Chapter 279C —
Public Contracting - Public Improvements and Related Contracts
ORS sections in this chapter were
amended or repealed by the Legislative Assembly during its 2012 regular
session. See the table of ORS sections amended or repealed during the 2012
regular session: 2012 A&R Tables
2011 EDITION
PUBLIC CONTRACTING - PUBLIC IMPROVEMENTS
PUBLIC FACILITIES, CONTRACTING &
INSURANCE
GENERAL PROVISIONS
279C.005 Definitions
279C.010 Applicability
ARCHITECTURAL, ENGINEERING, PHOTOGRAMMETRIC
MAPPING, TRANSPORTATION PLANNING, LAND SURVEYING AND RELATED SERVICES
279C.100 Definitions
for ORS 279C.100 to 279C.125
279C.105 Contracts
for architectural, engineering, photogrammetric mapping, transportation
planning or land surveying and related services; procedures
279C.107 Public
disclosure of contents of proposals for architectural, engineering,
photogrammetric mapping, transportation planning or land surveying services;
treatment of trade secrets and confidential information
279C.110 Selection
procedure for consultants to provide services; compensation; applicability
279C.115 Direct
contracts for services of consultants
279C.120 Selection
procedure for related services
279C.125 Architectural,
engineering, photogrammetric mapping, transportation planning and land
surveying services selection process for local public improvements procured
through state agency; rules
PROCUREMENT OF CONSTRUCTION SERVICES
(General Policies)
279C.300 Policy
on competition
279C.305 Least-cost
policy for public improvements; costs estimates in budget process; use of
agency forces; record of costs
279C.307 Limitations
in procurement of personal services; exception
279C.310 Limitation
on contracting agency constructing public improvement
279C.315 Waiver
of damages for unreasonable delay by contracting agency against public policy
279C.320 Contracts
for construction other than public improvements
279C.325 Limitation
on contracting agency awarding contract to nonresident education service
district
(Competitive Bidding; Contract
Specifications; Exceptions; Exemptions)
279C.330 “Findings”
defined
279C.335 Competitive
bidding; exceptions; exemptions
279C.340 Contract
negotiations
279C.345 Specifications
for contracts; exemptions
279C.350 Exemption
procedure; appeal
279C.355 Evaluation
of public improvement projects not contracted by competitive bidding
(Solicitation; Contract Award;
Rejection)
279C.360 Requirement
for public improvement advertisements
279C.365 Requirements
for solicitation documents and bids and proposals
279C.370 First-tier
subcontractor disclosure
279C.375 Award
and execution of contract; determination of responsibility of bidder; bonds;
impermissible exclusions
279C.380 Performance
bond; payment bond; waiver of bonds
279C.385 Return
or retention of bid security
279C.390 Exemption
of contracts from bid security and bonds
279C.395 Rejection
of bids
(Competitive Proposals)
279C.400 Competitive
proposals; procedure
279C.405 Requests
for information, interest or qualifications; requirements for requests for
proposals
279C.410 Receipt
of proposals; evaluation and award
279C.412 Competitive
quotes for intermediate procurements
279C.414 Requirements
for competitive quotes
(Prequalification and Disqualification)
279C.430 Prequalification
of bidders
279C.435 Effect
of prequalification by Department of Transportation or Oregon Department of
Administrative Services
279C.440 Disqualification
from consideration for award of contracts
279C.445 Appeal
of disqualification
279C.450 Appeal
procedure for decision to deny, revoke or revise prequalification; hearing;
costs; judicial review
(Remedies)
279C.460 Action
by or on behalf of adversely affected bidder or proposer; exception for personal
services contract
279C.465 Action
against successful bidder; amount of damages; when action to be commenced;
defenses
279C.470 Compensation
for contractor on contract declared void by court; exceptions; applicability
CONSTRUCTION CONTRACTS GENERALLY
(Required Contract Conditions)
279C.500 “Person”
defined
279C.505 Conditions
concerning payment, contributions, liens, withholding, drug testing
279C.510 Demolition
contracts to require material salvage; lawn and landscape maintenance contracts
to require composting or mulching
279C.515 Conditions
concerning payment of claims by public officers, payment to persons furnishing
labor or materials and complaints
279C.520 Condition
concerning hours of labor
279C.525 Provisions
concerning environmental and natural resources laws; remedies
279C.527 Inclusion
of amount for solar energy technology in public improvement contract; written
determination of appropriateness; exemptions and limitations
279C.528 State
Department of Energy requirements and specifications; rules
279C.530 Condition
concerning payment for medical care and providing workers’ compensation
279C.535 Condition
concerning steel material; rules
(Hours of Labor)
279C.540 Maximum
hours of labor on public contracts; holidays; exceptions; liability to workers;
rules
279C.545 Time
limitation on claim for overtime; posting of circular by contractor
(Retainage and Payments)
279C.550 “Retainage”
defined
279C.555 Withholding
of retainage
279C.560 Form
of retainage; procedures for holding and payment
279C.565 Limitation
on retainage requirements
279C.570 Prompt
payment policy; progress payments; retainage; interest; exception; settlement
of compensation disputes
(Subcontractors)
279C.580 Contractor’s
relations with subcontractors
279C.585 Authority
to substitute undisclosed first-tier subcontractor; circumstances; rules
279C.590 Complaint
process for substitutions of subcontractors; civil penalties
(Action on Payment Bonds and Public
Works Bonds)
279C.600 Right
of action on payment bond or public works bond of contractor or subcontractor;
notice of claim
279C.605 Notice
of claim
279C.610 Action
on contractor’s public works bond or payment bond; time limitation
279C.615 Preference
for labor and material liens
279C.620 Rights
of person providing medical care to employees of contractor
279C.625 Joint
liability when payment bond not executed
(Termination or Suspension of Contract for
Public Interest Reasons)
279C.650 “Labor
dispute” defined
279C.655 Extension
and compensation when work suspended
279C.660 Compensation
when contract terminated due to public interest
279C.665 Contractual
provisions for compensation when contract terminated due to public interest
279C.670 Application
of ORS 279C.650 to 279C.670
PREVAILING WAGE RATE
279C.800 Definitions
for ORS 279C.800 to 279C.870
279C.805 Policy
279C.807 Workforce
diversity for public works projects
279C.808 Rules
279C.810 Exemptions;
rules
279C.815 Determination
of prevailing wage; sources of information; comparison of state and federal
prevailing wage; other powers of commissioner
279C.817 Determination
of applicability of prevailing wage rate; time limitation; hearing; rules
279C.820 Advisory
committee to assist commissioner
279C.825 Fees;
rules
279C.827 Division
of public works project; applicability of prevailing wage rate to divided
projects
279C.829 Agreement
with other state to pay less than prevailing rate of wage
279C.830 Provisions
concerning prevailing rate of wage in specifications, contracts and
subcontracts; applicability of prevailing wage; bond
279C.835 Notifying
commissioner of public works contract subject to prevailing wage; payment of
fee
279C.836 Public
works bond; rules
279C.838 Applicability
of state and federal rates of wage; determination of site of project;
determination of applicability of wage to transportation workers; waiver
279C.840 Payment
of prevailing rate of wage; posting of rates and fringe benefit plan provisions
279C.845 Certified
statements regarding payment of prevailing rates of wage; retainage
279C.850 Inspection
to determine whether prevailing rate of wage being paid; civil action for
failure to pay prevailing rate of wage or overtime
279C.855 Liability
for violations
279C.860 Ineligibility
for public works contracts for failure to pay or post notice of prevailing
rates of wage; certified payroll reports to commissioner
279C.865 Civil
penalties
279C.870 Civil
action to enforce payment of prevailing rates of wage
GENERAL PROVISIONS
279C.005 Definitions.
ORS 279A.010 (1) contains general definitions applicable throughout this
chapter. [2003 c.794 §88]
279C.010 Applicability.
Except as provided in ORS 279C.320, public contracting under this chapter is
subject to ORS chapter 279A, but not ORS chapter 279B. [2003 c.794 §88a; 2005
c.103 §9]
ARCHITECTURAL, ENGINEERING, PHOTOGRAMMETRIC
MAPPING, TRANSPORTATION PLANNING, LAND SURVEYING AND RELATED SERVICES
279C.100 Definitions for ORS 279C.100 to
279C.125. As used in ORS 279C.100 to 279C.125:
(1)
“Architect” means a person who is registered and holds a valid certificate in
the practice of architecture in the State of Oregon, as provided under ORS
671.010 to 671.220, and includes without limitation the terms “architect,” “licensed
architect” and “registered architect.”
(2)
“Architectural, engineering, photogrammetric mapping, transportation planning
or land surveying services” means professional services that are required to be
performed by an architect, engineer, photogrammetrist, transportation planner
or land surveyor.
(3)
“Engineer” means a person who is registered and holds a valid certificate in
the practice of engineering in the State of Oregon, as provided under ORS
672.002 to 672.325, and includes all terms listed in ORS 672.002 (2).
(4)
“Land surveyor” means a person who is registered and holds a valid certificate
in the practice of land surveying in the State of Oregon, as provided under ORS
672.002 to 672.325, and includes all terms listed in ORS 672.002 (5).
(5)
“Personal services” means the services of a person or persons that are
designated by a state contracting agency with procurement authority under ORS
279A.050 or a local contracting agency as personal services. “Personal services”
includes architectural, engineering, photogrammetric mapping, transportation
planning or land surveying services procured under ORS 279C.105 or 279C.110 and
related services procured under ORS 279C.120.
(6)
“Photogrammetric mapping” has the meaning given that term in ORS 672.002.
(7)
“Photogrammetrist” has the meaning given that term in ORS 672.002.
(8)
“Related services” means personal services, other than architectural,
engineering, photogrammetric mapping, transportation planning or land surveying
services, that are related to planning, designing, engineering or overseeing
public improvement projects or components of public improvement projects,
including but not limited to landscape architectural services, facilities
planning services, energy planning services, space planning services, hazardous
substances or hazardous waste or toxic substances testing services, cost
estimating services, appraising services, material testing services, mechanical
system balancing services, commissioning services, project management services,
construction management services and owner’s representation services or
land-use planning services.
(9)
“Transportation planning services” means transportation planning services for
projects that require compliance with the National Environmental Policy Act, 42
U.S.C. 4321 et seq. [2003 c.794 §89; 2005 c.103 §10; 2005 c.445 §12; 2011 c.458
§1]
279C.105 Contracts for architectural,
engineering, photogrammetric mapping, transportation planning or land surveying
and related services; procedures. (1) Except as
provided in ORS 279A.140, a contracting agency may enter into a contract for
architectural, engineering, photogrammetric mapping, transportation planning or
land surveying services and related services. The Oregon Department of
Administrative Services shall enter into a contract for architectural,
engineering, photogrammetric mapping, transportation planning or land surveying
services and related services on behalf of a state contracting agency that is
subject to ORS 279A.140. The provisions of this section do not relieve the
contracting agency of the duty to comply with ORS 279A.140, other law
applicable to the state contracting agency or applicable city or county charter
provisions. A contracting agency that is authorized to enter into a contract
for architectural, engineering, photogrammetric mapping, transportation
planning or land surveying services and related services shall adopt procedures
to screen and select persons to perform architectural, engineering,
photogrammetric mapping, transportation planning or land surveying services and
related services under ORS 279C.110 or 279C.120.
(2)
A state contracting agency with procurement authority under ORS 279A.050 or a
local contract review board by ordinance, resolution, administrative rule or
other regulation may, consistent with the provisions of ORS 279C.100 to
279C.125, designate certain personal services contracts or classes of personal
service contracts as contracts for architectural, engineering, photogrammetric
mapping, transportation planning or land surveying services or related
services. [2003 c.794 §90; 2005 c.103 §11; 2011 c.458 §2]
279C.107 Public disclosure of contents of
proposals for architectural, engineering, photogrammetric mapping,
transportation planning or land surveying services; treatment of trade secrets
and confidential information. (1)
Notwithstanding the public records law, ORS 192.410 to 192.505, if a
contracting agency solicits a contract for architectural, engineering,
photogrammetric mapping, transportation planning or land surveying services or
related services by a competitive proposal:
(a)
The contracting agency may open proposals so as to avoid disclosing contents to
competing proposers during, when applicable, the process of negotiation.
(b)
The contracting agency need not open proposals for public inspection until
after the contracting agency executes a contract.
(2)
Notwithstanding any requirement to open proposals to public inspection after
the contracting agency executes a contract, a contracting agency shall withhold
from disclosure to the public trade secrets, as defined in ORS 192.501, and
information submitted to a public body in confidence, as described in ORS
192.502, that are contained in a proposal. Opening a proposal at a public
meeting, as defined in ORS 192.610, does not make the contents of the proposal
subject to disclosure, regardless of whether the public body that opens the
proposal fails to give notice of or provide for an executive session for the
purpose of opening proposals. If a request for proposals is canceled after
proposals are received, the contracting agency shall, subject to ORS 192.501
and 192.502, return a proposal and all copies of the proposal to the proposer
that made the proposal. The contracting agency shall keep a list of returned
proposals in the file for the solicitation. [2007 c.764 §41; 2011 c.458 §3]
279C.110 Selection procedure for
consultants to provide services; compensation; applicability.
(1) A contracting agency shall select consultants to provide architectural,
engineering, photogrammetric mapping, transportation planning or land surveying
services on the basis of the consultant’s qualifications for the type of
professional service required. A contracting agency may solicit or use pricing
policies and proposals or other pricing information, including the number of
hours proposed for the service required, expenses, hourly rates and overhead,
to determine consultant compensation only after the contracting agency has
selected a candidate pursuant to subsection (2) of this section.
(2)
Subject to the requirements of subsection (1) of this section, the procedures
that a contracting agency creates to screen and select consultants and to
select a candidate under this section are at the contracting agency’s sole
discretion. The contracting agency may adjust the procedures to accommodate the
contracting agency’s scope, schedule or objectives for a particular project if
the estimated cost of the architectural, engineering, photogrammetric mapping,
transportation planning or land surveying services for the project do not
exceed $250,000.
(3)
A contracting agency’s screening and selection procedures under this section,
regardless of the estimated cost of the architectural, engineering,
photogrammetric mapping, transportation planning or land surveying services for
a project, may include considering each candidate’s:
(a)
Specialized experience, capabilities and technical competence, which the
candidate may demonstrate with the candidate’s proposed approach and
methodology to meet the project requirements;
(b)
Resources committed to perform the work and the proportion of the time that the
candidate’s staff would spend on the project, including time for specialized
services, within the applicable time limits;
(c)
Record of past performance, including but not limited to price and cost data from
previous projects, quality of work, ability to meet schedules, cost control and
contract administration;
(d)
Ownership status and employment practices regarding minority, women and
emerging small businesses or historically underutilized businesses;
(e)
Availability to the project locale;
(f)
Familiarity with the project locale; and
(g)
Proposed project management techniques.
(4)
If the screening and selection procedures a contracting agency creates under
subsection (2) of this section result in the contracting agency’s determination
that two or more candidates are equally qualified, the contracting agency may
select a candidate through any process the contracting agency adopts that is
not based on the candidate’s pricing policies, proposals or other pricing
information.
(5)
The contracting agency and the selected candidate shall mutually discuss and
refine the scope of services for the project and shall negotiate conditions,
including but not limited to compensation level and performance schedule, based
on the scope of services. The compensation level paid must be reasonable and
fair to the contracting agency as determined solely by the contracting agency.
Authority to negotiate a contract under this section does not supersede any
provision of ORS 279A.140 or 279C.520.
(6)
If the contracting agency and the selected candidate are unable for any reason
to negotiate a contract at a compensation level that is reasonable and fair to
the contracting agency, the contracting agency shall, either orally or in writing,
formally terminate negotiations with the selected candidate. The contracting
agency may then negotiate with the next most qualified candidate. The
negotiation process may continue in this manner through successive candidates
until an agreement is reached or the contracting agency terminates the
consultant contracting process.
(7)
It is the goal of this state to promote a sustainable economy in the rural
areas of the state. In order to monitor progress toward this goal, a state
contracting agency shall keep a record of the locations in which architectural,
engineering, photogrammetric mapping, transportation planning or land surveying
services contracts and related services contracts are performed throughout the
state, the locations of the selected consultants and the direct expenses on
each contract. This record must include the total number of contracts awarded
to each consultant firm over a 10-year period. The record of direct expenses
must include all personnel travel expenses as a separate and identifiable
expense on the contract. Upon request, the state contracting agency shall make
these records available to the public.
(8)
Notwithstanding the provisions of subsection (1) of this section, a contracting
agency may directly appoint a consultant if the estimated cost of the
architectural, engineering, photogrammetric mapping, transportation planning or
land surveying services for the project do not exceed $100,000.
(9)
Notwithstanding the provisions of subsections (1) and (8) of this section, a contracting
agency may directly appoint a consultant for architectural, engineering,
photogrammetric mapping, transportation planning or land surveying services in
an emergency. [2003 c.794 §91; 2003 c.794 §92; 2005 c.509 §§1,3; 2011 c.458 §4]
279C.115 Direct contracts for services of
consultants. (1) As used in this section, “consultant”
means an architect, engineer, photogrammetrist, transportation planner or land
surveyor.
(2)
A contracting agency may enter into a contract for architectural, engineering,
photogrammetric mapping, transportation planning or land surveying services or
related services directly with a consultant if the project described in the
contract consists of work that has been substantially described, planned or
otherwise previously studied or rendered in an earlier contract with the
consultant that was awarded under rules adopted under ORS 279A.065 and the new
contract is a continuation of the project.
(3)
A contracting agency may adopt criteria for determining when this section applies
to a contract for architectural, engineering, photogrammetric mapping,
transportation planning or land surveying services or related services. [2003
c.794 §94; 2011 c.458 §5]
279C.120 Selection procedure for related
services. (1) A contracting agency may select
consultants to perform related services:
(a)
In accordance with screening and selection procedures adopted under ORS
279C.105;
(b)
On the basis of the qualifications of the consultants for the types of related
services required, under the requirements of ORS 279C.110; or
(c)
On the basis of price competition, price and performance evaluations, an
evaluation of the capabilities of bidders to perform the needed related
services or an evaluation of the capabilities of the bidders to perform the needed
related services followed by negotiations between the parties on the price for
those related services.
(2)
Subject to the requirements of subsection (1) of this section, the procedures
that a contracting agency adopts for the screening and selection of consultants
and the selection of a candidate under this section is within the sole
discretion of the contracting agency and may be adjusted to accommodate the
contracting agency’s scope, schedule and budget objectives for a particular
project. Adjustments to accommodate a contracting agency’s objectives may
include provision for the direct appointment of a consultant if the value of
the project does not exceed a threshold amount as determined by the contracting
agency. [2003 c.794 §95]
279C.125 Architectural, engineering,
photogrammetric mapping, transportation planning and land surveying services
selection process for local public improvements procured through state agency;
rules. (1) The Department of Transportation,
the Oregon Department of Administrative Services or any other state contracting
agency shall adopt rules establishing a two-tiered selection process for
contracts with architects, engineers, photogrammetrists, transportation
planners and land surveyors to perform personal services contracts. The
selection process shall apply only if:
(a)
A public improvement is owned and maintained by a local government; and
(b)
The Department of Transportation, the Oregon Department of Administrative
Services or another state contracting agency will serve as the lead state
contracting agency and will execute personal services contracts with
architects, engineers, photogrammetrists, transportation planners and land
surveyors for work on the public improvement project.
(2)
The selection process required by subsection (1) of this section must require
the lead state contracting agency to select no fewer than the three most
qualified consultants when feasible in accordance with ORS 279C.110.
(3)
The local government is responsible for the final selection of the consultant
from the list of qualified consultants selected by the lead state contracting
agency or through an alternative process adopted by the local government.
(4)
Nothing in this section applies to the selection process used by a local
contracting agency when the contracting agency executes a contract directly
with architects, engineers, photogrammetrists, transportation planners or land
surveyors. [2003 c.794 §96; 2011 c.458 §6]
PROCUREMENT OF CONSTRUCTION SERVICES
(General Policies)
279C.300 Policy on competition.
It is the policy of the State of Oregon that public improvement contracts
awarded under this chapter must be based on competitive bidding, except as
otherwise specifically provided in ORS 279C.335 for exceptions and formal
exemptions from competitive bidding requirements. [2003 c.794 §97]
279C.305 Least-cost policy for public
improvements; costs estimates in budget process; use of agency forces; record
of costs. (1) It is the policy of the State of
Oregon that contracting agencies shall make every effort to construct public
improvements at the least cost to the contracting agency.
(2)
Not less than 30 days prior to adoption of the contracting agency’s budget for
the subsequent budget period, each contracting agency shall prepare and file
with the Commissioner of the Bureau of Labor and Industries a list of every
public improvement known to the contracting agency that the contracting agency
plans to fund in the budget period, identifying each improvement by name and
estimating the total on-site construction costs. The list shall also contain a
statement as to whether the contracting agency intends to perform the
construction through a private contractor. If the contracting agency intends to
perform construction work using the contracting agency’s own equipment and
personnel on a project estimated to cost more than $125,000, the contracting
agency shall also show that the contracting agency’s decision conforms to the
policy stated in subsection (1) of this section. The list is a public record
and may be revised periodically by the agency.
(3)
Before a contracting agency constructs a public improvement with its own
equipment or personnel:
(a)
If the estimated cost exceeds $125,000, the contracting agency shall prepare
adequate plans and specifications and the estimated unit cost of each
classification of work. The estimated cost of the work must include a
reasonable allowance for the cost, including investment cost, of any equipment
used. As used in this paragraph, “adequate” means sufficient to control the
performance of the work and to ensure satisfactory quality of construction by
the contracting agency personnel.
(b)
The contracting agency shall cause to be kept and preserved a full, true and
accurate account of the costs of performing the work, including all engineering
and administrative expenses and the cost, including investment costs, of any
equipment used. The final account of the costs is a public record.
(4)
Subsections (2) and (3) of this section do not apply to a contracting agency
when the public improvement is to be used for the distribution or transmission
of electric power.
(5)
For purposes of this section, resurfacing of highways, roads or streets at a
depth of two or more inches and at an estimated cost that exceeds $125,000 is a
public improvement. [2003 c.794 §98]
279C.307 Limitations in procurement of personal
services; exception. (1) Except as provided in
subsection (2) of this section, a contracting agency that procures personal
services for the purpose of administering, managing, monitoring, inspecting,
evaluating compliance with or otherwise overseeing a public contract that is
subject to this chapter may not:
(a)
Procure the personal services from a contractor or an affiliate of a contractor
who is a party to the public contract that is subject to administration,
management, monitoring, inspection, evaluation or oversight by means of the
personal services; or
(b)
Procure the personal services through the public contract that is subject to
administration, management, monitoring, inspection, evaluation or oversight by
means of the personal services.
(2)
Subsection (1) of this section does not apply to a procurement that qualifies
as a construction manager/general contractor procurement or a design-build
procurement, both as defined in OAR 125-249-0610 or 137-049-0610.
(3)
As used in this section, “affiliate” means a person that, directly or
indirectly through one or more intermediaries, controls, is controlled by or is
under common control with the contractor described in subsection (1)(a) of this
section. [2009 c.880 §11]
Note:
279C.307 was added to and made a part of ORS chapter 279C by legislative action
but was not added to any smaller series therein. See Preface to Oregon Revised
Statutes for further explanation.
279C.310 Limitation on contracting agency
constructing public improvement. If a
contracting agency fails to adopt and apply a cost accounting system that
substantially complies with the model cost accounting guidelines developed by
the Oregon Department of Administrative Services pursuant to section 3, chapter
869, Oregon Laws 1979, as determined by an accountant qualified to perform
audits required by ORS 297.210 and 297.405 to 297.555 (Municipal Audit Law),
the contracting agency may not construct a public improvement with the
contracting agency’s own equipment or personnel if the cost exceeds $5,000. [2003
c.794 §99]
279C.315 Waiver of damages for
unreasonable delay by contracting agency against public policy.
(1) Any clause in a public improvement contract that purports to waive, release
or extinguish the rights of a contractor to damages or an equitable adjustment
arising out of unreasonable delay in performing the contract, if the delay is
caused by acts or omissions of the contracting agency or persons acting
therefor, is against public policy and is void and unenforceable.
(2)
Subsection (1) of this section is not intended to render void any contract
provision that:
(a)
Requires notice of any delay;
(b)
Provides for arbitration or other procedures for settlement of contract
disputes; or
(c)
Provides for reasonable liquidated damages. [2003 c.794 §100]
279C.320 Contracts for construction other
than public improvements. (1) Contracting agencies shall
enter into contracts for emergency work, minor alteration, ordinary repair or
maintenance of public improvements, as well as any other construction contract
that is not defined as a public improvement under ORS 279A.010, in accordance
with the provisions of ORS chapter 279B. Contracts for emergency work are
regulated under ORS 279B.080.
(2)
Nothing in this section relieves contracting agencies or contractors of any
other relevant requirements under this chapter, including payment of prevailing
wage rates when applicable.
(3)
When construction services are not considered to be a public improvement under
this chapter because no funds of a public agency are directly or indirectly
used, except for participation that is incidental or related primarily to
project design or inspection, the benefiting public body may nonetheless
condition acceptance of the services on receipt of such protections as the
public body considers to be in the public interest, including a performance
bond, a payment bond and appropriate insurance. [2003 c.794 §101; 2007 c.764 §13]
279C.325 Limitation on contracting agency
awarding contract to nonresident education service district.
A contracting agency may not award a public improvement contract, a contract
for a public works, as defined in ORS 279C.800, or a contract for personal
services, as defined in ORS 279C.100, to a nonresident bidder, as defined in
ORS 279A.120, that is an education service district. [2005 c.413 §2]
(Competitive Bidding; Contract
Specifications; Exceptions; Exemptions)
279C.330 “Findings” defined.
As used in ORS 279C.335, 279C.345 and 279C.350, “findings” means the
justification for a contracting agency conclusion that includes, but is not
limited to, information regarding:
(1)
Operational, budget and financial data;
(2)
Public benefits;
(3)
Value engineering;
(4)
Specialized expertise required;
(5)
Public safety;
(6)
Market conditions;
(7)
Technical complexity; and
(8)
Funding sources. [2003 c.794 §102]
279C.335 Competitive bidding; exceptions;
exemptions. (1) All public improvement contracts
shall be based upon competitive bids except:
(a)
Contracts made with qualified nonprofit agencies providing employment
opportunities for individuals with disabilities under ORS 279.835 to 279.855.
(b)
A public improvement contract exempt under subsection (2) of this section.
(c)
A public improvement contract with a value of less than $5,000.
(d)
A contract not to exceed $100,000 made under procedures for competitive quotes
in ORS 279C.412 and 279C.414.
(e)
Contracts for repair, maintenance, improvement or protection of property
obtained by the Department of Veterans’ Affairs under ORS 407.135 and 407.145
(1).
(f)
Energy savings performance contracts entered into in accordance with rules of
procedure adopted under ORS 279A.065.
(2)
Subject to subsection (4)(b) of this section, the Director of the Oregon
Department of Administrative Services, a local contract review board or, for
contracts described in ORS 279A.050 (3)(b), the Director of Transportation may
exempt a public improvement contract or a class of public improvement contracts
from the competitive bidding requirements of subsection (1) of this section
upon approval of the following findings submitted by the contracting agency or,
if a state agency is not the contracting agency, the state agency seeking the
exemption:
(a)
It is unlikely that the exemption will encourage favoritism in the awarding of
public improvement contracts or substantially diminish competition for public
improvement contracts.
(b)
The awarding of public improvement contracts under the exemption will likely
result in substantial cost savings to the contracting agency, to the state
agency based upon the justification and information described in ORS 279C.330
or, if the contracts are for public improvements described in ORS 279A.050
(3)(b), to the contracting agency or the public. In making the finding, the
Director of the Oregon Department of Administrative Services, the Director of
Transportation or the local contract review board may consider the type, cost
and amount of the contract, the number of persons available to bid and such
other factors as may be deemed appropriate.
(c)
As an alternative to the finding described in paragraph (b) of this subsection,
when a contracting agency or state agency seeks an exemption that would allow
the use of an alternate contracting method that the agency has not previously
used, the agency may make a finding that identifies the project as a pilot
project for which the agency intends to determine whether the use of the
alternate contracting method actually results in substantial cost savings to
the contracting agency, to the state agency or, if the contract is for a public
improvement described in ORS 279A.050 (3)(b), to the contracting agency or the
public. The agency shall include an analysis and conclusion regarding actual
cost savings, if any, in the evaluation required under ORS 279C.355.
(3)
In making findings to support an exemption for a class of public improvement
contracts, the contracting agency or state agency shall clearly identify the
class using the class’s defining characteristics. Those characteristics shall
include some combination of project descriptions or locations, time periods,
contract values, methods of procurement or other factors that distinguish the
limited and related class of public improvement contracts from the agency’s
overall construction program. The agency may not identify a class solely by
funding source, such as a particular bond fund, or by the method of
procurement, but shall identify the class using characteristics that reasonably
relate to the exemption criteria set forth in subsection (2) of this section.
(4)
In granting exemptions under subsection (2) of this section, the Director of
the Oregon Department of Administrative Services, the Director of
Transportation or the local contract review board shall:
(a)
When appropriate, direct the use of alternate contracting methods that take
account of market realities and modern practices and are consistent with the
public policy of encouraging competition.
(b)
Require and approve or disapprove written findings by the contracting agency or
state agency that support the awarding of a particular public improvement
contract or a class of public improvement contracts, without the competitive
bidding requirement of subsection (1) of this section. The findings must show
that the exemption of a contract or class of contracts complies with the
requirements of subsection (2) of this section.
(5)(a)
Before final adoption of the findings required by subsection (2) of this
section exempting a public improvement contract or a class of public
improvement contracts from the requirement of competitive bidding, a
contracting agency or state agency shall hold a public hearing.
(b)
Notification of the public hearing shall be published in at least one trade
newspaper of general statewide circulation a minimum of 14 days before the
hearing.
(c)
The notice shall state that the public hearing is for the purpose of taking
comments on the draft findings for an exemption from the competitive bidding
requirement. At the time of the notice, copies of the draft findings shall be
made available to the public. At the option of the contracting agency or state
agency, the notice may describe the process by which the findings are finally
adopted and may indicate the opportunity for any further public comment.
(d)
At the public hearing, the contracting agency or state agency shall offer an
opportunity for any interested party to appear and present comment.
(e)
If a contracting agency or state agency is required to act promptly due to
circumstances beyond the agency’s control that do not constitute an emergency,
notification of the public hearing may be published simultaneously with the
agency’s solicitation of contractors for the alternative public contracting
method, as long as responses to the solicitation are due at least five days
after the meeting and approval of the findings.
(6)
The purpose of an exemption is to exempt one or more public improvement
contracts from competitive bidding requirements. The representations in and the
accuracy of the findings, including any general description of the resulting
public improvement contract, are the bases for approving the findings and
granting the exception. The findings may describe anticipated features of the
resulting public improvement contract, but the final parameters of the contract
are those characteristics or specifics announced in the solicitation document.
(7)
A public improvement contract awarded under the competitive bidding requirement
of subsection (1) of this section may be amended only in accordance with rules
adopted under ORS 279A.065.
(8)
Public improvement contracts excepted from competitive bid requirements under
subsection (1)(a), (c), (d), (e) or (f) of this section are not subject to the
exemption requirements of subsection (2) of this section. [2003 c.794 §103;
2003 c.794 §§104,105a; 2005 c.103 §§12,13,14; 2005 c.625 §§58,59,60; 2007 c.70 §§69,70,71;
2007 c.764 §§14,15,17]
279C.340 Contract negotiations.
If a public improvement contract is competitively bid and all responsive bids
from responsible bidders exceed the contracting agency’s cost estimate, the
contracting agency, in accordance with rules adopted by the contracting agency,
may negotiate with the lowest responsive, responsible bidder, prior to awarding
the contract, in order to solicit value engineering and other options to
attempt to bring the contract within the contracting agency’s cost estimate. A
negotiation with the lowest responsive, responsible bidder under this section
may not result in the award of the contract to that bidder if the scope of the
project is significantly changed from the original bid proposal.
Notwithstanding any other provision of law, the records of a bidder used in
contract negotiation under this section are not subject to public inspection
until after the negotiated contract has been awarded or the negotiation process
has been terminated. [2003 c.794 §106]
279C.345 Specifications for contracts;
exemptions. (1) Specifications for public
improvement contracts may not expressly or implicitly require any product by
any brand name or mark, nor the product of any particular manufacturer or
seller unless the product is exempt under subsection (2) of this section.
(2)
The Director of the Oregon Department of Administrative Services, a local
contract review board or, for contracts described in ORS 279A.050 (3)(b), the
Director of Transportation may exempt certain products or classes of products
from subsection (1) of this section upon any of the following findings:
(a)
It is unlikely that the exemption will encourage favoritism in the awarding of
public improvement contracts or substantially diminish competition for public
improvement contracts;
(b)
The specification of a product by brand name or mark, or the product of a
particular manufacturer or seller, would result in substantial cost savings to
the contracting agency;
(c)
There is only one manufacturer or seller of the product of the quality
required; or
(d)
Efficient utilization of existing equipment or supplies requires the
acquisition of compatible equipment or supplies. [2003 c.794 §107; 2007 c.764 §19]
279C.350 Exemption procedure; appeal.
(1) Exemptions granted by the Director of the Oregon Department of
Administrative Services under ORS 279C.335 (2) or 279C.345 (2) constitute
rulemaking and not contested cases under ORS chapter 183. However, an exemption
granted with regard to a specific public improvement contract by the Director
of the Oregon Department of Administrative Services, or an exemption granted by
the Director of Transportation with regard to a specific public improvement
contract or class of public improvement contracts described in ORS 279A.050
(3)(b), shall be granted by order. The order shall set forth findings
supporting the decision to grant or deny the request for the exemption. The
order is reviewable under ORS 183.484 and does not constitute a contested case
order. Jurisdiction for review of the order is with the Circuit Court of Marion
County. The court may award costs and attorney fees to the prevailing party.
(2)
Any person except the contracting agency or anyone representing the contracting
agency may bring a petition for a declaratory judgment to test the validity of
any rule adopted by the Director of the Oregon Department of Administrative
Services under ORS 279C.335 or 279C.345 in the manner provided in ORS 183.400.
(3)
Any person except the contracting agency or anyone representing the contracting
agency may bring an action for writ of review under ORS chapter 34 to test the
validity of an exemption granted under ORS 279C.335 or 279C.345 by a local
contract review board. [2003 c.794 §108; 2003 c.794 §109; 2007 c.764 §20]
279C.355 Evaluation of public improvement
projects not contracted by competitive bidding.
(1) Upon completion of and final payment for any public improvement contract,
or class of public improvement contracts, in excess of $100,000 for which the
contracting agency did not use the competitive bidding process, the contracting
agency shall prepare and deliver to the Director of the Oregon Department of
Administrative Services, the local contract review board or, for public
improvement contracts described in ORS 279A.050 (3)(b), the Director of
Transportation an evaluation of the public improvement contract or the class of
public improvement contracts.
(2)
The evaluation must include but is not limited to the following matters:
(a)
The actual project cost as compared with original project estimates;
(b)
The amount of any guaranteed maximum price;
(c)
The number of project change orders issued by the contracting agency;
(d)
A narrative description of successes and failures during the design,
engineering and construction of the project; and
(e)
An objective assessment of the use of the alternative contracting process as
compared to the findings required by ORS 279C.335.
(3)
The evaluations required by this section:
(a)
Must be made available for public inspection; and
(b)
Must be completed within 30 days of the date the contracting agency accepts:
(A)
The public improvement project; or
(B)
The last public improvement project if the project falls within a class of
public improvement contracts. [2003 c.794 §111; 2003 c.794 §112; 2007 c.764 §§22,23]
(Solicitation; Contract Award; Rejection)
279C.360 Requirement for public improvement
advertisements. (1) An advertisement for public
improvement contracts must be published at least once in at least one newspaper
of general circulation in the area where the contract is to be performed and in
as many additional issues and publications as the contracting agency may
determine. The Director of the Oregon Department of Administrative Services, a
local contract review board or, for contracts described in ORS 279A.050 (3)(b),
the Director of Transportation, by rule or order, may authorize advertisements
for public improvement contracts to be published electronically instead of in a
newspaper of general circulation if the director or board determines that
electronic advertisements are likely to be cost-effective. If the public
improvement contract has an estimated cost in excess of $125,000, the
advertisement must be published in at least one trade newspaper of general
statewide circulation. The Director of the Oregon Department of Administrative
Services, the Director of Transportation or the local contract review board
may, by rule or order, require an advertisement to be published more than once
or in one or more additional publications.
(2)
All advertisements for public improvement contracts must state:
(a)
The public improvement project;
(b)
The office where the specifications for the project may be reviewed;
(c)
The date that prequalification applications must be filed under ORS 279C.430
and the class or classes of work for which bidders must be prequalified if
prequalification is a requirement;
(d)
The date and time after which bids will not be received, which must be at least
five days after the date of the last publication of the advertisement;
(e)
The name and title of the person designated for receipt of bids;
(f)
The date, time and place that the contracting agency will publicly open the
bids; and
(g)
If the contract is for a public works subject to ORS 279C.800 to 279C.870 or
the Davis-Bacon Act (40 U.S.C. 3141 et seq.). [2003 c.794 §114; 2005 c.103 §14a;
2007 c.844 §1]
279C.365 Requirements for solicitation
documents and bids and proposals. (1) A
contracting agency that prepares solicitation documents for a public
improvement contract shall, at a minimum, include in the solicitation
documents:
(a)
A designation for or description of the public improvement project;
(b)
The office where the specifications for the project may be reviewed;
(c)
The date that prequalification applications must be filed under ORS 279C.430
and the class or classes of work for which bidders must be prequalified if
prequalification is a requirement;
(d)
The date and time after which bids will not be received, which must be at least
five days after the date of the last publication of the advertisement, and may,
in the sole discretion of the contracting agency, direct or permit bidders to
submit and the contracting agency to receive bids by electronic means;
(e)
The name and title of the person designated to receive bids;
(f)
The date on which and the time and place at which the contracting agency will
publicly open the bids;
(g)
A statement that, if the contract is for a public works project subject to the
state prevailing rates of wage under ORS 279C.800 to 279C.870, the federal
prevailing rates of wage under the Davis-Bacon Act (40 U.S.C. 3141 et seq.) or
both the state and federal prevailing rates of wage, the contracting agency
will not receive or consider a bid unless the bid contains a statement by the
bidder that the bidder will comply with ORS 279C.838 or 279C.840 or 40 U.S.C.
3141 et seq.;
(h)
A statement that each bid must identify whether the bidder is a resident
bidder, as defined in ORS 279A.120;
(i)
A statement that the contracting agency may reject a bid that does not comply
with prescribed public contracting procedures and requirements, including the
requirement to demonstrate the bidder’s responsibility under ORS 279C.375
(3)(b), and that the contracting agency may reject for good cause all bids
after finding that doing so is in the public interest;
(j)
Information addressing whether a contractor or subcontractor must be licensed
under ORS 468A.720; and
(k)
A statement that the contracting agency may not receive or consider a bid for a
public improvement contract unless the bidder is licensed by the Construction
Contractors Board or the State Landscape Contractors Board.
(2)
A contracting agency may provide solicitation documents by electronic means.
(3)
A bid made to the contracting agency under ORS 279C.335 or 279C.400 must be:
(a)
In writing;
(b)
Filed with the person the contracting agency designates to receive bids; and
(c)
Opened publicly by the contracting agency immediately after the deadline for
submitting bids.
(4)
After the contracting agency opens the bids, the contracting agency shall make
the bids available for public inspection.
(5)
A bidder shall submit or post a surety bond, irrevocable letter of credit
issued by an insured institution as defined in ORS 706.008, cashier’s check or
certified check for all bids as bid security unless the contracting agency has
exempted the contract for which the bidder submits a bid from this requirement
under ORS 279C.390. The security may not exceed 10 percent of the amount bid
for the contract.
(6)
Subsection (5) of this section applies only to public improvement contracts
with a value, estimated by the contracting agency, of more than $100,000 or, in
the case of contracts for highways, bridges and other transportation projects,
more than $50,000. [2003 c.794 §115; 2005 c.103 §15; 2007 c.764 §25; 2007 c.844
§2; 2009 c.368 §1]
279C.370 First-tier subcontractor disclosure.
(1)(a) Within two working hours after the date and time of the deadline when
bids are due to a contracting agency for a public improvement contract, a
bidder shall submit to the contracting agency a disclosure of the first-tier
subcontractors that:
(A)
Will be furnishing labor or will be furnishing labor and materials in
connection with the public improvement contract; and
(B)
Will have a contract value that is equal to or greater than five percent of the
total project bid or $15,000, whichever is greater, or $350,000 regardless of
the percentage of the total project bid.
(b)
For each contract to which this subsection applies, the contracting agency
shall designate a deadline for submission of bids that has a date on a Tuesday,
Wednesday or Thursday and a time between 2 p.m. and 5 p.m., except that this
paragraph does not apply to public contracts for maintenance or construction of
highways, bridges or other transportation facilities.
(c)
This subsection applies only to public improvement contracts with a value,
estimated by the contracting agency, of more than $100,000.
(d)
This subsection does not apply to public improvement contracts that have been
exempted from competitive bidding requirements under ORS 279C.335 (2).
(2)
The disclosure of first-tier subcontractors under subsection (1) of this
section must include the name of each subcontractor, the category of work that
each subcontractor will perform and the dollar value of each subcontract. The
information shall be disclosed in substantially the following form:
______________________________________________________________________________
FIRST-TIER
SUBCONTRACTOR DISCLOSURE FORM
PROJECT NAME: ____________
BID #: _________
BID CLOSING: Date: _____Time: _____
This form must be submitted at the
location specified in the Invitation to Bid on the advertised bid closing date
and within two working hours after the advertised bid closing time.
List below the name of each
subcontractor that will be furnishing labor or will be furnishing labor and
materials and that is required to be disclosed, the category of work that the
subcontractor will be performing and the dollar value of the subcontract. Enter
“NONE” if there are no subcontractors that need to be disclosed. (ATTACH
ADDITIONAL SHEETS IF NEEDED.)
DOLLAR CATEGORY
NAME VALUE OF WORK
1)________ $______ ________
2)________ $______ ________
3)________ $______ ________
4)________ $______ ________
Failure
to submit this form by the disclosure deadline will result in a nonresponsive
bid. A nonresponsive bid will not be considered for award.
Form
submitted by (bidder name): ______________________
Contact
name: _______________
Phone
no.: _________
______________________________________________________________________________
(3) A contracting agency shall accept the
subcontractor disclosure. The contracting agency shall consider the bid of any
contractor that does not submit a subcontractor disclosure to the contracting
agency to be a nonresponsive bid and may not award the contract to the
contractor. A contracting agency is not required to determine the accuracy or
the completeness of the subcontractor disclosure.
(4) After the bids are opened, the
subcontractor disclosures must be made available for public inspection.
(5) A contractor may substitute a
first-tier subcontractor under the provisions of ORS 279C.585.
(6) A subcontractor may file a complaint
under ORS 279C.590 based on the disclosure requirements of subsection (1) of
this section. [2003 c.794 §116; 2005 c.103 §16]
279C.375
Award and execution of contract; determination of responsibility of bidder;
bonds; impermissible exclusions. (1) After a
contracting agency has opened bids and determined that the contracting agency
will award a public improvement contract, the contracting agency shall award
the contract to the lowest responsible bidder.
(2) At least seven days before 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 to which competitive bidding does
not apply under ORS 279C.335 (1)(c) or (d). The notice and the manner 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:
(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) Holds current licenses that businesses
or service professionals operating in this state must hold in order to
undertake or perform the work specified in the contract.
(C) Is covered by liability insurance and
other insurance in amounts the contracting agency requires in the solicitation
documents.
(D) Qualifies as a carrier-insured
employer or a self-insured employer under ORS 656.407 or has elected coverage
under ORS 656.128.
(E) Has made the disclosure required under
ORS 279C.370.
(F) Completed previous contracts of a
similar nature with a satisfactory record of performance. For purposes of this
subparagraph, a satisfactory record of performance means that to the extent
that the costs associated with and time available to perform a previous
contract remained within the bidder’s control, the bidder stayed within the
time and budget allotted for the procurement and otherwise performed the
contract in a satisfactory manner. The contracting agency shall document the
bidder’s record of performance if the contracting agency finds under this
subparagraph that the bidder is not responsible.
(G) Has a satisfactory record of
integrity. The contracting agency in evaluating the bidder’s record of integrity
may consider, among other things, whether the bidder has previous criminal
convictions for offenses related to obtaining or attempting to obtain a
contract or subcontract or in connection with the bidder’s performance of a
contract or subcontract. The contracting agency shall document the bidder’s
record of integrity if the contracting agency finds under this subparagraph
that the bidder is not responsible.
(H) Is legally qualified to contract with
the contracting agency.
(I) Supplied all necessary information in
connection with the inquiry concerning responsibility. If a bidder fails to
promptly supply information concerning responsibility that the contracting
agency requests, the contracting agency shall determine the bidder’s
responsibility based on available information, or may find that the bidder is
not responsible.
(c) Document the contracting agency’s
compliance with the requirements of paragraphs (a) and (b) of this subsection
in substantially the following form:
______________________________________________________________________________
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):
[ ] 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 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.
[ ] Holds
current licenses that businesses or service professionals operating in this
state must hold in order to undertake or perform the work specified in the
contract.
[ ] Is
covered by liability insurance and other insurance in amounts required in the
solicitation documents.
[ ] Qualifies
as a carrier-insured employer or a self-insured employer under ORS 656.407 or
has elected coverage under ORS 656.128.
[ ] Has
disclosed the bidder’s first-tier subcontractors in accordance with ORS
279C.370.
[ ] Has
a satisfactory record of performance.
[ ] Has
a satisfactory record of integrity.
[ ] Is
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).
(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. [2003 c.794 §117; 2005 c.103 §§17,18;
2005 c.376 §1; 2007 c.764 §§26,27; 2007 c.836 §§42,43; 2009 c.880 §§9,9a]
279C.380
Performance bond; payment bond; waiver of bonds.
(1) Except as provided in ORS 279C.390, a successful bidder for a public
improvement contract shall promptly execute and deliver to the contracting
agency the following bonds:
(a) A performance bond in an amount equal
to the full contract price conditioned on the faithful performance of the
contract in accordance with the plans, specifications and conditions of the
contract. The performance bond must be solely for the protection of the
contracting agency that awarded the contract and any public agency or agencies
for whose benefit the contract was awarded. If the public improvement contract
is with a single person to provide both design and construction of a public
improvement, the obligation of the performance bond for the faithful
performance of the contract required by this paragraph must also be for the
preparation and completion of the design and related services covered under the
contract. Notwithstanding when a cause of action, claim or demand accrues or
arises, the surety is not liable after final completion of the contract, or
longer if provided for in the contract, for damages of any nature, economic or
otherwise and including corrective work, attributable to the design aspect of a
design-build project, or for the costs of design revisions needed to implement
corrective work. A contracting agency may waive the requirement of a
performance bond. A contracting agency may permit the successful bidder to
submit a cashier’s check or certified check in lieu of all or a portion of the
required performance bond.
(b) A payment bond in an amount equal to
the full contract price, solely for the protection of claimants under ORS
279C.600.
(2) If the public improvement contract is
with a single person to provide construction manager and general contractor services,
in which a guaranteed maximum price may be established by an amendment
authorizing construction period services following preconstruction period
services, the contractor shall provide the bonds required by subsection (1) of
this section upon execution of an amendment establishing the guaranteed maximum
price. The contracting agency shall also require the contractor to provide
bonds equal to the value of construction services authorized by any early work
amendment in advance of the guaranteed maximum price amendment. Such bonds must
be provided before construction starts.
(3) Each performance bond and each payment
bond must be executed solely by a surety company or companies holding a
certificate of authority to transact surety business in this state. The bonds
may not constitute the surety obligation of an individual or individuals. The
performance and payment bonds must be payable to the contracting agency or to
the public agency or agencies for whose benefit the contract was awarded, as
specified in the solicitation documents, and shall be in a form approved by the
contracting agency.
(4) In cases of emergency, or when the
interest or property of the contracting agency or the public agency or agencies
for whose benefit the contract was awarded probably would suffer material
injury by delay or other cause, the requirement of furnishing a good and
sufficient performance bond and a good and sufficient payment bond for the
faithful performance of any public improvement contract may be excused, if a
declaration of such emergency is made in accordance with rules adopted under
ORS 279A.065.
(5) This section applies only to public
improvement contracts with a value, estimated by the contracting agency, of
more than $100,000 or, in the case of contracts for highways, bridges and other
transportation projects, more than $50,000. [2003 c.794 §118; 2005 c.103 §20]
279C.385
Return or retention of bid security. (1) A
contracting agency shall return the bid security of the successful bidder to
the bidder after the bidder:
(a) Executes the public improvement
contract; and
(b) Delivers a good and sufficient
performance bond, a good and sufficient payment bond and any required proof of
insurance.
(2) A bidder who is awarded a contract and
who fails promptly and properly to execute the contract and to deliver the
performance bond, the payment bond and the proof of insurance, when bonds or
insurance are required, shall forfeit the bid security that accompanied the
successful bid. The bid security shall be taken and considered as liquidated
damages and not as a penalty for failure of the bidder to execute the contract
and deliver the bonds and proof of insurance.
(3) The contracting agency may return the
bid security of unsuccessful bidders to them when the bids have been opened and
the contract has been awarded, and may not retain the bid security after the
contract has been duly signed. [2003 c.794 §119; 2005 c.103 §21]
279C.390
Exemption of contracts from bid security and bonds.
(1) Subject to the provisions of subsection (2) of this section, the Director
of the Oregon Department of Administrative Services, a state contracting agency
with procurement authority under ORS 279A.050, a local contract review board
or, for contracts described in ORS 279A.050 (3)(b), the Director of
Transportation may exempt certain contracts or classes of contracts from all or
a portion of the requirement for bid security and from all or a portion of the
requirement that good and sufficient bonds be furnished to ensure performance
of the contract and payment of obligations incurred in the performance.
(2) The contracting agency may require bid
security and a good and sufficient performance bond, a good and sufficient
payment bond, or any combination of such bonds, even though the public improvement
contract is of a class exempted under subsection (1) of this section.
(3) The Director of Transportation may:
(a) Exempt contracts or classes of
contracts financed from the proceeds of bonds issued under ORS 367.620 (3)(a)
from the requirement for bid security and from the requirement that a good and
sufficient bond be furnished to ensure performance of the contract; or
(b) Reduce the amount of the required
performance bond for contracts or classes of contracts financed from the
proceeds of the bonds issued under ORS 367.620 (3)(a) to less than 100 percent
of the contract price.
(4) Any recoverable damages that exceed
the amount of the performance bond required under subsection (3) of this
section shall be the sole responsibility of the Department of Transportation. [2003
c.794 §120; 2003 c.794 §120a; 2007 c.764 §28]
279C.395
Rejection of bids. A contracting agency may reject
any bid not in compliance with all prescribed public bidding procedures and
requirements, and may, for good cause, reject all bids upon a finding of the
contracting agency it is in the public interest to do so. In any case where
competitive bids are required and all bids are rejected, and the proposed
project is not abandoned, new bids may be called for as in the first instance. [2003
c.794 §121]
(Competitive
Proposals)
279C.400
Competitive proposals; procedure. (1) When
authorized or required by an exemption granted under ORS 279C.335, a
contracting agency may solicit and award a public improvement contract, or may
award multiple public improvement contracts when specified in the request for
proposals, by requesting and evaluating competitive proposals. A contract
awarded under this section may be amended only in accordance with rules adopted
under ORS 279A.065.
(2) Except as provided in ORS 279C.330 to
279C.355, 279C.360 to 279C.390, 279C.395 and 279C.430 to 279C.450, competitive
proposals shall be subject to the following requirements of competitive
bidding:
(a) Advertisement under ORS 279C.360;
(b) Requirements for solicitation
documents under ORS 279C.365;
(c) Disqualification due to a Construction
Contractors Board listing as described in ORS 279C.375 (3)(a);
(d) Contract execution and bonding
requirements under ORS 279C.375 and 279C.380;
(e) Determination of responsibility under
ORS 279C.375 (3)(b);
(f) Rejection of bids under ORS 279C.395;
and
(g) Disqualification and prequalification
under ORS 279C.430, 279C.435 and 279C.440.
(3) For the purposes of applying the
requirements listed in subsection (2) of this section to competitive proposals,
when used in the sections listed in subsection (2) of this section, “bids”
includes proposals, and “bid documents” and “invitation to bid” include
requests for proposals.
(4) Competitive proposals are not subject
to the following requirements of competitive bidding:
(a) First-tier subcontractor disclosure
under ORS 279C.370; and
(b) Reciprocal preference under ORS
279A.120.
(5) The contracting agency may require
proposal security that serves the same function with respect to proposals as
bid security serves with respect to bids under ORS 279C.365 (5) and 279C.385,
as follows:
(a) The contracting agency may require
proposal security in a form and amount as may be determined to be reasonably
necessary or prudent to protect the interests of the contracting agency.
(b) The contracting agency shall retain
the proposal security if a proposer who is awarded a contract fails to promptly
and properly execute the contract and provide any required bonds or insurance.
(c) The contracting agency shall return
the proposal security to all proposers upon the execution of the contract, or
earlier in the selection process.
(6) In all other respects, and subject to
rules adopted under ORS 279A.065, references in this chapter to invitations to
bid, bids or bidders shall, to the extent practicable within the proposal
process, be deemed equally applicable to requests for proposals, proposals or
proposers. However, notwithstanding ORS 279C.375 (1), a contracting agency may
not be required to award a contract advertised under the competitive proposal
process based on price, but may award the contract in accordance with ORS
279C.410 (8). [2003 c.794 §129; 2005 c.103 §23; 2007 c.764 §29]
279C.405
Requests for information, interest or qualifications; requirements for requests
for proposals. (1) A contracting agency may issue a
request for information, a request for interest, a request for qualifications
or other preliminary documents to obtain information useful in the preparation
or distribution of a request for proposals.
(2) In addition to the general
requirements of ORS 279C.365, a contracting agency preparing a request for
proposals shall include:
(a) All required contractual terms and
conditions. The request for proposals also may:
(A) Identify those contractual terms or
conditions the contracting agency reserves, in the request for proposals, for
negotiation with proposers;
(B) Request that proposers propose
contractual terms and conditions that relate to subject matter reasonably identified
in the request for proposals; and
(C) Contain or incorporate the form and
content of the contract that the contracting agency will accept, or suggested
contract terms and conditions that nevertheless may be the subject of
negotiations with proposers.
(b) The method of contractor selection,
which may include but is not limited to award without negotiation, negotiation
with the highest ranked proposer, competitive negotiations, multiple-tiered
competition designed either to identify a class of proposers that fall within a
competitive range or to otherwise eliminate from consideration a class of lower
ranked proposers, or any combination of methods, as authorized or prescribed by
rules adopted under ORS 279A.065.
(c) All evaluation factors that will be
considered by the contracting agency when evaluating the proposals, including
the relative importance of price and any other evaluation factors. [2003 c.794 §130;
2007 c.764 §30]
279C.410
Receipt of proposals; evaluation and award. (1)
Notwithstanding the public records law, ORS 192.410 to 192.505:
(a) Proposals may be opened so as to avoid
disclosure of contents to competing proposers during, when applicable, the
process of negotiation.
(b) Proposals are not required to be open
for public inspection until after the notice of intent to award a contract is
issued.
(2) For each request for proposals, the
contracting agency shall prepare a list of proposals.
(3) Notwithstanding any requirement to
make proposals open to public inspection after the contracting agency’s
issuance of notice of intent to award a contract, a contracting agency may
withhold from disclosure to the public trade secrets, as defined in ORS
192.501, and information submitted to a public body in confidence, as described
in ORS 192.502, that are contained in a proposal. The fact that proposals are
opened at a public meeting as defined in ORS 192.610 does not make their
contents subject to disclosure, regardless of whether the public body opening
the proposals fails to give notice of or provide for an executive session for
the purpose of opening proposals. If a request for proposals is canceled after
proposals are received, the contracting agency may return a proposal to the
proposer that made the proposal. The contracting agency shall keep a list of
returned proposals in the file for the solicitation.
(4) As provided in the request for
proposals, a contracting agency may conduct discussions with proposers who
submit proposals the agency has determined to be closely competitive or to have
a reasonable chance of being selected for award. The discussions may be
conducted for the purpose of clarification to ensure full understanding of, and
responsiveness to, the solicitation requirements. The contracting agency shall
accord proposers fair and equal treatment with respect to any opportunity for
discussion and revision of proposals. Revisions of proposals may be permitted
after the submission of proposals and before award for the purpose of obtaining
best and final offers. In conducting discussions, the contracting agency may
not disclose information derived from proposals submitted by competing
proposers.
(5) When provided for in the request for
proposals, the contracting agency may employ methods of contractor selection
including but not limited to award based solely on the ranking of proposals,
negotiation with the highest ranked proposer, competitive negotiations,
multiple-tiered competition designed to identify a class of proposers that fall
within a competitive range or to otherwise eliminate from consideration a class
of lower ranked proposers, or any combination of methods, as authorized or
prescribed by rules adopted under ORS 279A.065. When applicable, in any
instance in which the contracting agency determines that impasse has been reached
in negotiations with a highest ranked proposer, the contracting agency may
terminate negotiations with that proposer and commence negotiations with the
next highest ranked proposer.
(6) The cancellation of requests for
proposals and the rejection of proposals shall be in accordance with ORS
279C.395.
(7) At least seven days before the award
of a public improvement contract, unless the contracting agency determines that
seven days is impractical under rules adopted under ORS 279A.065, the
contracting agency shall issue to each proposer or post, electronically or
otherwise, a notice of intent to award.
(8) If a public improvement contract is
awarded, the contracting agency shall award a public improvement contract to
the responsible proposer whose proposal is determined in writing to be the most
advantageous to the contracting agency based on the evaluation factors set
forth in the request for proposals and, when applicable, the outcome of any
negotiations authorized by the request for proposals. Other factors may not be
used in the evaluation. [2003 c.794 §131; 2005 c.103 §24; 2007 c.764 §31]
279C.412
Competitive quotes for intermediate procurements.
(1) A public improvement contract estimated by the contracting agency not to
exceed $100,000 may be awarded in accordance with intermediate procurement
procedures for competitive quotes established by rules adopted under ORS
279A.065. A contract awarded under this section may be amended to exceed
$100,000 only in accordance with rules adopted under ORS 279A.065.
(2) A procurement may not be artificially
divided or fragmented so as to constitute an intermediate procurement under
this section or to circumvent competitive bidding requirements under this
chapter.
(3) Intermediate procurements under this
section need not be made through competitive bidding. However, nothing in this
section may be construed as prohibiting a contracting agency from conducting a
procurement that does not exceed $100,000 under competitive bidding procedures.
[2003 c.794 §132; 2007 c.764 §32]
279C.414
Requirements for competitive quotes. (1) Rules
adopted under ORS 279A.065 to govern competitive quotes shall require the
contracting agency to seek at least three informally solicited competitive
price quotes from prospective contractors. The contracting agency shall keep a
written record of the sources and amounts of the quotes received. If three
quotes are not reasonably available, fewer will suffice, but in that event the
contracting agency shall make a written record of the effort made to obtain the
quotes.
(2) If a contract is to be awarded by
competitive quotes, the contracting agency shall award the contract to the
prospective contractor whose quote will best serve the interests of the
contracting agency, taking into account price as well as any other applicable
factors such as, but not limited to, experience, specific expertise,
availability, project understanding, contractor capacity and responsibility. If
an award is not made to the prospective contractor offering the lowest price
quote, the contracting agency shall make a written record of the basis for
award. [2003 c.794 §133]
(Prequalification
and Disqualification)
279C.430
Prequalification of bidders. (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. The rule, resolution,
ordinance or other regulation authorized by this section must include the time
for submitting prequalification applications and a general description of the
type and nature of the contracts that may be 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, 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 a prequalification application, the contracting agency shall
investigate the applicant as necessary to determine if the applicant is
qualified. 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, the contracting agency shall consider
only the applicable standards of responsibility listed in ORS 279C.375 (3)(b).
The agency shall promptly notify the applicant whether or not the applicant is
qualified.
(3) If the contracting agency finds that
the applicant is qualified, the notice must state the nature and type of
contracts that the person is qualified to bid on and the period of time for
which the qualification 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 the rule, resolution,
ordinance or other regulation, the notice must specify 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) If a contracting agency has reasonable
cause to believe that there has been a substantial change in the conditions of
a prequalified person and that the person is no longer qualified or is less
qualified, 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 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
public improvement contract for which publication of an advertisement, in
accordance with ORS 279C.360, commenced before the date the notice of
revocation or revision was received by the prequalified person. [2003 c.794 §123;
2005 c.103 §25]
279C.435
Effect of prequalification by Department of Transportation or Oregon Department
of Administrative Services. If a person is prequalified with
the Department of Transportation or with the Oregon Department of Administrative
Services, the person is rebuttably presumed qualified with any other
contracting agency for the same kind of work. When qualifying for the same kind
of work with another contracting agency, the person may submit proof of the
prequalification in lieu of a prequalification application as required by ORS
279C.430. [2003 c.794 §128]
279C.440
Disqualification from consideration for award of contracts.
(1)(a) A contracting agency may disqualify a person from consideration for
award of the contracting agency’s contracts for the reasons listed in
subsection (2) of this section after providing the person with notice and a
reasonable opportunity to be heard.
(b) In lieu of the disqualification
process described in paragraph (a) of this subsection, a contracting agency
contracting for a public improvement may petition the Construction Contractors
Board to disqualify a person from consideration for award of the contracting
agency’s public improvement contracts for the reasons listed in subsection (2)
of this section. The Construction Contractors Board shall provide the person
with notice and a reasonable opportunity to be heard.
(c) A contracting agency or the
Construction Contractors Board may not disqualify a person under this section
for a period of more than three years.
(2) A person may be disqualified from
consideration for award of a contracting agency’s contracts for any of the
following reasons:
(a) The person has been convicted of a
criminal offense as an incident in obtaining or attempting to obtain a public
or private contract or subcontract, or in the performance of such contract or
subcontract.
(b) The person has been convicted under
state or federal statutes of embezzlement, theft, forgery, bribery,
falsification or destruction of records, receiving stolen property or any other
offense indicating a lack of business integrity or business honesty that
currently, seriously and directly affects the person’s responsibility as a
contractor.
(c) The person has been convicted under
state or federal antitrust statutes.
(d) The person has committed a violation
of a contract provision that is regarded by the contracting agency or the
Construction Contractors Board to be so serious as to justify disqualification.
A violation may include but is not limited to a failure to perform the terms of
a contract or an unsatisfactory performance in accordance with the terms of the
contract. However, a failure to perform or an unsatisfactory performance caused
by acts beyond the control of the contractor may not be considered to be a
basis for disqualification.
(e) The person does not carry workers’
compensation or unemployment insurance as required by statute.
(3) A contracting agency or the
Construction Contractors Board shall issue a written decision to disqualify a
person under this section. The decision shall:
(a) State the reasons for the action
taken; and
(b) Inform the disqualified person of the
appeal right of the person under:
(A) ORS 279C.445 and 279C.450 if the
decision to disqualify was issued by a contracting agency; or
(B) ORS chapter 183 if the decision to
disqualify was issued by the Construction Contractors Board.
(4) A copy of the decision issued under
subsection (3) of this section must be mailed or otherwise furnished
immediately to the disqualified person. [2003 c.794 §122]
279C.445
Appeal of disqualification. Any person who wishes to appeal
disqualification shall, within three business days after receipt of notice of
disqualification, notify the contracting agency that the person appeals the
disqualification. Immediately upon receipt of the notice of appeal:
(1) A state contracting agency shall
notify the Director of the Oregon Department of Administrative Services.
(2) All contracting agencies other than
state contracting agencies shall notify the appropriate local contract review
board. [2003 c.794 §124]
279C.450
Appeal procedure for decision to deny, revoke or revise prequalification;
hearing; costs; judicial review. (1) An appeal
from a contracting agency’s disqualification or denial, revocation or revision
of a prequalification is subject to the procedures set forth in this section
and is not subject to ORS chapter 183 except when specifically provided in this
section.
(2) Promptly upon receiving notice of
appeal from a contracting agency as provided 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 upon facts the director finds in the record
and states 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 must be paid as follows:
(a) If the director upholds the decision
to disqualify or deny, revoke or revise a prequalification of a person, 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, 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 the director’s or the board’s principal office. The circuit court shall
reverse or modify the decision only if 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 the members of the
board.
(c) There was an evident material
miscalculation of figures or an evident material mistake in the description of
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, 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 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.
If the court determines that 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, 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. [2003 c.794 §125; 2005 c.103 §26; 2007 c.288 §13; 2009
c.149 §1]
(Remedies)
279C.460
Action by or on behalf of adversely affected bidder or proposer; exception for
personal services contract. (1) Any bidder or proposer
adversely affected or any trade association of construction contractors acting
on behalf of a member of the association to protect interests common to
construction contractor members may commence an action in the circuit court for
the county where the principal offices of a contracting agency are located, for
the purpose of requiring compliance with, or prevention of violations of, ORS
279C.300 to 279C.470 or to determine the applicability of ORS 279C.300 to
279C.470 to matters or decisions of the contracting agency.
(2) The court may order such equitable
relief as the court considers appropriate in the circumstances. In addition to
or in lieu of any equitable relief, the court may award an aggrieved bidder or
proposer any damages suffered by the bidder or proposer as a result of
violations of ORS 279C.300 to 279C.470 for the reasonable cost of preparing and
submitting a bid or proposal. A decision of the contracting agency may not be
voided if other equitable relief is available.
(3) If the contracting agency is
successful in defending the contracting agency’s actions against claims of
violation or potential violation of ORS 279C.300 to 279C.470, the court may
award to the aggrieved contracting agency any damages suffered as a result of
the court action.
(4) The court may order payment of
reasonable attorney fees and costs on trial and on appeal to a successful party
in an action brought under this section.
(5) This section does not apply to
personal services contracts under ORS 279C.100 to 279C.125. [2003 c.794 §134;
2007 c.764 §33]
279C.465
Action against successful bidder; amount of damages; when action to be
commenced; defenses. (1) Any person that loses a
competitive bid or proposal for a contract involving the construction, repair,
remodeling, alteration, conversion, modernization, improvement, rehabilitation,
replacement or renovation of a building or structure may bring an action for
damages against another person who is awarded the contract for which the bid or
proposal was made if the person making the losing bid or proposal can establish
that the other person knowingly violated ORS 279C.840, 656.017, 657.505,
701.021 or 701.026 while performing the work under the contract, or knowingly
failed to pay to the Department of Revenue all sums withheld from employees
under ORS 316.167.
(2) A person bringing an action under this
section must establish a violation of ORS 279C.840, 316.167, 656.017, 657.505,
701.021 or 701.026 by a preponderance of the evidence.
(3) Upon establishing that the violation
occurred, the person shall recover, as liquidated damages, 10 percent of the
total amount of the contract or $5,000, whichever is greater.
(4) In any action under this section, the
prevailing party is entitled to an award of reasonable attorney fees.
(5) An action under this section must be
commenced within two years of the substantial completion of the construction,
repair, remodeling, alteration, conversion, modernization, improvement,
rehabilitation, replacement or renovation. For the purposes of this subsection,
“substantial completion” has the meaning given that term in ORS 12.135.
(6) A person may not recover any amounts
under this section if the defendant in the action establishes by a
preponderance of the evidence that the plaintiff:
(a) Was in violation of ORS 701.021 or
701.026 at the time of making the bid or proposal on the contract;
(b) Was in violation of ORS 316.167,
656.017 or 657.505 with respect to any employees of the plaintiff as of the
time of making the bid or proposal on the contract; or
(c) Was in violation of ORS 279C.840 with
respect to any contract performed by the plaintiff within one year before
making the bid or proposal on the contract at issue in the action. [2003 c.794 §135;
2007 c.836 §44]
279C.470
Compensation for contractor on contract declared void by court; exceptions;
applicability. (1) If a court determines that a public
improvement contract is void because the contracting agency letting the
contract failed to comply with any statutory or regulatory competitive bidding
or other procurement requirements, and the contractor entered into the contract
without intentionally violating the laws regulating public improvement
contracts, then, unless the court determines that substantial injustice would
result, the contractor is entitled to reimbursement for work performed under
the contract as follows:
(a) If the work under the public
improvement contract is substantially complete, the contracting agency shall
ratify the contract.
(b) If the work under the public
improvement contract is not substantially complete, the contracting agency
shall ratify the contract and the contract shall be deemed terminated. Upon
termination, the contractor shall be paid in accordance with ORS 279C.660,
unless the court determines that payment under ORS 279C.660 would be a
substantial injustice to the contracting agency or the contractor, in which
case the contractor shall be paid as the court deems equitable.
(c) For the purposes of this section, a
ratified contract shall be deemed valid, binding and legally enforceable, and
the contractor’s payment and performance bonds shall remain in full force and
effect.
(2) Notwithstanding subsection (1) of this
section, if a court determines that a public improvement contract is void as a
result of fraudulent or criminal acts or omissions of the contractor or of both
the contracting agency letting the contract and the contractor, the contractor
is not entitled to reimbursement for work performed under the contract.
(3) This section does not apply to a
public improvement contract if:
(a) The contracting agency’s employee that
awarded the public improvement contract did not have the authority to do so
under law, ordinance, charter, contract or agency rule; or
(b) Payment is otherwise prohibited by
Oregon law.
(4) The contractor and all subcontractors
under a public improvement contract are prohibited from asserting that the
public improvement contract is void for any reason described in this section. [2003
c.794 §136]
CONSTRUCTION
CONTRACTS GENERALLY
(Required
Contract Conditions)
279C.500
“Person” defined. As used in ORS 279C.500 to
279C.530, unless the context otherwise requires, “person” includes the State
Accident Insurance Fund Corporation and the Department of Revenue. [2003 c.794 §137]
279C.505
Conditions concerning payment, contributions, liens, withholding, drug testing.
(1) Every public improvement contract shall contain a condition that the
contractor shall:
(a) Make payment promptly, as due, to all
persons supplying to the contractor labor or material for the performance of
the work provided for in the contract.
(b) Pay all contributions or amounts due
the Industrial Accident Fund from the contractor or subcontractor incurred in
the performance of the contract.
(c) Not permit any lien or claim to be
filed or prosecuted against the state or a county, school district,
municipality, municipal corporation or subdivision thereof, on account of any
labor or material furnished.
(d) Pay to the Department of Revenue all
sums withheld from employees under ORS 316.167.
(2) In addition to the conditions
specified in subsection (1) of this section, every public improvement contract
shall contain a condition that the contractor shall demonstrate that an
employee drug testing program is in place. [2003 c.794 §138; 2005 c.103 §27]
279C.510
Demolition contracts to require material salvage; lawn and landscape
maintenance contracts to require composting or mulching.
(1) Every public improvement contract for demolition shall contain a condition
requiring the contractor to salvage or recycle construction and demolition
debris, if feasible and cost-effective.
(2) Every public improvement contract for
lawn and landscape maintenance shall contain a condition requiring the
contractor to compost or mulch yard waste material at an approved site, if
feasible and cost-effective. [2003 c.794 §139]
279C.515
Conditions concerning payment of claims by public officers, payment to persons
furnishing labor or materials and complaints. (1)
Every public improvement contract shall contain a clause or condition that, if
the contractor fails, neglects or refuses to make prompt payment of any claim
for labor or services furnished to the contractor or a subcontractor by any
person in connection with the public improvement contract as the claim becomes
due, the proper officer or officers representing the state or a county, school
district, municipality, municipal corporation or subdivision thereof, as the
case may be, may pay such claim to the person furnishing the labor or services
and charge the amount of the payment against funds due or to become due the
contractor by reason of the contract.
(2) Every public improvement contract
shall contain a clause or condition that, if the contractor or a first-tier
subcontractor fails, neglects or refuses to make payment to a person furnishing
labor or materials in connection with the public improvement contract within 30
days after receipt of payment from the contracting agency or a contractor, the
contractor or first-tier subcontractor shall owe the person the amount due plus
interest charges commencing at the end of the 10-day period that payment is due
under ORS 279C.580 (4) and ending upon final payment, unless payment is subject
to a good faith dispute as defined in ORS 279C.580. The rate of interest
charged to the contractor or first-tier subcontractor on the amount due shall equal
three times the discount rate on 90-day commercial paper in effect at the
Federal Reserve Bank in the Federal Reserve district that includes Oregon on
the date that is 30 days after the date when payment was received from the
contracting agency or from the contractor, but the rate of interest may not
exceed 30 percent. The amount of interest may not be waived.
(3) Every public improvement contract and
every contract related to the public improvement contract shall contain a
clause or condition that, if the contractor or a subcontractor fails, neglects
or refuses to make payment to a person furnishing labor or materials in
connection with the public improvement contract, the person may file a
complaint with the Construction Contractors Board, unless payment is subject to
a good faith dispute as defined in ORS 279C.580.
(4) The payment of a claim in the manner
authorized in this section does not relieve the contractor or the contractor’s
surety from obligation with respect to any unpaid claims. [2003 c.794 §140;
2005 c.103 §28]
279C.520
Condition concerning hours of labor. (1) Every
public contract subject to this chapter must contain a condition that a person
may not be employed for more than 10 hours in any one day, or 40 hours in any
one week, except in cases of necessity, emergency or when the public policy
absolutely requires it, and in such cases, except in cases of contracts for
personal services as defined in ORS 279C.100, the employee shall be paid at
least time and a half pay:
(a)(A) For all overtime in excess of eight
hours in any one day or 40 hours in any one week when the work week is five
consecutive days, Monday through Friday; or
(B) For all overtime in excess of 10 hours
in any one day or 40 hours in any one week when the work week is four
consecutive days, Monday through Friday; and
(b) For all work performed on Saturday and
on any legal holiday specified in ORS 279C.540.
(2) An employer must give notice in
writing to employees who work on a public contract, either at the time of hire or
before commencement of work on the contract, or by posting a notice in a
location frequented by employees, of the number of hours per day and days per
week that the employees may be required to work.
(3) In the case of contracts for personal
services as defined in ORS 279C.100, the contract shall contain a provision
that the employee shall be paid at least time and a half for all overtime
worked in excess of 40 hours in any one week, except for individuals under
personal services contracts who are excluded under ORS 653.010 to 653.261 or
under 29 U.S.C. 201 to 209 from receiving overtime.
(4) In the case of a contract for services
at a county fair or for other events authorized by a county fair board, the
contract must contain a provision that employees must be paid at least time and
a half for work in excess of 10 hours in any one day or 40 hours in any one
week. An employer shall give notice in writing to employees who work on such a
contract, either at the time of hire or before commencement of work on the
contract, or by posting a notice in a location frequented by employees, of the
number of hours per day and days per week that employees may be required to
work.
(5)(a) Except as provided in subsection
(4) of this section, contracts for services must contain a provision that
requires that persons employed under the contracts shall receive at least time
and a half pay for work performed on the legal holidays specified in a
collective bargaining agreement or in ORS 279C.540 (1)(b)(B) to (G) and for all
time worked in excess of 10 hours in any one day or in excess of 40 hours in
any one week, whichever is greater.
(b) An employer shall give notice in
writing to employees who work on a contract for services, either at the time of
hire or before commencement of work on the contract, or by posting a notice in
a location frequented by employees, of the number of hours per day and days per
week that the employees may be required to work. [2003 c.794 §141; 2005 c.103 §29]
279C.525
Provisions concerning environmental and natural resources laws; remedies.
(1) Solicitation documents for a public improvement contract shall make
specific reference to federal, state and local agencies that have enacted
ordinances, rules or regulations dealing with the prevention of environmental
pollution and the preservation of natural resources that affect the performance
of the contract. If the successful bidder awarded the project is delayed or
must undertake additional work by reason of existing ordinances, rules or
regulations of agencies not cited in the public improvement contract or due to
the enactment of new or the amendment of existing statutes, ordinances, rules
or regulations relating to the prevention of environmental pollution and the
preservation of natural resources occurring after the submission of the
successful bid, the contracting agency may:
(a) Terminate the contract;
(b) Complete the work itself;
(c) Use nonagency forces already under
contract with the contracting agency;
(d) Require that the underlying property
owner be responsible for cleanup;
(e) Solicit bids for a new contractor to
provide the necessary services under the competitive bid requirements of this
chapter; or
(f) Issue the contractor a change order
setting forth the additional work that must be undertaken.
(2) In addition to the obligation imposed
under subsection (1) of this section to refer to federal, state and local
agencies with ordinances, rules or regulations dealing with the prevention of
environmental pollution and the preservation of natural resources, a
solicitation document must also make specific reference to known conditions at
the construction site that may require the successful bidder to comply with the
ordinances, rules or regulations identified under subsection (1) of this section.
(3) If the successful bidder encounters a
condition not referred to in the solicitation documents, not caused by the
successful bidder and not discoverable by a reasonable prebid visual site
inspection, and the condition requires compliance with the ordinances, rules or
regulations referred to under subsection (1) of this section, the successful
bidder shall immediately give notice of the condition to the contracting
agency.
(4) Except in the case of an emergency and
except as may otherwise be required by any environmental or natural resource
ordinance, rule or regulation, the successful bidder may not commence work nor
incur any additional job site costs in regard to the condition encountered and
described in subsection (3) of this section without written direction from the
contracting agency.
(5) Upon request by the contracting
agency, the successful bidder shall estimate the emergency or regulatory
compliance costs as well as the anticipated delay and costs resulting from the
encountered condition. This cost estimate shall be promptly delivered to the
contracting agency for resolution.
(6) Within a reasonable period of time
following delivery of an estimate under subsection (5) of this section, the
contracting agency may:
(a) Terminate the contract;
(b) Complete the work itself;
(c) Use nonagency forces already under
contract with the contracting agency;
(d) Require that the underlying property
owner be responsible for cleanup;
(e) Solicit bids for a new contractor to
provide the necessary services under the competitive bid requirements of this
chapter; or
(f) Issue the contractor a change order
setting forth the additional work that must be undertaken.
(7)(a) If the contracting agency chooses
to terminate the contract under subsection (1)(a) or (6)(a) of this section,
the successful bidder shall be entitled to all costs and expenses incurred to
the date of termination, including overhead and reasonable profits, on the
percentage of the work completed. The contracting agency shall have access to
the contractor’s bid documents when making the contracting agency’s
determination of the additional compensation due to the contractor.
(b) If the contracting agency causes work
to be done by another contractor under subsection (1)(c) or (e) or (6)(c) or
(e) of this section, the initial contractor may not be held liable for actions
or omissions of the other contractor.
(c) The change order under subsection
(1)(f) or (6)(f) of this section shall include the appropriate extension of
contract time and compensate the contractor for all additional costs, including
overhead and reasonable profits, reasonably incurred as a result of complying
with the applicable statutes, ordinances, rules or regulations. The contracting
agency shall have access to the contractor’s bid documents when making the
contracting agency’s determination of the additional compensation due to the
contractor.
(8) Notwithstanding subsections (1) to (7)
of this section, a contracting agency:
(a) May allocate all or a portion of the
known environmental and natural resource risks to a contractor by listing such
environmental and natural resource risks with specificity in the solicitation
documents; and
(b) In a local improvement district, may
allocate all or a portion of the known and unknown environmental and natural
resource risks to a contractor by so stating in the solicitation documents. [2003
c.794 §142]
279C.527
Inclusion of amount for solar energy technology in public improvement contract;
written determination of appropriateness; exemptions and limitations.
(1) Except as otherwise provided in this section, a public improvement contract
for the construction of a public building or for the reconstruction or major
renovation of a public building, if the cost of the reconstruction or major
renovation exceeds 50 percent of the value of the public building, is
considered to contain an amount equal to at least 1.5 percent of the total
contract price for the inclusion of appropriate solar energy technology in the
public building. Solar energy technology shall include solar electric or solar
thermal systems and may include passive solar energy systems when a proposed
passive solar energy system will achieve a reduction in energy usage of at
least 20 percent.
(2) Before entering into a public
improvement contract described in subsection (1) of this section, a contracting
agency shall prepare a written determination of whether the inclusion of solar
energy technology in the construction, reconstruction or major renovation of
the public building is appropriate. The contracting agency shall include in the
determination the total contract price and the amount the agency intends to
expend on the inclusion of solar energy technology in the public building. The
State Department of Energy shall develop a form usable by contracting agencies
for preparing the written determination described in this subsection.
(3) If the contracting agency determines
that it would be inappropriate to include solar energy technology in the
construction, reconstruction or major renovation of the public building,
subsection (1) of this section does not apply to the public improvement
contract. However:
(a) The contracting agency shall spend an
amount equal to at least 1.5 percent of the total contract price on the inclusion
of appropriate solar energy technology in a future public building project; and
(b) The amount spent by the contracting
agency on the future public building project pursuant to paragraph (a) of this
subsection is in addition to any amount required under subsection (1) of this
section for the inclusion of appropriate solar energy technology in the future
public building project.
(4) Subsection (3)(a) and (b) of this
section does not apply to a public improvement contract for which no state
funds are directly or indirectly used.
(5) This section does not exempt an
authorized state agency, as defined in ORS 276.905, from complying with ORS
276.900 to 276.915, except that an authorized state agency, without complying
with ORS 276.900 to 276.915, may determine that solar energy technology
described in this section is appropriate for inclusion in the construction,
reconstruction or major renovation of a public building.
(6)(a) As used in this section, “public
building” means a building owned or controlled by a public body, as defined in
ORS 174.109, and:
(A) Used or occupied by employees of the
public body; or
(B) Used for conducting public business.
(b) Notwithstanding the provisions of ORS
174.108 (3), this section applies to intergovernmental entities described in
ORS 174.108 (3). [2007 c.310 §2]
Note:
279C.527 and 279C.528 were added to and made a part of 279C.005 to 279C.670 by
legislative action but were not added to any smaller series therein. See
Preface to Oregon Revised Statutes for further explanation.
279C.528
State Department of Energy requirements and specifications; rules.
Public improvement contracts subject to ORS 279C.527 are also subject to rules
adopted by the State Department of Energy that include, but are not limited to,
requirements and specifications for:
(1) Using particular solar energy systems
or technologies in public improvements;
(2) Determining the cost-effectiveness of
solar energy systems or technologies;
(3) Reporting the use of solar energy
systems or technologies in public improvements or submitting documents to the
department for review, as appropriate; and
(4) Determining whether a structure is a
public building subject to the requirements of ORS 279C.527. [2007 c.310 §3]
Note:
See note under 279C.527.
279C.530
Condition concerning payment for medical care and providing workers’
compensation. (1) Every public improvement contract
shall contain a condition that the contractor shall promptly, as due, make
payment to any person, copartnership, association or corporation furnishing
medical, surgical and hospital care services or other needed care and
attention, incident to sickness or injury, to the employees of the contractor,
of all sums that the contractor agrees to pay for the services and all moneys
and sums that the contractor collected or deducted from the wages of employees
under any law, contract or agreement for the purpose of providing or paying for
the services.
(2) Every public contract subject to this
chapter shall contain a clause or condition that all subject employers working
under the contract are either employers that will comply with ORS 656.017 or
employers that are exempt under ORS 656.126. [2003 c.794 §143; 2005 c.103 §30]
279C.535
Condition concerning steel material; rules. The
Department of Transportation shall adopt rules to require that public
improvement contracts entered into by the department include a price escalation
and de-escalation clause relating to steel material. As used in this section, “steel
material” includes structural and reinforcing steel, steel studs, sheet piling,
guardrail, ductile iron pipe and other steel products used for the
construction, reconstruction or major renovation of a road or highway. [2005
c.557 §6]
(Hours
of Labor)
279C.540
Maximum hours of labor on public contracts; holidays; exceptions; liability to
workers; rules. (1) When labor is employed by
the state or a county, school district, municipality, municipal corporation or
subdivision thereof through a contractor, a person may not be required or permitted
to labor more than 10 hours in any one day, or 40 hours in any one week, except
in cases of necessity or emergency or when the public policy absolutely
requires it, in which event, the person so employed for excessive hours shall
receive at least time and a half pay:
(a)(A) For all overtime in excess of eight
hours in any one day or 40 hours in any one week when the work week is five
consecutive days, Monday through Friday; or
(B) For all overtime in excess of 10 hours
in any one day or 40 hours in any one week when the work week is four
consecutive days, Monday through Friday; and
(b) For all work performed on Saturday and
on the following legal holidays:
(A) Each Sunday.
(B) New Year’s Day on January 1.
(C) Memorial Day on the last Monday in May.
(D) Independence Day on July 4.
(E) Labor Day on the first Monday in
September.
(F) Thanksgiving Day on the fourth
Thursday in November.
(G) Christmas Day on December 25.
(2) An employer shall give notice in
writing to employees who perform work under subsection (1) of this section,
either at the time of hire or before commencement of work on the contract, or
by posting a notice in a location frequented by employees, of the number of
hours per day and days per week that employees may be required to work.
(3) For the purpose of this section, each
time a legal holiday, other than Sunday, listed in subsection (1) of this
section falls on Sunday, the succeeding Monday shall be recognized as a legal
holiday. Each time a legal holiday listed in subsection (1) of this section
falls on Saturday, the preceding Friday shall be recognized as a legal holiday.
(4) Subsections (1) to (3) of this section
do not apply to a public improvement contract or a contract for services if the
contractor is a party to a collective bargaining agreement in effect with any
labor organization.
(5) When specifically agreed to under a
written labor-management negotiated labor agreement, an employee may be paid at
least time and a half pay for work performed on any legal holiday specified in
ORS 187.010 and 187.020 that is not listed in subsection (1) of this section.
(6) This section does not apply to
contracts for personal services as defined in ORS 279C.100, provided that
persons employed under such contracts shall receive at least time and a half
pay for work performed on the legal holidays specified in subsection (1)(b)(B)
to (G) of this section and for all overtime worked in excess of 40 hours in any
one week, except for individuals under personal services contracts who are excluded
under ORS 653.010 to 653.261 or under 29 U.S.C. 201 to 209 from receiving
overtime.
(7) Subsections (1) and (2) of this
section do not apply to contracts for services at a county fair or for other
events authorized by a county fair board if persons employed under the contract
receive at least time and a half for work in excess of 10 hours in any one day
or 40 hours in any one week.
(8)(a) Subsections (1) and (2) of this
section do not apply to contracts for services. However, persons employed under
such contracts shall receive at least time and a half pay for work performed on
the legal holidays specified in a collective bargaining agreement or in
subsection (1)(b)(B) to (G) of this section and for all time worked in excess
of 10 hours in any one day or in excess of 40 hours in any one week, whichever
is greater.
(b) An employer shall give notice in
writing to employees who work on a contract for services, either at the time of
hire or before commencement of work on the contract, or by posting a notice in
a location frequented by employees, of the number of hours per day and days per
week that the employees may be required to work.
(9) Any contractor or subcontractor or
contractor’s or subcontractor’s surety that violates the provisions of this
section is liable to the affected employees in the amount of their unpaid
overtime wages and in an additional amount equal to the unpaid overtime wages
as liquidated damages. If the violation results from willful falsification of
payroll records, the contractor or subcontractor or contractor’s or
subcontractor’s surety is liable to the affected employees in the amount of
their unpaid overtime wages and an additional amount equal to twice the unpaid
overtime wages as liquidated damages.
(10) An action to enforce liability to
employees under subsection (9) of this section may be brought as an action on
the contractor’s payment bond as provided for in ORS 279C.610.
(11) In accordance with ORS chapter 183,
the Commissioner of the Bureau of Labor and Industries may adopt rules to carry
out the provisions of this section. [2003 c.794 §144; 2005 c.103 §31]
279C.545
Time limitation on claim for overtime; posting of circular by contractor.
When labor is employed by the state or a county, school district, municipality,
municipal corporation or subdivision thereof through another as a contractor,
any worker employed by the contractor shall be foreclosed from the right to
collect for any overtime provided in ORS 279C.540 unless a claim for payment is
filed with the contractor within 90 days from the completion of the contract,
providing the contractor has:
(1) Caused a circular clearly printed in
boldfaced 12-point type and containing a copy of this section to be posted in a
prominent place alongside the door of the timekeeper’s office or in a similar
place that is readily available and freely visible to workers employed on the
work.
(2) Maintained the circular continuously
posted from the inception to the completion of the contract on which workers
are or have been employed. [2003 c.794 §145]
(Retainage
and Payments)
279C.550
“Retainage” defined. As used in ORS 279C.550 to
279C.570, “retainage” means the difference between the amount earned by a
contractor on a public improvement contract and the amount paid on the contract
by the contracting agency. [2003 c.794 §146; 2005 c.103 §32]
279C.555
Withholding of retainage. The withholding of retainage by
a contractor or subcontractor on public improvement contracts shall be in
accordance with ORS 701.420 and 701.430 except when the charter of the
contracting agency contains provisions requiring retainage by the contracting
agency of more than five percent of the contract price of the work completed. [2003
c.794 §147]
279C.560
Form of retainage; procedures for holding and payment.
(1) Unless a contracting agency that reserves an amount as retainage under ORS
279C.570 (7) finds in writing that accepting a bond or instrument described in
paragraph (a) or (b) of this subsection poses an extraordinary risk that is not
typically associated with the bond or instrument, the contracting agency in
lieu of withholding moneys from payment shall accept from a contractor:
(a) Bonds, securities or other instruments
of a character described in subsection (6) of this section that are deposited
as provided in subsection (4) of this section; or
(b) A surety bond deposited as provided in
subsection (7) of this section.
(2) A contracting agency that holds moneys
as retainage under ORS 279C.570 (7) shall:
(a) Hold the moneys in a fund and pay the
moneys to the contractor in accordance with ORS 279C.570; or
(b) At the election of the contractor, pay
the moneys to the contractor in accordance with subsection (4) or (5) of this
section and in a manner authorized by the Director of the Oregon Department of
Administrative Services.
(3) If the contracting agency incurs
additional costs as a result of the exercise of an option described in
subsection (1) or (5) of this section, the contracting agency may recover the
costs from the contractor by reducing the final payment. As work on the
contract progresses, the contracting agency shall, upon demand, inform the
contractor of all accrued costs.
(4) The contractor may deposit bonds,
securities or other instruments with the contracting agency or in a bank or
trust company for the contracting agency to hold for the contracting agency’s
benefit in lieu of moneys held as retainage. If the contracting agency accepts
bonds, securities or other instruments deposited as provided in this
subsection, the contracting agency shall reduce the moneys held as retainage in
an amount equal to the value of the bonds, securities and other instruments and
pay the amount of the reduction to the contractor in accordance with ORS
279C.570. Interest or earnings on the bonds, securities or other instruments
shall accrue to the contractor.
(5) If the contractor elects, the
contracting agency shall deposit the retainage as accumulated in an
interest-bearing account in a bank, savings bank, trust company or savings
association for the benefit of the contracting agency. When the contracting
agency is a state contracting agency, the account must be established through
the State Treasurer. Earnings on the account accrue to the contractor.
(6) Bonds, securities and other
instruments deposited or acquired in lieu of retainage, as permitted by this
section, must be of a character approved by the Director of the Oregon
Department of Administrative Services, including but not limited to:
(a) Bills, certificates, notes or bonds of
the United States.
(b) Other obligations of the United States
or agencies of the United States.
(c) Obligations of a corporation wholly
owned by the federal government.
(d) Indebtedness of the Federal National
Mortgage Association.
(e) General obligation bonds of the State
of Oregon or a political subdivision of the State of Oregon.
(f) Irrevocable letters of credit issued
by an insured institution, as defined in ORS 706.008.
(7) The contractor, with the approval of
the contracting agency, may deposit a surety bond for all or any portion of the
amount of funds retained, or to be retained, by the contracting agency in a
form acceptable to the contracting agency. The bond and any proceeds of the
bond must be made subject to all claims and liens and in the same manner and
priority as set forth for retainage under ORS 279C.550 to 279C.570 and 279C.600
to 279C.625. The contracting agency shall reduce the moneys the contracting
agency holds as retainage in an amount equal to the value of the bond and pay
the amount of the reduction to the contractor in accordance with ORS 279C.570.
Whenever a contracting agency accepts a surety bond from a contractor in lieu
of retainage, the contractor shall accept like bonds from a subcontractor or
supplier from which the contractor has retainage. The contractor shall then
reduce the moneys the contractor holds as retainage in an amount equal to the
value of the bond and pay the amount of the reduction to the subcontractor or
supplier. [2003 c.794 §148; 2009 c.568 §1]
279C.565
Limitation on retainage requirements. Unless
otherwise specifically included by statute, the provisions of ORS 279C.560 or
279C.625 apply only as between the contracting agency or public body and the
party with whom it contracts. [2003 c.794 §149]
279C.570
Prompt payment policy; progress payments; retainage; interest; exception;
settlement of compensation disputes. (1) It is the
policy of the State of Oregon that all payments due on a public improvement
contract and owed by a contracting agency shall be paid promptly. No
contracting agency is exempt from the provisions of this section.
(2) Contracting agencies shall make
progress payments on the contract monthly as work progresses on a public
improvement contract. Payments shall be based upon estimates of work completed
that are approved by the contracting agency. A progress payment is not
considered acceptance or approval of any work or waiver of any defects therein.
The contracting agency shall pay to the contractor interest on the progress
payment, not including retainage, due the contractor. The interest shall
commence 30 days after receipt of the invoice from the contractor or 15 days
after the payment is approved by the contracting agency, whichever is the
earlier date. The rate of interest charged to the contracting agency on the
amount due shall equal three times the discount rate on 90-day commercial paper
in effect at the Federal Reserve Bank in the Federal Reserve district that
includes Oregon on the date that is 30 days after receipt of the invoice from
the contractor or 15 days after the payment is approved by the contracting
agency, whichever is the earlier date, but the rate of interest may not exceed
30 percent.
(3) Interest shall be paid automatically
when payments become overdue. The contracting agency shall document, calculate
and pay any interest due when payment is made on the principal. Interest
payments shall accompany payment of net due on public improvement contracts.
The contracting agency may not require the contractor to petition, invoice,
bill or wait additional days to receive interest due.
(4) When an invoice is filled out
incorrectly, when there is any defect or impropriety in any submitted invoice
or when there is a good faith dispute, the contracting agency shall so notify
the contractor within 15 days stating the reason or reasons the invoice is
defective or improper or the reasons for the dispute. A defective or improper
invoice, if corrected by the contractor within seven days of being notified by
the contracting agency, may not cause a payment to be made later than specified
in this section unless interest is also paid.
(5) If requested in writing by a
first-tier subcontractor, the contractor, within 10 days after receiving the
request, shall send to the first-tier subcontractor a copy of that portion of
any invoice, request for payment submitted to the contracting agency or pay
document provided by the contracting agency to the contractor specifically
related to any labor or materials supplied by the first-tier subcontractor.
(6) Payment of interest may be postponed
when payment on the principal is delayed because of disagreement between the
contracting agency and the contractor. Whenever a contractor brings formal
administrative or judicial action to collect interest due under this section,
the prevailing party is entitled to costs and reasonable attorney fees.
(7) A contracting agency may reserve as
retainage from any progress payment on a public improvement contract an amount
not to exceed five percent of the payment. As work progresses, a contracting
agency may reduce the amount of the retainage and the contracting agency may
eliminate retainage on any remaining monthly contract payments after 50 percent
of the work under the contract is completed if, in the contracting agency’s
opinion, such work is progressing satisfactorily. Elimination or reduction of
retainage shall be allowed only upon written application by the contractor, and
the application shall include written approval of the contractor’s surety.
However, when the contract work is 97.5 percent completed the contracting
agency may, at the contracting agency’s discretion and without application by
the contractor, reduce the retained amount to 100 percent of the value of the
contract work remaining to be done. Upon receipt of a written application by
the contractor, the contracting agency shall respond in writing within a
reasonable time.
(8) The retainage held by a contracting
agency shall be included in and paid to the contractor as part of the final
payment of the contract price. The contracting agency shall pay to the
contractor interest at the rate of 1.5 percent per month on the final payment
due the contractor, interest to commence 30 days after the work under the
contract has been completed and accepted and to run until the date when the
final payment is tendered to the contractor. The contractor shall notify the
contracting agency in writing when the contractor considers the work complete
and the contracting agency shall, within 15 days after receiving the written
notice, either accept the work or notify the contractor of work yet to be
performed on the contract. If the contracting agency does not, within the time
allowed, notify the contractor of work yet to be performed to fulfill
contractual obligations, the interest provided by this subsection shall
commence to run 30 days after the end of the 15-day period.
(9)(a) The contracting agency shall pay,
upon settlement or judgment in favor of the contractor regarding any dispute as
to the compensation due a contractor for work performed under the terms of a
public improvement contract, the amount due plus interest at the rate of two
times the discount rate, but not to exceed 30 percent, on 90-day commercial
paper in effect at the Federal Reserve Bank in the Federal Reserve district
that includes Oregon on the date of the settlement or judgment, and accruing
from the later of:
(A) The due date of any progress payment
received under the contract for the period in which such work was performed; or
(B) Thirty days after the date on which
the claim for the payment under dispute was presented to the contracting agency
by the contractor in writing or in accordance with applicable provisions of the
contract.
(b) Interest shall be added to and not
made a part of the settlement or judgment. [2003 c.794 §150; 2005 c.103 §33]
(Subcontractors)
279C.580
Contractor’s relations with subcontractors. (1) A
contractor may not request payment from the contracting agency of any amount
withheld or retained in accordance with subsection (5) of this section until
such time as the contractor has determined and certified to the contracting
agency that the subcontractor has determined and certified to the contracting
agency that the subcontractor is entitled to the payment of such amount.
(2) A dispute between a contractor and
first-tier subcontractor relating to the amount or entitlement of a first-tier
subcontractor to a payment or a late payment interest penalty under a clause
included in the subcontract under subsection (3) or (4) of this section does
not constitute a dispute to which the contracting agency is a party. The
contracting agency may not be included as a party in any administrative or
judicial proceeding involving such a dispute.
(3) Each public improvement contract
awarded by a contracting agency shall include a clause that requires the
contractor to include in each subcontract for property or services entered into
by the contractor and a first-tier subcontractor, including a material
supplier, for the purpose of performing a construction contract:
(a) A payment clause that obligates the
contractor to pay the first-tier subcontractor for satisfactory performance
under its subcontract within 10 days out of such amounts as are paid to the
contractor by the contracting agency under the contract; and
(b) An interest penalty clause that
obligates the contractor, if payment is not made within 30 days after receipt
of payment from the contracting agency, to pay to the first-tier subcontractor
an interest penalty on amounts due in the case of each payment not made in
accordance with the payment clause included in the subcontract under paragraph
(a) of this subsection. A contractor or first-tier subcontractor may not be
obligated to pay an interest penalty if the only reason that the contractor or
first-tier subcontractor did not make payment when payment was due is that the
contractor or first-tier subcontractor did not receive payment from the
contracting agency or contractor when payment was due. The interest penalty
shall be:
(A) For the period beginning on the day
after the required payment date and ending on the date on which payment of the
amount due is made; and
(B) Computed at the rate specified in ORS
279C.515 (2).
(4) The contract awarded by the
contracting agency shall require the contractor to include in each of the
contractor’s subcontracts, for the purpose of performance of such contract
condition, a provision requiring the first-tier subcontractor to include a
payment clause and an interest penalty clause conforming to the standards of
subsection (3) of this section in each of the first-tier subcontractor’s
subcontracts and to require each of the first-tier subcontractor’s
subcontractors to include such clauses in their subcontracts with each
lower-tier subcontractor or supplier.
(5)(a) The clauses required by subsections
(3) and (4) of this section are not intended to impair the right of a
contractor or a subcontractor at any tier to negotiate, and to include in the
subcontract, provisions that:
(A) Permit the contractor or a
subcontractor to retain, in the event of a good faith dispute, an amount not to
exceed 150 percent of the amount in dispute from the amount due a subcontractor
under the subcontract without incurring any obligation to pay a late payment
interest penalty, in accordance with terms and conditions agreed to by the
parties to the subcontract, giving such recognition as the parties consider
appropriate to the ability of a subcontractor to furnish a performance bond and
a payment bond;
(B) Permit the contractor or subcontractor
to make a determination that part or all of the subcontractor’s request for
payment may be withheld in accordance with the subcontract agreement; and
(C) Permit such withholdings without
incurring any obligation to pay a late payment interest penalty if:
(i) A notice conforming to the standards
of subsection (8) of this section has been previously furnished to the
subcontractor; and
(ii) A copy of any notice issued by a
contractor under sub-subparagraph (i) of this subparagraph has been furnished
to the contracting agency.
(b) As used in this subsection, “good
faith dispute” means a documented dispute concerning:
(A) Unsatisfactory job progress.
(B) Defective work not remedied.
(C) Third-party claims filed or reasonable
evidence that claims will be filed.
(D) Failure to make timely payments for
labor, equipment and materials.
(E) Damage to the prime contractor or
subcontractor.
(F) Reasonable evidence that the
subcontract cannot be completed for the unpaid balance of the subcontract sum.
(6) If, after making application to a
contracting agency for payment under a contract but before making a payment to
a subcontractor for the subcontractor’s performance covered by such
application, a contractor discovers that all or a portion of the payment
otherwise due the subcontractor is subject to withholding from the
subcontractor in accordance with the subcontract agreement, the contractor
shall:
(a) Furnish to the subcontractor a notice
conforming to the standards of subsection (8) of this section as soon as
practicable upon ascertaining the cause giving rise to a withholding, but prior
to the due date for subcontractor payment;
(b) Furnish to the contracting agency, as
soon as practicable, a copy of the notice furnished to the subcontractor under
paragraph (a) of this subsection;
(c) Reduce the subcontractor’s progress
payment by an amount not to exceed the amount specified in the notice of
withholding furnished under paragraph (a) of this subsection;
(d) Pay the subcontractor as soon as
practicable after the correction of the identified subcontract performance
deficiency;
(e) Make such payment within:
(A) Seven days after correction of the
identified subcontract performance deficiency unless the funds therefor must be
recovered from the contracting agency because of a reduction under paragraph
(f)(A) of this subsection; or
(B) Seven days after the contractor
recovers such funds from the contracting agency;
(f) Notify the contracting agency upon:
(A) Reduction of the amount of any
subsequent certified application for payment; or
(B) Payment to the subcontractor of any
withheld amounts of a progress payment, specifying:
(i) The amounts of the progress payments
withheld under paragraph (a) of this subsection; and
(ii) The dates that such withholding began
and ended; and
(g) Be obligated to pay to the contracting
agency an amount equal to interest on the withheld payments computed in the
manner provided in ORS 279C.570 from the 11th day after receipt of the withheld
amounts from the contracting agency until:
(A) The day the identified subcontractor
performance deficiency is corrected; or
(B) The date that any subsequent payment
is reduced under paragraph (f)(A) of this subsection.
(7)(a) If a contractor, after making
payment to a first-tier subcontractor, receives from a supplier or
subcontractor of the first-tier subcontractor a written notice asserting a
deficiency in such first-tier subcontractor’s performance under the contract
for which the contractor may be ultimately liable and the contractor determines
that all or a portion of future payments otherwise due such first-tier
subcontractor is subject to withholding in accordance with the subcontract
agreement, the contractor may, without incurring an obligation to pay a late
payment interest penalty under subsection (6)(e) of this section:
(A) Furnish to the first-tier
subcontractor a notice conforming to the standards of subsection (8) of this
section as soon as practicable upon making such determination; and
(B) Withhold from the first-tier
subcontractor’s next available progress payment or payments an amount not to
exceed the amount specified in the notice of withholding furnished under
subparagraph (A) of this paragraph.
(b) As soon as practicable, but not later
than 10 days after receipt of satisfactory written notification that the
identified subcontract performance deficiency has been corrected, the
contractor shall pay the amount withheld under paragraph (a)(B) of this
subsection to such first-tier subcontractor, or shall incur an obligation to
pay a late payment interest penalty to such first-tier subcontractor computed
at the rate specified in ORS 279C.570.
(8) A written notice of any withholding
shall be issued to a subcontractor, with a copy to the contracting agency of
any such notice issued by a contractor, specifying:
(a) The amount to be withheld;
(b) The specified causes for the
withholding under the terms of the subcontract; and
(c) The remedial actions to be taken by
the subcontractor in order to receive payment of the amounts withheld.
(9) Except as provided in subsection (2)
of this section, this section does not limit or impair any contractual,
administrative or judicial remedies otherwise available to a contractor or a
subcontractor in the event of a dispute involving late payment or nonpayment by
a contractor or deficient performance or nonperformance by a subcontractor.
(10) A contractor’s obligation to pay a
late payment interest penalty to a subcontractor under the clause included in a
subcontract under subsection (3) or (4) of this section is not intended to be
an obligation of the contracting agency. A contract modification may not be
made for the purpose of providing reimbursement of such late payment interest
penalty. A cost reimbursement claim may not include any amount for
reimbursement of such late payment interest penalty. [2003 c.794 §151; 2005
c.103 §34]
279C.585
Authority to substitute undisclosed first-tier subcontractor; circumstances;
rules. A contractor whose bid is accepted may
substitute a first-tier subcontractor that was not disclosed under ORS 279C.370
by submitting the name of the new subcontractor and the reason for the
substitution in writing to the contracting agency. A contractor may substitute
a first-tier subcontractor under this section in the following circumstances:
(1) When the subcontractor disclosed under
ORS 279C.370 fails or refuses to execute a written contract after having had a
reasonable opportunity to do so after the written contract, which must be
reasonably based upon the general terms, conditions, plans and specifications
for the public improvement project or the terms of the subcontractor’s written
bid, is presented to the subcontractor by the contractor.
(2) When the disclosed subcontractor
becomes bankrupt or insolvent.
(3) When the disclosed subcontractor fails
or refuses to perform the subcontract.
(4) When the disclosed subcontractor fails
or refuses to meet the bond requirements of the contractor that had been
identified prior to the bid submittal.
(5) When the contractor demonstrates to
the contracting agency that the subcontractor was disclosed as the result of an
inadvertent clerical error.
(6) When the disclosed subcontractor does
not hold a license from, or has a license that is not properly endorsed by, the
Construction Contractors Board and is required to be licensed by the board.
(7) When the contractor determines that
the work performed by the disclosed subcontractor is substantially
unsatisfactory and not in substantial accordance with the plans and
specifications or that the subcontractor is substantially delaying or
disrupting the progress of the work.
(8) When the disclosed subcontractor is
ineligible to work on a public improvement contract under applicable statutory
provisions.
(9) When the substitution is for good
cause. The Construction Contractors Board shall define “good cause” by rule. “Good
cause” includes but is not limited to the financial instability of a
subcontractor. The definition of “good cause” must reflect the least-cost
policy for public improvements established in ORS 279C.305.
(10) When the substitution is reasonably
based on the contract alternates chosen by the contracting agency. [2003 c.794 §152;
2007 c.836 §45]
279C.590
Complaint process for substitutions of subcontractors; civil penalties.
(1)(a) A subcontractor disclosed under ORS 279C.370 may file a complaint based
on the subcontractor disclosure requirements under ORS 279C.370 with the
Construction Contractors Board about a contractor if the contractor has
substituted another subcontractor for the complaining subcontractor.
(b) If more than one subcontractor files a
complaint with the board under paragraph (a) of this subsection relating to a
single subcontractor disclosure, the board shall consolidate the complaints
into one proceeding. If the board imposes a civil penalty under this section
against a contractor, the amount collected by the board shall be divided evenly
among all of the complaining subcontractors.
(c) Each subcontractor filing a complaint
under paragraph (a) of this subsection shall post a deposit of $500 with the
board upon filing the complaint.
(d) If the board determines that a
contractor’s substitution was not in compliance with ORS 279C.585, the board
shall return the full amount of the deposit posted under paragraph (c) of this
subsection to the complaining subcontractor.
(e) If the board determines that a
contractor has not substituted a subcontractor or that the contractor’s
substitution was in compliance with ORS 279C.585, the board shall award the
contractor $250 of the deposit and shall retain the other $250, which may be
expended by the board.
(2) Upon receipt of a complaint under
subsection (1) of this section, the board shall investigate the complaint. If
the board determines that a contractor has substituted a subcontractor in a
manner not in compliance with ORS 279C.585, the board may impose a civil
penalty against the contractor under subsections (3) to (5) of this section.
Civil penalties under this section shall be imposed in the manner provided
under ORS 183.745.
(3) If the board imposes a civil penalty
under subsection (2) of this section and it is the first time the board has
imposed a civil penalty under subsection (2) of this section against the
contractor during a three-year period, the board shall:
(a) Impose a civil penalty on the
contractor of up to 10 percent of the amount of the subcontract bid submitted
by the complaining subcontractor to the contractor or $15,000, whichever is
less. Amounts collected by the board under this paragraph shall be awarded to
the complaining subcontractor or subcontractors; and
(b) Impose a civil penalty on the
contractor of up to $1,000. Amounts collected by the board under this paragraph
shall be retained by the board and may be expended by the board.
(4) If the board imposes a civil penalty
under subsection (2) of this section and it is the second time the board has
imposed a civil penalty under subsection (2) of this section against the
contractor during a three-year period, the board may:
(a) Impose a civil penalty on the
contractor of up to 10 percent of the amount of the subcontract bid submitted
by the complaining subcontractor to the contractor or $15,000, whichever is
less. Amounts collected by the board under this paragraph shall be awarded to
the complaining subcontractor or subcontractors; and
(b) Impose a civil penalty on the
contractor of up to $1,000 and shall place the contractor on the list
established under ORS 701.227 for up to six months. Amounts collected by the
board under this paragraph shall be retained by the board and may be expended
by the board.
(5) If the board imposes a civil penalty
under subsection (2) of this section and the board has imposed a civil penalty
under subsection (2) of this section against the contractor three or more times
during a three-year period, the board may:
(a) Impose a civil penalty on the
contractor of up to 10 percent of the amount of the subcontract bid submitted
by the complaining subcontractor to the contractor or $15,000, whichever is
less. Amounts collected by the board under this paragraph shall be awarded to
the complaining subcontractor or subcontractors; and
(b) Impose a civil penalty on the
contractor of up to $1,000 and shall place the contractor on the list established
under ORS 701.227 for up to one year. Amounts collected by the board under this
paragraph shall be retained by the board and may be expended by the board.
(6) Within 10 working days after receiving
a complaint under subsection (1) of this section, the board shall notify, in
writing, any contracting agency that is a party to the contract for which the
complaint has been filed that the complaint has been filed. [2003 c.794 §153]
(Action
on Payment Bonds and Public Works Bonds)
279C.600
Right of action on payment bond or public works bond of contractor or subcontractor;
notice of claim. (1) A person claiming to have
supplied labor or materials for the performance of the work provided for in a
public contract, including any person having a direct contractual relationship
with the contractor furnishing the payment bond or a direct contractual
relationship with any subcontractor, or an assignee of such person, or a person
claiming moneys due the State Accident Insurance Fund Corporation, the Unemployment
Compensation Trust Fund or the Department of Revenue in connection with the
performance of the contract, has a right of action on the contractor’s payment
bond as provided for in ORS 279C.380 and 279C.400 only if:
(a) The person or the assignee of the
person has not been paid in full; and
(b) The person gives written notice of
claim, as prescribed in ORS 279C.605, to the contractor and the contracting
agency.
(2) When, upon investigation, the
Commissioner of the Bureau of Labor and Industries has received information
indicating that one or more workers providing labor on a public works have not
been paid in full at the prevailing rate of wage or overtime wages, the
commissioner has a right of action first on the contractor’s public works bond
required under ORS 279C.836 and then, for any amount of a claim not satisfied
by the public works bond, on the contractor’s payment bond, as provided in ORS
279C.380 and 279C.400. When an investigation indicates that a subcontractor’s
workers have not been paid in full at the prevailing rate of wage or overtime
wages, the commissioner has a right of action first on the subcontractor’s
public works bond and then, for any amount of a claim not satisfied by the
subcontractor’s public works bond, on the contractor’s payment bond. The
commissioner’s right of action exists without necessity of an assignment and
extends to workers on the project who are not identified when the written
notice of claim is given, but for whom the commissioner has received
information indicating that the workers have provided labor on the public works
and have not been paid in full. The commissioner shall give written notice of
the claim, as prescribed in ORS 279C.605, to the contracting agency, the
Construction Contractors Board, the contractor and, if applicable, the
subcontractor. The commissioner may not make a claim for the same unpaid wages
against more than one bond under this section. [2003 c.794 §154; 2005 c.360 §3]
279C.605
Notice of claim. (1) The notice of claim required
by ORS 279C.600 must be sent by registered or certified mail or hand delivered
no later than 180 days after the day the person last provided labor or
furnished materials or 180 days after the worker listed in the notice of claim
by the Commissioner of the Bureau of Labor and Industries last provided labor.
The notice may be sent or delivered to the contractor or subcontractor at any
place the contractor or subcontractor maintains an office or conducts business
or at the residence of the contractor or subcontractor.
(2) Notwithstanding subsection (1) of this
section, if the claim is for a required contribution to a fund of an employee
benefit plan, the notice required by ORS 279C.600 must be sent or delivered
within 200 days after the employee last provided labor or materials.
(3) The notice must be in writing
substantially as follows:
______________________________________________________________________________
To (here insert the name of the contractor
or subcontractor and the name of the public body):
Notice hereby is given that the
undersigned (here insert the name of the claimant) has a claim for (here insert
a brief description of the labor or materials performed or furnished and the
person by whom performed or furnished; if the claim is for other than labor or
materials, insert a brief description of the claim) in the sum of (here insert
the amount) dollars against the (here insert public works bond or payment bond,
as applicable) taken from (here insert the name of the principal and, if known,
the surety or sureties upon the public works bond or payment bond) for the work
of (here insert a brief description of the work concerning which the public
works bond or payment bond was taken). Such material or labor was supplied to
(here insert the name of the contractor or subcontractor).
_____________________
(here to be signed)
______________________________________________________________________________
(4) When notice of claim is given by the
commissioner and if the claim includes a worker who is then unidentified, the
commissioner shall include in the notice a statement that the claim includes an
unidentified worker for whom the commissioner has received information
indicating that the worker has not been paid in full at the prevailing rate of
wage required by ORS 279C.840 or overtime wages required by ORS 279C.540.
(5) The person making the claim or giving
the notice shall sign the notice. [2003 c.794 §155; 2005 c.360 §4; 2009 c.160 §1]
279C.610
Action on contractor’s public works bond or payment bond; time limitation.
(1) The Commissioner of the Bureau of Labor and Industries or a person who has
a right of action on the public works bond or the payment bond under ORS
279C.600 and, where required, who has filed and served the notice or notices of
claim, as required under ORS 279C.600 and 279C.605, or that person’s assignee,
may institute an action on the contractor’s public works bond or payment bond
in a circuit court of this state or the federal district court of the district.
(2) The action shall be on the relation of
the commissioner, the claimant, or that person’s assignee, as the case may be,
and shall be in the name of the contracting agency that let the contract or,
when applicable, the public agency or agencies for whose benefit the contract
was let. It may be prosecuted to final judgment and execution for the use and
benefit of the commissioner or the claimant, or that person’s assignee, as the
fact may appear.
(3) The action shall be instituted no
later than two years after the person last provided labor or materials or two
years after the worker listed in the commissioner’s notice of claim last
provided labor. [2003 c.794 §156; 2005 c.360 §5]
279C.615
Preference for labor and material liens. All labor and
material liens have preference and are superior to all other liens and claims
of any kind or nature created by ORS 279C.500 to 279C.530 and 279C.600 to
279C.625. [2003 c.794 §157]
279C.620
Rights of person providing medical care to employees of contractor.
A person providing medical, surgical or hospital care services or other needed
care and attention, incident to sickness or injury, to the employees of a
contractor or subcontractor on a public contract is deemed to have performed
labor on the public contract for the purposes of ORS 279C.600 to 279C.625. [2003
c.794 §158]
279C.625
Joint liability when payment bond not executed.
If the public improvement contract is one for which a payment bond as provided
for in ORS 279C.380 and 279C.400 is required and the contractor fails to pay
for labor or materials or to pay claims due the Industrial Accident Fund, the
Unemployment Compensation Trust Fund or the Department of Revenue and the
officers of the public body that authorized the contract fail or neglect to
require the person entering into the contract to execute the payment bond:
(1) The State of Oregon and the officers
authorizing the contract shall be jointly liable for the labor and materials
used in the performance of any work under the contract, and for claims due the
Industrial Accident Fund, the Unemployment Compensation Trust Fund and the
Department of Revenue, if the contract was entered into with the State of
Oregon.
(2) The public body and the officers
authorizing the contract shall be jointly liable for the labor and materials
used in the performance of any work under the contract and for claims due the
Industrial Accident Fund, the Unemployment Compensation Trust Fund and the
Department of Revenue, if the contract was entered into on behalf of a public
body other than the state. [2003 c.794 §159; 2005 c.103 §35]
(Termination
or Suspension of Contract for Public Interest Reasons)
279C.650
“Labor dispute” defined. As used in ORS 279C.650 to
279C.670, “labor dispute” has the meaning given that term in ORS 662.010. [2003
c.794 §160]
279C.655
Extension and compensation when work suspended.
If a public contract is not terminated but work under the contract is suspended
by an order of a contracting agency for any reason considered to be in the
public interest other than a labor dispute or any third-party judicial
proceeding relating to the work other than a suit or action filed in regards to
a labor dispute, the contractor is entitled to a reasonable extension of the
contract time and reasonable compensation for all costs resulting from the
suspension plus a reasonable allowance for overhead with respect to such costs.
[2003 c.794 §161]
279C.660
Compensation when contract terminated due to public interest.
When a public contract is terminated by mutual agreement, provision shall be
made for the payment of compensation to the contractor. In addition to a
reasonable amount of compensation for preparatory work and for all costs and
expenses arising out of termination, the amount to be paid to the contractor:
(1) Shall be determined on the basis of
the contract price in the case of any fully completed separate item or portion
of the work for which there is a separate or unit contract price; and
(2) May, with respect to any other work,
be a percent of the contract price equal to the percentage of the work
completed. [2003 c.794 §162]
279C.665
Contractual provisions for compensation when contract terminated due to public
interest. A contracting agency may provide in a
public improvement contract detailed provisions under which the contractor
shall be entitled, as a matter of right, to compensation upon termination of
the contract on account of any reason considered to be in the public interest. [2003
c.794 §163]
279C.670
Application of ORS 279C.650 to 279C.670. ORS 279C.650
to 279C.670 do not apply to suspension of the work or termination of the
contract that occurs as a result of the contractor’s violation of federal,
state or local statutes, ordinances, rules or regulations in existence at the
time the contract was executed or as a result of violations of the terms of the
contract. [2003 c.794 §164]
PREVAILING
WAGE RATE
279C.800
Definitions for ORS 279C.800 to 279C.870. As
used in ORS 279C.800 to 279C.870:
(1) “Fringe benefits” means the amount of:
(a) The rate of contribution 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, except for 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 for:
(i) Medical or hospital care;
(ii) Pensions on retirement or death; or
(iii) Compensation for injuries or illness
that result from occupational activity;
(B) Insurance to provide the benefits
described in subparagraph (A) of this paragraph;
(C) Unemployment benefits;
(D) Life insurance;
(E) Disability and sickness insurance or
accident insurance;
(F) Vacation and holiday pay;
(G) Costs of apprenticeship or other
similar programs; or
(H) Other bona fide fringe 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, that the Commissioner of
the Bureau of Labor and Industries determines is paid in the locality to the
majority of workers employed on projects of a similar character in the same
trade or occupation.
(5) “Public agency” means the State of
Oregon or a political subdivision of the State of Oregon, or a county, city,
district, authority, public corporation or public entity organized and existing
under law or charter or an instrumentality of the county, city, district,
authority, public corporation or public entity.
(6)(a) “Public works” includes, but is not
limited to:
(A) Roads, highways, buildings, structures
and improvements of all types, the construction, reconstruction, major
renovation or painting of which is carried on or contracted for by any public
agency to serve the public interest;
(B) A project that uses funds of a private
entity and $750,000 or more of funds of a public agency for constructing,
reconstructing, painting or performing a major renovation on a privately owned
road, highway, building, structure or improvement of any type;
(C) A project that uses funds of a private
entity for constructing a privately owned road, highway, building, structure or
improvement of any type in which a public agency will use or occupy 25 percent
or more of the square footage of the completed project; or
(D) Notwithstanding the provisions of ORS
279C.810 (2)(a), (b) and (c), a device, structure or mechanism, or a
combination of devices, structures or mechanisms, that:
(i) Uses solar radiation as a source for
generating heat, cooling or electrical energy; and
(ii) Is constructed or installed, with or
without using funds of a public agency, on land, premises, structures or buildings
that a public body, as defined in ORS 174.109, owns.
(b) “Public works” does not include:
(A) The reconstruction or renovation of
privately owned property that a public agency leases; 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. [2003 c.794 §165;
2007 c.764 §34; 2010 c.45 §1]
279C.805
Policy. The Legislative Assembly declares that
the purposes of the prevailing rate of wage law are:
(1) To ensure that contractors compete on
the ability to perform work competently and efficiently while maintaining
community-established compensation standards.
(2) To recognize that local participation
in publicly financed construction and family wage income and benefits are
essential to the protection of community standards.
(3) To encourage training and education of
workers to industry skills standards.
(4) To encourage employers to use funds
allocated for employee fringe benefits for the actual purchase of those
benefits. [2003 c.794 §166]
279C.807
Workforce diversity for public works projects.
(1) The Bureau of Labor and Industries shall develop and adopt a plan to
increase diversity statewide among workers employed on projects subject to ORS
279C.800 to 279C.870. The bureau shall develop the plan after conducting a
statewide public process to solicit proposals to increase diversity and shall
adopt the plan after considering proposals submitted to the bureau.
(2) The bureau shall report each year to
the Legislative Assembly or to the appropriate legislative interim committee
concerning progress that results from the plan adopted under this section and may
submit recommendations for legislation or other measures that will improve
diversity among workers employed on projects subject to ORS 279C.800 to
279C.870. The bureau shall submit the first report no later than January 1,
2009. [2007 c.844 §9]
Note:
279C.807 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 279C or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
279C.808
Rules. In accordance with applicable
provisions of ORS chapter 183, the Commissioner of the Bureau of Labor and
Industries shall adopt rules necessary to administer ORS 279C.800 to 279C.870. [2007
c.764 §45]
279C.810
Exemptions; rules. (1) As used in this section:
(a) “Funds of a public agency” does not
include:
(A) Funds provided in the form of a
government grant to a nonprofit organization, unless the government grant is
issued for the purpose of construction, reconstruction, major renovation or
painting;
(B) Building and development permit fees
paid or waived by the public agency;
(C) Tax credits or tax abatements;
(D) Land that a public agency sells to a
private entity at fair market value;
(E) The difference between:
(i) The value of land that a public agency
sells to a private entity as determined at the time of the sale after taking
into account any plan, requirement, covenant, condition, restriction or other
limitation, exclusive of zoning or land use regulations, that the public agency
imposes on the development or use of the land; and
(ii) The fair market value of the land if
the land is not subject to the limitations described in sub-subparagraph (i) of
this subparagraph;
(F) Staff resources of the public agency
used to manage a project or to provide a principal source of supervision,
coordination or oversight of a project;
(G) Staff resources of the public agency
used to design or inspect one or more components of a project;
(H) Moneys derived from the sale of bonds
that are loaned by a state agency to a private entity, unless the moneys will
be used for a public improvement;
(I) Value added to land as a consequence
of a public agency’s site preparation, demolition of real property or
remediation or removal of environmental contamination, except for value added
in excess of the expenses the public agency incurred in the site preparation,
demolition or remediation or removal when the land is sold for use in a project
otherwise subject to ORS 279C.800 to 279C.870; or
(J) Bonds, or loans from the proceeds of
bonds, issued in accordance with ORS chapter 289 or ORS 441.525 to 441.595,
unless the bonds or loans will be used for a public improvement.
(b) “Nonprofit organization” means an
organization or group of organizations described in section 501(c)(3) of the Internal
Revenue Code that is exempt from income tax under section 501(a) of the
Internal Revenue Code.
(2) ORS 279C.800 to 279C.870 do not apply
to:
(a) Projects for which the contract price
does not exceed $50,000. In determining the price of a project, a public
agency:
(A) May not include the value of donated
materials or work performed on the project by individuals volunteering to the
public agency without pay; and
(B) Shall include the value of work
performed by every person paid by a contractor or subcontractor in any manner
for the person’s work on the project.
(b) Projects for which no funds of a
public agency are directly or indirectly used. In accordance with ORS chapter
183, the Commissioner of the Bureau of Labor and Industries shall adopt rules
to carry out the provisions of this paragraph.
(c) Projects:
(A) That are privately owned;
(B) That use funds of a private entity;
(C) In which less than 25 percent of the
square footage of a completed project will be occupied or used by a public agency;
and
(D) For which less than $750,000 of funds
of a public agency are used.
(d) Projects for residential construction
that are privately owned and that predominantly provide affordable housing. As
used in this paragraph:
(A) “Affordable housing” means housing
that serves occupants whose incomes are no greater than 60 percent of the area
median income or, if the occupants are owners, whose incomes are no greater
than 80 percent of the area median income.
(B) “Predominantly” means 60 percent or
more.
(C) “Privately owned” includes:
(i) Affordable housing provided on real
property owned by a public agency if the real property and related structures
are leased to a private entity for 50 or more years; and
(ii) Affordable housing owned by a
partnership, nonprofit corporation or limited liability company in which a
housing authority, as defined in ORS 456.005, is a general partner, director or
managing member and the housing authority is not a majority owner in the
partnership, nonprofit corporation or limited liability company.
(D) “Residential construction” includes
the construction, reconstruction, major renovation or painting of single-family
houses or apartment buildings not more than four stories in height and all
incidental items, such as site work, parking areas, utilities, streets and
sidewalks, pursuant to the United States Department of Labor’s “All Agency
Memorandum No. 130: Application of the Standard of Comparison “Projects of a
Character Similar” Under Davis-Bacon and Related Acts,” dated March 17, 1978.
However, the commissioner may consider different definitions of residential
construction in determining whether a 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. [2003 c.794 §172; 2005 c.153 §1; 2005
c.360 §8; 2007 c.764 §35]
279C.815
Determination of prevailing wage; sources of information; comparison of state
and federal prevailing wage; other powers of commissioner.
(1) As used in this section, “person” means an employer, a labor organization
or an official representative of an employee or employer association.
(2)(a) The Commissioner of the Bureau of
Labor and Industries at least once each year shall determine the prevailing
rate of wage for workers in each trade or occupation in each locality described
in ORS 279C.800 by means of an independent wage survey and shall make this
information available at least twice each year. The commissioner may amend the
rate at any time.
(b) If the data derived only from the
survey described in paragraph (a) of this subsection appear to the commissioner
to be insufficient to determine the prevailing rate of wage, the commissioner
shall consider additional information such as collective bargaining agreements,
other independent wage surveys and the prevailing rates of wage determined by
appropriate federal agencies or agencies of adjoining states. If there is not a
majority in the same trade or occupation paid at the same rate, the average
rate of hourly wage, including all fringe benefits, paid in the locality to
workers in the same trade or occupation is the prevailing rate. If the wage a
contractor or subcontractor pays to workers on a public works is based on a
period of time other than an hour, the hourly wage must be mathematically
determined by the number of hours worked in that period of time.
(3) A person shall make reports and
returns to the Bureau of Labor and Industries that the commissioner requires to
determine the prevailing rates of wage, using forms the bureau provides and
within the time the commissioner prescribes. The person or an authorized
representative of the person shall certify to the accuracy of the reports and
returns.
(4) Notwithstanding ORS 192.410 to
192.505, reports and returns or other information provided to the commissioner
under this section are confidential and not available for inspection by the
public.
(5) The commissioner may enter into a
contract with a public or private party to obtain data and information the
commissioner needs to determine the prevailing rate of wage. The contract may
provide for the manner and extent of the market review of affected trades and
occupations and for other requirements regarding timelines of reports, accuracy
of data and information and supervision and review as the commissioner
prescribes. [2003 c.794 §173; 2005 c.360 §9; 2007 c.764 §36; 2007 c.844 §3;
2011 c.265 §1]
279C.817
Determination of applicability of prevailing wage rate; time limitation;
hearing; rules. (1) The Commissioner of the
Bureau of Labor and Industries shall, upon the request of a public agency or
other interested person, make a determination about whether a project or
proposed project is or would be a public works on which payment of the
prevailing rate of wage is or would be required under ORS 279C.840.
(2) The requester shall provide the
commissioner with information necessary to enable the commissioner to make the
determination.
(3) The commissioner shall make the
determination within 60 days after receiving the request or 60 days after the
requester has provided the commissioner with the information necessary to
enable the commissioner to make the determination, whichever is later. The
commissioner may take additional time to make the determination if the
commissioner and the requester mutually agree that the commissioner may do so.
(4) The commissioner shall afford the
requester or a person adversely affected or aggrieved by the commissioner’s
determination a hearing in accordance with ORS 183.413 to 183.470. An order the
commissioner issues under ORS 183.413 to 183.470 is subject to judicial review
as provided in ORS 183.482.
(5) The commissioner shall adopt rules
establishing the process for requesting and making the determinations described
in this section. [2007 c.764 §43]
279C.820
Advisory committee to assist commissioner. (1)
The Commissioner of the Bureau of Labor and Industries shall appoint an
advisory committee to assist the commissioner in the administration of ORS
279C.800 to 279C.870.
(2) The advisory committee must include
equal representation of members from management and labor in the building and
construction industry who perform work on public works contracts and such other
interested parties as the commissioner shall appoint. [2003 c.794 §179]
279C.825
Fees; rules. (1)(a) The Commissioner of the Bureau
of Labor and Industries, by order, 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 commissioner shall use the fee 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 commissioner shall establish the
fee at 0.1 percent of the contract price. However, in no event may a fee be
charged and collected that is less than $250 or more than $7,500.
(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 notifies the commissioner under ORS 279C.835 a
contract subject to the provisions of ORS 279C.800 to 279C.870 has been
awarded. [2003 c.794 §178; 2007 c.844 §7; 2009 c.161 §1; 2009 c.788 §1]
279C.827
Division of public works project; applicability of prevailing wage rate to
divided projects. (1)(a) A public agency may not
divide a public works project into more than one contract for the purpose of
avoiding compliance with ORS 279C.800 to 279C.870.
(b) When the Commissioner of the Bureau of
Labor and Industries determines that a public agency has divided a public works
project into more than one contract for the purpose of avoiding compliance with
ORS 279C.800 to 279C.870, the commissioner shall issue an order compelling
compliance.
(c) In making determinations under this
subsection, the commissioner shall consider:
(A) The physical separation of the project
structures;
(B) The timing of the work on project
phases or structures;
(C) The continuity of project contractors
and subcontractors working on project parts or phases;
(D) The manner in which the public agency
and the contractors administer and implement the project;
(E) Whether a single public works project
includes several types of improvements or structures; and
(F) Whether the combined improvements or
structures have an overall purpose or function.
(2) If a project is a public works of the
type described in ORS 279C.800 (6)(a)(B) or (C), the commissioner shall divide
the project, if appropriate, after applying the considerations set forth in
subsection (1)(c) of this section to separate the parts of the project that
include funds of a public agency or that will be occupied or used by a public
agency from the parts of the project that do not include funds of a public
agency and that will not be occupied or used by a public agency. If the
commissioner divides the project, any part of the project that does not include
funds of a public agency and that will not be occupied or used by a public
agency is not subject to ORS 279C.800 to 279C.870.
(3) If a project includes parts that are
owned by a public agency and parts that are owned by a private entity, the commissioner
shall divide the project, if appropriate, after applying the considerations set
forth in subsections (1)(c) and (2) of this section to separate the parts of
the project that are public works from the parts of the project that are not
public works. If the commissioner divides the project, parts of the project
that are not public works are not subject to ORS 279C.800 to 279C.870. [2007
c.764 §44]
279C.829
Agreement with other state to pay less than prevailing rate of wage.
Notwithstanding any other provision of law, a contracting agency may not enter
into an agreement with another state or a political subdivision or agency of
another state in which the contracting agency agrees that a contractor or
subcontractor may pay less than the prevailing rate of wage determined in
accordance with ORS 279C.815 under the terms of a contract for public works to
which the contracting agency is a party or of which the contracting agency is a
beneficiary. [2009 c.322 §2]
279C.830
Provisions concerning prevailing rate of wage in specifications, contracts and
subcontracts; applicability of prevailing wage; bond.
(1)(a) Except as provided in paragraph (e) of this subsection, the
specifications for every contract for public works must contain a provision
that states 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 must be paid to workers in each trade or occupation that the
contractor or subcontractor or other person who is a party to the contract uses
in performing all or part of the contract. 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 under paragraph (a)
of this subsection must include the state and federal prevailing rates of wage
in the specifications, the public agency shall also require the contractor to
pay the higher of the applicable state or federal prevailing rate of wage to
all workers on the public works.
(c) Every contract and subcontract must
provide that the workers must be paid not less than the specified minimum
hourly rate of wage in accordance with ORS 279C.838 and 279C.840.
(d) If a public works project is subject
both to ORS 279C.800 to 279C.870 and to the Davis-Bacon Act, every contract and
subcontract must provide that workers on the public works must be paid not less
than the higher of the applicable state or federal prevailing rate of wage.
(e) 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 a contract for the public works must include the applicable
prevailing rate of wage.
(2) The specifications for a contract for
public works must provide 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 that a contracting agency awards must require the
contractor to:
(a) 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) Require, in every subcontract, that
the subcontractor 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). [2003 c.794 §168; 2005 c.360 §10; 2007 c.415 §2;
2007 c.764 §37; 2007 c.844 §4; 2009 c.161 §2; 2011 c.265 §2]
279C.835
Notifying commissioner of public works contract subject to prevailing wage;
payment of fee. 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. [2003
c.794 §175; 2009 c.161 §3]
279C.836
Public works bond; rules. (1) Except as provided in
subsection (4), (7), (8) or (9) of this section, before starting work on a
contract or subcontract for a public works project, a contractor or
subcontractor shall file with the Construction Contractors Board a public works
bond with a corporate surety authorized to do business in this state in the
amount of $30,000. The bond must provide that the contractor or subcontractor
will pay claims ordered by the Bureau of Labor and Industries to workers
performing labor upon public works projects. The bond must be a continuing
obligation, and the surety’s liability for the aggregate of claims that may be
payable from the bond may not exceed the penal sum of the bond. The bond must
remain in effect continuously until depleted by claims paid under this section,
unless the surety sooner cancels the bond. The surety may cancel the bond by
giving 30 days’ written notice to the contractor or subcontractor, to the board
and to the Bureau of Labor and Industries. When the bond is canceled, the
surety is relieved of further liability for work performed on contracts entered
into after the cancellation. The cancellation does not limit the surety’s
liability for work performed on contracts entered into before the cancellation.
(2) Before permitting a subcontractor to
start work on a public works project, the contractor shall verify that the
subcontractor has filed a public works bond as required under this section, has
elected not to file a public works bond under subsection (7) or (8) of this
section or is exempt under subsection (4) or (9) of this section.
(3) A contractor or subcontractor is not
required under this section to file a separate public works bond for each
public works project for which the contractor or subcontractor has a contract.
(4) A person that is not required under
ORS 279C.800 to 279C.870 to pay prevailing rates of wage on a public works
project is not required to file a public works bond under this section.
(5) A public works bond required by this
section is in addition to any other bond the contractor or subcontractor is
required to obtain.
(6) The board may, by rule, require a
contractor or subcontractor to obtain a new public works bond if a surety pays
a claim out of an existing public works bond. The new bond must be in the
amount of $30,000. The board may allow a contractor or subcontractor to obtain,
instead of a new bond, a certification that the surety remains liable for the
full penal sum of the existing bond, notwithstanding payment by the surety on
the claim.
(7)(a) A disadvantaged, minority, women or
emerging small business enterprise certified under ORS 200.055 may, for up to
four years after certification, elect not to file a public works bond as
required under subsection (1) this section. If a business enterprise elects not
to file a public works bond, the business enterprise shall give the board
written verification of the certification and written notice that the business
enterprise elects not to file the bond.
(b) A business enterprise that elects not
to file a public works bond under this subsection shall notify the public
agency for whose benefit the contract was awarded or, if the business
enterprise is a subcontractor, the contractor of the election before starting
work on a public works project. When a business enterprise elects not to file a
public works bond under this subsection, a claim for unpaid wages may be made
against the payment bond of the business enterprise or, if the business enterprise
is a subcontractor, the payment bond of the contractor.
(c) An election not to file a public works
bond expires four years after the date the business enterprise is certified.
After an election has expired and before starting or continuing work on a contract
or subcontract for a public works project, the business enterprise shall file a
public works bond with the board as required under subsection (1) of this
section.
(8) A contractor or subcontractor may
elect not to file a public works bond as required under subsection (1) of this
section for any public works project for which the contract price does not
exceed $100,000.
(9) In cases of emergency, or when the
interest or property of the public agency for whose benefit the contract was
awarded probably would suffer material injury by delay or other cause, the
requirement for filing a public works bond may be excused, if a declaration of
the emergency is made in accordance with rules adopted under ORS 279A.065.
(10) The board shall make available on a
searchable public website information concerning public works bonds filed with
the board, claims made on those bonds, elections made by certified business
enterprises not to file those bonds and the expiration date of each election.
The board may adopt rules necessary to perform the duties required of the board
by this section.
(11) The Commissioner of the Bureau of
Labor and Industries, with approval of the board, shall adopt rules that
establish language for public works bonds. [2005 c.360 §2; 2007 c.415 §1; 2007
c.764 §38]
279C.838
Applicability of state and federal rates of wage; determination of site of
project; determination of applicability of wage to transportation workers;
waiver. When a public works project is subject
to the Davis-Bacon Act (40 U.S.C. 3141 et seq.):
(1) If the state prevailing rate of wage
is higher than the federal prevailing rate of wage, the contractor and every
subcontractor on the project shall pay at least the state prevailing rate of
wage as determined under ORS 279C.815;
(2) The Commissioner of the Bureau of
Labor and Industries shall determine the site of the project in a manner
consistent with the term “site of the work” as that term is used in federal law
and in regulations adopted or guidelines issued in accordance with the
Davis-Bacon Act;
(3) The commissioner shall determine in a
manner that is consistent with federal law and regulations adopted or
guidelines issued in accordance with the Davis-Bacon Act whether workers
transporting materials and supplies to and from the site of the project are
subject to the Davis-Bacon Act and are entitled to be paid the prevailing rate
of wage;
(4) Except as provided in subsection (1)
of this section, the commissioner, in consultation with the advisory committee
appointed under ORS 279C.820, may administer and enforce ORS 279C.800 to
279C.870 in a manner that is consistent with federal law and regulations
adopted or guidelines issued in accordance with the Davis-Bacon Act. The
commissioner may provide a waiver from a requirement set forth in ORS 279C.800
to 279C.870 if necessary to achieve consistency with the Davis-Bacon Act and to
further the purposes of ORS 279C.805; and
(5) ORS 279C.800 to 279C.870 do not apply
to workers enrolled in skill training programs that are certified by the United
States Secretary of Transportation under the Federal-Aid Highway Act (23 U.S.C.
113(c)). [2005 c.360 §7; 2007 c.844 §5]
279C.840
Payment of prevailing rate of wage; posting of rates and fringe benefit plan
provisions. (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. [2003 c.794 §167; 2009 c.161 §4]
279C.845
Certified statements regarding payment of prevailing rates of wage; retainage.
(1) The contractor or the contractor’s surety and every subcontractor or the
subcontractor’s surety shall file certified statements with the public agency
in writing, on a form prescribed by the Commissioner of the Bureau of Labor and
Industries, certifying:
(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 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, that the contractor or
subcontractor knows the contents of the certified statement and that to the
contractor or subcontractor’s knowledge the certified statement is true.
(3) The certified statements shall set out
accurately and completely the contractor’s or subcontractor’s payroll records,
including the name and address of each worker, the worker’s correct
classification, rate of pay, daily and weekly number of hours worked and the
gross wages the worker earned upon the public works during each week identified
in the certified statement.
(4) The contractor or subcontractor shall
deliver or mail each certified statement required by subsection (1) of this
section to the public agency. 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 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 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. [2003 c.794 §169; 2005 c.360 §11; 2009 c.7 §1]
279C.850
Inspection to determine whether prevailing rate of wage being paid; civil
action for failure to pay prevailing rate of wage or overtime.
(1) At any reasonable time the Commissioner of the Bureau of Labor and
Industries may enter the office or business establishment of any contractor or
subcontractor performing public works and gather facts and information
necessary to determine whether the prevailing rate of wage is actually being
paid by such contractor or subcontractor to workers upon public works.
(2) Upon request by the commissioner,
every contractor or subcontractor performing work on public works shall make
available to the commissioner for inspection during normal business hours any
payroll or other records in the possession or under the control of the
contractor or subcontractor that are deemed necessary by the commissioner to
determine whether the prevailing rate of wage is actually being paid by such
contractor or subcontractor to workers upon public works. The commissioner’s
request must be made a reasonable time in advance of the inspection.
(3) Notwithstanding ORS 192.410 to
192.505, any record obtained or made by the commissioner under this section is
not open to inspection by the public.
(4) The commissioner may, without
necessity of an assignment, initiate legal proceedings against employers to
enjoin future failures to pay required prevailing rates of wage or overtime pay
and to require the payment of prevailing rates of wage or overtime pay due
employees. The commissioner is entitled to recover, in addition to other costs,
such sum as the court or judge may determine reasonable as attorney fees. If
the commissioner does not prevail in the action, the commissioner shall pay all
costs and disbursements from the Bureau of Labor and Industries Account. [2003
c.794 §170]
279C.855
Liability for violations. (1) A contractor or
subcontractor or contractor’s or subcontractor’s surety that violates the
provisions of ORS 279C.840 is liable to the workers affected in the amount of
the workers’ unpaid minimum wages, including all fringe benefits, and in an
additional amount equal to the unpaid wages as liquidated damages.
(2) Actions to enforce liability to
workers under subsection (1) of this section may be brought as actions on
contractors’ bonds as provided for in ORS 279C.610.
(3) If a public agency fails to provide in
the advertisement for bids, the request for bids, the contract specifications,
the accepted bid or elsewhere in the contract documents that the contractor and
any subcontractor must comply with ORS 279C.840, the liability of the public agency
for unpaid minimum wages, as described in subsection (1) of this section, is
joint and several with a contractor or subcontractor that had notice of the
requirement to comply with ORS 279C.840.
(4) If a public works project is subject
to the Davis-Bacon Act, 40 U.S.C. 3141 et seq., and a public agency fails to
include the state and federal prevailing rates of wage in the specifications
for the contract for public works as required under ORS 279C.830 (1)(a), or
fails to provide in the contract that workers on the public works must be paid
not less than the higher of the applicable state or federal prevailing rate of
wage as required under ORS 279C.830 (1)(d), the public agency is liable to each
affected worker for:
(a) The worker’s unpaid minimum wages,
including fringe benefits, in an amount that equals, for each hour worked, the
difference between the applicable higher rate of wage and the lower rate of
wage; and
(b) An additional amount, equal to the
amount of unpaid minimum wages due under paragraph (a) of this subsection, as
liquidated damages.
(5) The Commissioner of the Bureau of
Labor and Industries may enforce the provisions of subsections (3) and (4) of
this section by a civil action under ORS 279C.850 (4), by a civil action on an
assigned wage claim under ORS 652.330, or by an administrative proceeding on an
assigned wage claim under ORS 652.332. [2003 c.794 §171; 2007 c.844 §6; 2011
c.265 §3]
279C.860
Ineligibility for public works contracts for failure to pay or post notice of
prevailing rates of wage; certified payroll reports to commissioner.
(1) A contractor, subcontractor or any firm, corporation, partnership or
association in which the contractor or subcontractor has a financial interest
is ineligible to receive any contract or subcontract for public works for a
period of three years from the date on which the Commissioner of the Bureau of
Labor and Industries publishes the contractor’s or subcontractor’s name on the
list described in subsection (2) of this section. The commissioner shall add a
contractor’s or subcontractor’s name to the list after determining, in
accordance with ORS chapter 183, that:
(a) The contractor or subcontractor has
intentionally failed or refused to pay the prevailing rate of wage to workers
employed upon public works;
(b) The subcontractor has failed to pay to
the subcontractor’s employees amounts required by ORS 279C.840 and the
contractor has paid those amounts on the subcontractor’s behalf;
(c) The contractor or subcontractor has
intentionally failed or refused to post the prevailing rates of wage as
required by ORS 279C.840 (4); or
(d) The contractor or subcontractor has
intentionally falsified information in the contractor’s or subcontractor’s
certified statements submitted under ORS 279C.845.
(2) The commissioner shall maintain a
written list of the names of those contractors and subcontractors determined to
be ineligible under this section and the period of time for which they are
ineligible. The commissioner shall publish a copy of the list, furnish the list
upon request and make the list available to contracting agencies.
(3) When the contractor or subcontractor
is a corporation, the provisions of this section apply to any corporate officer
or corporate agent who is responsible for the failure or refusal to pay or post
the prevailing rate of wage, the failure to pay to a subcontractor’s employees
amounts required by ORS 279C.840 that are paid by the contractor on the
subcontractor’s behalf or the intentional falsification of information in the
contractor’s or subcontractor’s certified statements submitted under ORS
279C.845.
(4) For good cause shown, the commissioner
may direct the removal of the name of a contractor or subcontractor from the
ineligible list.
(5) To assist the commissioner in determining
whether the contractor or subcontractor is paying the prevailing rate of wage,
when a prevailing rate of wage claim is filed, or evidence indicating a
violation has occurred, a contractor or subcontractor required to pay the
prevailing rate of wage to workers employed upon public works under ORS
279C.800 to 279C.870 shall send a certified copy of the payroll for those
workers when the commissioner requests the certified copy. [2003 c.794 §174;
2009 c.107 §1]
279C.865
Civil penalties. (1) In addition to any other
penalty provided by law, the Commissioner of the Bureau of Labor and Industries
may assess a civil penalty not to exceed $5,000 for each violation of any
provision of ORS 279C.800 to 279C.870 or any rule of the commissioner adopted
thereunder.
(2) Civil penalties under this section
shall be imposed as provided in ORS 183.745.
(3) All moneys collected as penalties
under this section shall be first applied toward reimbursement of costs
incurred in determining violations, conducting hearings and assessing and
collecting the penalties. The remainder, if any, of moneys collected as
penalties under this section shall be paid into the State Treasury and credited
to the General Fund and are available for general governmental expenses. [2003
c.794 §177]
279C.870
Civil action to enforce payment of prevailing rates of wage.
(1) The Commissioner of the Bureau of Labor and Industries or any other person
may bring a civil action in any court of competent jurisdiction to require a
public agency under a public contract with a contractor to withhold twice the
wages in dispute if it is shown that the contractor or subcontractor on the
contract has intentionally failed or refused to pay the prevailing rate of wage
to workers employed on that contract and to require the contractor to pay the
prevailing rate of wage and any deficiencies that can be shown to exist because
of improper wage payments already made. In addition to other relief, the court
may also enjoin the contractor or subcontractor from committing future
violations. The contractor or subcontractor involved shall be named as a party
in all civil actions brought under this section. In addition to other costs,
the court may award the prevailing party reasonable attorney fees at the trial
and on appeal. However, attorney fees may not be awarded against the
commissioner under this section.
(2) The court shall require any party,
other than the commissioner, that brings a civil action under this section to
post a bond sufficient to cover the estimated attorney fees and costs to the
public agency and to the contractor or subcontractor of any temporary
restraining order, preliminary injunction or permanent injunction awarded in
the action, in the event that the party bringing the action does not ultimately
prevail.
(3) In addition to any other relief, the
court in a civil action brought under this section may enjoin the public agency
from contracting with the contractor or subcontractor if the court finds that
the commissioner would be entitled to place the contractor or subcontractor on
the ineligible list established under ORS 279C.860. If the court issues such an
injunction, the commissioner shall place the contractor or subcontractor on the
list for a period of three years, subject to the provision of ORS 279C.860 (4).
[2003 c.794 §176; 2007 c.764 §39; 2009 c.107 §2]
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