellation of requests for proposals and the
rejection of proposals shall be in accordance with ORS 279C.395.
(7) At least seven days before the award of a public
improvement contract, unless the contracting agency determines
that seven days is impractical under rules adopted under ORS
279A.065, the contracting agency shall issue to each proposer or
post, electronically or otherwise, a notice of intent to award.
(8) If a public improvement contract is awarded, the
contracting agency shall award a public improvement contract to
the responsible proposer whose proposal is determined in writing
to be the most advantageous to the contracting agency based on
the evaluation factors set forth in the request for proposals
and, when applicable, the outcome of any negotiations authorized
by the request for proposals. Other factors may not be used in
the evaluation.
{ - (9) The contracting agency may issue a request for
information, a request for interest, a request for qualifications
or other preliminary documents to obtain information useful in
the preparation or distribution of a request for proposals. - }
SECTION 32. Section 132, chapter 794, Oregon Laws 2003, is
amended to read:
{ + Sec. 132. + } (1) A public improvement contract estimated
by the contracting agency not to exceed $100,000 { - , or not to
exceed $50,000 in the case of contracts for highways, bridges and
other transportation projects, - } may be awarded in accordance
with intermediate procurement procedures for competitive quotes
established by rules adopted under { - section 10 of this 2003
Act - } { + ORS 279A.065 + }. A contract awarded under this
section may be amended to exceed { - the thresholds set forth
in this subsection - } { + $100,000 + } only in accordance with
rules adopted under { - section 10 of this 2003 Act - } { +
ORS 279A.065 + }.
Enrolled House Bill 2140 (HB 2140-C) Page 41
(2) A procurement may not be artificially divided or fragmented
so as to constitute an intermediate procurement under this
section or to circumvent competitive bidding requirements under
{ - sections 88 to 179 of this 2003 Act - } { + this
chapter + }.
(3) Intermediate procurements under this section need not be
made through competitive bidding. However, nothing in this
section may be construed as prohibiting a contracting agency from
conducting a procurement that does not exceed { - the
thresholds in subsection (1) of this section - } { + $100,000
+ }under competitive bidding procedures.
SECTION 33. ORS 279C.460 is amended to read:
279C.460. (1) Any bidder or proposer adversely affected or any
trade association of construction contractors acting on behalf of
a member of the association to protect interests common to
construction contractor members may commence { - a suit - }
{ + an action + } in the circuit court for the county where the
principal offices of a contracting agency are located, for the
purpose of requiring compliance with, or prevention of violations
of, ORS 279C.300 to 279C.470 or to determine the applicability of
ORS 279C.300 to 279C.470 to matters or decisions of the
contracting agency.
(2) The court may order such equitable relief as the court
considers appropriate in the circumstances. In addition to or in
lieu of any equitable relief, the court may award an aggrieved
bidder or proposer any damages suffered by the bidder or proposer
as a result of violations of ORS 279C.300 to 279C.470 for the
reasonable cost of preparing and submitting a bid or proposal. A
decision of the contracting agency may not be voided if other
equitable relief is available.
(3) If the contracting agency is successful in defending the
contracting agency's actions against claims of violation or
potential violation of ORS 279C.300 to 279C.470, the court may
award to the aggrieved contracting agency any damages suffered as
a result of the { - suit - } { + court action + }.
(4) The court may order payment of reasonable attorney fees and
costs on trial and on appeal to a successful party in { - a
suit - } { + an action + } brought under this section.
(5) This section does not apply to personal services contracts
under ORS 279C.100 to 279C.125.
SECTION 34. ORS 279C.800 is amended to read:
279C.800. As used in ORS 279C.800 to 279C.870, unless the
context requires otherwise:
(1) 'Fringe benefits' means the amount of:
(a) The rate of contribution irrevocably made by a contractor
or subcontractor to a trustee or to a third person under a plan,
fund or program; and
(b) The rate of costs to the contractor or subcontractor that
may be reasonably anticipated in providing benefits to workers
pursuant to an enforceable commitment to carry out a financially
responsible plan or program that is committed in writing to the
workers affected, for medical or hospital care, pensions on
retirement or death, compensation for injuries or illness
resulting from occupational activity, or insurance to provide any
of the foregoing, for unemployment benefits, life insurance,
disability and sickness insurance or accident insurance, for
vacation and holiday pay, for defraying costs of apprenticeship
or other similar programs or for other bona fide fringe benefits,
but only when the contractor or subcontractor is not required by
Enrolled House Bill 2140 (HB 2140-C) Page 42
other federal, state or local law to provide any of these
benefits.
{ + (2) 'Housing' has the meaning given that term in ORS
456.055. + }
{ - (2) - } { + (3) + } 'Locality' means the following
district in which the public works, or the major portion thereof,
is to be performed:
(a) District 1, composed of Clatsop, Columbia and Tillamook
Counties;
(b) District 2, composed of Clackamas, Multnomah and Washington
Counties;
(c) District 3, composed of Marion, Polk and Yamhill Counties;
(d) District 4, composed of Benton, Lincoln and Linn Counties;
(e) District 5, composed of Lane County;
(f) District 6, composed of Douglas County;
(g) District 7, composed of Coos and Curry Counties;
(h) District 8, composed of Jackson and Josephine Counties;
(i) District 9, composed of Hood River, Sherman and Wasco
Counties;
(j) District 10, composed of Crook, Deschutes and Jefferson
Counties;
(k) District 11, composed of Klamath and Lake Counties;
(L) District 12, composed of Gilliam, Grant, Morrow, Umatilla
and Wheeler Counties;
(m) District 13, composed of Baker, Union and Wallowa Counties;
and
(n) District 14, composed of Harney and Malheur Counties.
{ - (3) - } { + (4) + } 'Prevailing rate of wage' means the
rate of hourly wage, including all fringe benefits, paid in the
locality to the majority of workers employed on projects of
similar character in the same trade or occupation, as determined
by the Commissioner of the Bureau of Labor and Industries.
{ - In making such determinations, the commissioner shall rely
on an independent wage survey to be conducted once each year.
However, if it appears to the commissioner that the data derived
from the survey alone are insufficient to establish the rate, the
commissioner also shall consider additional information such as
collective bargaining agreements, other independent wage surveys
and the prevailing rates of wage determined by appropriate
federal agencies or agencies of adjoining states. If there is not
a majority in the same trade or occupation paid at the same rate,
the average rate of hourly wage, including all fringe benefits,
paid in the locality to workers in the same trade or occupation
shall be the prevailing rate. If the wage paid by any contractor
or subcontractor to workers on any public works is based on some
period of time other than an hour, the hourly wage shall be
mathematically determined by the number of hours worked in that
period of time. - }
{ - (4) - } { + (5) + } 'Public agency' means the State of
Oregon or any political subdivision thereof or any county, city,
district, authority, public corporation or entity and any
{ - of their instrumentalities - } { + instrumentality
thereof + } organized and existing under law or charter.
{ - (5) - } { + (6) + } { + (a) + } 'Public works'
includes, but is not limited to { - , - } { + : + }
{ + (A) + } Roads, highways, buildings, structures and
improvements of all types, the construction, reconstruction,
major renovation or painting of which is carried on or contracted
for by any public agency to serve the public interest { + ; + }
Enrolled House Bill 2140 (HB 2140-C) Page 43
{ - but does not include the reconstruction or renovation of
privately owned property that is leased by a public agency. - }
{ + (B) A project for the construction, reconstruction, major
renovation or painting of a privately owned road, highway,
building, structure or improvement of any type that uses funds of
a private entity and $750,000 or more of funds of a public
agency; or
(C) A project for the construction of a privately owned road,
highway, building, structure or improvement of any type that uses
funds of a private entity and in which 25 percent or more of the
square footage of the completed project will be occupied or used
by a public agency.
(b) 'Public works' does not include:
(A) The reconstruction or renovation of privately owned
property that is leased by a public agency; or
(B) The renovation of publicly owned real property that is more
than 75 years old by a private nonprofit entity if:
(i) The real property is leased to the private nonprofit entity
for more than 25 years;
(ii) Funds of a public agency used in the renovation do not
exceed 15 percent of the total cost of the renovation; and
(iii) Contracts for the renovation were advertised or, if not
advertised, were entered into before July 1, 2003, but the
renovation has not been completed on or before the effective date
of this 2007 Act. + }
SECTION 35. 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 { + , reconstruction, major
renovation or painting + };
(B) Building and development permit fees paid or waived by the
public agency;
{ + (C) Tax credits or tax abatements;
(D) Land that a public agency sells to a private entity at fair
market value;
(E) The difference between:
(i) The value of land that a public agency sells to a private
entity as determined at the time of the sale after taking into
account any plan, requirement, covenant, condition, restriction
or other limitation, exclusive of zoning or land use regulations,
that the public agency imposes on the development or use of the
land; and
(ii) The fair market value of the land if the land is not
subject to the limitations described in subparagraph (i) of this
paragraph; + }
{ - (C) - } { + (F) + } 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) - } { + (G) + } Staff resources of the public
agency used to design or inspect one or more components of a
project { - . - } { + ;
(H) Moneys derived from the sale of bonds that are loaned by a
state agency to a private entity, unless the moneys will be used
for a public improvement;
(I) Value added to land as a consequence of a public agency's
site preparation, demolition of real property or remediation or
removal of environmental contamination, except for value added in
Enrolled House Bill 2140 (HB 2140-C) Page 44
excess of the expenses the public agency incurred in the site
preparation, demolition or remediation or removal when the land
is sold for use in a project otherwise subject to ORS 279C.800 to
279C.870; or
(J) Bonds, or loans from the proceeds of bonds, issued in
accordance with ORS chapter 289 or ORS 441.525 to 441.595, unless
the bonds or loans will be used for a public improvement. + }
(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 { + of the Bureau of Labor and Industries + } shall
adopt rules to carry out the provisions of this paragraph.
{ + (c) Projects:
(A) That are privately owned;
(B) That use funds of a private entity;
(C) In which less than 25 percent of the square footage of a
completed project will be occupied or used by a public agency;
and
(D) For which less than $750,000 of funds of a public agency
are used.
(d) Projects for residential construction that are privately
owned and that predominantly provide affordable housing. As used
in this paragraph:
(A) 'Affordable housing' means housing that serves occupants
whose incomes are no greater than 60 percent of the area median
income or, if the occupants are owners, whose incomes are no
greater than 80 percent of the area median income.
(B) 'Predominantly' means 60 percent or more.
(C) 'Privately owned' includes:
(i) Affordable housing provided on real property owned by a
public agency if the real property and related structures are
leased to a private entity for 50 or more years; and
(ii) Affordable housing owned by a partnership, nonprofit
corporation or limited liability company in which a housing
authority, as defined in ORS 456.005, is a general partner,
director or managing member and the housing authority is not a
majority owner in the partnership, nonprofit corporation or
limited liability company.
(D) 'Residential construction' includes the construction,
reconstruction, major renovation or painting of single-family
houses or apartment buildings not more than four stories in
height and all incidental items, such as site work, parking
areas, utilities, streets and sidewalks, pursuant to the United
States Department of Labor's 'All Agency Memorandum No. 130:
Application of the Standard of Comparison 'Projects of a
Character Similar ' Under Davis-Bacon and Related Acts,' dated
March 17, 1978. However, the commissioner may consider different
definitions of residential construction in determining whether a
Enrolled House Bill 2140 (HB 2140-C) Page 45
project is a residential construction project for purposes of
this paragraph, including definitions that:
(i) Exist in local ordinances or codes; or
(ii) Differ, in the prevailing practice of a particular trade
or occupation, from the United States Department of Labor's
description of residential construction. + }
{ - (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 36. 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) If it appears to the commissioner that the data
derived only from the survey described in paragraph (a) of this
subsection are insufficient to determine the prevailing rate of
wage, the commissioner also shall consider additional information
such as collective bargaining agreements, other independent wage
surveys and the prevailing rates of wage determined by
appropriate federal agencies or agencies of adjoining states. If
there is not a majority in the same trade or occupation paid at
the same rate, the average rate of hourly wage, including all
fringe benefits, paid in the locality to workers in the same
trade or occupation shall be the prevailing rate. If the wage
paid by any contractor or subcontractor to workers on any public
works is based on some period of time other than an hour, the
hourly wage shall be mathematically determined by the number of
hours worked in that period of time. + }
{ - (b) - } { + (c) + } 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) 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
Enrolled House Bill 2140 (HB 2140-C) Page 46
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 37. ORS 279C.830 is amended to read:
279C.830. (1)(a) { + Except as provided in paragraph (d) of
this subsection, + } 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) - } { +
(2)(c) + }.
(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.
{ + (d) A public works project described in ORS 279C.800
(6)(a)(B) or (C) is subject to the existing state prevailing rate
of wage or, if applicable, the federal prevailing rate of wage
required under the Davis-Bacon Act that is in effect at the time
a public agency enters into an agreement with a private entity
for the project. After that time, the specifications for any
contract for the public works shall include the applicable
prevailing rate of wage. + }
(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 { + (4), + } (7) or
Enrolled House Bill 2140 (HB 2140-C) Page 47
(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 { + (4), + } (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 { + (4), + } (7) or
(8).
SECTION 38. ORS 279C.836 is amended to read:
279C.836. (1) Except as provided in subsection { + (4), + }
(7) or (8) 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) of this section { + or is exempt
under subsection (4) 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 after certification, elect not to file a public works
Enrolled House Bill 2140 (HB 2140-C) Page 48
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 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) 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) 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) 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 39. ORS 279C.870 is amended to read:
279C.870. (1) The Commissioner of the Bureau of Labor and
Industries or any other person may bring a civil action in any
court of competent jurisdiction to require a public agency under
a public contract with a contractor to withhold twice the wages
in dispute if it is shown that the contractor or subcontractor on
the contract has intentionally failed or refused to pay the
prevailing rate of wage to workers employed on that contract and
to require the contractor to pay the prevailing rate of wage and
any deficiencies that can be shown to exist because of improper
wage payments already made. In addition to other relief, the
court may also enjoin the contractor or subcontractor from
committing future violations. The contractor or subcontractor
involved shall be named as a party in all civil actions brought
under this section. In addition to other costs, the court may
award the prevailing party reasonable attorney fees at the trial
and on appeal. However, attorney fees may not { - may - } be
awarded against the commissioner under this section.
(2) The court shall require any party, other than the
commissioner, that brings a civil action under this section to
post a bond sufficient to cover the estimated attorney fees and
costs to the public agency and to the contractor or subcontractor
of any temporary restraining order, preliminary injunction or
Enrolled House Bill 2140 (HB 2140-C) Page 49
permanent injunction awarded in the action, in the event that the
party bringing the action does not ultimately prevail.
(3) In addition to any other relief, the court in a civil
action brought under this section may enjoin the public agency
from contracting with the contractor or subcontractor if the
court finds that the commissioner would be entitled to place the
contractor or subcontractor on the ineligible list established
under ORS 279C.860 (1). If the court issues such an injunction,
the commissioner shall place the contractor or subcontractor on
the list for a period of three years, subject to the provision of
ORS 279C.860 (2).
SECTION 40. { + Section 41 of this 2007 Act is added to and
made a part of ORS 279C.100 to 279C.125. + }
SECTION 41. { + (1) Notwithstanding the public records law,
ORS 192.410 to 192.505, if a contracting agency solicits a
contract for architectural, engineering or land surveying
services or related services by a competitive proposal:
(a) Proposals may be opened so as to avoid disclosure of
contents to competing proposers during, when applicable, the
process of negotiation.
(b) Proposals are not required to be open for public inspection
until after the notice of intent to award a contract is issued.
(2) Notwithstanding any requirement to make proposals open to
public inspection after the contracting agency's issuance of
notice of intent to award a contract, a contracting agency may
withhold from disclosure to the public trade secrets, as defined
in ORS 192.501, and information submitted to a public body in
confidence, as described in ORS 192.502, that are contained in a
proposal. The fact that proposals are opened at a public meeting
as defined in ORS 192.610 does not make their contents subject to
disclosure, regardless of whether the public body opening the
proposals fails to give notice of or provide for an executive
session for the purpose of opening proposals. If a request for
proposals is canceled after proposals are received, the
contracting agency may return a proposal to the proposer that
made the proposal. The contracting agency shall keep a list of
returned proposals in the file for the solicitation. + }
SECTION 42. { + Sections 43, 44 and 45 of this 2007 Act are
added to and made a part of ORS 279C.800 to 279C.870. + }
SECTION 43. { + (1) The Commissioner of the Bureau of Labor
and Industries shall, upon the request of a public agency or
other interested person, make a determination about whether a
project or proposed project is or would be a public works on
which payment of the prevailing rate of wage is or would be
required under ORS 279C.840.
(2) The requester shall provide the commissioner with
information necessary to enable the commissioner to make the
determination.
(3) The commissioner shall make the determination within 60
days after receiving the request or 60 days after the requester
has provided the commissioner with the information necessary to
enable the commissioner to make the determination, whichever is
later. The commissioner may take additional time to make the
determination if the commissioner and the requester mutually
agree that the commissioner may do so.
(4) The commissioner shall afford the requester or a person
adversely affected or aggrieved by the commissioner's
determination a hearing in accordance with ORS 183.413 to
183.470. An order the commissioner issues under ORS 183.413 to
183.470 is subject to judicial review as provided in ORS 183.482.
Enrolled House Bill 2140 (HB 2140-C) Page 50
(5) The commissioner shall adopt rules establishing the process
for requesting and making the determinations described in this
section. + }
SECTION 44. { + (1)(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 of the Bureau of Labor and Industries
determines that a public agency has divided a public works
project into more than one contract 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;
(D) The manner in which the public agency and the contractors
administer and implement the project;
(E) Whether a single public works project includes several
types of improvements or structures; and
(F) Whether the combined improvements or structures have an
overall purpose or function.
(2) If a project is a public works of the type described in ORS
279C.800 (6)(a)(B) or (C), the commissioner shall divide the
project, if appropriate, after applying the considerations set
forth in subsection (1)(c) of this section to separate the parts
of the project that include funds of a public agency or that will
be occupied or used by a public agency from the parts of the
project that do not include funds of a public agency and that
will not be occupied or used by a public agency. If the
commissioner divides the project, any part of the project that
does not include funds of a public agency and that will not be
occupied or used by a public agency is not subject to ORS
279C.800 to 279C.870.
(3) If a project includes parts that are owned by a public
agency and parts that are owned by a private entity, the
commissioner shall divide the project, if appropriate, after
applying the considerations set forth in subsections (1)(c) and
(2) of this section to separate the parts of the project that are
public works from the parts of the project that are not public
works. If the commissioner divides the project, parts of the
project that are not public works are not subject to ORS 279C.800
to 279C.870. + }
SECTION 45. In accordance with applicable provisions of ORS
chapter 183, the Commissioner of the Bureau of Labor and
Industries shall adopt rules necessary to administer ORS 279C.800
to 279C.870.
SECTION 46. { + (1) On or before July 1, 2008, the State
Treasurer shall report to the advisory committee appointed under
ORS 279C.820 and to the President of the Senate and the Speaker
of the House of Representatives on the loan programs under which
moneys derived from the sale of bonds by the State Treasurer are
loaned to private entities. The report shall include, for each
loan described in this section for which a closing occurred
between January 1, 2002, and December 31, 2007:
(a) Identification of the state agency for which bonds are
issued;
(b) The purposes of the loan program under which the bond
proceeds are issued; and
Enrolled House Bill 2140 (HB 2140-C) Page 51
(c) The constitutional and statutory provisions authorizing the
loan program.
(2) Information the State Treasurer reports under this section
shall be information that the state agency involved keeps in the
ordinary course of its business and that is not exempt from
public disclosure under ORS 192.410 to 192.505. The information
may include, but need not be limited to:
(a) Identification of the private borrowers to whom loans were
made;
(b) The amount of each loan;
(c) The interest rate applied to repayment of each loan; and
(d) If known by the agency, the purpose for which the loan
funds were advanced. + }
SECTION 47. { + Section 332a, chapter 794, Oregon Laws 2003,
is repealed. + }
SECTION 48. { + (1) Sections 41, 43 and 44 of this 2007 Act,
the amendments to ORS 279A.010, 279A.025, 279A.050, 279A.200,
279B.005, 279B.050, 279B.085, 279B.130, 279B.200, 279B.270,
279B.405, 279B.415, 279C.320, 279C.335, 279C.345, 279C.350,
279C.355, 279C.365, 279C.375, 279C.390, 279C.400, 279C.405,
279C.410, 279C.460, 279C.800, 279C.810, 279C.815, 279C.830,
279C.836 and 279C.870 and sections 105, 105b, 110, 113 and 132,
chapter 794, Oregon Laws 2003, by sections 1 to 39 of this 2007
Act and the repeal of section 332a, chapter 794, Oregon Laws
2003, by section 47 of this 2007 Act apply only to public
contracts first advertised, but if not advertised then entered
into, on or after the effective date of this 2007 Act.
(2) Sections 43 and 44 of this 2007 Act and the amendments to
ORS 279C.800, 279C.810, 279C.815 and 279C.830 by sections 34, 35,
36 and 37 of this 2007 Act do not apply to development and
disposition agreements signed by an urban renewal agency before
the effective date of this 2007 Act in connection with
public-private projects for which no contracts for construction
are advertised.
(3) Sections 43 and 44 of this 2007 Act and the amendments to
ORS 279C.800, 279C.810, 279C.815 and 279C.830 by sections 34, 35,
36 and 37 of this 2007 Act do not apply to projects funded in
whole or in part by bonds issued by the State of Oregon if the
State Treasurer issues the bonds for the project before the
effective date of this 2007 Act. + }
SECTION 49. { + This 2007 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2007 Act takes effect
July 1, 2007. + }
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Enrolled House Bill 2140 (HB 2140-C) Page 52
Passed by House May 14, 2007
Repassed by House June 25, 2007
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate June 23, 2007
...........................................................
President of Senate
Enrolled House Bill 2140 (HB 2140-C) Page 53
Received by Governor:
......M.,............., 2007
Approved:
......M.,............., 2007
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2007
...........................................................
Secretary of State
Enrolled House Bill 2140 (HB 2140-C) Page 54