75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1709
Minority Report
A-Engrossed
House Bill 2699
Ordered by the House April 30
Including House Minority Report Amendments dated April 30
Sponsored by nonconcurring members of the House Committee on
Business and Labor: Representatives ESQUIVEL, THATCHER
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
Modifies definition of 'public works.' { - Requires payment
of prevailing rate of wage in connection with public works for
which funds of public agency are used, including funds received
in form of tax credit or tax abatement. - }
{ - Exempts projects that are privately owned and that use
private funds and not more than certain amount of funds of public
agency from prevailing wage requirements. - }
{ + Classifies exemption from ad valorem property taxation as
funds of public agency for purpose of imposing prevailing rate of
wage. Requires city, county or other sponsor of enterprise zone
to notify Commissioner of Bureau of Labor and Industries of any
exemption from ad valorem property taxation connected with public
works located in sponsor's enterprise zone.
Directs commissioner to establish fee for sponsor of enterprise
zone in which public works is located. Creates procedures by
which multiple public agencies that award contract for public
works or multiple sponsors that designate enterprise zone in
which public works is located must apportion fees.
Allows contractor to file certified statement with sponsor of
enterprise zone in which public works is located.
Provides that contractor or subcontractor of certain public
works is not required to pay prevailing rate of wage if
contractor or subcontractor hires workers for public works under
first-source hiring agreement. + }
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to the application of prevailing wage rates; creating
new provisions; amending ORS 279C.800, 279C.810, 279C.825,
279C.827, 279C.830, 279C.835, 279C.840, 279C.845 and 651.170
and section 8, chapter 844, Oregon Laws 2007; and declaring an
emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. 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 { + makes irrevocably + } 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 { + the following
items, exclusive of items that federal, state or local law
requires the contractor or subcontractor to provide:
(A) + } Benefits to workers pursuant to an enforceable { +
written + } commitment { + to the workers + } to carry out a
financially responsible plan or program { - that is committed
in writing to the workers affected, - } for { + :
(i) + } Medical or hospital care { - , - } { + ;
(ii) + } Pensions on retirement or death { - , - } { + ; or
(iii) + } Compensation for injuries or illness
{ - resulting - } { + that result + } from occupational
activity { - , or - } { + ;
(B) + } Insurance to provide { - any of the foregoing, - }
{ + the benefits described in subparagraph (A) of this
paragraph;
(C) + } { - for - } Unemployment benefits { - , - } { + ;
(D) + } Life insurance { - , - } { + ;
(E) + } Disability and sickness insurance or accident insurance
{ - , - } { + ;
(F) + } { - for - } Vacation and holiday pay { - , - }
{ + ;
(G) + } { - for defraying - } Costs { + or a portion of the
costs + } of apprenticeship or other similar programs { + ; or
(H) + } { - or for - } Other bona fide fringe benefits
{ - , but only when the contractor or subcontractor is not
required by other federal, state or local law to provide any of
these benefits - } .
(2) 'Housing' has the meaning given that term in ORS 456.055.
(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.
(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.
(5) 'Public agency' means the State of Oregon or { - any - }
{ + a + } political subdivision { - thereof - } { + of the
State of Oregon + } or { - any - } { + a + } county, city,
district, authority, public corporation or { + public + } entity
{ - and - } { + or + } any instrumentality { - thereof - }
{ + of a county, city, district, authority, public corporation
or public entity + } organized and existing under law or charter.
(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 - } { + a + } public agency { + carries on or contracts
for in order + } to serve the public interest;
(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 { - . - } { + ; or
(D) A project for the construction, reconstruction or major
renovation of a privately owned road, highway, building,
structure or improvement of any type that:
(i) Is located in an enterprise zone, as defined in ORS
285C.050;
(ii) Consists of or is sited on real property for which a
qualified business firm, as defined in ORS 285C.050, has received
an exemption from ad valorem property taxation under ORS 285C.170
or 285C.175; and
(iii) Has a projected cost of $5 million or more. + }
(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 July 13, 2007.
{ + (7) 'Sponsor' has the meaning given that term in ORS
285C.050. + }
SECTION 2. 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 - } { + that + } the public agency { + pays or waives + };
(C) Tax credits or tax abatements { + , except for exemptions
from ad valorem property taxation allowed under ORS 285C.170 or
285C.175 + };
(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 sub-subparagraph (i) of
this subparagraph;
(F) Staff resources { - of - } the public agency
{ - used - } { + uses + } to { + : + }
{ + (i) + }Manage a project or to provide a principal source
of supervision, coordination or oversight of a project; { +
or + }
{ - (G) - } { + (ii) + } { - Staff resources of the
public agency used to - } Design or inspect one or more
components of a project;
{ - (H) - } { + (G) + } Moneys derived from the sale of
bonds that { - are loaned by - } a state agency { + loans + }
to a private entity, unless the moneys will be used for a public
improvement;
{ - (I) - } { + (H) + } 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 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) - } { + (I) + } 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 { + a public agency will occupy or use + }less
than 25 percent of the square footage of { - a - } { +
the + } 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
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.
SECTION 3. ORS 279C.825 is amended to read:
279C.825. { - (1)(a) - } { + (1) + } The Commissioner of
the Bureau of Labor and Industries { - , - } by rule { - , - }
shall establish a fee to be paid by { + :
(a) + } The public agency { + or public agencies + } that
{ - awards - } { + award + } a public works contract subject
to ORS 279C.800 to 279C.870 { - . - } { + ; or
(b) The sponsor or sponsors of the enterprise zone in which a
project subject to ORS 279C.800 to 279C.870 is or will be
located.
(2)(a) If more than one public agency is involved in awarding a
contract for public works subject to ORS 279C.800 to 279C.870,
the public agencies involved shall agree which public agencies
shall pay the fee and in what amounts. If the public agencies do
not agree, the public agencies involved shall pay a proportional
share of the fee based on the amount of public funds each public
agency provides for the contract or the amount of space each
public agency occupies or uses in the public works.
(b) If more than one sponsor has participated in the
designation of an enterprise zone in which a public works subject
to ORS 279C.800 to 279C.870 is located, the participating
sponsors shall agree which sponsors shall pay the fee and in what
amounts. If the sponsors do not agree, the sponsors are jointly
and severally liable for paying the fee.
(3) + } The { + commissioner shall use the proceeds of the + }
fee { - shall be used - } to pay the costs of:
{ - (A) - } { + (a) + } Surveys to determine the prevailing
rates of wage;
{ - (B) - } { + (b) + } Administering and providing
investigations under and enforcement of ORS 279C.800 to 279C.870;
and
{ - (C) - } { + (c) + } Providing educational programs on
public contracting law under the Public Contracting Code.
{ - (b) - } { + (4) + } The fee { - shall be - } { +
is + } 0.1 percent of the contract price { - . However, in no
event may - } { + , except that + }a fee { + may not + } be
charged and collected that is more than $5,000 or less than $100.
{ - (2) - } { + (5) + } The commissioner shall pay moneys
received under this section into the State Treasury. The moneys
shall be credited to the Prevailing Wage Education and
Enforcement Account created by ORS 651.185.
{ - (3) - } { + (6)(a) + } { - The - } { + A + } public
agency shall pay the fee at the time the public agency
{ - enters into the public works contract - } { + notifies the
commissioner under ORS 279C.835 that a contract subject to the
provisions of ORS 279C.800 to 279C.870 has been awarded + }.
{ + (b) A sponsor shall pay the fee at the time the sponsor
notifies the commissioner under ORS 279C.835 that the sponsor
approved, under ORS 285C.140, an eligible business firm's
application to have qualified property in the sponsor's
enterprise zone exempted from ad valorem property taxation. + }
SECTION 4. Section 8, chapter 844, Oregon Laws 2007, is amended
to read:
{ + Sec. 8. + } Notwithstanding the maximum and minimum fee
amounts set forth in ORS 279C.825 { - (1)(b) - } { + (4) + },
for public works contracts entered into on or after { - the
effective date of this 2007 Act - } { + January 1, 2008, + } and
before January 1, 2011, the fee charged and collected may not be
more than $7,500 or less than $250.
SECTION 5. ORS 279C.827 is amended to read:
279C.827. (1)(a) A public agency { + or a person that is
required under ORS 279C.800 to 279C.870 to pay a prevailing rate
of wage on a public works project + } 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 { + or a person that is required
under ORS 279C.800 to 279C.870 to pay a prevailing rate of wage
on a public works project + } 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 { + after applying
the considerations set forth in subsection (1)(c) of this
section + } 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 - } { + use + } funds of a public agency or that
{ - will be occupied or used by - } a public agency { + will
occupy or use + } from the parts of the project that do not
{ - include - } { + use + } funds of a public agency and
that { + a public agency + } will not { + occupy or use + }
{ - be occupied or used by a public agency - } . If the
commissioner divides the project, any part of the project that
does not { - include - } { + use + } funds of a public agency
and that { - will not be occupied or used by - } a public
agency { + will not occupy or use + } is not subject to ORS
279C.800 to 279C.870.
(3) If a project includes parts that { - are owned by - } a
public agency { + owns + } and parts that { - are owned by - }
a private entity { + owns + }, the commissioner { + after
applying the considerations set forth in subsections (1)(c) and
(2) of this section + } 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 6. ORS 279C.830 is amended to read:
279C.830. (1)(a) Except as provided in { - paragraph (d) - }
{ + paragraphs (d) and (e) + } 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. 3141 et seq.) that
{ - may - } { + must + } be paid to workers in each trade or
occupation required for the public works employed in the
performance of the contract either by the contractor or
subcontractor or other person doing or contracting to do the
whole or any part of the work contemplated by the contract.
{ - When - } { + If + } the prevailing rates of wage are
available electronically or are accessible on the Internet, the
rates may be incorporated into the specifications by referring to
the electronically accessible or Internet-accessible rates and by
providing adequate information about how to access the rates.
(b) If a public agency is required under paragraph (a) of this
subsection to include the state and federal prevailing rates of
wage in the specifications, the public agency also shall include
in the specifications information { - showing - } { + that
shows + } 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)(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 and
279C.840.
(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 - }
{ + a + } contract for the public works shall include the
applicable prevailing rate of wage.
{ + (e) If the public works is a project described in ORS
279C.800 (6)(a)(D), the specifications for a contract for the
public works must state that the requirement to pay the
prevailing rate of wage does not apply to a contractor or
subcontractor if the contractor or subcontractor has in place a
first-source hiring agreement, as defined in ORS 285C.050, under
which the contractor or subcontractor hires workers for the
public works. + }
{ - (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) - } { + (2) + } 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 { + the contractor or
subcontractor is + } exempt under ORS 279C.836 (4), (7), (8) or
(9). Every contract { - awarded by a contracting agency - }
{ + for public works + } 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 { + the contractor is + } exempt under ORS 279C.836 (4),
(7), (8) or (9).
(b) To include in every subcontract a provision requiring the
subcontractor to have a public works bond filed with the
Construction Contractors Board before starting work on the
project, unless { + the subcontractor is + } exempt under ORS
279C.836 (4), (7), (8) or (9).
SECTION 7. ORS 279C.835 is amended to read:
279C.835. { + (1)(a) + } { - Public agencies - } { + A
public agency + } shall notify the Commissioner of the Bureau of
Labor and Industries in writing, on a form prescribed by the
commissioner, whenever a contract subject to the provisions of
ORS 279C.800 to 279C.870 has been awarded.
{ + (b) A sponsor shall notify the commissioner in writing,
on a form prescribed by the commissioner, whenever the sponsor
approves, under ORS 285C.140, an eligible business firm's
application to have qualified property in the sponsor's
enterprise zone exempted from ad valorem property taxation.
(2)(a) + } { - The - } { + A + } notification { + under
subsection (1)(a) of this section + } shall be made within 30
days { - of - } { + after + } the date { - that - } { +
on which + } the contract is awarded.
{ + (b) A notification under subsection (1)(b) of this
section shall be made within 30 days after the date on which the
sponsor approves, under ORS 285C.140, an eligible business firm's
application to have qualified property exempted from ad valorem
property taxation.
(c) + } { - The - } { + A + } notification { + under
subsection (1) of this subsection + } shall include { + payment
of the fee required under ORS 279C.825. A notification under
subsection (1)(a) of this section shall also include + } a copy
of the disclosure of first-tier subcontractors that was submitted
under ORS 279C.370.
SECTION 7a. ORS 279C.840 is amended to read:
279C.840. (1) { + (a) Except as provided in paragraph (b) of
this subsection, + }the hourly rate of wage to be paid by any
contractor or subcontractor to workers upon all public works
{ - shall be not - } { + may not be + } less than the
prevailing rate of wage for an hour's work in the same trade or
occupation in the locality where the labor is performed.
{ - The obligation of - } A contractor or subcontractor { +
may discharge the contractor's or subcontractor's obligation + }
to pay the prevailing rate of wage { - may be discharged - } by
making the payments in cash, by { - the - } making
{ - of - } contributions of a type { - referred to - } { +
described + } in ORS 279C.800 (1)(a), or by
{ - the assumption of - } { + assuming + } an enforceable
commitment to bear the costs of a plan or program of a type
{ - referred to - } { + described + } in ORS 279C.800 (1)(b),
or any combination { - thereof - } { + of the payments,
contributions or costs set forth in this paragraph + }, where the
aggregate of { - any such - } { + the + } payments,
contributions and costs is not less than the prevailing rate of
wage.
{ + (b) A contractor or subcontractor does not have an
obligation to pay the prevailing rate of wage described in
paragraph (a) of this subsection if the public works is a project
described in ORS 279C.800 (6)(a)(D) and the contractor or
subcontractor has in place a first-source hiring agreement, as
defined in ORS 285C.050, under which the contractor or
subcontractor hires workers for the public works. + }
(2) After a contract for public works is executed with
{ - any - } { + a + } contractor or work is commenced upon any
public works, the amount of the prevailing rate of wage is not
subject to attack in
{ - any - } { + a + } legal proceeding by { - any - } { +
a + } contractor or subcontractor in connection with
{ - that - } { + the + } contract.
(3) It is not a defense in { - any - } { + a + } legal
proceeding that the prevailing rate of wage is less than the
amount required to be in the specifications of a contract for
public works, or that { - there was an agreement between - }
the employee and the employer { + agreed that the employee
would + } { - to - } work at less than the wage rates required
to be paid under this section.
(4) { - Every - } { + A + } contractor or subcontractor
engaged on a project for which there is a contract for a public
works shall keep the prevailing rates of wage for { - that - }
{ + the + } project posted in a conspicuous and accessible
place in or about the project. The Commissioner of the Bureau of
Labor and Industries shall furnish without charge copies of the
prevailing rates of wage to contractors and subcontractors.
(5) { - Every - } { + A + } contractor or subcontractor
engaged on a project for which there is a contract for a public
works to which the prevailing wage requirements apply that also
provides or contributes to a health and welfare plan or a pension
plan, or both, for the contractor or subcontractor's employees on
the project shall post a notice describing the plan in a
conspicuous and accessible place in or about the project. The
notice preferably shall be posted in the same place as the notice
required under subsection (4) of this section. In addition to the
description of the plan, the notice shall contain information on
how and where to make claims and where to obtain further
information.
(6)(a) Except as provided in paragraph (c) of this subsection,
{ - no - } { + a + } person other than the contractor or
subcontractor may { + not + } pay or contribute any portion of
the prevailing rate of wage { - paid by - } the contractor or
subcontractor { + pays + } to workers employed in the
performance of a public works contract.
(b) For the purpose of this subsection, the prevailing rate of
wage is the prevailing rate of wage specified in the contract.
(c) This subsection { - is not intended to - } { + does
not + } prohibit payments to a worker who is enrolled in any
government-subsidized training or retraining program.
(7) A person may not take { - any - } { + an + } action
that circumvents the payment of the prevailing rate of wage to
workers employed on a public works contract, including, but not
limited to, reducing an employee's regular rate of pay on
{ - any - } { + a + } project { + that is + } not subject to
ORS 279C.800 to 279C.870 in a manner that has the effect of
offsetting the prevailing rate of wage on a public works project.
SECTION 8. ORS 279C.845 is amended to read:
279C.845. (1) { - The - } { + A + } contractor or
{ - the - } contractor's surety and every subcontractor or
{ - the - } subcontractor's surety shall file certified
statements { + in writing + } with the public agency { - in
writing - } { + that awarded the contract for public works to
which the contractor is a party or with the sponsor of the
enterprise zone in which the public works project is located + },
on a form prescribed by the Commissioner of the Bureau of Labor
and Industries { - , certifying - } { + . The statements must
certify + }:
(a) The hourly rate of wage paid each worker whom the
contractor or the subcontractor has employed upon the public
works; and
(b) That no worker employed upon the public works has been paid
less than the prevailing rate of wage or less than the minimum
hourly rate of wage specified in the contract.
(2) The certified { - statement - } { + statements + }
shall be verified by the oath of the contractor or the
contractor's surety or subcontractor or the subcontractor's
surety that the contractor or subcontractor has read the
certified { - statement - } { + statements + } and knows the
contents { - thereof - } { + of the certified statements + }
and that the { - same - } { + certified statements + }
{ - is - } { + are + } true to the contractor or
subcontractor's knowledge.
(3) The certified statements shall set out accurately and
completely the payroll records for the prior week, including the
name and address of each worker, the worker's correct
classification, rate of pay, daily and weekly number of hours
worked, deductions made and actual wages paid.
(4) The contractor or subcontractor shall deliver or mail
{ - each - } { + the + } certified { - statement - } { +
statements + } required by subsection (1) of this section to the
public agency { + or to the sponsor + }. Certified statements
for each week during which the contractor or subcontractor
employs a worker upon the public works shall be submitted once a
month, by the fifth business day of the following month.
Information submitted on certified statements may be used only to
ensure compliance with the provisions of ORS 279C.800 to
279C.870.
(5) Each contractor or subcontractor shall preserve the
certified statements for a period of three years from the date of
completion of the contract.
(6) Certified statements received by a public agency { + or a
sponsor + } are public records subject to the provisions of ORS
192.410 to 192.505.
(7) Notwithstanding ORS 279C.555 or 279C.570 (7), if a
contractor is required to file certified statements { + with a
public agency + } under this section, the public agency shall
retain 25 percent of any amount earned by the contractor on the
public works until the contractor has filed with the public
agency certified statements as required by this section. The
public agency shall pay the contractor the amount retained under
this subsection within 14 days after the contractor files the
certified statements as required by this section, regardless of
whether a subcontractor has failed to file certified statements
as required by this section. { - The public agency is not
required to verify the truth of the contents of certified
statements filed by the contractor under this section. - }
(8) Notwithstanding ORS 279C.555, the contractor shall retain
25 percent of any amount earned by a first-tier subcontractor on
a public works until the subcontractor has filed with the public
agency certified statements as required by this section. The
contractor shall verify that the first-tier subcontractor has
filed the certified statements before the contractor may pay the
subcontractor any amount retained under this subsection. The
contractor shall pay the first-tier subcontractor the amount
retained under this subsection within 14 days after the
subcontractor files the certified statements as required by this
section. { - Neither the public agency nor the contractor is
required to verify the truth of the contents of certified
statements filed by a first-tier subcontractor under this
section. - }
{ + (9) This section does not require:
(a) A public agency or a sponsor to verify the truth of the
contents of a contractor's certified statements; or
(b) A public agency, sponsor or contractor to verify the truth
of the contents of a subcontractor's certified statements. + }
SECTION 9. ORS 651.170 is amended to read:
651.170. The Commissioner of the Bureau of Labor and Industries
may incur { - such expense - } { + expenses + } and employ
{ - such - } clerical aids as { - may be - } necessary to
carry out ORS { - 279C.830 (2), - } 651.030, 651.050, 651.060
and 651.120. The Oregon Department of Administrative Services may
draw warrants on the State Treasurer { - for the payment of
such expense - } { + to pay the expenses + } upon properly
verified vouchers approved by the commissioner. However,
{ - such expense shall - } { + the expenses may + } not exceed
at any time the amount appropriated { - therefor - } { + for
the expenses + }.
SECTION 10. { + The amendments to ORS 279C.800, 279C.810,
279C.825, 279C.827, 279C.830, 279C.835, 279C.840, 279C.845 and
651.170 and section 8, chapter 844, Oregon Laws 2007, by sections
1 to 9 of this 2009 Act apply to contracts for public works first
advertised or otherwise solicited or, if not advertised or
solicited, first entered into on or after the operative date set
forth in section 11 (1) of this 2009 Act. + }
SECTION 11. { + (1) The amendments to ORS 279C.800, 279C.810,
279C.825, 279C.827, 279C.830, 279C.835, 279C.840, 279C.845 and
651.170 and section 8, chapter 844, Oregon Laws 2007, by sections
1 to 9 of this 2009 Act become operative 90 days after the
effective date of this 2009 Act.
(2) The Commissioner of the Bureau of Labor and Industries may
take any action before the operative date set forth in subsection
(1) of this section that is necessary to enable the commissioner
to exercise, on and after the operative date set forth in
subsection (1) of this section, all the duties, functions and
powers conferred on the commissioner by the amendments to ORS
279C.800, 279C.810, 279C.825, 279C.827, 279C.830, 279C.835,
279C.840, 279C.845 and 651.170 and section 8, chapter 844, Oregon
Laws 2007, by sections 1 to 9 of this 2009 Act. + }
SECTION 12. { + This 2009 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2009 Act takes effect on
its passage. + }
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