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 2819
House Bill 2867
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.
Requires contracting agency to establish measurable standards
to assess quality of contractor's performance under public
contract and specify consequences for failing to meet standards.
Authorizes Secretary of State and local contracting agency to
audit public contracts. Establishes certain standards for audit.
Prohibits contracting agency from contracting for contract
administration, except for consultant to train contracting agency
employees in skills necessary for administration.
Prohibits employee of contracting agency to seek or obtain
employment with contractor in certain circumstances. Requires
contractor to offer employment to employee of contracting agency
if public contract displaces employee.
Requires contracting agency to demonstrate with cost analysis
or by other means that cost of providing goods or performing
service with contracting agency's own personnel or resources is
greater than cost of procuring goods or services from contractor.
Specifies additional criteria for contracting agency to use in
determining contractor's responsibility and for prequalifying
contractor.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to public contracting; creating new provisions; amending
ORS 279B.110, 279B.120, 279B.125, 279B.145, 279C.375 and
279C.430; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Sections 2, 3, 4, 5 and 6 of this 2009 Act are
added to and made a part of ORS chapter 279A. + }
SECTION 2. { + (1) Before entering into a public contract, a
contracting agency shall establish measurable standards for
assessing the quality of the goods or services, personal
services, personal property, public improvements or public works,
alterations, repairs or maintenance that a contractor will
provide or perform under the contract. The contracting agency may
develop the quality standards applicable to the public contract
in cooperation with or as a result of negotiations with the
contractor to which the contracting agency has awarded the public
contract. Unless the contracting agency for good cause specifies
otherwise, the quality standards may not be less than the highest
standards prevalent in the industry or business most closely
involved in providing the appropriate goods or services, personal
services, personal property, public improvements, public works,
alterations, repairs or maintenance.
(2) The contracting agency, in the terms and conditions of a
public contract into which the contracting agency enters, shall
specify clear consequences for a contractor's failure to meet the
established quality standards. The consequences may include, but
are not limited to:
(a) Reducing or withholding payment;
(b) Requiring the contractor to perform, at the contractor's
expense, additional work necessary to meet the established
quality standards; or
(c) Declaring a default, terminating the public contract and
seeking damages or other relief available under the terms of the
public contract or other applicable law.
(3) Before executing a public contract, the contracting agency
shall obtain the contractor's agreement to abide by the contract
terms specified in this section.
(4) A contracting agency may not make a payment under the
public contract until the contracting agency has established the
quality standards described in this section and has obtained the
contractor's agreement to abide by the quality standards. + }
SECTION 3. { + Except as provided in this chapter or in ORS
chapters 279B and 279C and unless otherwise subject to exemption
under a provision of ORS 192.410 to 192.505, a public contract is
a public record. + }
SECTION 4. { + (1) The Secretary of State has authority to
audit a contractor's performance under a public contract into
which a state contracting agency enters. The audit shall use
generally accepted accounting principles and may:
(a) Examine the contractor's books, papers, correspondence and
other records related to the public contract;
(b) Assess whether the contractor has met the quality standards
set forth in the public contract under section 2 of this 2009
Act;
(c) Determine whether the contractor has met commercial
standards of good faith and fair dealing in the contractor's
course of dealing with the contracting agency; and
(d) Examine other issues that the Secretary of State deems
germane to assessing the contractor's performance under the
public contract.
(2) A state contracting agency may request the Secretary of
State to audit a contractor's performance under a public contract
for any reason and at any point during which the public contract
is in effect or for a period of six years after the date on which
the public contract terminates.
(3) The terms of a public contract shall require a contractor
to keep books, papers and other records and to document the
contractor's performance under the terms of the public contract,
with particular reference to the contractor's compliance with the
quality standards set forth in the public contract, in as much
detail as will enable the Secretary of State to conduct an audit
under this section. The contractor shall keep the records
described in this subsection for a minimum period of six years
after the date on which the public contract terminates.
(4) A local contracting agency shall designate a person that
will have the authority to audit contractor performance under a
public contract into which the local contracting agency enters.
The person the local contracting agency authorizes to conduct the
audit shall do so in accordance with the standards prescribed in
this section and shall follow as closely as practicable the
procedures employed by the Secretary of State.
(5) The contracting agency and the contractor shall cooperate
with the auditing agency in all respects and shall permit full
access to all information that the auditing agency deems
necessary for a true and complete review. Information that the
auditing agency obtains or receives in the course of the audit is
subject to the same limitations on public inspection of records
as are provided for the contracting agency or for the contractor
under ORS 192.410 to 192.505. + }
SECTION 5. { + (1) Except as provided in subsection (2) of
this section, a contracting agency may not enter into a public
contract for the purpose of administering, managing or overseeing
another public contract.
(2) To the extent that administering, managing or overseeing a
public contract requires technical or other expertise the
contracting agency does not possess, the contracting agency may
contract with a consultant or other contractor for the purpose of
training the contracting agency's personnel in the skills
necessary to administer, manage or oversee the public
contract. + }
SECTION 6. { + (1) Except as provided in subsection (2) of
this section, an employee of a contracting agency who separates
from the contracting agency for any reason except retirement may
not, for a period of one year following the employee's
separation, seek or gain employment with a contractor with which
the contracting agency entered into a public contract if:
(a) The employee worked directly on matters related to the
public contract or in a field closely related to the subject of
the public contract; or
(b) The employee's duties for the contractor would involve work
related to the public contract.
(2) If a contracting agency enters into a public contract for
services that an employee of the contracting agency performs and,
as a result of entering into the public contract, the contracting
agency no longer employs the employee, the contracting agency
shall require in the terms of the public contract that the
contractor offer to employ the employee to provide services under
the public contract. The contractor shall offer the employee
employment terms similar to the employment terms under which the
employee was employed with the contracting agency. + }
SECTION 7. { + Sections 8, 9 and 10 of this 2009 Act are added
to and made a part of ORS chapter 279B. + }
SECTION 8. { + (1) Before conducting a procurement for goods
or services with an estimated contract price that exceeds
$25,000, a contracting agency shall:
(a) Demonstrate, by means of a written cost analysis in
accordance with section 9 of this 2009 Act, that the contracting
agency would incur less cost in conducting the procurement than
in providing the goods or performing the services with the
contracting agency's own personnel and resources; or
(b) Demonstrate, in accordance with section 10 of this 2009
Act, that providing the goods or performing the services with the
contracting agency's own personnel and resources is not feasible.
(2) If a contracting agency has previously conducted a
procurement for goods or services that the contracting agency
intends to provide or perform with the contracting agency's own
personnel and resources, the contracting agency shall first
conduct a cost analysis in accordance with section 9 of this 2009
Act and determine that providing the goods or performing the
services with the contracting agency's own personnel and
resources would cost the contracting agency less. + }
SECTION 9. { + (1) In the cost analysis required under section
8 of this 2009 Act, a contracting agency shall:
(a) Estimate the contracting agency's cost of providing the
goods or performing the services, including:
(A) Salary or wage and benefit costs for contracting agency
employees who are directly involved in providing the goods or
performing the services, including employees who inspect,
supervise or monitor the provision of the goods or the
performance of the services;
(B) Material costs, including costs for space, energy,
transportation, storage, raw and finished materials, equipment
and supplies;
(C) Opportunity costs the contracting agency incurs by using
personnel and resources that the contracting agency might
otherwise dedicate to other tasks to provide the goods or perform
the services;
(D) Costs incurred for planning, training, starting up,
manufacturing or implementing, transporting and delivering the
goods or services and costs related to stopping and dismantling a
project or operation because the contracting agency intends to
procure a limited quantity of goods or services or procure the
goods or services within a defined or limited period of time; and
(E) Miscellaneous costs related to providing the goods or
performing the services.
(b) Estimate the cost a potential contractor would incur in
providing the goods or performing the services, including:
(A) Average salary or wage and benefit costs for contractors
and employees who:
(i) Work in the industry or business most closely involved in
providing the goods or performing the services that the
contracting agency intends to procure; and
(ii) Would be necessary and directly involved in providing the
goods or performing the services or who would inspect, supervise
or monitor the provision of the goods or the performance of the
services;
(B) Material costs, including costs for space, energy,
transportation, storage, raw and finished materials, equipment
and supplies;
(C) Costs incurred for planning, training, starting up,
manufacturing or implementing, transporting and delivering
specialized goods or services or goods or services required
within a defined or limited period of time;
(D) Costs related to financing, taxes, insurance, bonding legal
services and other expenses required to comply with ORS chapters
279A, 279B and 279C and other applicable provisions of law; and
(E) Miscellaneous costs related to providing the goods or
performing the services, including reasonably foreseeable
fluctuations in the costs for the items identified in this
subsection over the expected duration of the procurement.
(2) After comparing the difference between the costs estimated
as provided in subsection (1)(a) of this section with the costs
estimated as provided in subsection (1)(b) of this section, the
contracting agency may proceed with the procurement only if the
contracting agency would incur more cost in providing the goods
or performing the services with the contracting agency's own
personnel and resources than the contracting agency would incur
in procuring the goods or services from a contractor.
(3) A cost analysis, all supporting documentation and a
determination made under this section are public records. + }
SECTION 10. { + (1) Notwithstanding the provisions of section
9 (2) of this 2009 Act, a contracting agency may proceed with a
procurement if the contracting agency reasonably determines in
writing that providing the goods or performing the services that
the contracting agency intends to procure with the contracting
agency's own personnel or resources is clearly not feasible. In
determining feasibility, a contracting agency may:
(a) Take into account and compare the contracting agency's
experience or expertise in the field most closely involved in
providing the goods or performing the services with a potential
contractor's experience and expertise in the same or a similar
field;
(b) Assess how the level of experience or expertise that the
contracting agency has or that a potential contractor could bring
would affect the quality, efficiency or utility of the goods or
services or the advantage the goods or services would provide to
the contracting agency;
(c) Assess the degree of technical expertise or specialization
necessary to provide the goods or perform the services and
compare the capabilities of the contracting agency's personnel
and resources with the capabilities of a potential contractor; or
(d) Find that special circumstances require the contracting
agency to procure the goods or services by contract. Special
circumstances may include, but are not limited to, circumstances
in which:
(A) The terms under which the contracting agency receives a
grant or other funds for use in a procurement require the
contracting agency to obtain goods or services through an
independent contractor;
(B) Other state or federal law requires the contracting agency
to procure goods or services through an independent contractor;
(C) The procurement is for services that are incidental to a
contract for purchasing or leasing real or personal property,
including service and maintenance agreements for equipment that
is leased or rented;
(D) The contracting agency cannot accomplish policy,
administrative or legal goals, including but not limited to
avoiding conflicts of interest or ensuring independent or
unbiased findings in cases when using the contracting agency's
existing personnel or persons the contracting agency could hire
through a regular or ordinary process would not be suitable;
(E) The procurement is for goods or services to which the
provisions of ORS 279B.080 apply; or
(F) The procurement is for goods or services, the need for
which is so urgent, temporary or occasional that attempting to
provide the goods or perform the services with the contracting
agency's own personnel or resources would cause a delay that
would frustrate the purpose for obtaining the goods or services.
(2) An analysis, assessment or finding and all supporting
documentation for a determination made under this section are
public records. + }
SECTION 11. ORS 279B.110 is amended to read:
279B.110. (1) { - The - } { + A + } contracting agency
shall prepare a written determination of nonresponsibility
{ - of - } { + for + } a bidder or proposer if the bidder or
proposer { - does not meet the standards of responsibility - }
{ + is not responsible + }.
(2) { - In determining whether - } A { + responsible + }
bidder or proposer
{ - has met the standards of responsibility, - } { + must
demonstrate to + } the contracting agency { - shall consider
whether a - } { + that the + } bidder or proposer { - has - }
:
(a) { + Has + } available the appropriate financial, material,
equipment, facility and personnel resources and expertise,
or { + has the + } ability to obtain the resources and
expertise, necessary to
{ - indicate the capability of the bidder or proposer to - }
meet all contractual responsibilities { - ; - } { + . + }
(b) { + Has + } a satisfactory record of performance. The
contracting agency shall document the { + bidder's or
proposer's + } record of performance { - of a bidder or
proposer - } if the contracting agency finds { + under this
paragraph that + } the bidder or proposer
{ - nonresponsible under this paragraph; - } { + is not
responsible. + }
(c) { + Has + } a satisfactory record of integrity. The
contracting agency shall document the { + bidder's or
proposer's + } record of integrity { - of a bidder or
proposer - } if the contracting agency finds { + under this
paragraph that + } the bidder or proposer
{ - nonresponsible under this paragraph; - } { + is not
responsible.
(d) Provides adequate wages and affordable benefits to the
bidder's or proposer's employees and families.
(e) Is not in litigation, subject to an administrative
enforcement action or otherwise in a legal dispute with another
contracting agency or a public agency in another state.
(f) Complies with all applicable state and federal laws related
to the subject of the procurement, including but not limited to
labor law and environmental law.
(g) Has a record of completing previous public contracts
successfully, without significant complaints concerning the
quality of the bidder's work, delays in completing contracts or
cost overruns or, if the bidder has not previously bid for a
public contract, has a record of completing other contracts with
similar success. + }
{ - (d) - } { + (h) + } { + Is legally + }qualified
{ - legally - } to contract with the contracting agency
{ - ; - } { + . + }
{ - (e) - } { + (i) + } { + Has + }supplied all necessary
information in connection with the inquiry concerning
responsibility. If a bidder or proposer fails to promptly supply
information { + concerning responsibility + } { - requested
by - } { + that + } the contracting agency
{ - concerning responsibility - } { + requests + }, the
contracting agency shall
{ - base the determination of - } { + determine the bidder's
or proposer's + } responsibility { - upon any - } { + based
on + } available information or may find { + that + } the bidder
or proposer { - nonresponsible; and - } { + is not
responsible. + }
{ - (f) - } { + (j) + } { + Has + }not been debarred by
the contracting agency under ORS 279B.130.
(3) A contracting agency may refuse to disclose outside of the
contracting agency confidential information furnished by a bidder
or proposer under this section when the bidder or proposer has
clearly identified in writing the information the bidder or
proposer seeks to have treated as confidential and the
contracting agency has authority under ORS 192.410 to 192.505 to
withhold the identified information from disclosure.
SECTION 12. ORS 279B.120 is amended to read:
279B.120. (1) A contracting agency may prequalify prospective
bidders or proposers to submit bids or proposals for public
contracts to provide particular types of goods or services.
{ + Unless the Oregon Department of Administrative Services by
rule, or a local contract review board by resolution, ordinance
or other regulation, prescribes otherwise, the contracting agency
shall determine how and with what forms and information a bidder
or proposer must apply for prequalification. + } { - The method
of submitting prequalification applications, the information
required in order to be prequalified and the forms to be used for
submitting prequalification information shall be determined by
the contracting agency unless otherwise prescribed by rule
adopted by the Director of the Oregon Department of
Administrative Services or the local contract review board. - }
(2) { + (a) + } The contracting agency shall { - , in response
to the receipt of a - } { + respond to a + } prequalification
application submitted under subsection (1) of this section { - ,
notify - } { + by:
(A) Notifying + } the prospective bidder or proposer whether
the prospective bidder or proposer is qualified based on the
standards of responsibility listed in ORS 279B.110 { - (2), - }
{ + ; and
(B) Identifying + }the type and nature of contracts
{ - that - } { + for which + } the prospective bidder or
proposer is qualified to compete
{ - for - } and the time period for which the prequalification
is valid.
{ + (b) + } If the contracting agency does not prequalify a
prospective bidder or proposer { - as to any contracts covered
by - } { + for a contract subject to + } the prequalification
process, the
{ - notice must specify - } { + contracting agency must
notify the bidder or proposer and specify + } which of the
standards of responsibility listed in ORS 279B.110 (2) the
prospective bidder or proposer failed to meet. Unless the { +
contracting agency specifies the + } reasons { - are
specified - } { + why the bidder or proposer failed to
prequalify + }, the prospective bidder or proposer { - shall be
deemed to have been - } { + is + } prequalified { - in
accordance with - } { + on the basis of the information that
appears in and for the type and nature of contracts identified
in + } the application.
{ + (3) A contracting agency shall review the bidder's or
proposer's eligibility for prequalification three years after the
contracting agency's initial decision to prequalify the bidder or
proposer and at the end of each subsequent three-year period in
which the bidder or proposer continues to submit bids or
proposals for public contracts. In the review, the contracting
agency shall verify that the bidder or proposer is responsible as
provided in ORS 279B.110. + }
{ - (3) - } { + (4) + } If a contracting agency
{ - subsequently - } discovers that a prospective bidder or
proposer that { + the contracting agency + } prequalified under
subsections (1) and (2) of this section is no longer
{ - qualified - } { + eligible for prequalification + }, the
agency may revoke the prequalification upon reasonable notice to
the prospective bidder or proposer, except that a revocation is
invalid { - as to any - } { + for a + } contract for
which { + the contracting agency has issued + } an advertisement
for bids or proposals { - has already been issued - } .
SECTION 13. ORS 279B.125 is amended to read:
279B.125. (1) { - When - } { + If + } a contracting
agency { + by rule, resolution, ordinance or other
regulation + } permits or requires
{ - prequalification of - } bidders or proposers { + to
prequalify + }, a prospective bidder or proposer who wishes to
prequalify shall submit a prequalification application to the
contracting agency on a form prescribed under ORS 279B.120 (1).
Upon { - receipt of - } { + receiving + } a prequalification
application, the contracting agency shall { + require the
applicant to make the demonstrations required under ORS 279B.110
and shall + } investigate the prospective bidder or proposer as
necessary to determine whether the prospective bidder or proposer
is { - qualified - } { + eligible for prequalification + }.
The { + contracting agency shall make the + }determination
{ - shall be made - } in less than 30 days, if practicable, if
the prospective bidder or proposer requests an early decision to
allow the prospective bidder or proposer as much time as possible
to prepare a bid or proposal for a contract that has been
advertised. In { - making its determination - } { +
determining whether an applicant is eligible for
prequalification + }, the contracting agency shall consider only
{ - the applicable standards of responsibility listed in ORS
279B.110 (2) - } { + whether the applicant is responsible as
provided in ORS 279B.110 + }. The contracting agency shall
promptly notify the prospective bidder or proposer whether the
prospective bidder or proposer is
{ - qualified - } { + eligible for prequalification + }.
(2) If the contracting agency finds that a prospective bidder
or proposer is { - qualified - } { + eligible for
prequalification + }, the notice must state the type and nature
of contracts { - that - } { + for which + } the prospective
bidder or proposer is qualified to compete
{ - for - } and the period of time for which the
prequalification is valid. If the { + contracting + } agency
{ - finds that the - } { + does not prequalify a + }
prospective bidder or proposer { - is not qualified as to any
contracts - } { + for a contract that is subject to
prequalification under + } { - covered by - } the rule,
resolution, ordinance or other regulation, the notice must
specify { + which of the standards of responsibility described
in ORS 279B.110 the prospective bidder or proposer failed to meet
+ } { - the reasons given under ORS 279B.120 for not
prequalifying the prospective bidder or proposer - } and inform
the prospective bidder or proposer of the right to a hearing
under ORS 279B.425. To be entitled to a hearing under ORS
279B.425, a prospective bidder or proposer shall, within three
business days after { - receipt of - } { + receiving + } the
notice, notify the contracting agency that the prospective bidder
or proposer demands a hearing under ORS 279B.425.
(3) If a contracting agency has reasonable cause to believe
that { - there has been - } a substantial change in
{ - the - } conditions
{ - of - } { + has caused + } a prequalified prospective
bidder or proposer { - and that the prospective bidder or
proposer is no longer qualified or is - } { + to become + }
less qualified { + or ineligible for prequalification + }, the
contracting agency may revoke or may revise and reissue the
prequalification after reasonable notice to the prequalified
prospective bidder or proposer. The notice must { + specify
which of the standards of responsibility described under ORS
279B.110 the prequalified prospective bidder or proposer no
longer meets or the reasons the contracting agency must revise
the prequalified prospective bidder's or proposer's eligibility
for prequalification + } { - specify the reasons given under
ORS 279B.120 for revocation or revision of the prequalification
of the prospective bidder or proposer - } and inform the
prospective bidder or proposer of the right to a hearing under
ORS 279B.425. To be entitled to a hearing under ORS 279B.425, a
prospective bidder or proposer shall, within three business days
after { - receipt of - } { + receiving + } the notice, notify
the contracting agency that the prospective bidder or proposer
demands a hearing under ORS 279B.425. A revocation or revision
does not apply to { - any - } { + a + } contract for
which { + the contracting agency advertised + } { - an
advertisement - } for bids or proposals { - was issued - }
before the date { + the prequalified prospective bidder or
proposer received + } the notice of revocation or revision
{ - was received by the prequalified prospective bidder or
proposer - } .
SECTION 14. ORS 279B.145 is amended to read:
279B.145. The determinations under ORS 279B.055 (3) and (7),
279B.060 (3) and (10), 279B.075, 279B.080, 279B.085 and 279B.110
(1) { + and sections 8, 9 and 10 of this 2009 Act + } are final
and conclusive unless they are clearly erroneous, arbitrary,
capricious or contrary to law.
SECTION 15. ORS 279C.375 is amended to read:
279C.375. (1) After { + a contracting agency has opened + }
bids { - are opened and a determination is made that - } { +
and determined that the contracting agency will award + } 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 - } { +
awarding + } 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 - } { + to which + } competitive bidding { +
does not apply + } under ORS 279C.335 (1)(c) or (d). The notice
and { - its - } { + the + } manner { - of posting or
issuance - } { + in which the notice is posted or issued + }
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 { + is responsible. A
responsible bidder must demonstrate to the contracting agency
that the bidder: + } { - has met the standards of
responsibility. In making the determination, the contracting
agency shall consider whether a bidder has: - }
(A) { + Has + } available the appropriate financial, material,
equipment, facility and personnel resources and expertise,
or { + has + } the ability to obtain the resources and
expertise, necessary to meet all contractual responsibilities.
(B) { + Has + } a satisfactory record of performance. The
contracting agency shall document the { + bidder's + } record of
performance { - of a bidder - } if the contracting agency
finds { + under this paragraph that + } the bidder { + is + }
not { - to be - } responsible { - under this
subparagraph - } .
(C) { + Has + } a satisfactory record of integrity. The
contracting agency shall document the { + bidder's + } record of
integrity { - of a bidder - } if the contracting agency
finds { + under this paragraph that + } the bidder { + is + }
not { - to be - } responsible { - under this
subparagraph - } .
{ + (D) Is not in litigation, subject to an administrative
enforcement action or otherwise in a legal dispute with another
contracting agency or a public agency in another state.
(E) Has not previously been subject to an administrative or
other proceeding because the bidder failed to pay a prevailing
rate of wage.
(F) Complies with all applicable state and federal laws related
to the subject of the procurement, including but not limited to
labor law and environmental law.
(G) Has a record of completing previous public contracts
successfully, without significant complaints concerning the
quality of the bidder's work, delays in completing contracts or
cost overruns or, if the bidder has not previously bid for a
public contract, has a record of completing other contracts with
similar success. + }
{ - (D) - } { + (H) Is legally + }qualified
{ - legally - } to contract with the contracting agency.
{ - (E) - } { + (I) Has + } supplied all necessary
information in connection with the inquiry concerning
responsibility. If a bidder fails to promptly supply
information { + concerning responsibility that + }
{ - requested by - } the contracting agency { - concerning
responsibility - } { + requests + }, the contracting agency
shall { - base the determination of - } { + determine the
bidder's + } responsibility { - upon any - } { + based on + }
available information, or may find { + that + } the bidder { +
is + } 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 - }
{ +
found that + }
the bidder
{ +
demonstrated that 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 not in litigation,
subject to an administrative
enforcement action or otherwise
in a legal dispute with another
contracting agency or a public
agency in another state. + }
? { +
Has not previously been
subject to an administrative
or other proceeding because
the bidder failed to pay a
prevailing rate of wage. + }
? { +
Complies with all applicable
state and federal laws related
to the subject of the
procurement. + }
? { +
Has a record of completing
previous public contracts
successfully, without significant
complaints concerning the
quality of the bidder's work,
delays in completing contracts
or cost overruns or, if the
bidder has not previously bid
for a public contract, has a
record of completing other
contracts with similar success. + }
? Is { -
qualified - }
legally { +
qualified + }
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.
(6) A contracting agency may not exclude a commercial
contractor from competing for a public contract on the basis that
the license issued by the Construction Contractors Board is
endorsed as a level 1 or level 2 license. As used in this
section, ' commercial contractor' has the meaning given that term
in ORS 701.005.
SECTION 16. ORS 279C.430 is amended to read:
279C.430. (1) A contracting agency may adopt a rule,
resolution, ordinance or other regulation { - requiring
mandatory prequalification for all persons desiring to bid for
public improvement contracts that are to be let by the agency - }
{ + to require a person to prequalify in order to bid for a
contract the contracting agency intends to let + }. The rule,
resolution, ordinance or other regulation authorized by this
section must { - include the time for submitting - } { +
specify when a person must submit an application for + }
prequalification { - applications and a general description
of - } { + and describe + } the type and nature of the
contracts
{ - that may be - } { + the contracting agency may + } let.
The prequalification application must be in writing on a standard
form prescribed under the authority of ORS 279A.050.
(2) When a contracting agency permits or requires
{ - prequalification of - } bidders { + to prequalify + }, a
person who wishes to prequalify shall submit a prequalification
application to the contracting agency on a standard form
prescribed under subsection (1) of this section. Within 30 days
after { - receipt of - } { + receiving + } a prequalification
application, the contracting agency shall { + require the
applicant to make the demonstrations required under ORS 279C.375
and + }investigate the applicant as necessary to determine if
the applicant is { - qualified - } { + eligible for
prequalification + }. The { + contracting agency shall make
the + } determination { - shall be made - } in less than 30
days, if practicable, if the applicant requests an early decision
to allow the applicant as much time as possible to prepare a bid
on a contract that has been advertised. In { - making its
determination, - } { + determining whether an applicant is
eligible for prequalification, + } the contracting agency shall
consider only
{ - the applicable standards of responsibility listed in ORS
279C.375 (3)(b). - } { + whether the applicant is responsible
as provided in ORS 279C.375. + } The agency shall promptly notify
the applicant whether or not the applicant is { - qualified - }
{ + eligible for prequalification + }.
(3) If the contracting agency finds that the applicant is
{ - qualified - } { + eligible for prequalification + }, the
notice must state the nature and type of contracts { - that the
person is qualified - } { + for which the applicant is
prequalified + } to bid { - on - } and the period of time for
which the { - qualification - } { + prequalification + } is
valid under the contracting agency's rule, resolution, ordinance
or other regulation. If the contracting agency { - finds the
applicant is not qualified as to any contracts covered by - }
{ + does not prequalify an applicant for a contract that is
subject to prequalification under + } the rule, resolution,
ordinance or other regulation, the notice must specify { + which
of the standards of responsibility described in ORS 279C.375 the
applicant failed to meet + } { - the reasons found under ORS
279C.375 (3)(b) for not prequalifying the applicant - } and
inform the applicant of the right to a hearing under ORS 279C.445
and 279C.450.
{ + (4) A contracting agency shall review a bidder's
eligibility for prequalification three years after the
contracting agency's initial decision to prequalify the bidder
and at the end of each subsequent three-year period in which the
bidder continues to submit bids for public contracts. In the
review, the contracting agency shall verify that the bidder is
responsible as provided in ORS 279C.375. + }
{ - (4) - } { + (5) + } If a contracting agency has
reasonable cause to believe that { - there has been - } a
substantial change in { - the - } conditions { + has
caused + } { - of - } a prequalified person { - and that the
person is no longer qualified or is - } { + to become + } less
qualified { + or to become ineligible for prequalification + },
the agency may revoke or may revise and reissue the
prequalification after reasonable notice to the prequalified
person. The notice { - shall state the reasons found under ORS
279C.375 (3)(b) for revocation or revision - } { + must specify
which of the standards of responsibility described under ORS
279C.375 the prequalified person no longer meets or the reasons
the contracting agency must revise the prequalified person's
eligibility for prequalification + } { - of the
prequalification of the person - } and inform the person of the
right to a hearing under ORS 279C.445 and 279C.450. A revocation
or revision does not apply to { - any - } { + a + } public
improvement contract for which { - publication of an
advertisement, - } { + the contracting agency advertised for
bids + } in accordance with ORS 279C.360 { - , commenced - }
before the date { + on which the prequalified person
received + } the notice of revocation or revision { - was
received by the prequalified person - } .
SECTION 17. { + Sections 2, 3, 4, 5, 6, 8, 9 and 10 of this
2009 Act and the amendments to ORS 279B.110, 279B.120, 279B.125,
279B.145, 279C.375 and 279C.430 by sections 11 to 16 of this 2009
Act apply to:
(1) Public contracts first advertised or otherwise solicited
or, if not advertised or solicited, entered into on or after
January 1, 2010; and
(2) Public contracts renewed on or after January 1, 2010,
irrespective of whether the contract is renewed with an existing
contractor or a new contractor. + }
SECTION 18. { + (1) Sections 2, 3, 4, 5, 6, 8, 9 and 10 of
this 2009 Act and the amendments to ORS 279B.110, 279B.120,
279B.125, 279B.145, 279C.375 and 279C.430 by sections 11 to 16 of
this 2009 Act become operative January 1, 2010.
(2) The Secretary of State, the Attorney General, the Director
of the Oregon Department of Administrative Services and a
contracting agency that has adopted rules under ORS 279A.065 may
adopt rules and take related actions before January 1, 2010, that
are necessary to enable the Secretary of State, the Attorney
General, the director and the contracting agency to exercise, on
and after January 1, 2010, all the duties, functions and powers
conferred on the Secretary of State, Attorney General, director
and contracting agency by sections 2, 3, 4, 5, 6, 8, 9 and 10 of
this 2009 Act and the amendments to ORS 279B.110, 279B.120,
279B.125, 279B.145, 279C.375 and 279C.430 by sections 11 to 16 of
this 2009 Act. + }
SECTION 19. { + 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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