2007 Oregon Code - Chapter 279b :: Chapter 279B - Public Contracting - Public Procurements
Chapter 279B
— Public Contracting - Public Procurements
2007 EDITION
PUBLIC CONTRACTING - PUBLIC PROCUREMENTS
PUBLIC FACILITIES, CONTRACTING &
INSURANCE
GENERAL PROVISIONS
279B.005Â Definitions
279B.010Â Policy
279B.015Â Applicability
279B.020Â Maximum
hours of labor on public contracts; holidays; exceptions; liability to workers;
rules
279B.025Â Procurement
practices regarding recyclable and reusable goods
SOURCE SELECTION
(Methods of Source Selection)
279B.050Â Methods
of source selection
279B.055Â Competitive
sealed bidding
279B.060Â Competitive
sealed proposals
279B.065Â Small
procurements
279B.070Â Intermediate
procurements
279B.075Â Sole-source
procurements
279B.080Â Emergency
procurements
279B.085Â Special
procurements
(Cancellation, Rejection and Delay of
Invitations for Bids or Requests for Proposals)
279B.100Â Cancellation,
rejection, delay of invitations for bids or requests for proposals
(Qualifications)
279B.110Â Responsibility
of bidders and proposers
279B.115Â Qualified
products lists
279B.120Â Prequalification
of prospective bidders and proposers
279B.125Â Application
for prequalification
279B.130Â Debarment
of prospective bidders and proposers
(Notice of Intent to Award)
279B.135Â Notice
of intent to award
(Price Agreements)
279B.140Â Price
agreements
(Determinations)
279B.145Â Finality
of determinations
SPECIFICATIONS
(General Provisions)
279B.200Â Definitions
for ORS 279B.200 to 279B.240
279B.205Â Specifications
to encourage reasonable competition
279B.210Â Policy;
development of specifications
279B.215Â Brand
name or equal specification; brand name specification
279B.220Â Conditions
concerning payment, contributions, liens, withholding
279B.225Â Condition
concerning salvaging, recycling, composting or mulching yard waste material
279B.230Â Condition
concerning payment for medical care and providing workersÂ’ compensation
279B.235Â Condition
concerning hours of labor
279B.240Â Exclusion
of recycled oils prohibited
(Specifications in State Contracts)
279B.270Â State
contracting agencies to use recovered resources and recycled materials; notice
to prospective contractors
279B.275Â Purchase
of goods containing recycled polyethylene material
279B.280Â Use
of recycled products when economically feasible
LEGAL REMEDIES
279B.400Â Protests
and judicial review of approvals of special procurements
279B.405Â Protests
and judicial review of solicitations
279B.410Â Protests
of contract award
279B.415Â Judicial
review of protests of contract award
279B.420Â Judicial
review of other violations
279B.425Â Review
of prequalification and debarment decisions
GENERAL PROVISIONS
     279B.005
Definitions. (1) As used in
this chapter, unless the context or a specifically applicable definition
requires otherwise:
     (a) “Invitation to bid” means all
documents, whether attached or incorporated by reference, used for soliciting
bids.
     (b) “Procurement description” means the
words used in a solicitation to describe the goods or services to be procured. “Procurement
description” includes specifications attached to or made a part of the
solicitation.
     (c) “Request for proposals” means all
documents, whether attached or incorporated by reference, used for soliciting
proposals.
     (d) “Responsible bidder” or “responsible
proposer” means a person who meets the standards of responsibility described in
ORS 279B.110.
     (e) “Responsive bid” or “responsive
proposal” means a bid or proposal that substantially complies with the
invitation to bid or request for proposals and all prescribed procurement
procedures and requirements.
     (2) ORS 279A.010 contains general
definitions applicable throughout this chapter. [2003 c.794 §47; 2005 c.103 §7;
2007 c.764 §5]
     279B.010
Policy. In addition to the
policy stated in ORS 279A.015, it is the policy of the State of
     (1) Provide effective outcomes that
represent optimal value to the contracting agency and, to the greatest extent
feasible, be consistent with market practices;
     (2) Seek consistency in procurement
practices between contracting agencies covered under the Public Contracting
Code while preserving each contracting agencyÂ’s ability to adopt rules to
maximize the contracting agencyÂ’s effectiveness; and
     (3) Apply innovative practices while
maintaining quality and integrity. [2003 c.794 §48]
     279B.015
Applicability. Except as
provided in ORS 279C.320, public contracting under this chapter is subject to
ORS chapter 279A, but not ORS chapter 279C. [2003 c.794 §48a; 2005 c.103 §8]
     279B.020
Maximum hours of labor on public contracts; holidays; exceptions; liability to
workers; rules. (1) When
labor is employed by a contracting agency 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) 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.
     (5) This section does not apply to
contracts for personal services designated under ORS 279A.055, 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.
     (6) 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.
     (7) Subsections (1) to (3) of this section
do not apply to a contract for services if the contractor is a party to a
collective bargaining agreement in effect with any labor organization.
     (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
contractorÂ’s or subcontractorÂ’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 resulted from willful falsification of
payroll records, the contractor or subcontractor or contractorÂ’s or
subcontractorÂ’s surety is liable to the affected employees in the amount of
their unpaid overtime wages and in 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 contractorÂ’s payment bond as provided for in ORS 279C.610.
     (11) This section does not apply to:
     (a) Financial institutions as defined in
ORS 706.008.
     (b) Labor performed in the prevention or
suppression of fire under contracts and agreements made pursuant to the
authority of the State Forester or the State Board of Forestry under ORS
477.406.
     (c) Public contracts for goods or personal
property.
     (12) 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 §48b; 2005 c.103 §8a]
     279B.025
Procurement practices regarding recyclable and reusable goods. All contracting agencies shall establish
procurement practices that ensure, to the maximum extent economically feasible,
the procurement of goods that may be recycled or reused when discarded. [2003
c.794 §49]
SOURCE
SELECTION
(Methods of
Source Selection)
     279B.050
Methods of source selection.
(1) Except as provided in subsection (2) of this section, a contracting agency
shall award a public contract for goods or services by competitive sealed
bidding under ORS 279B.055 or competitive sealed proposals under ORS 279B.060.
     (2) The requirements of subsection (1) of
this section do not apply to public contracts established as provided in ORS
279B.065, 279B.070, 279B.075, 279B.080 or 279B.085.
     (3) Notwithstanding the applicability of
ORS 279B.065, 279B.070, 279B.075, 279B.080 or 279B.085 to a public contract, a
contracting agency nevertheless may award the public contract under subsection
(1) of this section.
     (4) A local contracting agency may elect,
by rule, charter, ordinance or other appropriate legislative action, to award
contracts for personal services, as designated under ORS 279A.055, under the
procedures of ORS 279B.050 to 279B.085.
     (5) State contracting agencies shall
solicit contracts for personal services in accordance with ORS 279B.050 to
279B.085. [2003 c.794 §50; 2007 c.764 §6]
     279B.055
Competitive sealed bidding.
(1) A contracting agency may solicit and award a public contract for goods or
services, or may award multiple public contracts for goods or services when
specified in the invitation to bid, by competitive sealed bidding.
     (2) The contracting agency shall issue an
invitation to bid, which must include:
     (a) A time and date by which the bids must
be received and a place at which the bids must be submitted, and may, in the
sole discretion of the contracting agency, direct or permit the submission and
receipt of bids by electronic means;
     (b) The name and title of the person
designated for the receipt of bids and the person designated by the contracting
agency as the contact person for the procurement, if different;
     (c) A procurement description;
     (d) A time, date and place that
prequalification applications, if any, must be filed and the classes of work,
if any, for which bidders must be prequalified in accordance with ORS 279B.120;
     (e) A statement that the contracting
agency may cancel the procurement or reject any or all bids in accordance with
ORS 279B.100;
     (f) A statement that “Contractors shall
use recyclable products to the maximum extent economically feasible in the
performance of the contract work set forth in this document.” if the invitation
to bid is issued by a state contracting agency;
     (g) A statement that requires the
contractor or subcontractor to possess an asbestos abatement license, if
required under ORS 468A.710; and
     (h) All contractual terms and conditions
applicable to the procurement.
     (3)(a) The contracting agency may require
bid security if the contracting agency determines that bid security is
reasonably necessary or prudent to protect the interests of the contracting
agency.
     (b) The contracting agency shall return
the bid security to all bidders upon the execution of the contract.
     (c) The contracting agency shall retain
the bid security if a bidder who is awarded a contract fails to promptly and
properly execute the contract. For purposes of this paragraph, prompt and
proper execution of the contract includes all action by a bidder that is
necessary to the formation of a contract in accordance with the invitation to
bid, including the posting of performance security and the submission of proof
of insurance when required by the invitation to bid.
     (4)(a) The contracting agency shall give public
notice of an invitation to bid issued under this section. Public notice is
intended to foster competition among prospective bidders. The contracting
agency shall make invitations to bid available to prospective bidders.
     (b) A public notice 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.
     (c) The Director of the Oregon Department of
Administrative Services or a local contract review board may, by rule or order,
authorize public notice of bids or proposals to be published electronically
instead of in a newspaper of general circulation if the director or board
determines that electronically providing public notice of bids or proposals is
likely to be cost-effective.
     (d) In addition to the modes of
publication authorized by paragraphs (b) and (c) of this subsection, the
contracting agency may use any other medium reasonably calculated to reach
prospective bidders or proposers.
     (e) Rules adopted under ORS 279A.065 must
prescribe the requirements for providing public notice of solicitations.
     (f) Unless otherwise specified in rules
adopted under ORS 279A.065, the contracting agency shall give public notice at
least seven days before the solicitation closing date.
     (5)(a) The contracting agency shall open
bids publicly at the time, date and place designated in the invitation to bid.
When authorized by, and in accordance with, rules adopted under ORS 279A.065,
bids may be submitted, received and opened through electronic means.
     (b) The amount of a bid, the name of the
bidder and other relevant information as may be specified by rule adopted under
ORS 279A.065 shall be recorded by the contracting agency. The record shall be
open to public inspection.
     (c) Notwithstanding any requirement to
make bids open to public inspection after the contracting agencyÂ’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 bid.
     (6)(a) The contracting agency shall
evaluate all bids that are received before the time and date indicated for bid
opening in the invitation to bid. The contracting agency shall evaluate the
bids based on the requirements set forth in the invitation to bid. The
requirements may include, in addition to the information described in
subsection (2) of this section, criteria to determine minimum acceptability,
such as inspection, testing, quality and suitability for intended use or
purpose. Criteria that will affect the bid price and will be considered in
evaluation for award including, but not limited to, discounts, transportation
costs and total costs of ownership or operation of a product over its life
shall be objectively measurable. The invitation to bid shall set forth the
evaluation criteria to be used. No criteria may be used in a bid evaluation
that are not set forth in the invitation to bid or in a qualified products list
maintained under ORS 279B.115. The contracting agency may not consider for
award bids received after the time and date indicated for bid opening in the invitation
to bid. The contracting agency may retain bids or copies of bids received after
the bid time and date indicated in the invitation to bid.
     (b) The contracting agency shall, for the
purpose of evaluating bids, apply any applicable preference described in ORS
279A.120, 279A.125 or 282.210.
     (7) Rules adopted under ORS 279A.065 shall
provide for and regulate the correction and withdrawal of bids before and after
bid opening and the cancellation of awards or contracts based on bid mistakes.
After bid opening, changes in bids prejudicial to the interests of the public
or fair competition are not permitted. All decisions to permit the correction
or withdrawal of bids, or to cancel an award or a contract based on bid
mistakes, shall be supported by a written determination by the contracting
agency that states the reasons for the action taken.
     (8) The cancellation of invitations to bid
and the rejection of bids must be in accordance with ORS 279B.100.
     (9) The contracting agency shall, in
accordance with ORS 279B.135, issue to each bidder or shall post,
electronically or otherwise, a notice of intent to award.
     (10) If a contract is awarded, the
contracting agency shall award the contract:
     (a) To the lowest responsible bidder whose
bid substantially complies with the requirements and criteria set forth in the
invitation to bid and with all prescribed public procurement procedures and
requirements; or
     (b) When the invitation to bid specifies
or authorizes the award of multiple contracts, to the responsible bidders:
     (A) Whose bids substantially comply with
the requirements and criteria set forth in the invitation to bid and with all
prescribed public procurement procedures and requirements; and
     (B) Who qualify for the award of a public
contract under the terms of the invitation to bid.
     (11) The successful bidder shall promptly
execute a contract. The successful bidderÂ’s duty to promptly execute a contract
includes the duty to take all action that is necessary to the formation of a
contract in accordance with the invitation to bid, including the posting of
performance security and the submission of proof of insurance when required by
the invitation to bid.
     (12) When the contracting agency considers
it impractical to initially prepare a procurement description to support an
award based on price, the contracting agency may issue a multistep invitation
to bid requesting the submission of unpriced submittals, and then later issue
an invitation to bid limited to the bidders whom the contracting agency officer
has determined to be eligible to submit a priced bid under the criteria set
forth in the initial solicitation of unpriced submittals.
     (13) The contracting agency may issue a
request for information, a request for interest or other preliminary documents
to obtain information useful in the preparation of an invitation to bid. [2003
c.794 §51]
     279B.060
Competitive sealed proposals.
(1) A contracting agency may solicit and award a public contract for goods or
services, or may award multiple public contracts for goods or services when
specified in the request for proposals, by requesting and evaluating
competitive sealed proposals.
     (2) The request for proposals must
include:
     (a) A time and date by which sealed
proposals must be received, and a place at which the proposals must be
submitted, and may, in the sole discretion of the contracting agency, direct or
permit the submission and receipt of proposals by electronic means;
     (b) The name and title of the person
designated for receipt of proposals and the person designated by the
contracting agency as the contact person for the procurement, if different;
     (c) A procurement description;
     (d) A time, date and place that
prequalification applications, if any, must be filed and the classes of work,
if any, for which proposers must be prequalified in accordance with ORS
279B.120;
     (e) A statement that the contracting
agency may cancel the procurement or reject any or all proposals in accordance
with ORS 279B.100;
     (f) A statement that “Contractors shall
use recyclable products to the maximum extent economically feasible in the
performance of the contract work set forth in this document.” if the request
for proposals is issued by a state contracting agency;
     (g) A statement that requires the
contractor or subcontractor to possess an asbestos abatement license, if
required under ORS 468A.710; and
     (h) All contractual terms and conditions
applicable to the procurement. 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;
     (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;
     (D) Announce the method of contractor
selection that may include, but is not limited to, 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; and
     (E) Contain a description of the manner in
which proposals will be evaluated, including the relative importance of price
and any other evaluation factors used to rate the proposals in the first tier
of competition, and if more than one tier of competitive evaluation may be
used, a description of the process under which the proposals will be evaluated
in the subsequent tiers.
     (3)(a) The contracting agency may require
proposal security in any form deemed prudent by the contracting agency.
Proposal security shall serve the same function with respect to requests for
proposals as bid security serves with respect to invitations to bid under ORS
279B.055.
     (b) The contracting agency shall return
the proposal security to all proposers upon the execution of the contract.
     (c) The contracting agency shall retain
the proposal security if a proposer who is awarded a contract fails to promptly
and properly execute the contract. For purposes of this paragraph, prompt and
proper execution of the contract includes all action by a proposer that is
necessary to the formation of a contract in accordance with the request for
proposals, including the posting of performance security and the submission of
proof of insurance when required by the request for proposals. If contract
negotiations or competitive negotiations are conducted, the failure, prior to
award, of a contracting agency and a proposer to reach agreement does not
constitute grounds for the retention of proposal security.
     (4) Public notice of the request for
proposals shall be given in the same manner as provided for public notice of
invitations to bid in ORS 279B.055 (4).
     (5)(a) Notwithstanding ORS 192.410 to
192.505, proposals may be opened in a manner to avoid disclosure of contents to
competing proposers during, when applicable, the process of negotiation, but
the contracting agency shall record and make available the identity of all proposers
as part of the contracting agencyÂ’s public records from and after the opening
of the proposals. Notwithstanding ORS 192.410 to 192.505, proposals are not
required to be open for public inspection until after the notice of intent to
award a contract is issued. The fact that proposals are opened at a 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.
     (b) Notwithstanding any requirement to
make proposals open to public inspection after the contracting agencyÂ’s
issuance of notice of intent to award a contract, a contracting agency may
withhold from disclosure to the public materials included in a proposal that
are exempt or conditionally exempt from disclosure under ORS 192.501 or
192.502.
     (c) If a request for proposals is canceled
under ORS 279B.100 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.
     (6)(a) As provided in the request for
proposals or in written addenda issued thereunder, the contracting agency may
conduct site tours, demonstrations, individual or group discussions and other
informational activities with proposers before or after the opening of
proposals for the purpose of clarification to ensure full understanding of, and
responsiveness to, the solicitation requirements or to consider and respond to
requests for modifications of the proposal requirements. The contracting agency
shall use procedures designed to accord proposers fair and equal treatment with
respect to any opportunity for discussion and revision of proposals.
     (b) For purposes of evaluation, when
provided for in the request for proposals, the contracting agency may employ
methods of contractor selection that include, but are not limited to:
     (A) An award or awards based solely on the
ranking of proposals;
     (B) Discussions leading to best and final
offers, in which the contracting agency may not disclose private discussions
leading to best and final offers;
     (C) Discussions leading to best and final
offers, in which the contracting agency may not disclose information derived
from proposals submitted by competing proposers;
     (D) Serial negotiations, beginning with
the highest ranked proposer;
     (E) Competitive simultaneous negotiations;
     (F) Multiple-tiered competition designed
to identify, at each level, a class of proposers that fall within a competitive
range or to otherwise eliminate from consideration a class of lower ranked
proposers;
     (G) A multistep request for proposals
requesting the submission of unpriced technical submittals, and then later
issuing a request for proposals limited to the proposers whose technical
submittals the contracting agency had determined to be qualified under the
criteria set forth in the initial request for proposals; or
     (H) Any combination of methods described
in this paragraph, as authorized or prescribed by rules adopted under ORS
279A.065.
     (c) Revisions of proposals may be
permitted after the submission of proposals and before award for the purpose of
obtaining best offers or best and final offers.
     (d) After the opening of proposals, a
contracting agency may issue or electronically post an addendum to the request
for proposals that modifies the criteria, rating process and procedure for any
tier of competition before the start of the tier to which the addendum applies.
The contracting agency shall send an addendum that is issued by a method other
than electronic posting to all proposers who are eligible to compete under the
addendum. The contracting agency shall issue or post the addendum at least five
days before the start of the subject tier of competition or as otherwise
determined by the contracting agency to be adequate to allow eligible proposers
to prepare for the competition in accordance with rules adopted under ORS
279A.065.
     (7) The cancellation of requests for
proposals and the rejection of proposals must be in accordance with ORS
279B.100.
     (8) In the request for proposals, the
contracting agency shall describe the methods by which the agency will make the
results of each tier of competitive evaluation available to the proposers who
competed in the tier. The contracting agency shall include a description of the
manner in which the proposers who are eliminated from further competition may
protest or otherwise object to the contracting agencyÂ’s decision.
     (9) The contracting agency shall issue or
electronically post the notice of intent to award described in ORS 279B.135 to
each proposer who was evaluated in the final competitive tier.
     (10) If a contract is awarded, the
contracting agency shall award the contract to the responsible proposer whose
proposal the contracting agency determines in writing to be the most
advantageous to the contracting agency based on the evaluation process and
evaluation factors described in the request for proposals, any applicable
preferences described in ORS 279A.120 and 279A.125 and, when applicable, the
outcome of any negotiations authorized by the request for proposals. Other
factors may not be used in the evaluation. When the request for proposals
specifies or authorizes the award of multiple public contracts, the contracting
agency shall award public contracts to the responsible proposers who qualify
for the award of a contract under the terms of the request for proposals.
     (11) The 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
of a request for proposals. [2003 c.794 §52]
     279B.065
Small procurements. (1) Any
procurement of goods or services not exceeding $5,000 may be awarded in any
manner deemed practical or convenient by the contracting agency, including by
direct selection or award. A contract awarded under this section may be amended
to exceed $5,000 only in accordance with rules adopted under ORS 279A.065.
     (2) A procurement may not be artificially
divided or fragmented so as to constitute a small procurement under this
section. [2003 c.794 §53; 2005 c.64 §1; 2005 c.103 §8b]
     279B.070
Intermediate procurements. (1)
Any procurement of goods or services exceeding $5,000 but not exceeding
$150,000 may be awarded in accordance with intermediate procurement procedures.
A contract awarded under this section may be amended to exceed $150,000 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.
     (3) When conducting an intermediate
procurement, a contracting agency shall seek at least three informally
solicited competitive price quotes or competitive proposals from prospective
contractors. The contracting agency shall keep a written record of the sources
of the quotes or proposals received. If three quotes or proposals are not
reasonably available, fewer will suffice, but the contracting agency shall make
a written record of the effort made to obtain the quotes or proposals.
     (4) If a contract is awarded, the
contracting agency shall award the contract to the offeror whose quote or
proposal will best serve the interests of the contracting agency, taking into
account price as well as considerations including, but not limited to,
experience, expertise, product functionality, suitability for a particular
purpose and contractor responsibility under ORS 279B.110. [2003 c.794 §54]
     279B.075
Sole-source procurements.
(1) A contracting agency may award a contract for goods or services without
competition when the Director of the Oregon Department of Administrative
Services, the local contract review board or a state contracting agency, if it
has procurement authority under ORS 279A.050, or a person designated in writing
by the director, board or state contracting agency with procurement authority
under ORS 279A.050, determines in writing, in accordance with rules adopted
under ORS 279A.065, that the goods or services, or class of goods or services,
are available from only one source.
     (2) The determination of a sole source
must be based on written findings that may include:
     (a) That the efficient utilization of
existing goods requires the acquisition of compatible goods or services;
     (b) That the goods or services required
for the exchange of software or data with other public or private agencies are
available from only one source;
     (c) That the goods or services are for use
in a pilot or an experimental project; or
     (d) Other findings that support the
conclusion that the goods or services are available from only one source.
     (3) To the extent reasonably practical,
the contracting agency shall negotiate with the sole source to obtain contract
terms advantageous to the contracting agency. [2003 c.794 §55; 2005 c.103 §8c]
     279B.080
Emergency procurements. (1)
The head of a contracting agency, or a person designated under ORS 279A.075,
may make or authorize others to make emergency procurements of goods or
services in an emergency. The contracting agency shall document the nature of
the emergency and describe the method used for the selection of the particular
contractor.
     (2) For an emergency procurement of
construction services that are not public improvements, the contracting agency
shall ensure competition for a contract for the emergency work that is
reasonable and appropriate under the emergency circumstances. In conducting the
procurement, the contracting agency shall set a solicitation time period that
the contracting agency determines to be reasonable under the emergency
circumstances and may issue written or oral requests for offers or make direct
appointments without competition in cases of extreme necessity. [2003 c.794 §56;
2007 c.764 §6a]
     279B.085
Special procurements. (1) As
used in this section and ORS 279B.400:
     (a) “Class special procurement” means a
contracting procedure that differs from the procedures described in ORS
279B.055, 279B.060, 279B.065 and 279B.070 and is for the purpose of entering
into a series of contracts over time or for multiple projects.
     (b) “Contract-specific special procurement”
means a contracting procedure that differs from the procedures described in ORS
279B.055, 279B.060, 279B.065 and 279B.070 and is for the purpose of entering
into a single contract or a number of related contracts on a one-time basis or
for a single project.
     (c) “Special procurement” means, unless
the context requires otherwise, a class special procurement, a
contract-specific special procurement or both.
     (2) Except as provided in subsection (3)
of this section, to seek approval of a special procurement, a contracting
agency shall submit a written request to the Director of the Oregon Department
of Administrative Services or the local contract review board, as applicable,
that describes the contracting procedure, the goods or services or the class of
goods or services that are the subject of the special procurement and the
circumstances that justify the use of a special procurement under the standards
set forth in subsection (4) of this section.
     (3) When the contracting agency is the
office of the Secretary of State or the office of the State Treasurer, to seek
approval of a special procurement, the contracting agency shall submit a
written request to the Secretary of State or the State Treasurer, as
applicable, that describes the contracting procedure, the goods or services or
the class of goods or services that are the subject of the special procurement
and the circumstances that justify the use of a special procurement under the
standards set forth in subsection (4) of this section.
     (4) The director, a local contract review
board, the Secretary of State or the State Treasurer may approve a special
procurement if the director, board, Secretary of State or State Treasurer finds
that a written request submitted under subsection (2) or (3) of this section
demonstrates that the use of a special procurement as described in the request,
or an alternative procedure prescribed by the director, board, Secretary of
State or State Treasurer:
     (a) Is unlikely to encourage favoritism in
the awarding of public contracts or to substantially diminish competition for
public contracts; and
     (b)(A) Is reasonably expected to result in
substantial cost savings to the contracting agency or to the public; or
     (B) Otherwise substantially promotes the
public interest in a manner that could not practicably be realized by complying
with requirements that are applicable under ORS 279B.055, 279B.060, 279B.065 or
279B.070 or under any rules adopted thereunder.
     (5) Public notice of the approval of a
special procurement must be given in the same manner as provided in ORS
279B.055 (4).
     (6) If a contracting agency intends to award
a contract through a special procurement that calls for competition among
prospective contractors, the contracting agency shall award the contract to the
offeror the contracting agency determines to be the most advantageous to the
contracting agency.
     (7) When the director, a local contract
review board, the Secretary of State or the State Treasurer approves a class
special procurement under this section, the contracting agency may award
contracts to acquire goods or services within the class of goods or services in
accordance with the terms of the approval without making a subsequent request
for a special procurement. [2003 c.794 §57; 2005 c.103 §8d; 2007 c.764 §7]
(Cancellation,
Rejection and Delay of Invitations for Bids or Requests for Proposals)
     279B.100
Cancellation, rejection, delay of invitations for bids or requests for
proposals. (1) Any
solicitation or procurement described in a solicitation may be canceled, or any
or all bids or proposals may be rejected in whole or in part, when the cancellation
or rejection is in the best interest of the contracting agency as determined by
the contracting agency. The reasons for the cancellation or rejection must be
made part of the solicitation file. A contracting agency is not liable to any
bidder or proposer for any loss or expense caused by or resulting from the
cancellation or rejection of a solicitation, bid, proposal or award.
     (2) Any solicitation or procurement
described in a solicitation may be delayed or suspended when the delay or
suspension is in the best interest of the contracting agency as determined by
the contracting agency. The contracting agency shall make the reasons for the
delay or suspension part of the solicitation file. A contracting agency is not
liable to any bidder or proposer for any loss or expense caused by or resulting
from the delay or suspension of a solicitation, bid, proposal or award. [2003
c.794 §58]
(Qualifications)
     279B.110
Responsibility of bidders and proposers. (1) The contracting agency shall prepare a written determination of
nonresponsibility of a bidder or proposer if the bidder or proposer does not
meet the standards of responsibility.
     (2) In determining whether a bidder or
proposer has met the standards of responsibility, the contracting agency shall
consider whether a bidder or proposer has:
     (a) Available the appropriate financial,
material, equipment, facility and personnel resources and expertise, or ability
to obtain the resources and expertise, necessary to indicate the capability of
the bidder or proposer to meet all contractual responsibilities;
     (b) A satisfactory record of performance.
The contracting agency shall document the record of performance of a bidder or
proposer if the contracting agency finds the bidder or proposer nonresponsible
under this paragraph;
     (c) A satisfactory record of integrity.
The contracting agency shall document the record of integrity of a bidder or
proposer if the contracting agency finds the bidder or proposer nonresponsible
under this paragraph;
     (d) Qualified legally to contract with the
contracting agency;
     (e) Supplied all necessary information in
connection with the inquiry concerning responsibility. If a bidder or proposer
fails to promptly supply information requested by the contracting agency
concerning responsibility, the contracting agency shall base the determination
of responsibility upon any available information or may find the bidder or
proposer nonresponsible; and
     (f) Not been debarred by the contracting
agency under ORS 279B.130.
     (3) A contracting agency may refuse to
disclose outside of the contracting agency confidential information furnished
by a bidder or proposer under this section when the bidder or proposer has
clearly identified in writing the information the bidder or proposer seeks to
have treated as confidential and the contracting agency has authority under ORS
192.410 to 192.505 to withhold the identified information from disclosure. [2003
c.794 §59]
     279B.115
Qualified products lists.
(1) A contracting agency may develop and maintain a qualified products list in
instances in which the testing or examination of goods before initiating a
procurement is necessary or desirable in order to best satisfy the requirements
of the contracting agency. For purposes of this section, “goods” includes products
that have associated or incidental service components, such as supplier
warranty obligations or maintenance service programs.
     (2) In the initial development of any
qualified products list, a contracting agency shall give public notice, in
accordance with ORS 279B.055 (4), of the opportunity for potential contractors,
sellers or suppliers to submit goods for testing and examination to determine
their acceptability for inclusion on the list and may solicit in writing
representative groups of potential contractors, sellers or suppliers to submit
goods for the testing and examination. Any potential contractor, seller or
supplier, even though not solicited, may offer its goods for consideration.
     (3) A contracting agency’s inclusion of
goods on a qualified products list shall be based on the results of tests or
examinations. Notwithstanding any provision of ORS 192.410 to 192.505, a
contracting agency may make the test or examination results public in a manner
that protects the identity of the potential contractor, seller or supplier that
offered the goods for testing or examination, including by using only numerical
designations. Notwithstanding any provision of ORS 192.410 to 192.505, a
contracting agency may keep confidential trade secrets, test data and similar
information provided by a potential contractor, seller or supplier if so
requested in writing by the potential contractor, seller or supplier.
     (4) The inclusion of goods on a qualified
products list does not constitute and may not be construed as a prequalification
under ORS 279B.120 and 279B.125 of any prospective contractor, seller or
supplier of goods on the qualified products list. [2003 c.794 §60]
     279B.120
Prequalification of prospective bidders and proposers. (1) A contracting agency may prequalify
prospective bidders or proposers to submit bids or proposals for public
contracts to provide particular types of goods or services. The method of
submitting prequalification applications, the information required in order to
be prequalified and the forms to be used for submitting prequalification
information shall be determined by the contracting agency unless otherwise
prescribed by rule adopted by the Director of the Oregon Department of
Administrative Services or the local contract review board.
     (2) The contracting agency shall, in
response to the receipt of a prequalification application submitted under
subsection (1) of this section, notify the prospective bidder or proposer
whether the prospective bidder or proposer is qualified based on the standards
of responsibility listed in ORS 279B.110 (2), the type and nature of contracts
that the prospective bidder or proposer is qualified to compete for and the
time period for which the prequalification is valid. If the contracting agency
does not prequalify a prospective bidder or proposer as to any contracts
covered by the prequalification process, the notice must specify which of the
standards of responsibility listed in ORS 279B.110 (2) the prospective bidder
or proposer failed to meet. Unless the reasons are specified, the prospective
bidder or proposer shall be deemed to have been prequalified in accordance with
the application.
     (3) If a contracting agency subsequently
discovers that a prospective bidder or proposer that prequalified under
subsections (1) and (2) of this section is no longer qualified, the agency may
revoke the prequalification upon reasonable notice to the prospective bidder or
proposer, except that a revocation is invalid as to any contract for which an
advertisement for bids or proposals has already been issued. [2003 c.794 §61]
     279B.125
Application for prequalification. (1) When a contracting agency permits or requires prequalification of
bidders or proposers, a prospective bidder or proposer who wishes to prequalify
shall submit a prequalification application to the contracting agency on a form
prescribed under ORS 279B.120 (1). Upon receipt of a prequalification
application, the contracting agency shall investigate the prospective bidder or
proposer as necessary to determine whether the prospective bidder or proposer
is qualified. The determination shall be made in less than 30 days, if
practicable, if the prospective bidder or proposer requests an early decision
to allow the prospective bidder or proposer as much time as possible to prepare
a bid or proposal for a contract that has been advertised. In making its
determination, the contracting agency shall consider only the applicable
standards of responsibility listed in ORS 279B.110 (2). The contracting agency
shall promptly notify the prospective bidder or proposer whether the
prospective bidder or proposer is qualified.
     (2) If the contracting agency finds that a
prospective bidder or proposer is qualified, the notice must state the type and
nature of contracts that the prospective bidder or proposer is qualified to
compete for and the period of time for which the prequalification is valid. If
the agency finds that the prospective bidder or proposer is not qualified as to
any contracts covered by the rule, resolution, ordinance or other regulation,
the notice must specify the reasons given under ORS 279B.120 for not
prequalifying the prospective bidder or proposer and inform the prospective
bidder or proposer of the right to a hearing under ORS 279B.425. To be entitled
to a hearing under ORS 279B.425, a prospective bidder or proposer shall, within
three business days after receipt of the notice, notify the contracting agency
that the prospective bidder or proposer demands a hearing under ORS 279B.425.
     (3) If a contracting agency has reasonable
cause to believe that there has been a substantial change in the conditions of
a prequalified prospective bidder or proposer and that the prospective bidder
or proposer is no longer qualified or is less qualified, the contracting agency
may revoke or may revise and reissue the prequalification after reasonable
notice to the prequalified prospective bidder or proposer. The notice must
specify the reasons given under ORS 279B.120 for revocation or revision of the
prequalification of the prospective bidder or proposer and inform the
prospective bidder or proposer of the right to a hearing under ORS 279B.425. To
be entitled to a hearing under ORS 279B.425, a prospective bidder or proposer
shall, within three business days after receipt of the notice, notify the
contracting agency that the prospective bidder or proposer demands a hearing
under ORS 279B.425. A revocation or revision does not apply to any contract for
which an advertisement for bids or proposals was issued before the date the
notice of revocation or revision was received by the prequalified prospective
bidder or proposer. [2003 c.794 §62]
     279B.130
Debarment of prospective bidders and proposers. (1)(a) A contracting agency may debar a
prospective bidder or proposer from consideration for award of the contracting
agencyÂ’s contracts for the reasons listed in subsection (2) of this section
after providing the prospective bidder or proposer with notice and a reasonable
opportunity to be heard.
     (b) A contracting agency may not debar a
prospective bidder or proposer under this section for more than three years.
     (2) A prospective bidder or proposer may
be debarred from consideration for award of a contracting agencyÂ’s contracts
if:
     (a) The prospective bidder or proposer 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
a public or private contract or subcontract.
     (b) The prospective bidder or proposer 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 prospective bidderÂ’s or
proposerÂ’s responsibility as a contractor.
     (c) The prospective bidder or proposer has
been convicted under state or federal antitrust statutes.
     (d) The prospective bidder or proposer 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 debarment.
     (e) The prospective bidder or proposer
does not carry workersÂ’ compensation or unemployment insurance as required by
statute.
     (3) A contracting agency shall issue a
written decision to debar a prospective bidder or proposer under this section.
The decision must:
     (a) State the reasons for the action
taken; and
     (b) Inform the debarred prospective bidder
or proposer of the appeal rights of the prospective bidder or proposer under
ORS 279B.425.
     (4) A copy of the decision issued under
subsection (3) of this section must be mailed or otherwise furnished
immediately to the debarred prospective bidder or proposer.
     (5) A prospective bidder or proposer that
wishes to appeal debarment shall, within three business days after receipt of
notice of debarment, notify the contracting agency that the prospective bidder
or proposer appeals the debarment as provided in ORS 279B.425. [2003 c.794 §63;
2007 c.764 §8]
(Notice of
Intent to Award)
     279B.135
Notice of intent to award.
At least seven days before the award of a public contract, unless the contracting
agency determines that seven days is impractical under rules adopted under ORS
279A.065, the contracting agency shall post or provide to each bidder or
proposer notice of the contracting agencyÂ’s intent to award a contract. This
section does not apply to a contract awarded as a small procurement under ORS
279B.065, an intermediate procurement under ORS 279B.070, a sole-source
procurement under ORS 279B.075, an emergency procurement under ORS 279B.080 or
a special procurement under ORS 279B.085. The notice and its manner of posting
or issuance must conform to rules adopted under ORS 279A.065. [2003 c.794 §64]
(Price
Agreements)
     279B.140
Price agreements. (1) A
price agreement constitutes a firm offer by the contractor regardless of
whether any order or purchase has been made or any performance has been
tendered under the price agreement. Unless the price agreement otherwise
provides, a price agreement is enforceable for the period stated in the price
agreement and, notwithstanding ORS 72.2050, obligations thereunder are not
revocable by the contractor.
     (2) Under a price agreement, no quantity
unreasonably disproportionate to any stated estimate or, in the absence of a
stated estimate, to any normal or otherwise comparable prior requirements may
be demanded unless otherwise expressly provided in the price agreement.
However, a contracting agency may amend or terminate a price agreement or an
order under a price agreement under any of the following circumstances:
     (a) Any failure of the contracting agency
to receive funding, appropriations, limitations, allotments or other
expenditure authority, including the continuation of program operating
authority sufficient, as determined in the discretion of the contracting
agency, to sustain purchases at the levels contemplated at the time of
contracting; or
     (b) Any change in law or program
termination that makes purchases under the price agreement no longer authorized
or appropriate for the contracting agencyÂ’s use.
     (3) A price agreement does not constitute
an exclusive dealing commitment on the part of the contracting agency or the
contractor unless the price agreement expressly so provides. [2003 c.794 §68]
(Determinations)
     279B.145
Finality of determinations.
The determinations under ORS 279B.055 (3) and (7), 279B.060 (3) and (10),
279B.075, 279B.080, 279B.085 and 279B.110 (1) are final and conclusive unless
they are clearly erroneous, arbitrary, capricious or contrary to law. [2003
c.794 §71]
SPECIFICATIONS
(General
Provisions)
     279B.200
Definitions for ORS 279B.200 to 279B.240. As used in ORS 279B.200 to 279B.240:
     (1) “Brand name or equal specification”
means a specification that uses one or more manufacturersÂ’ names, makes,
catalog numbers or similar identifying characteristics to describe the standard
of quality, performance, functionality or other characteristics needed to meet
the contracting agencyÂ’s requirements and that authorizes bidders or proposers
to offer goods or services that are equivalent or superior to those named or
described in the specification.
     (2) “Brand name specification” means a
specification limited to one or more products, brand names, makes, manufacturerÂ’s
names, catalog numbers or similar identifying characteristics.
     (3) “Specification” means any description
of the physical or functional characteristics of, or of the nature of, goods or
services to be procured by a contracting agency. “Specification” may include a
description of any requirement for inspecting, testing or preparing goods or
services for delivery. When a solicitation required or authorized by ORS
279B.050 (4) or (5) to be conducted under ORS 279B.055 or 279B.060 calls in
whole or in part for the performance of personal services as designated under
ORS 279A.055, “specification” also includes any description of the
characteristics or nature of the personal services. [2003 c.794 §72; 2007 c.764
§9]
     279B.205
Specifications to encourage reasonable competition. Consistent with ORS 279A.015, specifications
must seek to promote optimal value and suitability for the purposes intended
and to reasonably encourage competition in satisfying a contracting agencyÂ’s
needs. Subject to ORS 279B.405, the specification content must be determined in
the sole discretion of the contracting agency. [2003 c.794 §74]
     279B.210
Policy; development of specifications. It is the policy of the State of
     279B.215
Brand name or equal specification; brand name specification. (1)(a) A brand name or equal specification
may be used when the use of a brand name or equal specification is advantageous
to the contracting agency, because the brand name describes the standard of
quality, performance, functionality and other characteristics of the product
needed by the contracting agency.
     (b) The contracting agency is entitled to
determine what constitutes a product that is equal or superior to the product
specified, and any such determination is final.
     (c) Nothing in this subsection may be
construed as prohibiting a contracting agency from specifying one or more
comparable products as examples of the quality, performance, functionality or
other characteristics of the product needed by the contracting agency.
     (2) A brand name specification may be
prepared and used only if the contracting agency determines for a solicitation
or a class of solicitations that only the identified brand name specification
will meet the needs of the contracting agency based on one or more of the
following written determinations:
     (a) That use of a brand name specification
is unlikely to encourage favoritism in the awarding of public contracts or
substantially diminish competition for public contracts;
     (b) That use of a brand name specification
would result in substantial cost savings to the contracting agency;
     (c) That there is only one manufacturer or
seller of the product of the quality, performance or functionality required; or
     (d) That efficient utilization of existing
goods requires the acquisition of compatible goods or services.
     (3) A contracting agency’s use of a brand
name specification may be subject to review only as provided in ORS 279B.405. [2003
c.794 §76; 2005 c.103 §8e]
     279B.220
Conditions concerning payment, contributions, liens, withholding. Every public contract shall contain a
condition that the contractor shall:
     (1) 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.
     (2) Pay all contributions or amounts due
the Industrial Accident Fund from the contractor or subcontractor incurred in
the performance of the contract.
     (3) 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.
     (4) Pay to the Department of Revenue all
sums withheld from employees under ORS 316.167. [2003 c.794 §76a]
     279B.225
Condition concerning salvaging, recycling, composting or mulching yard waste
material. Every public
contract for lawn and landscape maintenance shall contain a condition requiring
the contractor to salvage, recycle, compost or mulch yard waste material at an
approved site, if feasible and cost-effective. [2003 c.794 §76b]
     279B.230
Condition concerning payment for medical care and providing workersÂ’
compensation. (1) Every
public 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 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 §76c]
     279B.235
Condition concerning hours of labor. (1) Except as provided in subsections (3) to (6) of this section,
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 designated under ORS 279A.055, 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 279B.020.
     (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 described in ORS 279A.055, 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 279B.020 (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.
     (6) This section does not apply to public
contracts:
     (a) With financial institutions as defined
in ORS 706.008.
     (b) Made pursuant to the authority of the
State Forester or the State Board of Forestry under ORS 477.406 for labor
performed in the prevention or suppression of fire.
     (c) For goods or personal property. [2003
c.794 §77; 2005 c.103 §8f]
     279B.240
Exclusion of recycled oils prohibited. Every contracting agency shall revise its procedures and
specifications for the procurement of lubricating oil and industrial oil to
eliminate any exclusion of recycled oils and any requirement that oils be manufactured
from virgin materials. [2003 c.794 §78]
(Specifications
in State Contracts)
    Â
     (a) Review the contracting agency’s
current procurement specifications in order to eliminate, wherever economically
feasible, discrimination against the procurement of recovered resources or
recycled materials.
     (b) Provide incentives, wherever
economically feasible, in all procurement specifications issued by the
contracting agency for the maximum possible use of recovered resources and
recycled materials.
     (c) Develop procurement practices that, to
the maximum extent economically feasible, ensure the procurement of materials
that are recycled or that may be recycled or reused when discarded.
     (d) Establish management practices that
minimize the volume of solid waste generated by reusing paper, envelopes,
containers and all types of packaging and by limiting the amount of materials
consumed and discarded.
     (e) Use, or require persons with whom the
contracting agency contracts to use in the performance of the contract work, to
the maximum extent economically feasible, recycled paper and recycled PETE
products as well as other recycled plastic resin products.
     (2) An invitation to bid or a request for
proposals issued by a state contracting agency under this chapter shall include
the following language: “Vendors shall use recyclable products to the maximum
extent economically feasible in the performance of the contract work set forth
in this document.”
     (3) Each state contracting agency shall
strive to meet a recycled product procurement level established by rule by the
Oregon Department of Administrative Services. [2003 c.794 §79; 2007 c.764 §10]
     279B.275
Purchase of goods containing recycled polyethylene material. The Oregon Department of Administrative
Services, in consultation with the Department of Environmental Quality, shall
revise its procedures and specifications for state procurement of goods
containing recycled PETE, as well as other recycled plastic resins, to
encourage the procurement of such goods, provided similarities in quality and
price exist between recycled PETE products and products not qualifying as
recycled PETE products. [2003 c.794 §80]
     279B.280
Use of recycled products when economically feasible. The Oregon Department of Administrative
Services shall review and work with state agencies to develop procurement
specifications that encourage the use of recycled products whenever
economically feasible, if the quality of a recycled product is functionally
equal to the same product manufactured with virgin resources, including but not
limited to recycled paper, recycled oil and recycled PETE products. Except for
specifications that have been established to preserve the public health and
safety, all procurement specifications shall be established in a manner that
encourages the procurement of recycled products. [2003 c.794 §81]
LEGAL
REMEDIES
     279B.400
Protests and judicial review of approvals of special procurements. (1) Before seeking judicial review of the
approval of a special procurement, a person must file a protest, in accordance
with the rules adopted under ORS 279A.065, with the Director of the Oregon
Department of Administrative Services or the local contracting agency, as
applicable, and exhaust all available nonjudicial remedies. The rules adopted
under ORS 279A.065 shall provide a reasonable time and manner for affected
persons to protest the approval of a special procurement under ORS 279B.085.
     (2) The approval of a class special
procurement by the director under ORS 279B.085 constitutes rulemaking and not a
contested case under ORS chapter 183. Any affected person, except the state
contracting agency that requested the approval or anyone representing the state
contracting agency, may petition the Court of Appeals in the manner provided in
ORS 183.400 to test the validity of a class special procurement approved by the
director. A proceeding under ORS 183.400 does not affect the validity of a
contract executed pursuant to a class special procurement before the petition
is filed. Notwithstanding ORS 183.400 (1), before seeking judicial review under
this subsection, a person must file a protest with the director as described in
subsection (1) of this section.
     (3)(a) The approval of a contract-specific
special procurement by the director is reviewable under ORS 183.484, but only
if judicial review is sought before the contract is awarded. Otherwise, a
contract awarded pursuant to the contract-specific special procurement is
conclusively presumed valid and may not, in any future judicial or
administrative proceeding, be challenged on the ground that the contract was
awarded under an invalid special procurement.
     (b) Judicial review may be sought from the
Circuit Court for
     (4)(a) The approval of a special
procurement by a local contract review board may be challenged by filing a writ
of review under ORS chapter 34, provided that all available nonjudicial
remedies first have been exhausted, including protests as described in
subsection (1) of this section. Notwithstanding the 60-day filing period
prescribed by ORS 34.030, the approval of a special procurement is not subject
to a writ of review proceeding more than 10 days after the board approves the
use of the special procurement.
     (b) The writ of review may be filed with
and is reviewable by the circuit court for the county in which the principal
offices of the local contracting agency that requested the approval are
located. The circuit court shall give priority on its docket and expedited
review to proceedings under this subsection.
     (5) If timely judicial review is sought
regarding the approval of a special procurement under ORS 279B.085, the
contracting agency may not proceed with contract execution unless the
contracting agency determines that there is a compelling governmental interest
in proceeding or that the goods or services are urgently needed. If the
contracting agency makes such a determination, the contracting agency shall set
forth the reasons for the determination in writing and immediately provide them
to the person who filed the challenge. Thereafter, after joining the
prospective contractor as a party to the litigation and upon motion by the
person filing the challenge, the court may nonetheless stay the performance of
the contract if the court finds that the contracting agencyÂ’s determination of
the existence of a compelling governmental interest in proceeding with contract
execution, or the contracting agencyÂ’s determination that the goods or services
were urgently needed, was not supported by substantial evidence or constituted
a manifest abuse of discretion. In granting a stay, the court may require the
person seeking the stay to post a bond in an amount sufficient to protect the
contracting agency and the public from costs associated with delay in contract
performance.
     (6) In its review, the circuit court shall
give due deference to any factual contracting decision made by the contracting
agency and may not substitute its judgment for that of the contracting agency,
but shall review all questions of law de novo. Thereafter:
     (a) If a contract has not been executed
and the court rules in favor of the party that sought judicial review, and if
the violation could have affected the award of the contract, the court shall
remand the procurement to the contracting agency for a determination whether to
continue with the procurement process in light of the courtÂ’s decision.
     (b) In addition to the relief provided for
in paragraph (a) of this subsection, if a contract has been executed and the
court rules in favor of the party that sought judicial review, the court shall
include in its order a determination whether the party that signed the contract
with the contracting agency is entitled to reimbursement under the conditions
of, and calculated in the same manner as provided in, ORS 279C.470.
Notwithstanding that ORS 279C.470 otherwise applies only to public improvement
contracts, under this paragraph the court shall apply ORS 279C.470 to both
public improvement contracts and other public contracts of contracting
agencies.
     (c) The court may award costs and attorney
fees to the prevailing party. [2003 c.794 §83; 2005 c.103 §8g]
     279B.405
Protests and judicial review of solicitations. (1) As used in this section:
     (a) “Brand name” means a brand name
specification as defined in ORS 279B.200.
     (b) “Legally flawed” means that a
solicitation document contains terms or conditions that are contrary to law.
     (c) “Unnecessarily restrictive” means that
specifications limit competition arbitrarily, without reasonably promoting the
fulfillment of the procurement needs of a contracting agency.
     (2) A prospective bidder, proposer or
offeror for a public contract solicited under ORS 279B.055, 279B.060 or
279B.085 may file a protest with the contracting agency if the prospective
bidder, proposer or offeror believes that the procurement process is contrary
to law or that a solicitation document is unnecessarily restrictive, is legally
flawed or improperly specifies a brand name. If a prospective bidder, proposer
or offeror fails to timely file such a protest, the prospective bidder,
proposer or offeror may not challenge the contract on grounds under this
subsection in any future legal or administrative proceeding.
     (3) The contracting agency, pursuant to
rules adopted under ORS 279A.065, shall notify prospective bidders, proposers
or offerors of the time and manner in which a protest under this section may be
filed and considered. Before seeking judicial review, a prospective bidder,
proposer or offeror must file a protest with the contracting agency and exhaust
all available administrative remedies.
     (4) The contracting agency shall consider
the protest if the protest is timely filed and contains the following:
     (a) Sufficient information to identify the
solicitation that is the subject of the protest;
     (b) The grounds that demonstrate how the
procurement process is contrary to law or how the solicitation document is
unnecessarily restrictive, is legally flawed or improperly specifies a brand
name;
     (c) Evidence or supporting documentation
that supports the grounds on which the protest is based; and
     (d) The relief sought.
     (5) If the protest meets the requirements
of subsection (4) of this section, the contracting agency shall consider the
protest and issue a decision in writing. Otherwise, the contracting agency
shall promptly notify the prospective bidder, proposer or offeror that the
protest is untimely or that the protest failed to meet the requirements of
subsection (4) of this section and give the reasons for the failure.
     (6) The contracting agency shall issue a
decision on the protest in accordance with rules adopted under ORS 279A.065 no
fewer than three business days before bids, proposals or offers are due, unless
a written determination is made by the agency that circumstances exist that
justify a shorter time limit.
     (7) A decision of a contracting agency on
a protest under this section, including a protest of a special procurement, is
subject to judicial review only if the action or writ of review is filed before
the opening of bids, proposals or offers.
     (8)(a) A decision of a state contracting
agency on a protest under this section is reviewable by the Circuit Court for
     (b) A decision of a local contracting
agency on a protest under this section is reviewable by the circuit court for
the county in which the principal offices of the local contracting agency are
located.
     (9) If judicial review of a contracting
agencyÂ’s decision on a protest under this section is sought, the contracting agency
may not proceed with contract execution unless the contracting agency
determines that there is a compelling governmental interest in proceeding or
that the goods and services are urgently needed. If the contracting agency
makes such a determination, the contracting agency shall set forth the reasons
for the determination in writing and immediately provide them to the
prospective bidder, proposer or offeror that filed the protest. Thereafter,
after joining the contractor as a party to the litigation and upon motion from
the person filing the protest, the court may nonetheless stay the performance
of the contract if the court finds that the contracting agencyÂ’s determination
of the existence of a compelling governmental interest in proceeding with contract
execution, or the contracting agencyÂ’s determination that the goods or services
were urgently needed, was not supported by substantial evidence or constituted
a manifest abuse of discretion. In granting a stay, the court may require the
person seeking the stay to post a bond in an amount sufficient to protect the
contracting agency and the public from costs associated with delay in contract
performance.
     (10) In its review, the court shall give
due deference to any factual decision made by the contracting agency and may
not substitute its judgment for that of the contracting agency, but shall
review all questions of law de novo. Thereafter:
     (a) If a contract has not been executed
and the court rules in favor of the party that sought judicial review, the
court shall remand the procurement process to the contracting agency for a
determination of whether and how to continue with the procurement process in
light of the courtÂ’s decision.
     (b) In addition to the relief provided for
in paragraph (a) of this subsection, if a contract has been executed, the court
shall include in its order a determination whether the party that signed the
contract with the contracting agency is entitled to reimbursement under the
conditions of, and calculated in the same manner as provided in, ORS 279C.470.
Notwithstanding that ORS 279C.470 otherwise applies only to public improvement
contracts, under this paragraph the court shall apply ORS 279C.470 to both
public improvement contracts and other public contracts of contracting agencies.
     (c) The court may award costs and attorney
fees to the prevailing party. [2003 c.794 §84; 2007 c.764 §11]
     279B.410
Protests of contract award.
(1) A bidder or proposer may protest the award of a public contract or a notice
of intent to award a public contract, whichever occurs first, if:
     (a) The bidder or proposer is adversely
affected because the bidder or proposer would be eligible to be awarded the
public contract in the event that the protest were successful; and
     (b) The reason for the protest is that:
     (A) All lower bids or higher ranked
proposals are nonresponsive;
     (B) The contracting agency has failed to
conduct the evaluation of proposals in accordance with the criteria or
processes described in the solicitation materials;
     (C) The contracting agency has abused its
discretion in rejecting the protestorÂ’s bid or proposal as nonresponsive; or
     (D) The contracting agency’s evaluation of
bids or proposals or the contracting agencyÂ’s subsequent determination of award
is otherwise in violation of this chapter or ORS chapter 279A.
     (2) The bidder or proposer shall submit
the protest to the contracting agency in writing and shall specify the grounds
for the protest to be considered by the contracting agency.
     (3) The rules adopted under ORS 279A.065
shall establish a reasonable time and manner for protests to be submitted. The
contracting agency may not consider late protests.
     (4) The contracting agency shall consider
and respond in writing to a protest in a timely manner. After the contracting
agency issues the response, the bidder or proposer may seek judicial review in
the manner provided in ORS 279B.415. [2003 c.794 §85]
     279B.415
Judicial review of protests of contract award. (1) As used in this section, “bidder”
includes a person who submits a proposal to a public contracting agency
pursuant to a request for proposals.
     (2) A decision by a state contracting
agency on a protest of a contract award is reviewable by the Circuit Court for
     (3) To obtain review, a complainant must
commence an action before the contract that is the subject of the protest is
approved by the Attorney General, if required by ORS 291.047, and executed by
the contracting agency. In the complaint, the complainant shall state the
nature of the complainantÂ’s interest, the facts showing how the complainant is
adversely affected or aggrieved by the contracting agencyÂ’s decision and the
basis upon which the decision should be reversed or remanded. The complainant
shall join as parties all bidders that would be in line for an award of the
contract ahead of the complainant. If injunctive relief is sought, the court
may require the person seeking a stay to post a bond in an amount sufficient to
protect the contracting agency and the public from costs associated with delay
in execution of the contract.
     (4) When judicial review is sought, the
contracting agency may not proceed with contract execution unless the
contracting agency determines that there is a compelling governmental interest
in proceeding or that the goods and services are urgently needed. If the
contracting agency makes such a determination, the contracting agency shall set
forth the reasons for the determination in writing and immediately provide them
to the complainant. Thereafter, upon motion from the complainant, the court may
nonetheless stay the performance of the contract if the court finds that the
contracting agencyÂ’s determination of the existence of a compelling
governmental interest in proceeding with contract execution, or the contracting
agencyÂ’s determination that the goods or services were urgently needed, was not
supported by substantial evidence or constituted a manifest abuse of
discretion. In granting a stay, the court may require the person seeking the
stay to post a bond in an amount sufficient to protect the contracting agency
and the public from costs associated with delay in contract performance.
     (5) The court shall review the matter
without a jury and shall consider only those grounds the complainant raised in
the protest to the contracting agency.
     (6) The court shall remand the matter to
the contracting agency for a further decision if:
     (a) Substantial evidence does not exist to
support the contracting agencyÂ’s decision. Substantial evidence exists to
support a finding of fact when the record, viewed as a whole, would permit a
reasonable person to make that finding;
     (b) The contracting agency’s decision was
outside the range of discretion delegated to the contracting agency by law;
     (c) The decision was inconsistent with a
contracting agency rule, an officially stated contracting agency position or an
officially stated prior contracting agency practice, if the inconsistency is
not explained by the contracting agency; or
     (d) The decision was in violation of a
constitutional or statutory provision.
     (7)(a) In addition to remanding the
decision to the contracting agency, the court may order such ancillary relief,
such as the cost of bid preparation, as the court finds necessary to redress
the effects of official action wrongfully taken or withheld. Ancillary relief
does not include the award of a contract to the complainant or the award of
lost profits or other damages.
     (b) If a contract has not been executed
and the court rules in favor of the complainant, the court shall remand the
matter to the contracting agency for a determination whether to continue with
the procurement process in light of the courtÂ’s decision.
     (c) If a contract has been executed, in
addition to the relief provided for in paragraph (a) of this subsection, the
court shall include in its order a determination whether the party that signed
the contract with the contracting agency is entitled to reimbursement under the
conditions of, and calculated in the same manner as provided in, ORS 279C.470.
Notwithstanding that ORS 279C.470 otherwise applies only to public improvement
contracts, under this paragraph the court shall apply ORS 279C.470 to both
public improvement contracts and other public contracts of contracting
agencies.
     (d) The court may award costs and attorney
fees to the prevailing party. [2003 c.794 §86; 2007 c.764 §12]
     279B.420
Judicial review of other violations. (1) Any violation of ORS chapter 279A by a contracting agency for
which no judicial remedy is otherwise provided by ORS chapter 279A, 279B or
279C is subject to judicial review only as provided in this section.
     (2) Any violation of this chapter, except
ORS 279B.270, 279B.275, 279B.280 and 279B.400 to 279B.425, by a contracting
agency for which no judicial remedy is otherwise provided by this chapter or
ORS chapter 279A is subject to judicial review only as provided in this
section.
     (3) Judicial review is available under
this section only if:
     (a) A public contract is about to be
awarded or has been awarded;
     (b) An alleged violation of this chapter
or ORS chapter 279A, except ORS 279B.270, 279B.275, 279B.280 and 279B.400 to
279B.425, occurred in the procurement process for the public contract and that
violation resulted in or will result in the unlawful award of a contract or the
unlawful failure to award the contract;
     (c) The alleged violation deprived the
person seeking judicial review of the award of the contract or deprived the
person of the opportunity to compete for the award of the contract;
     (d) The person seeking judicial review
would have been qualified to receive the award of the contract under ORS
279B.110;
     (e) The person seeking judicial review
gave written notice describing the alleged violation to the contracting agency
no later than 10 days after the date on which the alleged violation occurred
and in no event more than 10 days after the date of execution of the contract;
     (f) The person seeking judicial review has
exhausted all administrative remedies provided by the contracting agency; and
     (g)(A) In the case of an alleged violation
of ORS chapter 279A, the alleged violation is one for which no judicial review
is provided by any other section of ORS chapter 279A, 279B or 279C; or
     (B) In the case of an alleged violation of
this chapter, except ORS 279B.270, 279B.275, 279B.280 and 279B.400 to 279B.425,
the alleged violation is one for which no judicial review is provided by any
other section of this chapter or ORS chapter 279A.
     (4) An alleged violation committed by a
state contracting agency is reviewable under ORS 183.484 by the Circuit Court
for
     (5) An alleged violation committed by a
local contracting agency is reviewable through a writ of review under ORS
chapter 34 by the circuit court for the county in which the principal offices
of the local contracting agency are located.
     (6) If the notice required under
subsection (3)(e) of this section is given and timely judicial review is sought
under this section, the contracting agency may not proceed with contract
execution unless the contracting agency determines that there is a compelling
governmental interest in proceeding or that the goods and services are urgently
needed. If the contracting agency makes such a determination, the contracting
agency shall set forth in writing the reasons for the determination and
immediately provide them to the person who filed the challenge. Thereafter,
after joining the prospective contractor as a party to the litigation and upon
motion by the person filing the challenge, the court may nonetheless stay the
performance of the contract if the court finds that the contracting agencyÂ’s
determination of the existence of a compelling governmental interest in
proceeding with contract execution, or the contracting agencyÂ’s determination
that the goods or services were urgently needed, was not supported by
substantial evidence or constituted a manifest abuse of discretion. In granting
a stay, the court may require the person seeking the stay to post a bond in an
amount sufficient to protect the contracting agency and the public from costs
associated with delay in contract performance.
     (7) In its review, the circuit court shall
give due deference to any factual contracting decision made by the contracting
agency and may not substitute its judgment for that of the contracting agency,
but shall review all questions of law de novo. Thereafter:
     (a) If a contract has not been executed
and the court rules in favor of the person that sought judicial review, and if
the violation could have affected the award of the contract, the court shall
remand the procurement to the contracting agency for a determination whether to
continue with the procurement process in light of the courtÂ’s decision.
     (b) In addition to the relief provided for
in paragraph (a) of this subsection, if a contract has been executed and the
court rules in favor of the person that sought judicial review, the court shall
include in its order a determination whether the party that signed the contract
with the contracting agency is entitled to reimbursement under the conditions
of, and calculated in the same manner as provided in, ORS 279C.470.
Notwithstanding that ORS 279C.470 otherwise applies only to public improvement
contracts, under this paragraph the court shall apply ORS 279C.470 to both
public improvement contracts and other public contracts of contracting
agencies.
     (c) The court may award costs and attorney
fees to the prevailing party. [2003 c.794 §86a]
     279B.425
Review of prequalification and debarment decisions. (1) The procedure for appeal from the
denial, revocation or revision of a prequalification under ORS 279B.125, or
from a debarment under ORS 279B.130, shall be in accordance with this section
and is not subject to ORS chapter 183 except when specifically provided by this
section.
     (2) Upon receipt of a notice from a
contracting agency of a prequalification decision under ORS 279B.125 or of a
decision to debar under ORS 279B.130, a prospective bidder or proposer that
wishes to appeal the decision shall, within three business days after receipt
of the notice, notify the contracting agency that the prospective bidder or
proposer appeals the decision as provided in this section.
     (3) Immediately upon receipt of the
prospective bidderÂ’s or proposerÂ’s notice of appeal, the contracting agency
shall:
     (a) If the contracting agency is a state
contracting agency, notify the Director of the Oregon Department of Administrative
Services.
     (b) If the contracting agency is a local
contracting agency, notify the appropriate local contract review board.
     (4) Upon the receipt of notice from the
contracting agency under subsection (3) of this section, the director or board
shall promptly 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 notice from the
contracting agency. The director or board shall set forth in writing the
reasons for the hearing decision.
     (5) At the hearing the director or board
shall consider de novo the notice of denial, revocation or revision of a
prequalification or the notice of debarment, the standards of responsibility
listed in ORS 279B.110 (2) on which the contracting agency based the denial,
revocation or revision of the prequalification or the reasons listed in ORS
279B.130 (2) on which the contracting agency based the debarment, 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. Hearings
before a board shall be conducted under rules of procedure adopted by the
board.
     (6) The director or board may allocate the
directorÂ’s or boardÂ’s costs for the hearing between the person appealing and
the contracting agency whose prequalification or debarment decision is being
appealed. The allocation shall be based upon facts found by the director or
board and stated in the final order that, in the directorÂ’s or boardÂ’s opinion,
warrant such allocation of costs. If the final order does not allocate the
costs for the hearing, the costs shall be paid as follows:
     (a) If the decision to deny, revoke or
revise a prequalification of a person as a bidder or the decision to debar a
person is upheld, the costs shall be paid by the person appealing the decision.
     (b) If the decision to deny, revoke or
revise a prequalification of a person as a bidder or the decision to debar a
person is reversed, the costs shall be paid by the contracting agency whose
prequalification or debarment decision is the subject of the appeal.
     (7) A decision of the director or board
may be reviewed only upon a petition, filed within 15 days after the date of
the decision, in the circuit court of the county in which the director or board
has its principal office. The circuit court shall reverse or modify the
decision only if it finds:
     (a) The decision was obtained through
corruption, fraud or undue means;
     (b) There was evident partiality or
corruption that operated to the substantial prejudice of the petitioner on the
part of the director or board or any of the boardÂ’s members; or
     (c) There was an evident material
miscalculation of figures or an evident material mistake in the description of
any person, thing or property referred to in the decision, and the
miscalculation or mistake operated to the substantial prejudice of the petitioner.
     (8) The procedure provided in this section
is the exclusive means of judicial review of the decision of the director or
board. The judicial review provisions of ORS 183.480 and writs of review and
mandamus as provided in ORS chapter 34, and other legal, declaratory and
injunctive remedies, are not available.
     (9) The circuit court may stay the letting
of the contract that is the subject of the petition in the same manner as a
suit in equity. When the court determines that there has been an improper debarment
or denial, revocation or revision of a prequalification and the contract has
been let, the court may proceed to take evidence to determine the damages, if
any, suffered by the petitioner and may 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 §87; 2007 c.288 §12]
_______________
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