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 2587
House Bill 2731
Sponsored by COMMITTEE ON BUSINESS AND LABOR
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 as
introduced.
Permits contracting agency and person appealing
disqualification or denial, revocation or revision of
prequalification for public contracting work to agree on time in
which Director of Oregon Department of Administrative Services or
local contract board must conduct hearing and decide appeal.
A BILL FOR AN ACT
Relating to prequalifications for public contracts; creating new
provisions; and amending ORS 279C.450.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 279C.450 is amended to read:
279C.450. (1) { - The procedure for - } { + An + } appeal
from a { + contracting agency's + } disqualification or denial,
revocation or revision of a prequalification { - by a
contracting agency shall be in accordance with - } { + is
subject to the procedures set forth in + } this section and is
not subject to ORS chapter 183 except when specifically provided
{ - by - } { + in + } this section.
(2) Promptly upon { - receipt of - } { + receiving + }
notice of appeal from a contracting agency as provided { - for
by - } { + in + } ORS 279C.445, the Director of the Oregon
Department of Administrative Services or the local contract
review board shall notify the person appealing and the
contracting agency of the time and place of the hearing. The
director or board shall conduct the hearing and decide the appeal
within 30 days after receiving the notification from the
contracting agency { + unless the person appealing and the
contracting agency mutually agree to a different period of
time + }. The director or board shall set forth in writing the
reasons for the decision.
(3) In the hearing the director or board shall consider de novo
the notice of disqualification or denial, revocation or revision
of a prequalification, the reasons listed in ORS 279C.440 (2) on
which the contracting agency based the disqualification or the
standards of responsibility listed in ORS 279C.375 (3)(b) on
which the contracting agency based the denial, revocation or
revision of the prequalification and any evidence provided by the
parties. In all other respects, a hearing before the director
shall be conducted in the same manner as a contested case under
ORS 183.417 (1) to (4) and (7), 183.425, 183.440, 183.450 and
183.452.
(4) The director may allocate the director's cost for the
hearing between the person appealing and the contracting agency
whose disqualification or prequalification decision is being
appealed. The { + director shall base the + } allocation
{ - shall be based - } upon facts { - found by - } the
director { + finds in the record and states + }
{ - and stated - } in the final order that, in the director's
opinion, warrant such allocation of the costs. If the final order
does not allocate the director's costs for the hearing, the costs
{ - shall - } { + must + } be paid as follows:
(a) If the { + director upholds the + } decision to disqualify
or deny, revoke or revise a prequalification of a
person { + , + } { - is upheld, the director's costs shall be
paid by - } the person appealing the disqualification or
prequalification decision { + shall pay the director's
costs + }.
(b) If the { + director reverses the + } decision to
disqualify or deny, revoke or revise a prequalification of a
person { + , + } { - as a bidder is reversed by the director,
the director's costs shall be paid by - } the contracting agency
whose disqualification or prequalification decision is the
subject of the appeal { + shall pay the director's costs + }.
(5) The decision of the director or board may be reviewed only
upon a petition, filed within 15 days after the date of the
decision, in the circuit court of the county in which the
director or board has { - its - } { + the director's or the
board's + } principal office. The circuit court shall reverse or
modify the decision only if
{ - it - } { + the court + } finds:
(a) The decision was obtained through corruption, fraud or
undue means.
(b) There was evident partiality or corruption on the part of
the director or board or any of { - its - } { + the + }
members { + of the board + }.
(c) There was an evident material miscalculation of figures or
an evident material mistake in the description of { - any - }
{ + a + } person, thing or property referred to in the
decision.
(6) The procedure provided in this section is the exclusive
means of judicial review of the decision of the director or
board. The judicial review provisions of ORS 183.480 { + , + }
{ - and - } { + the + } writs of review and mandamus { + , + }
as provided in ORS chapter 34, and other legal, declaratory and
injunctive remedies { - , - } are not available.
(7) The circuit court may, in { - its - } { + the
court's + } discretion, stay the letting of the contract that is
the subject of the petition in the same manner as { + the court
may issue a stay in + } a suit in equity. { - When - } { +
If + } the court determines that { - there has been - } an
improper disqualification or denial, revocation or revision of a
prequalification { + occurred + } and the contract has been let,
the court may proceed to take evidence to determine the damages,
if any, { - suffered by - } the petitioner { + suffered + }
and award such damages as the court may find as a judgment
against the director or board. The court may award costs and
attorney fees to the prevailing party.
SECTION 2. { + The amendments to ORS 279C.450 by section 1 of
this 2009 Act apply to appeals from a disqualification or denial,
revocation or revision of a prequalification that occur on or
after the effective date of this 2009 Act. + }
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