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 824
 
                         Senate Bill 53
 
Printed pursuant to Senate Interim Rule 213.28 by order of the
  President of the Senate in conformance with presession filing
  rules, indicating neither advocacy nor opposition on the part
  of the President (at the request of Commissioner of the Bureau
  of Labor and Industries Brad Avakian)
 
 
                             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 public agency to pay fee to Commissioner of Bureau of
Labor and Industries when public agency notifies commissioner
that public agency has awarded contract subject to prevailing
wage law.
  Removes provision requiring contract for public works to
contain statement that fee must be paid to commissioner.
  Requires contractor or subcontractor to pay all wages due and
owing to workers on public works on contractor's or
subcontractor's regular payday.
  Declares emergency, effective on passage.
 
                        A BILL FOR AN ACT
Relating to prevailing rates of wage; creating new provisions;
  amending ORS 279C.825, 279C.830, 279C.835, 279C.840 and
  651.170; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 279C.825 is amended to read:
  279C.825. (1)(a) The Commissioner of the Bureau of Labor and
Industries, by rule, shall establish a fee to be paid by the
public agency that awards a public works contract subject to ORS
279C.800 to 279C.870. The fee shall be used to pay the costs of:
  (A) Surveys to determine the prevailing rates of wage;
  (B) Administering and providing investigations under and
enforcement of ORS 279C.800 to 279C.870; and
  (C) Providing educational programs on public contracting law
under the Public Contracting Code.
  (b) The fee shall be 0.1 percent of the contract price.
However, in no event may a fee be charged and collected that is
more than $5,000 or less than $100.
  (2) The commissioner shall pay moneys received under this
section into the State Treasury. The moneys shall be credited to
the Prevailing Wage Education and Enforcement Account created by
ORS 651.185.
  (3) The 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 a contract subject
 
to the provisions of ORS 279C.800 to 279C.870 has been
awarded + }.
  SECTION 2. 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. 3141 et seq.)  that may be paid to workers in each trade
or occupation required for the public works employed in the
performance of the contract either by the contractor or
subcontractor or other person doing or contracting to do the
whole or any part of the work contemplated by the contract. When
the prevailing rates of wage are available electronically or are
accessible on the Internet, the rates may be incorporated into
the specifications by referring to the electronically accessible
or Internet-accessible rates and by providing adequate
information about how to access the rates.
  (b) If a public agency is required under paragraph (a) of this
subsection to include the state and federal prevailing rates of
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)(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 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) - }  { +  (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 exempt under ORS 279C.836
(4), (7), (8) or (9).  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), (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 exempt under ORS 279C.836 (4), (7), (8) or (9).
  SECTION 3. ORS 279C.835 is amended to read:
  279C.835. Public agencies 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. The
notification shall be made within 30 days of the date that the
contract is awarded. The notification shall include { +  payment
of the fee required under ORS 279C.825 and + } a copy of the
disclosure of first-tier subcontractors that was submitted under
ORS 279C.370.
  SECTION 4. ORS 279C.840 is amended to read:
  279C.840. (1) The hourly rate of wage to be paid by any
contractor or subcontractor to workers upon all public works
shall be not 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 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 in ORS 279C.800 (1)(a), or by
the assumption of an enforceable commitment to bear the costs of
a plan or program of a type referred to in ORS 279C.800 (1)(b),
or any combination thereof, where the aggregate of any such
payments, contributions and costs is not less than the prevailing
rate of wage. { +  The contractor or subcontractor shall pay all
wages due and owing to the contractor's or subcontractor's
workers upon public works on the regular payday established and
maintained under ORS 652.120. + }
  (2) After a contract for public works is executed with any
contractor or work is commenced upon any public works, the amount
of the prevailing rate of wage is not subject to attack in any
legal proceeding by any contractor or subcontractor in connection
with that contract.
  (3) It is not a defense in any 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 to work at
less than the wage rates required to be paid under this section.
  (4) Every 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 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 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 person other than the contractor or subcontractor may pay or
contribute any portion of the prevailing rate of wage paid by the
contractor or subcontractor 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 prohibit payments to a
worker who is enrolled in any government-subsidized training or
retraining program.
  (7) A person may not take any 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 project 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 5. ORS 651.170 is amended to read:
 
  651.170. The Commissioner of the Bureau of Labor and Industries
may incur such expense 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 upon properly verified vouchers
approved by the commissioner. However, such expense shall not
exceed at any time the amount appropriated therefor.
  SECTION 6.  { + The amendments to ORS 279C.825, 279C.830,
279C.835 and 279C.840 by sections 1 to 4 of this 2009 Act apply
to contracts for public works awarded on or after the effective
date of this 2009 Act. + }
  SECTION 7.  { + 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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