2007 Oregon Code - Chapter 279c :: Chapter 279C - Public Contracting - Public Improvements and Related Contracts
Chapter 279C
— Public Contracting –
Public
Improvements and Related Contracts
2007 EDITION
PUBLIC CONTRACTING - PUBLIC IMPROVEMENTS
PUBLIC FACILITIES, CONTRACTING &
INSURANCE
GENERAL PROVISIONS
279C.005Â Definitions
279C.010Â Applicability
ARCHITECTURAL, ENGINEERING, LAND SURVEYING
AND RELATED SERVICES
279C.100Â Definitions
for ORS 279C.100 to 279C.125
279C.105Â Contracts
for architectural, engineering, land surveying and related services; procedures
279C.107Â Public
disclosure of contents of proposals for architectural, engineering or land
surveying services; treatment of trade secrets and confidential information
279C.110Â Selection
procedure for architects, engineers and land surveyors; compensation;
applicability
279C.115Â Direct
contracts for services of architects, engineers and land surveyors
279C.120Â Selection
procedure for related services
279C.125Â Architectural,
engineering and land surveying services selection process for local government
public improvements procured through state agency; rules
PROCUREMENT OF CONSTRUCTION SERVICES
(General Policies)
279C.300Â Policy
on competition
279C.305Â Least-cost
policy for public improvements; costs estimates in budget process; use of
agency forces; record of costs
279C.310Â Limitation
on contracting agency constructing public improvement
279C.315Â Waiver
of damages for unreasonable delay by contracting agency against public policy
279C.320Â Contracts
for construction other than public improvements
279C.325Â Limitation
on contracting agency awarding contract to nonresident education service
district
(Competitive Bidding; Contract
Specifications; Exceptions; Exemptions)
279C.330 “Findings”
defined
279C.335Â Competitive
bidding; exceptions; exemptions
279C.340Â Contract
negotiations
279C.345Â Specifications
for contracts; exemptions
279C.350Â Exemption
procedure; appeal
279C.355Â Evaluation
of public improvement projects not contracted by competitive bidding
(Solicitation; Contract Award; Rejection)
279C.360Â Requirement
for public improvement advertisements
279C.365Â Requirements
for solicitation documents and bids and proposals
279C.370Â First-tier
subcontractor disclosure
279C.375Â Award
of contract or multiple contracts; bonds; impermissible exclusions
279C.380Â Performance
bond; payment bond; waiver of bonds
279C.385Â Return
or retention of bid security
279C.390Â Exemption
of contracts from bid security and bonds
279C.395Â Rejection
of bids
(Competitive Proposals)
279C.400Â Competitive
proposals; procedure
279C.405Â Requests
for information, interest or qualifications; requirements for requests for
proposals
279C.410Â Receipt
of proposals; evaluation and award
279C.412Â Competitive
quotes for intermediate procurements
279C.414Â Requirements
for competitive quotes
(Prequalification and Disqualification)
279C.430Â Prequalification
of bidders
279C.435Â Effect
of prequalification by Department of Transportation or Oregon Department of
Administrative Services
279C.440Â Disqualification
from consideration for award of contracts
279C.445Â Appeal
of disqualification
279C.450Â Appeal
procedure for prequalification and disqualification decisions; hearing; costs;
judicial review
(Remedies)
279C.460Â Action
by or on behalf of adversely affected bidder or proposer; exception for
personal services contract
279C.465Â Action
against successful bidder; amount of damages; when action to be commenced;
defenses
279C.470Â Compensation
for contractor on contract declared void by court; exceptions; applicability
CONSTRUCTION CONTRACTS GENERALLY
(Required Contract Conditions)
279C.500 “Person”
defined
279C.505Â Conditions
concerning payment, contributions, liens, withholding, drug testing
279C.510Â Demolition
contracts to require material salvage; lawn and landscape maintenance contracts
to require composting or mulching
279C.515Â Conditions
concerning payment of claims by public officers, payment to persons furnishing
labor or materials and complaints
279C.520Â Condition
concerning hours of labor
279C.525Â Provisions
concerning environmental and natural resources laws; remedies
279C.527Â Inclusion
of amount for solar energy technology in public improvement contract; written
determination of appropriateness; exemptions and limitations
279C.528Â State
Department of Energy requirements and specifications; rules
279C.530Â Condition
concerning payment for medical care and providing workersÂ’ compensation
279C.535Â Condition
concerning steel material; rules
(Hours of Labor)
279C.540Â Maximum
hours of labor on public contracts; holidays; exceptions; liability to workers;
rules
279C.545Â Time
limitation on claim for overtime; posting of circular by contractor
(Retainage and Payments)
279C.550 “Retainage”
defined
279C.555Â Withholding
of retainage
279C.560Â Form
of retainage
279C.565Â Limitation
on retainage requirements
279C.570Â Prompt
payment policy; progress payments; retainage; interest; exception; settlement
of compensation disputes
(Subcontractors)
279C.580Â ContractorÂ’s
relations with subcontractors
279C.585Â Authority
to substitute undisclosed first-tier subcontractor; circumstances; rules
279C.590Â Complaint
process for substitutions of subcontractors; civil penalties
(Action on Payment Bonds and Public Works
Bonds)
279C.600Â Right
of action on payment bond or public works bond of contractor or subcontractor;
notice of claim
279C.605Â Notice
of claim
279C.610Â Action
on contractorÂ’s public works bond or payment bond; time limitation
279C.615Â Preference
for labor and material liens
279C.620Â Rights
of person providing medical care to employees of contractor
279C.625Â Joint
liability when payment bond not executed
(Termination or Suspension of Contract for
Public Interest Reasons)
279C.650 “Labor
dispute” defined
279C.655Â Extension
and compensation when work suspended
279C.660Â Compensation
when contract terminated due to public interest
279C.665Â Contractual
provisions for compensation when contract terminated due to public interest
279C.670Â Application
of ORS 279C.650 to 279C.670
PREVAILING WAGE RATE
279C.800Â Definitions
for ORS 279C.800 to 279C.870
279C.805Â Policy
279C.807Â Workforce
diversity for public works projects
279C.808Â Rules
279C.810Â Exemptions;
rules
279C.815Â Determination
of prevailing wage; sources of information; comparison of state and federal
prevailing wage; other powers of commissioner
279C.817Â Determination
of applicability of prevailing wage rate; time limitation; hearing; rules
279C.820Â Advisory
committee to assist commissioner
279C.825Â Fees;
rules
279C.827Â Division
of public works project; applicability of prevailing wage rate to divided projects
279C.830Â Provisions
concerning prevailing rate of wage in specifications, contracts and
subcontracts; applicability of prevailing wage; fee; bond
279C.835Â Notifying
commissioner of public works contract
279C.836Â Public
works bond; rules
279C.838Â Applicability
of state and federal rates of wage; determination of site of project;
determination of applicability of wage to transportation workers; waiver
279C.840Â Payment
of prevailing rate of wage; posting of rates and fringe benefit plan provisions
279C.845Â Certified
statements regarding payment of prevailing rates of wage; retainage
279C.850Â Inspection
to determine whether prevailing rate of wage being paid; civil action for
failure to pay prevailing rate of wage or overtime
279C.855Â Liability
for violations
279C.860Â Ineligibility
for public works contracts for failure to pay or post notice of prevailing
rates of wage; certified payroll reports to commissioner
279C.865Â Civil
penalties
279C.870Â Civil
action to enforce payment of prevailing rates of wage
GENERAL PROVISIONS
     279C.005
Definitions. ORS 279A.010
(1) contains general definitions applicable throughout this chapter. [2003
c.794 §88]
     279C.010
Applicability. Except as
provided in ORS 279C.320, public contracting under this chapter is subject to
ORS chapter 279A, but not ORS chapter 279B. [2003 c.794 §88a; 2005 c.103 §9]
ARCHITECTURAL,
ENGINEERING, LAND SURVEYING AND RELATED SERVICES
     279C.100
Definitions for ORS 279C.100 to 279C.125. As used in ORS 279C.100 to 279C.125:
     (1) “Architect” means a person who is
registered and holds a valid certificate in the practice of architecture in the
State of
     (2) “Architectural, engineering and land
surveying services” means professional services that are required to be
performed by an architect, engineer or land surveyor.
     (3) “Engineer” means a person who is
registered and holds a valid certificate in the practice of engineering in the
State of
     (4) “Land surveyor” means a person who is
registered and holds a valid certificate in the practice of land surveying in
the State of Oregon, as provided under ORS 672.002 to 672.325, and includes all
terms listed in ORS 672.002 (5).
     (5) “Personal services” means the services
of a person or persons that are designated by a state contracting agency with
procurement authority under ORS 279A.050 or a local contract review board as
personal services. “Personal services” includes architectural, engineering and
land surveying services procured under ORS 279C.105 or 279C.110 and related
services procured under ORS 279C.120.
     (6) “Related services” means personal
services, other than architectural, engineering and land surveying services,
that are related to the planning, design, engineering or oversight of public
improvement projects or components thereof, including but not limited to
landscape architectural services, facilities planning services, energy planning
services, space planning services, environmental impact studies, hazardous
substances or hazardous waste or toxic substances testing services, wetland
delineation studies, wetland mitigation studies, Native American studies,
historical research services, endangered species studies, rare plant studies,
biological services, archaeological services, cost estimating services,
appraising services, material testing services, mechanical system balancing
services, commissioning services, project management services, construction
management services and ownerÂ’s representative services or land-use planning
services. [2003 c.794 §89; 2005 c.103 §10; 2005 c.445 §12]
     279C.105
Contracts for architectural, engineering, land surveying and related services;
procedures. (1) Except as
provided in ORS 279A.140, contracting agencies may enter into contracts for
architectural, engineering and land surveying services and related services.
The Oregon Department of Administrative Services shall enter into contracts for
architectural, engineering and land surveying services and related services on
behalf of state contracting agencies that are subject to ORS 279A.140. The
provisions of this section do not relieve the contracting agency of the duty to
comply with ORS 279A.140, any other law applicable to state contracting
agencies, or any applicable city or county charter provisions. Each contracting
agency authorized to enter into contracts for architectural, engineering and
land surveying services and related services shall adopt procedures for the
screening and selection of persons to perform those services under ORS 279C.110
or 279C.120.
     (2) A state contracting agency with
procurement authority under ORS 279A.050 or a local contract review board by
ordinance, resolution, administrative rule or other regulation may designate
certain personal services contracts or classes of personal services contracts
as contracts for architectural, engineering and land surveying services or
related services. [2003 c.794 §90; 2005 c.103 §11]
     279C.107
Public disclosure of contents of proposals for architectural, engineering or
land surveying services; treatment of trade secrets and confidential information. (1) Notwithstanding the public records law,
ORS 192.410 to 192.505, if a contracting agency solicits a contract for
architectural, engineering or land surveying services or related services by a
competitive proposal:
     (a) Proposals may be opened so as to avoid
disclosure of contents to competing proposers during, when applicable, the
process of negotiation.
     (b) Proposals are not required to be open
for public inspection until after the notice of intent to award a contract is
issued.
     (2) 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 trade secrets, as defined in ORS
192.501, and information submitted to a public body in confidence, as described
in ORS 192.502, that are contained in a proposal. The fact that proposals are
opened at a public meeting as defined in ORS 192.610 does not make their
contents subject to disclosure, regardless of whether the public body opening
the proposals fails to give notice of or provide for an executive session for
the purpose of opening proposals. If a request for proposals is canceled after
proposals are received, the contracting agency may return a proposal to the
proposer that made the proposal. The contracting agency shall keep a list of
returned proposals in the file for the solicitation. [2007 c.764 §41]
     279C.110
Selection procedure for architects, engineers and land surveyors; compensation;
applicability. (1) A state
contracting agency shall select consultants to provide architectural,
engineering or land surveying services on the basis of qualifications for the
type of professional service required. A state contracting agency may solicit
or use pricing policies and proposals or other pricing information to determine
consultant compensation only after the agency has selected a candidate pursuant
to subsection (3) of this section.
     (2) This section applies only if the
architectural, engineering or land surveying services contract is issued by a
state contracting agency and does not apply to any such contract issued by a
local contracting agency unless the following conditions apply:
     (a) The local contracting agency receives
moneys from the State Highway Fund under ORS 366.762 or 366.800 or a grant or
loan from the state that will be used to pay for any portion of the design and
construction of the project;
     (b) The total amount of any grants, loans
or moneys from the State Highway Fund and from the state for the project
exceeds 10 percent of the value of the project; and
     (c) The value of the project exceeds
$900,000.
     (3) Subject to the requirements of
subsections (1) and (2) of this section, the procedures that a contracting
agency creates for the screening and selection of consultants and the selection
of a candidate under this section shall be within the sole discretion of the
contracting agency and may be adjusted to accommodate the contracting agencyÂ’s
scope, schedule and budget objectives for a particular project. Adjustments to
accommodate a contracting agencyÂ’s objectives may include provision for the
direct appointment of a consultant if the value of the project does not exceed
a threshold amount as determined by the contracting agency. Screening and
selection procedures may include a consideration of each candidateÂ’s:
     (a) Specialized experience, capabilities
and technical competence that may be demonstrated by the proposed approach and
methodology to meet the project requirements;
     (b) Resources available to perform the
work and the proportion of the candidate staffÂ’s time that would be spent on
the project, including any specialized services, within the applicable time
limits;
     (c) Record of past performance, including
but not limited to price and cost data from previous projects, quality of work,
ability to meet schedules, cost control and contract administration;
     (d) Ownership status and employment
practices regarding minority, women and emerging small businesses or
historically underutilized businesses;
     (e) Availability to the project locale;
     (f) Familiarity with the project locale;
and
     (g) Proposed project management
techniques.
     (4) If the screening and selection
procedures created by a contracting agency under subsection (3) of this section
result in the determination by the contracting agency that two or more
candidates are equally qualified, the contracting agency may select a candidate
through any process adopted by the contracting agency.
     (5) The contracting agency and the selected
candidate shall mutually discuss and refine the scope of services for the
project and shall negotiate conditions, including but not limited to
compensation level and performance schedule, based on the scope of services.
The compensation level paid must be reasonable and fair to the contracting
agency as determined solely by the contracting agency. Authority to negotiate a
contract under this section does not supersede any provision of ORS 279A.140 or
279C.520.
     (6) If the contracting agency and the
selected candidate are unable for any reason to negotiate a contract at a
compensation level that is reasonable and fair to the contracting agency, the
contracting agency shall, either orally or in writing, formally terminate
negotiations with the selected candidate. The contracting agency may then
negotiate with another candidate. The negotiation process may continue in this
manner through successive candidates until an agreement is reached or the
contracting agency terminates the consultant contracting process.
     (7) It is the goal of this state to
promote a sustainable economy in the rural areas of the state. In order to
monitor progress toward this goal, a state contracting agency to which this
section applies shall keep a record of the locations for the architectural,
engineering and land surveying services contracts and related services
contracts to be performed throughout the state, the locations of the selected
consultants and the direct expenses on each contract. This record shall include
the total number of contracts over a 10-year period for each consultant firm.
The record of direct expenses shall include all personnel travel expenses as a
separate and identifiable expense on the contract. Upon request, the state
contracting agency shall make these records available to the public. [2003
c.794 §91; 2003 c.794 §92; 2005 c.509 §§1,3]
     279C.115
Direct contracts for services of architects, engineers and land surveyors. (1) As used in this section, “consultant”
means an architect, engineer or land surveyor.
     (2) A local contracting agency may enter
into an architectural, engineering or land surveying services contract directly
with a consultant if the project described in the contract consists of work
that has been substantially described, planned or otherwise previously studied
or rendered in an earlier contract with the consultant that was awarded under
rules adopted under ORS 279A.065 and the new contract is a continuation of that
project.
     (3) A local contracting agency may adopt
criteria for determining when this section applies to an architectural,
engineering or land surveying services contract. [2003 c.794 §94]
     279C.120
Selection procedure for related services. (1) A contracting agency may select consultants to perform related
services:
     (a) In accordance with screening and
selection procedures adopted under ORS 279C.105;
     (b) On the basis of the qualifications of
the consultants for the types of related services required, under the
requirements of ORS 279C.110; or
     (c) On the basis of price competition, price
and performance evaluations, an evaluation of the capabilities of bidders to
perform the needed related services or an evaluation of the capabilities of the
bidders to perform the needed related services followed by negotiations between
the parties on the price for those related services.
     (2) Subject to the requirements of
subsection (1) of this section, the procedures that a contracting agency adopts
for the screening and selection of consultants and the selection of a candidate
under this section is within the sole discretion of the contracting agency and
may be adjusted to accommodate the contracting agencyÂ’s scope, schedule and
budget objectives for a particular project. Adjustments to accommodate a
contracting agencyÂ’s objectives may include provision for the direct
appointment of a consultant if the value of the project does not exceed a
threshold amount as determined by the contracting agency. [2003 c.794 §95]
     279C.125
Architectural, engineering and land surveying services selection process for
local government public improvements procured through state agency; rules. (1) The Department of Transportation, the
Oregon Department of Administrative Services or any other state contracting
agency shall adopt rules establishing a two-tiered selection process for
contracts with architects, engineers and land surveyors to perform personal
services contracts. The selection process shall apply only if:
     (a) A public improvement is owned and
maintained by a local government; and
     (b) The Department of Transportation, the
Oregon Department of Administrative Services or another state contracting
agency will serve as the lead state contracting agency and will execute
personal services contracts with architects, engineers and land surveyors for
work on the public improvement project.
     (2) The selection process required by
subsection (1) of this section must require the lead state contracting agency
to select no fewer than the three most qualified consultants when feasible in
accordance with ORS 279C.110.
     (3) The local government is responsible
for the final selection of the consultant from the list of qualified
consultants selected by the lead state contracting agency or through an
alternative process adopted by the local government.
     (4) Nothing in this section applies to the
selection process used by a local contracting agency when the contracting
agency executes a contract directly with architects, engineers or land
surveyors. [2003 c.794 §96]
PROCUREMENT
OF CONSTRUCTION SERVICES
(General
Policies)
     279C.300
Policy on competition. It is
the policy of the State of Oregon that public improvement contracts awarded
under this chapter must be based on competitive bidding, except as otherwise
specifically provided in ORS 279C.335 for exceptions and formal exemptions from
competitive bidding requirements. [2003 c.794 §97]
     279C.305
Least-cost policy for public improvements; costs estimates in budget process;
use of agency forces; record of costs. (1) It is the policy of the State of
     (2) Not less than 30 days prior to
adoption of the contracting agencyÂ’s budget for the subsequent budget period,
each contracting agency shall prepare and file with the Commissioner of the
Bureau of Labor and Industries a list of every public improvement known to the
contracting agency that the contracting agency plans to fund in the budget
period, identifying each improvement by name and estimating the total on-site
construction costs. The list shall also contain a statement as to whether the
contracting agency intends to perform the construction through a private
contractor. If the contracting agency intends to perform construction work
using the contracting agencyÂ’s own equipment and personnel on a project
estimated to cost more than $125,000, the contracting agency shall also show
that the contracting agencyÂ’s decision conforms to the policy stated in
subsection (1) of this section. The list is a public record and may be revised
periodically by the agency.
     (3) Before a contracting agency constructs
a public improvement with its own equipment or personnel:
     (a) If the estimated cost exceeds
$125,000, the contracting agency shall prepare adequate plans and
specifications and the estimated unit cost of each classification of work. The
estimated cost of the work must include a reasonable allowance for the cost,
including investment cost, of any equipment used. As used in this paragraph, “adequate”
means sufficient to control the performance of the work and to ensure
satisfactory quality of construction by the contracting agency personnel.
     (b) The contracting agency shall cause to
be kept and preserved a full, true and accurate account of the costs of
performing the work, including all engineering and administrative expenses and
the cost, including investment costs, of any equipment used. The final account
of the costs is a public record.
     (4) Subsections (2) and (3) of this
section do not apply to a contracting agency when the public improvement is to
be used for the distribution or transmission of electric power.
     (5) For purposes of this section,
resurfacing of highways, roads or streets at a depth of two or more inches and
at an estimated cost that exceeds $125,000 is a public improvement. [2003 c.794
§98]
     279C.310
Limitation on contracting agency constructing public improvement. If a contracting agency fails to adopt and
apply a cost accounting system that substantially complies with the model cost
accounting guidelines developed by the Oregon Department of Administrative
Services pursuant to section 3, chapter 869, Oregon Laws 1979, as determined by
an accountant qualified to perform audits required by ORS 297.210 and 297.405
to 297.555 (Municipal Audit Law), the contracting agency may not construct a
public improvement with the contracting agencyÂ’s own equipment or personnel if
the cost exceeds $5,000. [2003 c.794 §99]
     279C.315
Waiver of damages for unreasonable delay by contracting agency against public
policy. (1) Any clause in a
public improvement contract that purports to waive, release or extinguish the
rights of a contractor to damages or an equitable adjustment arising out of
unreasonable delay in performing the contract, if the delay is caused by acts
or omissions of the contracting agency or persons acting therefor, is against
public policy and is void and unenforceable.
     (2) Subsection (1) of this section is not
intended to render void any contract provision that:
     (a) Requires notice of any delay;
     (b) Provides for arbitration or other
procedures for settlement of contract disputes; or
     (c) Provides for reasonable liquidated
damages. [2003 c.794 §100]
     279C.320
Contracts for construction other than public improvements. (1) Contracting agencies shall enter into
contracts for emergency work, minor alteration, ordinary repair or maintenance
of public improvements, as well as any other construction contract that is not
defined as a public improvement under ORS 279A.010, in accordance with the
provisions of ORS chapter 279B. Contracts for emergency work are regulated
under ORS 279B.080.
     (2) Nothing in this section relieves
contracting agencies or contractors of any other relevant requirements under
this chapter, including payment of prevailing wage rates when applicable.
     (3) When construction services are not
considered to be a public improvement under this chapter because no funds of a
public agency are directly or indirectly used, except for participation that is
incidental or related primarily to project design or inspection, the benefiting
public body may nonetheless condition acceptance of the services on receipt of
such protections as the public body considers to be in the public interest,
including a performance bond, a payment bond and appropriate insurance. [2003
c.794 §101; 2007 c.764 §13]
     279C.325
Limitation on contracting agency awarding contract to nonresident education
service district. A
contracting agency may not award a public improvement contract, a contract for
a public works, as defined in ORS 279C.800, or a contract for personal
services, as defined in ORS 279C.100, to a nonresident bidder, as defined in
ORS 279A.120, that is an education service district. [2005 c.413 §2]
(Competitive
Bidding; Contract Specifications; Exceptions; Exemptions)
     279C.330
“Findings” defined. As used
in ORS 279C.335, 279C.345 and 279C.350, “findings” means the justification for
a contracting agency conclusion that includes, but is not limited to,
information regarding:
     (1) Operational, budget and financial
data;
     (2) Public benefits;
     (3) Value engineering;
     (4) Specialized expertise required;
     (5) Public safety;
     (6) Market conditions;
     (7) Technical complexity; and
     (8) Funding sources. [2003 c.794 §102]
     279C.335
Competitive bidding; exceptions; exemptions. (1) All public improvement contracts shall be based upon competitive
bids except:
     (a) Contracts made with qualified
nonprofit agencies providing employment opportunities for individuals with
disabilities under ORS 279.835 to 279.855.
     (b) A public improvement contract exempt
under subsection (2) of this section.
     (c) A public improvement contract with a
value of less than $5,000.
     (d) A contract not to exceed $100,000 made
under procedures for competitive quotes in ORS 279C.412 and 279C.414.
     (e) Contracts for repair, maintenance,
improvement or protection of property obtained by the Department of VeteransÂ’
Affairs under ORS 407.135 and 407.145 (1).
     (f) Energy savings performance contracts
entered into in accordance with rules of procedure adopted under ORS 279A.065.
     (2) Subject to subsection (4)(b) of this
section, the Director of the Oregon Department of Administrative Services, a
local contract review board or, for contracts described in ORS 279A.050 (3)(b),
the Director of Transportation may exempt a public improvement contract or a
class of public improvement contracts from the competitive bidding requirements
of subsection (1) of this section upon approval of the following findings
submitted by the contracting agency or, if a state agency is not the
contracting agency, the state agency seeking the exemption:
     (a) It is unlikely that the exemption will
encourage favoritism in the awarding of public improvement contracts or
substantially diminish competition for public improvement contracts.
     (b) The awarding of public improvement
contracts under the exemption will likely result in substantial cost savings to
the contracting agency, to the state agency based upon the justification and
information described in ORS 279C.330 or, if the contracts are for public
improvements described in ORS 279A.050 (3)(b), to the contracting agency or the
public. In making the finding, the Director of the Oregon Department of
Administrative Services, the Director of Transportation or the local contract
review board may consider the type, cost and amount of the contract, the number
of persons available to bid and such other factors as may be deemed
appropriate.
     (c) As an alternative to the finding
described in paragraph (b) of this subsection, when a contracting agency or
state agency seeks an exemption that would allow the use of an alternate
contracting method that the agency has not previously used, the agency may make
a finding that identifies the project as a pilot project for which the agency
intends to determine whether the use of the alternate contracting method
actually results in substantial cost savings to the contracting agency, to the
state agency or, if the contract is for a public improvement described in ORS
279A.050 (3)(b), to the contracting agency or the public. The agency shall
include an analysis and conclusion regarding actual cost savings, if any, in
the evaluation required under ORS 279C.355.
     (3) In making findings to support an
exemption for a class of public improvement contracts, the contracting agency
or state agency shall clearly identify the class using the classÂ’s defining
characteristics. Those characteristics shall include some combination of
project descriptions or locations, time periods, contract values, methods of
procurement or other factors that distinguish the limited and related class of
public improvement contracts from the agencyÂ’s overall construction program.
The agency may not identify a class solely by funding source, such as a
particular bond fund, or by the method of procurement, but shall identify the
class using characteristics that reasonably relate to the exemption criteria
set forth in subsection (2) of this section.
     (4) In granting exemptions under
subsection (2) of this section, the Director of the Oregon Department of
Administrative Services, the Director of Transportation or the local contract
review board shall:
     (a) When appropriate, direct the use of
alternate contracting methods that take account of market realities and modern
practices and are consistent with the public policy of encouraging competition.
     (b) Require and approve or disapprove
written findings by the contracting agency or state agency that support the
awarding of a particular public improvement contract or a class of public
improvement contracts, without the competitive bidding requirement of
subsection (1) of this section. The findings must show that the exemption of a
contract or class of contracts complies with the requirements of subsection (2)
of this section.
     (5)(a) Before final adoption of the
findings required by subsection (2) of this section exempting a public
improvement contract or a class of public improvement contracts from the
requirement of competitive bidding, a contracting agency or state agency shall
hold a public hearing.
     (b) Notification of the public hearing
shall be published in at least one trade newspaper of general statewide
circulation a minimum of 14 days before the hearing.
     (c) The notice shall state that the public
hearing is for the purpose of taking comments on the draft findings for an
exemption from the competitive bidding requirement. At the time of the notice,
copies of the draft findings shall be made available to the public. At the
option of the contracting agency or state agency, the notice may describe the process
by which the findings are finally adopted and may indicate the opportunity for
any further public comment.
     (d) At the public hearing, the contracting
agency or state agency shall offer an opportunity for any interested party to
appear and present comment.
     (e) If a contracting agency or state
agency is required to act promptly due to circumstances beyond the agencyÂ’s
control that do not constitute an emergency, notification of the public hearing
may be published simultaneously with the agencyÂ’s solicitation of contractors
for the alternative public contracting method, as long as responses to the
solicitation are due at least five days after the meeting and approval of the
findings.
     (6) The purpose of an exemption is to
exempt one or more public improvement contracts from competitive bidding
requirements. The representations in and the accuracy of the findings,
including any general description of the resulting public improvement contract,
are the bases for approving the findings and granting the exception. The
findings may describe anticipated features of the resulting public improvement
contract, but the final parameters of the contract are those characteristics or
specifics announced in the solicitation document.
     (7) A public improvement contract awarded
under the competitive bidding requirement of subsection (1) of this section may
be amended only in accordance with rules adopted under ORS 279A.065.
     (8) Public improvement contracts excepted
from competitive bid requirements under subsection (1)(a), (c), (d), (e) or (f)
of this section are not subject to the exemption requirements of subsection (2)
of this section. [2003 c.794 §103; 2003 c.794 §§104,105a; 2005 c.103 §§12,13,14;
2005 c.625 §§58,59,60; 2007 c.70 §§69,70,71; 2007 c.764 §§14,15,17]
     279C.340
Contract negotiations. If a
public improvement contract is competitively bid and all responsive bids from
responsible bidders exceed the contracting agencyÂ’s cost estimate, the
contracting agency, in accordance with rules adopted by the contracting agency,
may negotiate with the lowest responsive, responsible bidder, prior to awarding
the contract, in order to solicit value engineering and other options to
attempt to bring the contract within the contracting agencyÂ’s cost estimate. A
negotiation with the lowest responsive, responsible bidder under this section
may not result in the award of the contract to that bidder if the scope of the
project is significantly changed from the original bid proposal.
Notwithstanding any other provision of law, the records of a bidder used in
contract negotiation under this section are not subject to public inspection
until after the negotiated contract has been awarded or the negotiation process
has been terminated. [2003 c.794 §106]
     279C.345
Specifications for contracts; exemptions. (1) Specifications for public improvement contracts may not expressly
or implicitly require any product by any brand name or mark, nor the product of
any particular manufacturer or seller unless the product is exempt under
subsection (2) of this section.
     (2) The Director of the Oregon Department
of Administrative Services, a local contract review board or, for contracts
described in ORS 279A.050 (3)(b), the Director of Transportation may exempt
certain products or classes of products from subsection (1) of this section
upon any of the following findings:
     (a) It is unlikely that the exemption will
encourage favoritism in the awarding of public improvement contracts or
substantially diminish competition for public improvement contracts;
     (b) The specification of a product by
brand name or mark, or the product of a particular manufacturer or seller,
would result in substantial cost savings to the contracting agency;
     (c) There is only one manufacturer or
seller of the product of the quality required; or
     (d) Efficient utilization of existing
equipment or supplies requires the acquisition of compatible equipment or
supplies. [2003 c.794 §107; 2007 c.764 §19]
     279C.350
Exemption procedure; appeal.
(1) Exemptions granted by the Director of the Oregon Department of
Administrative Services under ORS 279C.335 (2) or 279C.345 (2) constitute
rulemaking and not contested cases under ORS chapter 183. However, an exemption
granted with regard to a specific public improvement contract by the Director of
the Oregon Department of Administrative Services, or an exemption granted by
the Director of Transportation with regard to a specific public improvement
contract or class of public improvement contracts described in ORS 279A.050
(3)(b), shall be granted by order. The order shall set forth findings
supporting the decision to grant or deny the request for the exemption. The
order is reviewable under ORS 183.484 and does not constitute a contested case
order. Jurisdiction for review of the order is with the
     (2) Any person except the contracting
agency or anyone representing the contracting agency may bring a petition for a
declaratory judgment to test the validity of any rule adopted by the Director
of the Oregon Department of Administrative Services under ORS 279C.335 or
279C.345 in the manner provided in ORS 183.400.
     (3) Any person except the contracting
agency or anyone representing the contracting agency may bring an action for
writ of review under ORS chapter 34 to test the validity of an exemption
granted under ORS 279C.335 or 279C.345 by a local contract review board. [2003
c.794 §108; 2003 c.794 §109; 2007 c.764 §20]
     279C.355
Evaluation of public improvement projects not contracted by competitive
bidding. (1) Upon completion
of and final payment for any public improvement contract, or class of public
improvement contracts, in excess of $100,000 for which the contracting agency
did not use the competitive bidding process, the contracting agency shall
prepare and deliver to the Director of the Oregon Department of Administrative
Services, the local contract review board or, for public improvement contracts
described in ORS 279A.050 (3)(b), the Director of Transportation an evaluation
of the public improvement contract or the class of public improvement
contracts.
     (2) The evaluation must include but is not
limited to the following matters:
     (a) The actual project cost as compared
with original project estimates;
     (b) The amount of any guaranteed maximum
price;
     (c) The number of project change orders
issued by the contracting agency;
     (d) A narrative description of successes
and failures during the design, engineering and construction of the project;
and
     (e) An objective assessment of the use of
the alternative contracting process as compared to the findings required by ORS
279C.335.
     (3) The evaluations required by this
section:
     (a) Must be made available for public
inspection; and
     (b) Must be completed within 30 days of
the date the contracting agency accepts:
     (A) The public improvement project; or
     (B) The last public improvement project if
the project falls within a class of public improvement contracts. [2003 c.794 §111;
2003 c.794 §112; 2007 c.764 §§22,23]
(Solicitation;
Contract Award; Rejection)
     279C.360
Requirement for public improvement advertisements. (1) An advertisement for public improvement
contracts must be published at least once in at least one newspaper of general
circulation in the area where the contract is to be performed and in as many
additional issues and publications as the contracting agency may determine. The
Director of the Oregon Department of Administrative Services, a local contract
review board or, for contracts described in ORS 279A.050 (3)(b), the Director
of Transportation, by rule or order, may authorize advertisements for public
improvement contracts to be published electronically instead of in a newspaper
of general circulation if the director or board determines that electronic
advertisements are likely to be cost-effective. If the public improvement
contract has an estimated cost in excess of $125,000, the advertisement must be
published in at least one trade newspaper of general statewide circulation. The
Director of the Oregon Department of Administrative Services, the Director of
Transportation or the local contract review board may, by rule or order,
require an advertisement to be published more than once or in one or more
additional publications.
     (2) All advertisements for public
improvement contracts must state:
     (a) The public improvement project;
     (b) The office where the specifications
for the project may be reviewed;
     (c) The date that prequalification
applications must be filed under ORS 279C.430 and the class or classes of work
for which bidders must be prequalified if prequalification is a requirement;
     (d) The date and time after which bids
will not be received, which must be at least five days after the date of the
last publication of the advertisement;
     (e) The name and title of the person
designated for receipt of bids;
     (f) The date, time and place that the
contracting agency will publicly open the bids; and
     (g) If the contract is for a public works
subject to ORS 279C.800 to 279C.870 or the Davis-Bacon Act (40 U.S.C. 3141 et
seq.). [2003 c.794 §114; 2005 c.103 §14a; 2007 c.844 §1]
     279C.365
Requirements for solicitation documents and bids and proposals. (1) A contracting agency preparing
solicitation documents for a public improvement contract shall, at a minimum,
include:
     (a) The public improvement project;
     (b) The office where the specifications
for the project may be reviewed;
     (c) The date that prequalification
applications must be filed under ORS 279C.430 and the class or classes of work
for which bidders must be prequalified if prequalification is a requirement;
     (d) The date and time after which bids
will not be received, which must be at least five days after the date of the
last publication of the advertisement, and may, in the sole discretion of the
contracting agency, direct or permit the submission and receipt of bids by
electronic means;
     (e) The name and title of the person
designated for receipt of bids;
     (f) The date, time and place that the
contracting agency will publicly open the bids;
     (g) A statement that, if the contract is
for a public works project subject to the state prevailing rates of wage under
ORS 279C.800 to 279C.870, the federal prevailing rates of wage under the
Davis-Bacon Act (40 U.S.C. 3141 et seq.) or both the state and federal
prevailing rates of wage, no bid will be received or considered by the
contracting agency unless the bid contains a statement by the bidder that ORS
279C.838 or 279C.840 or 40 U.S.C. 3141 et seq. will be complied with;
     (h) A statement that each bid must
identify whether the bidder is a resident bidder, as defined in ORS 279A.120;
     (i) A statement that the contracting
agency may reject any bid not in compliance with all prescribed public
contracting procedures and requirements and may reject for good cause all bids
upon a finding of the agency that it is in the public interest to do so;
     (j) Information addressing whether a
contractor or subcontractor must be licensed under ORS 468A.720; and
     (k) A statement that a bid for a public
improvement contract may not be received or considered by the contracting
agency unless the bidder is licensed by the Construction Contractors Board or
the State Landscape Contractors Board.
     (2) A contracting agency may provide
solicitation documents by electronic means.
     (3) All bids made to the contracting
agency under ORS 279C.335 or 279C.400 must be:
     (a) In writing;
     (b) Filed with the person designated for
receipt of bids by the contracting agency; and
     (c) Opened publicly by the contracting
agency immediately after the deadline for submission of bids.
     (4) After having been opened, the bids
must be made available for public inspection.
     (5) A surety bond, irrevocable letter of
credit issued by an insured institution as defined in ORS 706.008, cashierÂ’s
check or certified check of each bidder shall be submitted with or posted for
all bids as bid security unless the contract for which a bid is submitted has
been exempted from this requirement under ORS 279C.390. The security may not
exceed 10 percent of the amount bid for the contract.
     (6) Subsection (5) of this section applies
only to public improvement contracts with a value, estimated by the contracting
agency, of more than $100,000 or, in the case of contracts for highways,
bridges and other transportation projects, more than $50,000. [2003 c.794 §115;
2005 c.103 §15; 2007 c.764 §25; 2007 c.844 §2]
     279C.370
First-tier subcontractor disclosure. (1)(a) Within two working hours after the date and time of the
deadline when bids are due to a contracting agency for a public improvement
contract, a bidder shall submit to the contracting agency a disclosure of the
first-tier subcontractors that:
     (A) Will be furnishing labor or will be
furnishing labor and materials in connection with the public improvement
contract; and
     (B) Will have a contract value that is
equal to or greater than five percent of the total project bid or $15,000,
whichever is greater, or $350,000 regardless of the percentage of the total
project bid.
     (b) For each contract to which this
subsection applies, the contracting agency shall designate a deadline for
submission of bids that has a date on a Tuesday, Wednesday or Thursday and a
time between 2 p.m. and 5 p.m., except that this paragraph does not apply to
public contracts for maintenance or construction of highways, bridges or other
transportation facilities.
     (c) This subsection applies only to public
improvement contracts with a value, estimated by the contracting agency, of
more than $100,000.
     (d) This subsection does not apply to
public improvement contracts that have been exempted from competitive bidding
requirements under ORS 279C.335 (2).
     (2) The disclosure of first-tier
subcontractors under subsection (1) of this section must include the name of
each subcontractor, the category of work that each subcontractor will perform
and the dollar value of each subcontract. The information shall be disclosed in
substantially the following form:
______________________________________________________________________________
FIRST-TIER SUBCONTRACTOR
DISCLOSURE FORM
PROJECT NAME:
____________
BID #: _________
BID CLOSING:
Date: _____ Time: _____
This form
must be submitted at the location specified in the Invitation to Bid on the
advertised bid closing date and within two working hours after the advertised
bid closing time.
List below
the name of each subcontractor that will be furnishing labor or will be
furnishing labor and materials and that is required to be disclosed, the
category of work that the subcontractor will be performing and the dollar value
of the subcontract. Enter “NONE” if there are no subcontractors that need to be
disclosed. (ATTACH ADDITIONAL SHEETS IF NEEDED.)
                                   DOLLAR                  CATEGORY
NAMEÂ Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â VALUEÂ Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â OF WORK
1)________Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â $__________Â Â Â Â Â Â Â Â Â Â Â Â Â ____________
__________Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â ___________Â Â Â Â Â Â Â Â Â Â Â Â Â ____________
2)________Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â $__________Â Â Â Â Â Â Â Â Â Â Â Â Â ____________
__________Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â ___________Â Â Â Â Â Â Â Â Â Â Â Â Â ____________
3)________Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â $__________Â Â Â Â Â Â Â Â Â Â Â Â Â ____________
__________Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â ___________Â Â Â Â Â Â Â Â Â Â Â Â Â ____________
4)________Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â $__________Â Â Â Â Â Â Â Â Â Â Â Â Â ____________
__________Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â ___________Â Â Â Â Â Â Â Â Â Â Â Â Â ____________
Failure to submit
this form by the disclosure deadline will result in a nonresponsive bid. A
nonresponsive bid will not be considered for award.
Form submitted by
(bidder name): ______________________
Contact name: _______________
Phone no.: _________
______________________________________________________________________________
     (3) A contracting agency shall accept the
subcontractor disclosure. The contracting agency shall consider the bid of any
contractor that does not submit a subcontractor disclosure to the contracting
agency to be a nonresponsive bid and may not award the contract to the
contractor. A contracting agency is not required to determine the accuracy or
the completeness of the subcontractor disclosure.
     (4) After the bids are opened, the
subcontractor disclosures must be made available for public inspection.
     (5) A contractor may substitute a
first-tier subcontractor under the provisions of ORS 279C.585.
     (6) A subcontractor may file a complaint
under ORS 279C.590 based on the disclosure requirements of subsection (1) of
this section. [2003 c.794 §116; 2005 c.103 §16]
     279C.375
Award of contract or multiple contracts; bonds; impermissible exclusions. (1) After bids are opened and a
determination is made that a public improvement contract is to be awarded, the
contracting agency shall award the contract to the lowest responsible bidder.
     (2) At least seven days before the award
of a public improvement contract, unless the contracting agency determines that
seven days is impractical under rules adopted under ORS 279A.065, the
contracting agency shall issue to each bidder or post, electronically or
otherwise, a notice of the contracting agencyÂ’s intent to award a contract.
This subsection does not apply to a contract excepted or exempted from
competitive bidding under ORS 279C.335 (1)(c) or (d). The notice and its manner
of posting or issuance must conform to rules adopted under ORS 279A.065.
     (3) In determining the lowest responsible
bidder, a contracting agency shall do all of the following:
     (a) Check the list created by the
Construction Contractors Board under ORS 701.227 for bidders who are not
qualified to hold a public improvement contract.
     (b) Determine whether the bidder has met
the standards of responsibility. In making the determination, the contracting
agency shall consider whether a bidder has:
     (A) Available the appropriate financial,
material, equipment, facility and personnel resources and expertise, or the
ability to obtain the resources and expertise, necessary to meet all
contractual responsibilities.
     (B) A satisfactory record of performance.
The contracting agency shall document the record of performance of a bidder if
the contracting agency finds the bidder not to be responsible under this
subparagraph.
     (C) A satisfactory record of integrity.
The contracting agency shall document the record of integrity of a bidder if
the contracting agency finds the bidder not to be responsible under this
subparagraph.
     (D) Qualified legally to contract with the
contracting agency.
     (E) Supplied all necessary information in
connection with the inquiry concerning responsibility. If a bidder 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 not to be
responsible.
     (c) Document the contracting agency’s
compliance with the requirements of paragraphs (a) and (b) of this subsection
in substantially the following form:
______________________________________________________________________________
RESPONSIBILITY DETERMINATION FORM
Project Name: ____________
Bid Number: ____________
Business
Entity Name: ____________
CCB License
Number: ____________
Form Submitted
By (Contracting Agency): ____________
Form Submitted
By (Contracting Agency RepresentativeÂ’s Name): ____________
     Title: ____________
     Date: ____________
     (The contracting agency must submit this
form with attachments, if any, to the
Construction
Contractors Board within 30 days after the date of contract award.)
     The contracting agency has (check all of
the following):
     [ ]  Checked
the list created by the
          Construction
Contractors Board
          under
ORS 701.227 for bidders who
          are
not qualified to hold a public
          improvement
contract.
          [ ]  Determined whether
the bidder has
               met the standards of
responsibility.
               In so doing, the
contracting agency
               has considered
whether the bidder:
          [ ]  Has available the
appropriate
               financial, material,
equipment,
               facility and
personnel resources
               and expertise, or
the ability to
               obtain the resources
and
               expertise, necessary
to meet
               all contractual
responsibilities.
          [ ]  Has a satisfactory
record of
               performance.
          [ ]  Has a satisfactory
record of
               integrity.
          [ ]  Is qualified legally
to contract
               with the contracting
agency.
          [ ]  Has supplied all
necessary
               information in
connection with
               the inquiry
concerning
               responsibility.
     [ ]  Determined the bidder to be
     (check one of the following):
          [ ]  Responsible under
ORS 279C.375
               (3)(a) and (b).
          [ ]  Not responsible
under
               ORS 279C.375 (3)(a)
and (b).
     (Attach documentation if the contracting
agency finds the bidder not to be responsible.)
______________________________________________________________________________
     (d) Submit the form described in paragraph
(c) of this subsection, with any attachments, to the Construction Contractors
Board within 30 days after the date the contracting agency awards the contract.
     (4) The successful bidder shall:
     (a) Promptly execute a formal contract;
and
     (b) Execute and deliver to the contracting
agency a performance bond and a payment bond when required under ORS 279C.380.
     (5) Based on competitive bids, a
contracting agency may award a public improvement contract or may award
multiple public improvement contracts when specified in the invitation to bid.
     (6) A contracting agency may not exclude a
commercial contractor from competing for a public contract on the basis that
the license issued by the Construction Contractors Board is endorsed as a level
1 or level 2 license. As used in this section, “commercial contractor” has the
meaning given that term in ORS 701.005. [2003 c.794 §117; 2005 c.103 §§17,18;
2005 c.376 §1; 2007 c.764 §§26,27; 2007 c.836 §§42,43]
     Note: The amendments to 279C.375 by section 43,
chapter 836, Oregon Laws 2007, become operative July 1, 2008. See section 70,
chapter 836, Oregon Laws 2007. The text that is operative until July 1, 2008,
including amendments by section 27, chapter 764, Oregon Laws 2007, is set forth
for the userÂ’s convenience.
     279C.375. (1) After bids are opened and a
determination is made that a public improvement contract is to be awarded, the
contracting agency shall award the contract to the lowest responsible bidder.
     (2) At least seven days before the award
of a public improvement contract, unless the contracting agency determines that
seven days is impractical under rules adopted under ORS 279A.065, the
contracting agency shall issue to each bidder or post, electronically or
otherwise, a notice of the contracting agencyÂ’s intent to award a contract.
This subsection does not apply to a contract excepted or exempted from
competitive bidding under ORS 279C.335 (1)(c) or (d). The notice and its manner
of posting or issuance must conform to rules adopted under ORS 279A.065.
     (3) In determining the lowest responsible
bidder, a contracting agency shall do all of the following:
     (a) Check the list created by the
Construction Contractors Board under ORS 701.227 for bidders who are not
qualified to hold a public improvement contract.
     (b) Determine whether the bidder has met
the standards of responsibility. In making the determination, the contracting
agency shall consider whether a bidder has:
     (A) Available the appropriate financial,
material, equipment, facility and personnel resources and expertise, or the
ability to obtain the resources and expertise, necessary to meet all
contractual responsibilities.
     (B) A satisfactory record of performance.
The contracting agency shall document the record of performance of a bidder if
the contracting agency finds the bidder not to be responsible under this
subparagraph.
     (C) A satisfactory record of integrity.
The contracting agency shall document the record of integrity of a bidder if
the contracting agency finds the bidder not to be responsible under this
subparagraph.
     (D) Qualified legally to contract with the
contracting agency.
     (E) Supplied all necessary information in
connection with the inquiry concerning responsibility. If a bidder 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 not to be
responsible.
     (c) Document the contracting agency’s
compliance with the requirements of paragraphs (a) and (b) of this subsection
in substantially the following form:
______________________________________________________________________________
RESPONSIBILITY DETERMINATION FORM
Project Name: ____________
Bid Number: ____________
Business
Entity Name: ____________
CCB License
Number: ____________
Form Submitted
By (Contracting Agency): ____________
Form Submitted
By (Contracting Agency RepresentativeÂ’s Name): ____________
     Title: ____________
     Date: ____________
     (The contracting agency must submit this form
with attachments, if any, to the
Construction
Contractors Board within 30 days after the date of contract award.)
     The contracting agency has (check all of
the following):
     [ ]  Checked
the list created by the
          Construction Contractors Board
          under ORS 701.227 for bidders who
          are not qualified to hold a public
          improvement contract.
     [ ]  Determined whether the bidder has
          met the standards of responsibility.
          In so doing, the contracting agency
          has considered whether the bidder:
          [ ]  Has available the
appropriate
               financial, material,
equipment,
               facility and
personnel resources
               and expertise, or
the ability to
               obtain the resources
and expertise,
               necessary to meet
all contractual
               responsibilities.
          [ ]  Has a satisfactory
record of
               performance.
          [ ]  Has a satisfactory
record of
               integrity.
          [ ]  Is qualified legally
to contract with
               the contracting
agency.
          [ ]  Has supplied all
necessary
               information in
connection with the
               inquiry concerning
responsibility.
     [ ]  Determined the bidder to be
          (check one of the following):
          [ ]  Responsible under
ORS 279C.375
               (3)(a) and (b).
          [ ]  Not responsible
under ORS 279C.375
               (3)(a) and (b).
     (Attach documentation if the contracting
agency finds the bidder not to be responsible.)
______________________________________________________________________________
     (d) Submit the form described in paragraph
(c) of this subsection, with any attachments, to the Construction Contractors
Board within 30 days after the date the contracting agency awards the contract.
     (4) The successful bidder shall:
     (a) Promptly execute a formal contract;
and
     (b) Execute and deliver to the contracting
agency a performance bond and a payment bond when required under ORS 279C.380.
     (5) Based on competitive bids, a
contracting agency may award a public improvement contract or may award
multiple public improvement contracts when specified in the invitation to bid.
     279C.380
Performance bond; payment bond; waiver of bonds. (1) Except as provided in ORS 279C.390, a
successful bidder for a public improvement contract shall promptly execute and
deliver to the contracting agency the following bonds:
     (a) A performance bond in an amount equal
to the full contract price conditioned on the faithful performance of the
contract in accordance with the plans, specifications and conditions of the
contract. The performance bond must be solely for the protection of the
contracting agency that awarded the contract and any public agency or agencies
for whose benefit the contract was awarded. If the public improvement contract
is with a single person to provide both design and construction of a public
improvement, the obligation of the performance bond for the faithful
performance of the contract required by this paragraph must also be for the
preparation and completion of the design and related services covered under the
contract. Notwithstanding when a cause of action, claim or demand accrues or
arises, the surety is not liable after final completion of the contract, or
longer if provided for in the contract, for damages of any nature, economic or
otherwise and including corrective work, attributable to the design aspect of a
design-build project, or for the costs of design revisions needed to implement
corrective work. A contracting agency may waive the requirement of a
performance bond. A contracting agency may permit the successful bidder to
submit a cashierÂ’s check or certified check in lieu of all or a portion of the
required performance bond.
     (b) A payment bond in an amount equal to
the full contract price, solely for the protection of claimants under ORS
279C.600.
     (2) If the public improvement contract is
with a single person to provide construction manager and general contractor
services, in which a guaranteed maximum price may be established by an
amendment authorizing construction period services following preconstruction
period services, the contractor shall provide the bonds required by subsection
(1) of this section upon execution of an amendment establishing the guaranteed
maximum price. The contracting agency shall also require the contractor to
provide bonds equal to the value of construction services authorized by any
early work amendment in advance of the guaranteed maximum price amendment. Such
bonds must be provided before construction starts.
     (3) Each performance bond and each payment
bond must be executed solely by a surety company or companies holding a
certificate of authority to transact surety business in this state. The bonds
may not constitute the surety obligation of an individual or individuals. The
performance and payment bonds must be payable to the contracting agency or to
the public agency or agencies for whose benefit the contract was awarded, as
specified in the solicitation documents, and shall be in a form approved by the
contracting agency.
     (4) In cases of emergency, or when the
interest or property of the contracting agency or the public agency or agencies
for whose benefit the contract was awarded probably would suffer material
injury by delay or other cause, the requirement of furnishing a good and
sufficient performance bond and a good and sufficient payment bond for the
faithful performance of any public improvement contract may be excused, if a
declaration of such emergency is made in accordance with rules adopted under
ORS 279A.065.
     (5) This section applies only to public
improvement contracts with a value, estimated by the contracting agency, of
more than $100,000 or, in the case of contracts for highways, bridges and other
transportation projects, more than $50,000. [2003 c.794 §118; 2005 c.103 §20]
     279C.385
Return or retention of bid security. (1) A contracting agency shall return the bid security of the
successful bidder to the bidder after the bidder:
     (a) Executes the public improvement
contract; and
     (b) Delivers a good and sufficient
performance bond, a good and sufficient payment bond and any required proof of
insurance.
     (2) A bidder who is awarded a contract and
who fails promptly and properly to execute the contract and to deliver the
performance bond, the payment bond and the proof of insurance, when bonds or
insurance are required, shall forfeit the bid security that accompanied the
successful bid. The bid security shall be taken and considered as liquidated
damages and not as a penalty for failure of the bidder to execute the contract
and deliver the bonds and proof of insurance.
     (3) The contracting agency may return the
bid security of unsuccessful bidders to them when the bids have been opened and
the contract has been awarded, and may not retain the bid security after the
contract has been duly signed. [2003 c.794 §119; 2005 c.103 §21]
     279C.390
Exemption of contracts from bid security and bonds. (1) Subject to the provisions of subsection
(2) of this section, the Director of the Oregon Department of Administrative
Services, a state contracting agency with procurement authority under ORS
279A.050, a local contract review board or, for contracts described in ORS
279A.050 (3)(b), the Director of Transportation may exempt certain contracts or
classes of contracts from all or a portion of the requirement for bid security
and from all or a portion of the requirement that good and sufficient bonds be
furnished to ensure performance of the contract and payment of obligations
incurred in the performance.
     (2) The contracting agency may require bid
security and a good and sufficient performance bond, a good and sufficient
payment bond, or any combination of such bonds, even though the public improvement
contract is of a class exempted under subsection (1) of this section.
     (3) The Director of Transportation may:
     (a) Exempt contracts or classes of
contracts financed from the proceeds of bonds issued under ORS 367.620 (3)(a)
from the requirement for bid security and from the requirement that a good and
sufficient bond be furnished to ensure performance of the contract; or
     (b) Reduce the amount of the required
performance bond for contracts or classes of contracts financed from the
proceeds of the bonds issued under ORS 367.620 (3)(a) to less than 100 percent
of the contract price.
     (4) Any recoverable damages that exceed
the amount of the performance bond required under subsection (3) of this
section shall be the sole responsibility of the Department of Transportation. [2003
c.794 §120; 2003 c.794 §120a; 2007 c.764 §28]
     279C.395
Rejection of bids. A
contracting agency may reject any bid not in compliance with all prescribed
public bidding procedures and requirements, and may, for good cause, reject all
bids upon a finding of the contracting agency it is in the public interest to
do so. In any case where competitive bids are required and all bids are
rejected, and the proposed project is not abandoned, new bids may be called for
as in the first instance. [2003 c.794 §121]
(Competitive
Proposals)
     279C.400
Competitive proposals; procedure. (1) When authorized or required by an exemption granted under ORS
279C.335, a contracting agency may solicit and award a public improvement
contract, or may award multiple public improvement contracts when specified in
the request for proposals, by requesting and evaluating competitive proposals.
A contract awarded under this section may be amended only in accordance with
rules adopted under ORS 279A.065.
     (2) Except as provided in ORS 279C.330 to
279C.355, 279C.360 to 279C.390, 279C.395 and 279C.430 to 279C.450, competitive
proposals shall be subject to the following requirements of competitive
bidding:
     (a) Advertisement under ORS 279C.360;
     (b) Requirements for solicitation
documents under ORS 279C.365;
     (c) Disqualification due to a Construction
Contractors Board listing as described in ORS 279C.375 (3)(a);
     (d) Contract execution and bonding
requirements under ORS 279C.375 and 279C.380;
     (e) Determination of responsibility under
ORS 279C.375 (3)(b);
     (f) Rejection of bids under ORS 279C.395;
and
     (g) Disqualification and prequalification
under ORS 279C.430, 279C.435 and 279C.440.
     (3) For the purposes of applying the
requirements listed in subsection (2) of this section to competitive proposals,
when used in the sections listed in subsection (2) of this section, “bids”
includes proposals, and “bid documents” and “invitation to bid” include
requests for proposals.
     (4) Competitive proposals are not subject
to the following requirements of competitive bidding:
     (a) First-tier subcontractor disclosure
under ORS 279C.370; and
     (b) Reciprocal preference under ORS
279A.120.
     (5) The contracting agency may require
proposal security that serves the same function with respect to proposals as
bid security serves with respect to bids under ORS 279C.365 (5) and 279C.385,
as follows:
     (a) The contracting agency may require
proposal security in a form and amount as may be determined to be reasonably
necessary or prudent to protect the interests of the contracting agency.
     (b) The contracting agency shall retain
the proposal security if a proposer who is awarded a contract fails to promptly
and properly execute the contract and provide any required bonds or insurance.
     (c) The contracting agency shall return
the proposal security to all proposers upon the execution of the contract, or
earlier in the selection process.
     (6) In all other respects, and subject to
rules adopted under ORS 279A.065, references in this chapter to invitations to
bid, bids or bidders shall, to the extent practicable within the proposal
process, be deemed equally applicable to requests for proposals, proposals or
proposers. However, notwithstanding ORS 279C.375 (1), a contracting agency may
not be required to award a contract advertised under the competitive proposal
process based on price, but may award the contract in accordance with ORS
279C.410 (8). [2003 c.794 §129; 2005 c.103 §23; 2007 c.764 §29]
     279C.405
Requests for information, interest or qualifications; requirements for requests
for proposals. (1) A
contracting agency may issue a request for information, a request for interest,
a request for qualifications or other preliminary documents to obtain
information useful in the preparation or distribution of a request for
proposals.
     (2) In addition to the general
requirements of ORS 279C.365, a contracting agency preparing a request for
proposals shall include:
     (a) All required contractual terms and
conditions. The request for proposals also may:
     (A) Identify those contractual terms or
conditions the contracting agency reserves, in the request for proposals, for
negotiation with proposers;
     (B) Request that proposers propose
contractual terms and conditions that relate to subject matter reasonably
identified in the request for proposals; and
     (C) Contain or incorporate the form and
content of the contract that the contracting agency will accept, or suggested
contract terms and conditions that nevertheless may be the subject of
negotiations with proposers.
     (b) The method of contractor selection,
which may include but is not limited to award without negotiation, negotiation
with the highest ranked proposer, competitive negotiations, multiple-tiered
competition designed either to identify a class of proposers that fall within a
competitive range or to otherwise eliminate from consideration a class of lower
ranked proposers, or any combination of methods, as authorized or prescribed by
rules adopted under ORS 279A.065.
     (c) All evaluation factors that will be considered
by the contracting agency when evaluating the proposals, including the relative
importance of price and any other evaluation factors. [2003 c.794 §130; 2007
c.764 §30]
     279C.410
Receipt of proposals; evaluation and award. (1) Notwithstanding the public records law, ORS 192.410 to 192.505:
     (a) Proposals may be opened so as to avoid
disclosure of contents to competing proposers during, when applicable, the
process of negotiation.
     (b) Proposals are not required to be open
for public inspection until after the notice of intent to award a contract is
issued.
     (2) For each request for proposals, the
contracting agency shall prepare a list of proposals.
     (3) Notwithstanding any requirement to
make proposals open to public inspection after the contracting 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 proposal. The fact that proposals are
opened at a public meeting as defined in ORS 192.610 does not make their
contents subject to disclosure, regardless of whether the public body opening
the proposals fails to give notice of or provide for an executive session for
the purpose of opening proposals. If a request for proposals is canceled after
proposals are received, the contracting agency may return a proposal to the
proposer that made the proposal. The contracting agency shall keep a list of
returned proposals in the file for the solicitation.
     (4) As provided in the request for
proposals, a contracting agency may conduct discussions with proposers who
submit proposals the agency has determined to be closely competitive or to have
a reasonable chance of being selected for award. The discussions may be
conducted for the purpose of clarification to ensure full understanding of, and
responsiveness to, the solicitation requirements. The contracting agency shall
accord proposers fair and equal treatment with respect to any opportunity for
discussion and revision of proposals. Revisions of proposals may be permitted
after the submission of proposals and before award for the purpose of obtaining
best and final offers. In conducting discussions, the contracting agency may
not disclose information derived from proposals submitted by competing
proposers.
     (5) When provided for in the request for
proposals, the contracting agency may employ methods of contractor selection
including but not limited to award based solely on the ranking of proposals,
negotiation with the highest ranked proposer, competitive negotiations,
multiple-tiered competition designed to identify a class of proposers that fall
within a competitive range or to otherwise eliminate from consideration a class
of lower ranked proposers, or any combination of methods, as authorized or
prescribed by rules adopted under ORS 279A.065. When applicable, in any
instance in which the contracting agency determines that impasse has been reached
in negotiations with a highest ranked proposer, the contracting agency may
terminate negotiations with that proposer and commence negotiations with the
next highest ranked proposer.
     (6) The cancellation of requests for
proposals and the rejection of proposals shall be in accordance with ORS
279C.395.
     (7) At least seven days before the award
of a public improvement contract, unless the contracting agency determines that
seven days is impractical under rules adopted under ORS 279A.065, the
contracting agency shall issue to each proposer or post, electronically or
otherwise, a notice of intent to award.
     (8) If a public improvement contract is
awarded, the contracting agency shall award a public improvement contract to
the responsible proposer whose proposal is determined in writing to be the most
advantageous to the contracting agency based on the evaluation factors set
forth in the request for proposals and, when applicable, the outcome of any
negotiations authorized by the request for proposals. Other factors may not be
used in the evaluation. [2003 c.794 §131; 2005 c.103 §24; 2007 c.764 §31]
     279C.412
Competitive quotes for intermediate procurements. (1) A public improvement contract estimated
by the contracting agency not to exceed $100,000 may be awarded in accordance
with intermediate procurement procedures for competitive quotes established by
rules adopted under ORS 279A.065. A contract awarded under this section may be
amended to exceed $100,000 only in accordance with rules adopted under ORS
279A.065.
     (2) A procurement may not be artificially
divided or fragmented so as to constitute an intermediate procurement under
this section or to circumvent competitive bidding requirements under this
chapter.
     (3) Intermediate procurements under this
section need not be made through competitive bidding. However, nothing in this
section may be construed as prohibiting a contracting agency from conducting a
procurement that does not exceed $100,000 under competitive bidding procedures.
[2003 c.794 §132; 2007 c.764 §32]
     279C.414
Requirements for competitive quotes. (1) Rules adopted under ORS 279A.065 to govern competitive quotes
shall require the contracting agency to seek at least three informally
solicited competitive price quotes from prospective contractors. The
contracting agency shall keep a written record of the sources and amounts of
the quotes received. If three quotes are not reasonably available, fewer will
suffice, but in that event the contracting agency shall make a written record
of the effort made to obtain the quotes.
     (2) If a contract is to be awarded by
competitive quotes, the contracting agency shall award the contract to the
prospective contractor whose quote will best serve the interests of the
contracting agency, taking into account price as well as any other applicable
factors such as, but not limited to, experience, specific expertise,
availability, project understanding, contractor capacity and responsibility. If
an award is not made to the prospective contractor offering the lowest price
quote, the contracting agency shall make a written record of the basis for
award. [2003 c.794 §133]
(Prequalification
and Disqualification)
     279C.430
Prequalification of bidders.
(1) A contracting agency may adopt a rule, resolution, ordinance or other regulation
requiring mandatory prequalification for all persons desiring to bid for public
improvement contracts that are to be let by the agency. The rule, resolution,
ordinance or other regulation authorized by this section must include the time
for submitting prequalification applications and a general description of the
type and nature of the contracts that may be let. The prequalification
application must be in writing on a standard form prescribed under the
authority of ORS 279A.050.
     (2) When a contracting agency permits or
requires prequalification of bidders, a person who wishes to prequalify shall
submit a prequalification application to the contracting agency on a standard
form prescribed under subsection (1) of this section. Within 30 days after receipt
of a prequalification application, the contracting agency shall investigate the
applicant as necessary to determine if the applicant is qualified. The
determination shall be made in less than 30 days, if practicable, if the
applicant requests an early decision to allow the applicant as much time as
possible to prepare a bid on a contract that has been advertised. In making its
determination, the contracting agency shall consider only the applicable
standards of responsibility listed in ORS 279C.375 (3)(b). The agency shall
promptly notify the applicant whether or not the applicant is qualified.
     (3) If the contracting agency finds that
the applicant is qualified, the notice must state the nature and type of
contracts that the person is qualified to bid on and the period of time for
which the qualification is valid under the contracting agencyÂ’s rule,
resolution, ordinance or other regulation. If the contracting agency finds the
applicant is not qualified as to any contracts covered by the rule, resolution,
ordinance or other regulation, the notice must specify the reasons found under
ORS 279C.375 (3)(b) for not prequalifying the applicant and inform the
applicant of the right to a hearing under ORS 279C.445 and 279C.450.
     (4) If a contracting agency has reasonable
cause to believe that there has been a substantial change in the conditions of
a prequalified person and that the person is no longer qualified or is less
qualified, the agency may revoke or may revise and reissue the prequalification
after reasonable notice to the prequalified person. The notice shall state the
reasons found under ORS 279C.375 (3)(b) for revocation or revision of the
prequalification of the person and inform the person of the right to a hearing
under ORS 279C.445 and 279C.450. A revocation or revision does not apply to any
public improvement contract for which publication of an advertisement, in
accordance with ORS 279C.360, commenced before the date the notice of
revocation or revision was received by the prequalified person. [2003 c.794 §123;
2005 c.103 §25]
     279C.435
Effect of prequalification by Department of Transportation or Oregon Department
of Administrative Services.
If a person is prequalified with the Department of Transportation or with the
Oregon Department of Administrative Services, the person is rebuttably presumed
qualified with any other contracting agency for the same kind of work. When
qualifying for the same kind of work with another contracting agency, the
person may submit proof of the prequalification in lieu of a prequalification
application as required by ORS 279C.430. [2003 c.794 §128]
     279C.440
Disqualification from consideration for award of contracts. (1)(a) A contracting agency may disqualify a
person from consideration for award of the contracting agencyÂ’s contracts for
the reasons listed in subsection (2) of this section after providing the person
with notice and a reasonable opportunity to be heard.
     (b) In lieu of the disqualification
process described in paragraph (a) of this subsection, a contracting agency
contracting for a public improvement may petition the Construction Contractors
Board to disqualify a person from consideration for award of the contracting
agencyÂ’s public improvement contracts for the reasons listed in subsection (2)
of this section. The Construction Contractors Board shall provide the person
with notice and a reasonable opportunity to be heard.
     (c) A contracting agency or the
Construction Contractors Board may not disqualify a person under this section
for a period of more than three years.
     (2) A person may be disqualified from
consideration for award of a contracting agencyÂ’s contracts for any of the
following reasons:
     (a) The person has been convicted of a
criminal offense as an incident in obtaining or attempting to obtain a public
or private contract or subcontract, or in the performance of such contract or
subcontract.
     (b) The person has been convicted under
state or federal statutes of embezzlement, theft, forgery, bribery,
falsification or destruction of records, receiving stolen property or any other
offense indicating a lack of business integrity or business honesty that
currently, seriously and directly affects the personÂ’s responsibility as a
contractor.
     (c) The person has been convicted under
state or federal antitrust statutes.
     (d) The person has committed a violation
of a contract provision that is regarded by the contracting agency or the
Construction Contractors Board to be so serious as to justify disqualification.
A violation may include but is not limited to a failure to perform the terms of
a contract or an unsatisfactory performance in accordance with the terms of the
contract. However, a failure to perform or an unsatisfactory performance caused
by acts beyond the control of the contractor may not be considered to be a
basis for disqualification.
     (e) The person does not carry workers’
compensation or unemployment insurance as required by statute.
     (3) A contracting agency or the
Construction Contractors Board shall issue a written decision to disqualify a
person under this section. The decision shall:
     (a) State the reasons for the action
taken; and
     (b) Inform the disqualified person of the
appeal right of the person under:
     (A) ORS 279C.445 and 279C.450 if the
decision to disqualify was issued by a contracting agency; or
     (B) ORS chapter 183 if the decision to
disqualify was issued by the Construction Contractors Board.
     (4) A copy of the decision issued under
subsection (3) of this section must be mailed or otherwise furnished
immediately to the disqualified person. [2003 c.794 §122]
     279C.445
Appeal of disqualification.
Any person who wishes to appeal disqualification shall, within three business
days after receipt of notice of disqualification, notify the contracting agency
that the person appeals the disqualification. Immediately upon receipt of the
notice of appeal:
     (1) A state contracting agency shall
notify the Director of the Oregon Department of Administrative Services.
     (2) All contracting agencies other than
state contracting agencies shall notify the appropriate local contract review
board. [2003 c.794 §124]
     279C.450
Appeal procedure for prequalification and disqualification decisions; hearing;
costs; judicial review. (1)
The procedure for appeal from a disqualification or denial, revocation or
revision of a prequalification by a contracting agency shall be in accordance
with this section and is not subject to ORS chapter 183 except when
specifically provided by this section.
     (2) Promptly upon receipt of notice of
appeal from a contracting agency as provided for by ORS 279C.445, the Director
of the Oregon Department of Administrative Services or the local contract
review board shall notify the person appealing and the contracting agency of
the time and place of the hearing. The director or board shall conduct the
hearing and decide the appeal within 30 days after receiving the notification
from the contracting agency. The director or board shall set forth in writing
the reasons for the decision.
     (3) In the hearing the director or board
shall consider de novo the notice of disqualification or denial, revocation or
revision of a prequalification, the reasons listed in ORS 279C.440 (2) on which
the contracting agency based the disqualification or the standards of
responsibility listed in ORS 279C.375 (3)(b) on which the contracting agency
based the denial, revocation or revision of the prequalification and any
evidence provided by the parties. In all other respects, a hearing before the
director shall be conducted in the same manner as a contested case under ORS
183.417 (1) to (4) and (7), 183.425, 183.440, 183.450 and 183.452.
     (4) The director may allocate the director’s
cost for the hearing between the person appealing and the contracting agency
whose disqualification or prequalification decision is being appealed. The
allocation shall be based upon facts found by the director and stated in the
final order that, in the directorÂ’s opinion, warrant such allocation of the
costs. If the final order does not allocate the directorÂ’s costs for the hearing,
the costs shall be paid as follows:
     (a) If the decision to disqualify or deny,
revoke or revise a prequalification of a person is upheld, the directorÂ’s costs
shall be paid by the person appealing the disqualification or prequalification
decision.
     (b) If the decision to disqualify or deny,
revoke or revise a prequalification of a person as a bidder is reversed by the
director, the directorÂ’s costs shall be paid by the contracting agency whose
disqualification or prequalification decision is the subject of the appeal.
     (5) The decision of the director or board
may be reviewed only upon a petition, filed within 15 days after the date of
the decision, in the circuit court of the county in which the director or board
has its 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 on the part of the director or board or any of its members.
     (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.
     (6) The procedure provided in this section
is the exclusive means of judicial review of the decision of the director or
board. The judicial review provisions of ORS 183.480 and writs of review and
mandamus as provided in ORS chapter 34, and other legal, declaratory and
injunctive remedies, are not available.
     (7) The circuit court may, in its discretion,
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 disqualification 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 award
such damages as the court may find as a judgment against the director or board.
The court may award costs and attorney fees to the prevailing party. [2003
c.794 §125; 2005 c.103 §26; 2007 c.288 §13]
(Remedies)
     279C.460
Action by or on behalf of adversely affected bidder or proposer; exception for
personal services contract.
(1) Any bidder or proposer adversely affected or any trade association of
construction contractors acting on behalf of a member of the association to
protect interests common to construction contractor members may commence an
action in the circuit court for the county where the principal offices of a contracting
agency are located, for the purpose of requiring compliance with, or prevention
of violations of, ORS 279C.300 to 279C.470 or to determine the applicability of
ORS 279C.300 to 279C.470 to matters or decisions of the contracting agency.
     (2) The court may order such equitable
relief as the court considers appropriate in the circumstances. In addition to
or in lieu of any equitable relief, the court may award an aggrieved bidder or
proposer any damages suffered by the bidder or proposer as a result of violations
of ORS 279C.300 to 279C.470 for the reasonable cost of preparing and submitting
a bid or proposal. A decision of the contracting agency may not be voided if
other equitable relief is available.
     (3) If the contracting agency is
successful in defending the contracting agencyÂ’s actions against claims of
violation or potential violation of ORS 279C.300 to 279C.470, the court may
award to the aggrieved contracting agency any damages suffered as a result of
the court action.
     (4) The court may order payment of
reasonable attorney fees and costs on trial and on appeal to a successful party
in an action brought under this section.
     (5) This section does not apply to
personal services contracts under ORS 279C.100 to 279C.125. [2003 c.794 §134;
2007 c.764 §33]
     279C.465
Action against successful bidder; amount of damages; when action to be
commenced; defenses. (1) Any
person that loses a competitive bid or proposal for a contract involving the
construction, repair, remodeling, alteration, conversion, modernization,
improvement, rehabilitation, replacement or renovation of a building or
structure may bring an action for damages against another person who is awarded
the contract for which the bid or proposal was made if the person making the
losing bid or proposal can establish that the other person knowingly violated
ORS 279C.840, 656.017, 657.505 or 701.026 while performing the work under the
contract, or knowingly failed to pay to the Department of Revenue all sums
withheld from employees under ORS 316.167.
     (2) A person bringing an action under this
section must establish a violation of ORS 279C.840, 316.167, 656.017, 657.505
or 701.026 by a preponderance of the evidence.
     (3) Upon establishing that the violation
occurred, the person shall recover, as liquidated damages, 10 percent of the
total amount of the contract or $5,000, whichever is greater.
     (4) In any action under this section, the
prevailing party is entitled to an award of reasonable attorney fees.
     (5) An action under this section must be
commenced within two years of the substantial completion of the construction,
repair, remodeling, alteration, conversion, modernization, improvement,
rehabilitation, replacement or renovation. For the purposes of this subsection,
“substantial completion” has the meaning given that term in ORS 12.135.
     (6) A person may not recover any amounts
under this section if the defendant in the action establishes by a
preponderance of the evidence that the plaintiff:
     (a) Was in violation of ORS 701.026 at the
time of making the bid or proposal on the contract;
     (b) Was in violation of ORS 316.167,
656.017 or 657.505 with respect to any employees of the plaintiff as of the
time of making the bid or proposal on the contract; or
     (c) Was in violation of ORS 279C.840 with
respect to any contract performed by the plaintiff within one year before
making the bid or proposal on the contract at issue in the action. [2003 c.794 §135]
     Note: The amendments to 279C.465 by section 44,
chapter 836, Oregon Laws 2007, become operative July 1, 2010. See section 70,
chapter 836, Oregon Laws 2007. The text that is operative on and after July 1,
2010, is set forth for the userÂ’s convenience.
     279C.465. (1) Any person that loses a competitive bid
or proposal for a contract involving the construction, repair, remodeling,
alteration, conversion, modernization, improvement, rehabilitation, replacement
or renovation of a building or structure may bring an action for damages
against another person who is awarded the contract for which the bid or proposal
was made if the person making the losing bid or proposal can establish that the
other person knowingly violated ORS 279C.840, 656.017, 657.505, 701.021 or
701.026 while performing the work under the contract, or knowingly failed to
pay to the Department of Revenue all sums withheld from employees under ORS
316.167.
     (2) A person bringing an action under this
section must establish a violation of ORS 279C.840, 316.167, 656.017, 657.505,
701.021 or 701.026 by a preponderance of the evidence.
     (3) Upon establishing that the violation
occurred, the person shall recover, as liquidated damages, 10 percent of the
total amount of the contract or $5,000, whichever is greater.
     (4) In any action under this section, the
prevailing party is entitled to an award of reasonable attorney fees.
     (5) An action under this section must be
commenced within two years of the substantial completion of the construction,
repair, remodeling, alteration, conversion, modernization, improvement,
rehabilitation, replacement or renovation. For the purposes of this subsection,
“substantial completion” has the meaning given that term in ORS 12.135.
     (6) A person may not recover any amounts
under this section if the defendant in the action establishes by a
preponderance of the evidence that the plaintiff:
     (a) Was in violation of ORS 701.021 or
701.026 at the time of making the bid or proposal on the contract;
     (b) Was in violation of ORS 316.167,
656.017 or 657.505 with respect to any employees of the plaintiff as of the
time of making the bid or proposal on the contract; or
     (c) Was in violation of ORS 279C.840 with
respect to any contract performed by the plaintiff within one year before
making the bid or proposal on the contract at issue in the action.
     279C.470
Compensation for contractor on contract declared void by court; exceptions;
applicability. (1) If a
court determines that a public improvement contract is void because the
contracting agency letting the contract failed to comply with any statutory or
regulatory competitive bidding or other procurement requirements, and the
contractor entered into the contract without intentionally violating the laws
regulating public improvement contracts, then, unless the court determines that
substantial injustice would result, the contractor is entitled to reimbursement
for work performed under the contract as follows:
     (a) If the work under the public
improvement contract is substantially complete, the contracting agency shall
ratify the contract.
     (b) If the work under the public
improvement contract is not substantially complete, the contracting agency
shall ratify the contract and the contract shall be deemed terminated. Upon
termination, the contractor shall be paid in accordance with ORS 279C.660,
unless the court determines that payment under ORS 279C.660 would be a
substantial injustice to the contracting agency or the contractor, in which
case the contractor shall be paid as the court deems equitable.
     (c) For the purposes of this section, a
ratified contract shall be deemed valid, binding and legally enforceable, and
the contractorÂ’s payment and performance bonds shall remain in full force and
effect.
     (2) Notwithstanding subsection (1) of this
section, if a court determines that a public improvement contract is void as a
result of fraudulent or criminal acts or omissions of the contractor or of both
the contracting agency letting the contract and the contractor, the contractor
is not entitled to reimbursement for work performed under the contract.
     (3) This section does not apply to a public
improvement contract if:
     (a) The contracting agency’s employee that
awarded the public improvement contract did not have the authority to do so
under law, ordinance, charter, contract or agency rule; or
     (b) Payment is otherwise prohibited by
     (4) The contractor and all subcontractors
under a public improvement contract are prohibited from asserting that the
public improvement contract is void for any reason described in this section. [2003
c.794 §136]
CONSTRUCTION
CONTRACTS GENERALLY
(Required Contract
Conditions)
     279C.500
“Person” defined. As used in
ORS 279C.500 to 279C.530, unless the context otherwise requires, “person”
includes the State Accident Insurance Fund Corporation and the Department of
Revenue. [2003 c.794 §137]
     279C.505
Conditions concerning payment, contributions, liens, withholding, drug testing. (1) Every public improvement contract shall
contain a condition that the contractor shall:
     (a) Make payment promptly, as due, to all
persons supplying to the contractor labor or material for the performance of
the work provided for in the contract.
     (b) Pay all contributions or amounts due
the Industrial Accident Fund from the contractor or subcontractor incurred in
the performance of the contract.
     (c) Not permit any lien or claim to be
filed or prosecuted against the state or a county, school district,
municipality, municipal corporation or subdivision thereof, on account of any
labor or material furnished.
     (d) Pay to the Department of Revenue all
sums withheld from employees under ORS 316.167.
     (2) In addition to the conditions
specified in subsection (1) of this section, every public improvement contract
shall contain a condition that the contractor shall demonstrate that an
employee drug testing program is in place. [2003 c.794 §138; 2005 c.103 §27]
     279C.510
Demolition contracts to require material salvage; lawn and landscape
maintenance contracts to require composting or mulching. (1) Every public improvement contract for
demolition shall contain a condition requiring the contractor to salvage or
recycle construction and demolition debris, if feasible and cost-effective.
     (2) Every public improvement contract for
lawn and landscape maintenance shall contain a condition requiring the
contractor to compost or mulch yard waste material at an approved site, if
feasible and cost-effective. [2003 c.794 §139]
     279C.515
Conditions concerning payment of claims by public officers, payment to persons
furnishing labor or materials and complaints. (1) Every public improvement contract shall contain a clause or
condition that, if the contractor fails, neglects or refuses to make prompt
payment of any claim for labor or services furnished to the contractor or a
subcontractor by any person in connection with the public improvement contract
as the claim becomes due, the proper officer or officers representing the state
or a county, school district, municipality, municipal corporation or
subdivision thereof, as the case may be, may pay such claim to the person
furnishing the labor or services and charge the amount of the payment against
funds due or to become due the contractor by reason of the contract.
     (2) Every public improvement contract
shall contain a clause or condition that, if the contractor or a first-tier
subcontractor fails, neglects or refuses to make payment to a person furnishing
labor or materials in connection with the public improvement contract within 30
days after receipt of payment from the contracting agency or a contractor, the
contractor or first-tier subcontractor shall owe the person the amount due plus
interest charges commencing at the end of the 10-day period that payment is due
under ORS 279C.580 (4) and ending upon final payment, unless payment is subject
to a good faith dispute as defined in ORS 279C.580. The rate of interest
charged to the contractor or first-tier subcontractor on the amount due shall
equal three times the discount rate on 90-day commercial paper in effect at the
Federal Reserve Bank in the Federal Reserve district that includes Oregon on
the date that is 30 days after the date when payment was received from the
contracting agency or from the contractor, but the rate of interest may not
exceed 30 percent. The amount of interest may not be waived.
     (3) Every public improvement contract and
every contract related to the public improvement contract shall contain a
clause or condition that, if the contractor or a subcontractor fails, neglects
or refuses to make payment to a person furnishing labor or materials in
connection with the public improvement contract, the person may file a
complaint with the Construction Contractors Board, unless payment is subject to
a good faith dispute as defined in ORS 279C.580.
     (4) The payment of a claim in the manner
authorized in this section does not relieve the contractor or the contractorÂ’s
surety from obligation with respect to any unpaid claims. [2003 c.794 §140;
2005 c.103 §28]
     279C.520
Condition concerning hours of labor. (1) Every public contract subject to this chapter must contain a
condition that a person may not be employed for more than 10 hours in any one
day, or 40 hours in any one week, except in cases of necessity, emergency or
when the public policy absolutely requires it, and in such cases, except in
cases of contracts for personal services as defined in ORS 279C.100, the
employee shall be paid at least time and a half pay:
     (a)(A) For all overtime in excess of eight
hours in any one day or 40 hours in any one week when the work week is five
consecutive days, Monday through Friday; or
     (B) For all overtime in excess of 10 hours
in any one day or 40 hours in any one week when the work week is four
consecutive days, Monday through Friday; and
     (b) For all work performed on Saturday and
on any legal holiday specified in ORS 279C.540.
     (2) An employer must give notice in
writing to employees who work on a public contract, either at the time of hire
or before commencement of work on the contract, or by posting a notice in a
location frequented by employees, of the number of hours per day and days per
week that the employees may be required to work.
     (3) In the case of contracts for personal
services as defined in ORS 279C.100, the contract shall contain a provision
that the employee shall be paid at least time and a half for all overtime
worked in excess of 40 hours in any one week, except for individuals under
personal services contracts who are excluded under ORS 653.010 to 653.261 or
under 29 U.S.C. 201 to 209 from receiving overtime.
     (4) In the case of a contract for services
at a county fair or for other events authorized by a county fair board, the
contract must contain a provision that employees must be paid at least time and
a half for work in excess of 10 hours in any one day or 40 hours in any one
week. An employer shall give notice in writing to employees who work on such a
contract, either at the time of hire or before commencement of work on the
contract, or by posting a notice in a location frequented by employees, of the
number of hours per day and days per week that employees may be required to work.
     (5)(a) Except as provided in subsection
(4) of this section, contracts for services must contain a provision that
requires that persons employed under the contracts shall receive at least time
and a half pay for work performed on the legal holidays specified in a
collective bargaining agreement or in ORS 279C.540 (1)(b)(B) to (G) and for all
time worked in excess of 10 hours in any one day or in excess of 40 hours in
any one week, whichever is greater.
     (b) An employer shall give notice in
writing to employees who work on a contract for services, either at the time of
hire or before commencement of work on the contract, or by posting a notice in
a location frequented by employees, of the number of hours per day and days per
week that the employees may be required to work. [2003 c.794 §141; 2005 c.103 §29]
     279C.525
Provisions concerning environmental and natural resources laws; remedies. (1) Solicitation documents for a public
improvement contract shall make specific reference to federal, state and local
agencies that have enacted ordinances, rules or regulations dealing with the
prevention of environmental pollution and the preservation of natural resources
that affect the performance of the contract. If the successful bidder awarded
the project is delayed or must undertake additional work by reason of existing
ordinances, rules or regulations of agencies not cited in the public
improvement contract or due to the enactment of new or the amendment of
existing statutes, ordinances, rules or regulations relating to the prevention
of environmental pollution and the preservation of natural resources occurring
after the submission of the successful bid, the contracting agency may:
     (a) Terminate the contract;
     (b) Complete the work itself;
     (c) Use nonagency forces already under
contract with the contracting agency;
     (d) Require that the underlying property
owner be responsible for cleanup;
     (e) Solicit bids for a new contractor to
provide the necessary services under the competitive bid requirements of this chapter;
or
     (f) Issue the contractor a change order
setting forth the additional work that must be undertaken.
     (2) In addition to the obligation imposed
under subsection (1) of this section to refer to federal, state and local
agencies with ordinances, rules or regulations dealing with the prevention of
environmental pollution and the preservation of natural resources, a
solicitation document must also make specific reference to known conditions at
the construction site that may require the successful bidder to comply with the
ordinances, rules or regulations identified under subsection (1) of this
section.
     (3) If the successful bidder encounters a
condition not referred to in the solicitation documents, not caused by the
successful bidder and not discoverable by a reasonable prebid visual site
inspection, and the condition requires compliance with the ordinances, rules or
regulations referred to under subsection (1) of this section, the successful
bidder shall immediately give notice of the condition to the contracting
agency.
     (4) Except in the case of an emergency and
except as may otherwise be required by any environmental or natural resource
ordinance, rule or regulation, the successful bidder may not commence work nor
incur any additional job site costs in regard to the condition encountered and
described in subsection (3) of this section without written direction from the
contracting agency.
     (5) Upon request by the contracting
agency, the successful bidder shall estimate the emergency or regulatory compliance
costs as well as the anticipated delay and costs resulting from the encountered
condition. This cost estimate shall be promptly delivered to the contracting
agency for resolution.
     (6) Within a reasonable period of time
following delivery of an estimate under subsection (5) of this section, the
contracting agency may:
     (a) Terminate the contract;
     (b) Complete the work itself;
     (c) Use nonagency forces already under
contract with the contracting agency;
     (d) Require that the underlying property
owner be responsible for cleanup;
     (e) Solicit bids for a new contractor to
provide the necessary services under the competitive bid requirements of this
chapter; or
     (f) Issue the contractor a change order
setting forth the additional work that must be undertaken.
     (7)(a) If the contracting agency chooses
to terminate the contract under subsection (1)(a) or (6)(a) of this section,
the successful bidder shall be entitled to all costs and expenses incurred to
the date of termination, including overhead and reasonable profits, on the
percentage of the work completed. The contracting agency shall have access to
the contractorÂ’s bid documents when making the contracting agencyÂ’s
determination of the additional compensation due to the contractor.
     (b) If the contracting agency causes work
to be done by another contractor under subsection (1)(c) or (e) or (6)(c) or
(e) of this section, the initial contractor may not be held liable for actions
or omissions of the other contractor.
     (c) The change order under subsection
(1)(f) or (6)(f) of this section shall include the appropriate extension of
contract time and compensate the contractor for all additional costs, including
overhead and reasonable profits, reasonably incurred as a result of complying
with the applicable statutes, ordinances, rules or regulations. The contracting
agency shall have access to the contractorÂ’s bid documents when making the
contracting agencyÂ’s determination of the additional compensation due to the
contractor.
     (8) Notwithstanding subsections (1) to (7)
of this section, a contracting agency:
     (a) May allocate all or a portion of the
known environmental and natural resource risks to a contractor by listing such
environmental and natural resource risks with specificity in the solicitation
documents; and
     (b) In a local improvement district, may
allocate all or a portion of the known and unknown environmental and natural
resource risks to a contractor by so stating in the solicitation documents. [2003
c.794 §142]
     279C.527
Inclusion of amount for solar energy technology in public improvement contract;
written determination of appropriateness; exemptions and limitations. (1) Except as otherwise provided in this
section, a public improvement contract for the construction of a public
building or for the reconstruction or major renovation of a public building, if
the cost of the reconstruction or major renovation exceeds 50 percent of the
value of the public building, is considered to contain an amount equal to at
least 1.5 percent of the total contract price for the inclusion of appropriate
solar energy technology in the public building. Solar energy technology shall
include solar electric or solar thermal systems and may include passive solar
energy systems when a proposed passive solar energy system will achieve a
reduction in energy usage of at least 20 percent.
     (2) Before entering into a public
improvement contract described in subsection (1) of this section, a contracting
agency shall prepare a written determination of whether the inclusion of solar
energy technology in the construction, reconstruction or major renovation of
the public building is appropriate. The contracting agency shall include in the
determination the total contract price and the amount the agency intends to
expend on the inclusion of solar energy technology in the public building. The
State Department of Energy shall develop a form usable by contracting agencies
for preparing the written determination described in this subsection.
     (3) If the contracting agency determines
that it would be inappropriate to include solar energy technology in the
construction, reconstruction or major renovation of the public building,
subsection (1) of this section does not apply to the public improvement
contract. However:
     (a) The contracting agency shall spend an
amount equal to at least 1.5 percent of the total contract price on the
inclusion of appropriate solar energy technology in a future public building
project; and
     (b) The amount spent by the contracting
agency on the future public building project pursuant to paragraph (a) of this
subsection is in addition to any amount required under subsection (1) of this
section for the inclusion of appropriate solar energy technology in the future
public building project.
     (4) Subsection (3)(a) and (b) of this
section does not apply to a public improvement contract for which no state
funds are directly or indirectly used.
     (5) This section does not exempt an
authorized state agency, as defined in ORS 276.905, from complying with ORS
276.900 to 276.915, except that an authorized state agency, without complying
with ORS 276.900 to 276.915, may determine that solar energy technology
described in this section is appropriate for inclusion in the construction,
reconstruction or major renovation of a public building.
     (6)(a) As used in this section, “public
building” means a building owned or controlled by a public body, as defined in
ORS 174.109, and:
     (A) Used or occupied by employees of the
public body; or
     (B) Used for conducting public business.
     (b) Notwithstanding the provisions of ORS
174.108 (3), this section applies to intergovernmental entities described in
ORS 174.108 (3). [2007 c.310 §2]
     Note: 279C.527 and 279C.528 were added to and made
a part of 279C.005 to 279C.670 by legislative action but were not added to any
smaller series therein. See Preface to Oregon Revised Statutes for further
explanation.
     279C.528
State Department of Energy requirements and specifications; rules. Public improvement contracts subject to ORS
279C.527 are also subject to rules adopted by the State Department of Energy
that include, but are not limited to, requirements and specifications for:
     (1) Using particular solar energy systems
or technologies in public improvements;
     (2) Determining the cost-effectiveness of
solar energy systems or technologies;
     (3) Reporting the use of solar energy
systems or technologies in public improvements or submitting documents to the
department for review, as appropriate; and
     (4) Determining whether a structure is a
public building subject to the requirements of ORS 279C.527. [2007 c.310 §3]
     Note: See note under 279C.527.
     279C.530
Condition concerning payment for medical care and providing workersÂ’
compensation. (1) Every
public improvement contract shall contain a condition that the contractor shall
promptly, as due, make payment to any person, copartnership, association or
corporation furnishing medical, surgical and hospital care services or other
needed care and attention, incident to sickness or injury, to the employees of
the contractor, of all sums that the contractor agrees to pay for the services
and all moneys and sums that the contractor collected or deducted from the
wages of employees under any law, contract or agreement for the purpose of
providing or paying for the services.
     (2) Every public contract subject to this
chapter shall contain a clause or condition that all subject employers working
under the contract are either employers that will comply with ORS 656.017 or
employers that are exempt under ORS 656.126. [2003 c.794 §143; 2005 c.103 §30]
     279C.535
Condition concerning steel material; rules. The Department of Transportation shall adopt rules to require that
public improvement contracts entered into by the department include a price
escalation and de-escalation clause relating to steel material. As used in this
section, “steel material” includes structural and reinforcing steel, steel
studs, sheet piling, guardrail, ductile iron pipe and other steel products used
for the construction, reconstruction or major renovation of a road or highway. [2005
c.557 §6]
     Note: Sections 2 to 4, chapter 557, Oregon Laws
2005, provide:
     Sec.
2. (1) As used in this
section, “steel material” includes structural and reinforcing steel, steel
studs, sheet piling, guardrail, ductile iron pipe and other steel products used
for the construction, reconstruction or major renovation of a road or highway.
     (2) When the Department of Transportation
and a contractor have entered into a public improvement contract that includes
a steel material, the department shall adjust the amount paid to the contractor
under the contract if the contractor requests an adjustment and demonstrates
that the market price of a steel material charged to the contractor on the date
the steel material was delivered to the contractor was more than 10 percent
above the market price of the steel material on the contractorÂ’s original bid
quote.
     (3) A contractor that requests an
adjustment under subsection (2) of this section has the burden of demonstrating
the increased cost to the contractor resulting from the price increase for the
steel material. To determine the increased cost to the contractor resulting
from the increased price of the steel material, the contractor shall subtract
the amount of the original bid quote from the amount on the invoice for the
steel material. If the contractor demonstrates that the market price of the
steel material has increased by more than 10 percent, the department shall
adjust the amount owed to the contractor and shall pay the contractor for the
amount of the contractorÂ’s increased cost that exceeds a 10 percent price
increase for the steel material on or after the date the price increase
exceeded 10 percent.
     (4) This section does not apply to local
agency federally funded projects in the Statewide Transportation Improvement
Program.
     (5) The department shall adopt rules to
carry out this section. [2005 c.557 §2]
     Sec.
3. Section 2 of this 2005
Act applies to a public improvement contract entered into by the Department of
Transportation and a contractor on or after April 1, 2003, and before October
1, 2005, regardless of whether the contractor has finished performance under
the contract, unless application of section 2 of this 2005 Act to the contract
would impair the value of the contract to the contractor. [2005 c.557 §3]
     Sec.
4. Sections 1 to 3 of this
2005 Act are repealed on January 2, 2010. [2005 c.557 §4]
(Hours of Labor)
     279C.540
Maximum hours of labor on public contracts; holidays; exceptions; liability to
workers; rules. (1) When
labor is employed by the state or a county, school district, municipality,
municipal corporation or subdivision thereof through a contractor, a person may
not be required or permitted to labor more than 10 hours in any one day, or 40
hours in any one week, except in cases of necessity or emergency or when the
public policy absolutely requires it, in which event, the person so employed
for excessive hours shall receive at least time and a half pay:
     (a)(A) For all overtime in excess of eight
hours in any one day or 40 hours in any one week when the work week is five
consecutive days, Monday through Friday; or
     (B) For all overtime in excess of 10 hours
in any one day or 40 hours in any one week when the work week is four
consecutive days, Monday through Friday; and
     (b) For all work performed on Saturday and
on the following legal holidays:
     (A) Each Sunday.
     (B) New Year’s Day on January 1.
     (C) Memorial Day on the last Monday in
May.
     (D) Independence Day on July 4.
     (E) Labor Day on the first Monday in September.
     (F) Thanksgiving Day on the fourth
Thursday in November.
     (G) Christmas Day on December 25.
     (2) An employer shall give notice in
writing to employees who perform work under subsection (1) of this section,
either at the time of hire or before commencement of work on the contract, or
by posting a notice in a location frequented by employees, of the number of
hours per day and days per week that employees may be required to work.
     (3) For the purpose of this section, each
time a legal holiday, other than Sunday, listed in subsection (1) of this
section falls on Sunday, the succeeding Monday shall be recognized as a legal
holiday. Each time a legal holiday listed in subsection (1) of this section
falls on Saturday, the preceding Friday shall be recognized as a legal holiday.
     (4) Subsections (1) to (3) of this section
do not apply to a public improvement contract or a contract for services if the
contractor is a party to a collective bargaining agreement in effect with any
labor organization.
     (5) When specifically agreed to under a
written labor-management negotiated labor agreement, an employee may be paid at
least time and a half pay for work performed on any legal holiday specified in
ORS 187.010 and 187.020 that is not listed in subsection (1) of this section.
     (6) This section does not apply to
contracts for personal services as defined in ORS 279C.100, provided that
persons employed under such contracts shall receive at least time and a half
pay for work performed on the legal holidays specified in subsection (1)(b)(B)
to (G) of this section and for all overtime worked in excess of 40 hours in any
one week, except for individuals under personal services contracts who are
excluded under ORS 653.010 to 653.261 or under 29 U.S.C. 201 to 209 from receiving
overtime.
     (7) Subsections (1) and (2) of this
section do not apply to contracts for services at a county fair or for other
events authorized by a county fair board if persons employed under the contract
receive at least time and a half for work in excess of 10 hours in any one day
or 40 hours in any one week.
     (8)(a) Subsections (1) and (2) of this
section do not apply to contracts for services. However, persons employed under
such contracts shall receive at least time and a half pay for work performed on
the legal holidays specified in a collective bargaining agreement or in
subsection (1)(b)(B) to (G) of this section and for all time worked in excess
of 10 hours in any one day or in excess of 40 hours in any one week, whichever
is greater.
     (b) An employer shall give notice in
writing to employees who work on a contract for services, either at the time of
hire or before commencement of work on the contract, or by posting a notice in
a location frequented by employees, of the number of hours per day and days per
week that the employees may be required to work.
     (9) Any contractor or subcontractor or
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 results 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 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) In accordance with ORS chapter 183,
the Commissioner of the Bureau of Labor and Industries may adopt rules to carry
out the provisions of this section. [2003 c.794 §144; 2005 c.103 §31]
     279C.545
Time limitation on claim for overtime; posting of circular by contractor. When labor is employed by the state or a
county, school district, municipality, municipal corporation or subdivision
thereof through another as a contractor, any worker employed by the contractor
shall be foreclosed from the right to collect for any overtime provided in ORS
279C.540 unless a claim for payment is filed with the contractor within 90 days
from the completion of the contract, providing the contractor has:
     (1) Caused a circular clearly printed in
boldfaced 12-point type and containing a copy of this section to be posted in a
prominent place alongside the door of the timekeeperÂ’s office or in a similar
place that is readily available and freely visible to workers employed on the
work.
     (2) Maintained the circular continuously
posted from the inception to the completion of the contract on which workers
are or have been employed. [2003 c.794 §145]
(Retainage and
Payments)
     279C.550
“Retainage” defined. As used
in ORS 279C.550 to 279C.570, “retainage” means the difference between the
amount earned by a contractor on a public improvement contract and the amount
paid on the contract by the contracting agency. [2003 c.794 §146; 2005 c.103 §32]
     279C.555
Withholding of retainage.
The withholding of retainage by a contractor or subcontractor on public
improvement contracts shall be in accordance with ORS 701.420 and 701.430
except when the charter of the contracting agency contains provisions requiring
retainage by the contracting agency of more than five percent of the contract
price of the work completed. [2003 c.794 §147]
     279C.560
Form of retainage. (1)
Moneys retained by a contracting agency under ORS 279C.570 (7) shall be:
     (a) Retained in a fund by the contracting
agency and paid to the contractor in accordance with ORS 279C.570; or
     (b) At the option of the contractor, paid
to the contractor in accordance with subsection (3) or (4) of this section and
in a manner authorized by the Director of the Oregon Department of
Administrative Services.
     (2) If the contracting agency incurs
additional costs as a result of the exercise of the options described in
subsection (1) of this section, the contracting agency may recover such costs
from the contractor by reduction of the final payment. As work on the contract
progresses, the contracting agency shall, upon demand, inform the contractor of
all accrued costs.
     (3) The contractor may deposit bonds or
securities with the contracting agency or in any bank or trust company to be
held in lieu of the cash retainage for the benefit of the contracting agency.
In such event the contracting agency shall reduce the retainage in an amount
equal to the value of the bonds and securities and pay the amount of the
reduction to the contractor in accordance with ORS 279C.570. Interest on the
bonds or securities shall accrue to the contractor.
     (4) If the contractor elects, the
retainage as accumulated shall be deposited by the contracting agency in an
interest-bearing account in a bank, savings bank, trust company or savings
association for the benefit of the contracting agency. When the contracting
agency is a state contracting agency, the account shall be established through
the State Treasurer. Earnings on the account shall accrue to the contractor.
     (5) Bonds and securities deposited or
acquired in lieu of retainage, as permitted by this section, shall be of a
character approved by the Director of the Oregon Department of Administrative
Services, including but not limited to:
     (a) Bills, certificates, notes or bonds of
the
     (b) Other obligations of the
     (c) Obligations of any corporation wholly
owned by the federal government.
     (d) Indebtedness of the Federal National
Mortgage Association.
     (6) The contractor, with the approval of
the contracting agency, may deposit a surety bond for all or any portion of the
amount of funds retained, or to be retained, by the contracting agency in a
form acceptable to the contracting agency. The bond and any proceeds therefrom
shall be made subject to all claims and liens and in the same manner and
priority as set forth for retainage under ORS 279C.550 to 279C.570 and 279C.600
to 279C.625. The contracting agency shall reduce the retainage in an amount
equal to the value of the bond and pay the amount of the reduction to the
contractor in accordance with ORS 279C.570. Whenever a contracting agency
accepts a surety bond from a contractor in lieu of retainage, the contractor
shall accept like bonds from any subcontractor or supplier from which the
contractor has retainage. The contractor shall then reduce the retainage in an
amount equal to the value of the bond and pay the amount of the reduction to
the subcontractor or supplier. [2003 c.794 §148]
     279C.565
Limitation on retainage requirements. Unless otherwise specifically included by statute, the provisions of
ORS 279C.560 or 279C.625 apply only as between the contracting agency or public
body and the party with whom it contracts. [2003 c.794 §149]
     279C.570
Prompt payment policy; progress payments; retainage; interest; exception;
settlement of compensation disputes. (1) It is the policy of the State of
     (2) Contracting agencies shall make
progress payments on the contract monthly as work progresses on a public
improvement contract. Payments shall be based upon estimates of work completed
that are approved by the contracting agency. A progress payment is not
considered acceptance or approval of any work or waiver of any defects therein.
The contracting agency shall pay to the contractor interest on the progress
payment, not including retainage, due the contractor. The interest shall
commence 30 days after receipt of the invoice from the contractor or 15 days
after the payment is approved by the contracting agency, whichever is the
earlier date. The rate of interest charged to the contracting agency on the
amount due shall equal three times the discount rate on 90-day commercial paper
in effect at the Federal Reserve Bank in the Federal Reserve district that
includes Oregon on the date that is 30 days after receipt of the invoice from
the contractor or 15 days after the payment is approved by the contracting
agency, whichever is the earlier date, but the rate of interest may not exceed
30 percent.
     (3) Interest shall be paid automatically
when payments become overdue. The contracting agency shall document, calculate
and pay any interest due when payment is made on the principal. Interest
payments shall accompany payment of net due on public improvement contracts.
The contracting agency may not require the contractor to petition, invoice,
bill or wait additional days to receive interest due.
     (4) When an invoice is filled out
incorrectly, when there is any defect or impropriety in any submitted invoice
or when there is a good faith dispute, the contracting agency shall so notify
the contractor within 15 days stating the reason or reasons the invoice is
defective or improper or the reasons for the dispute. A defective or improper
invoice, if corrected by the contractor within seven days of being notified by
the contracting agency, may not cause a payment to be made later than specified
in this section unless interest is also paid.
     (5) If requested in writing by a
first-tier subcontractor, the contractor, within 10 days after receiving the
request, shall send to the first-tier subcontractor a copy of that portion of
any invoice, request for payment submitted to the contracting agency or pay
document provided by the contracting agency to the contractor specifically
related to any labor or materials supplied by the first-tier subcontractor.
     (6) Payment of interest may be postponed
when payment on the principal is delayed because of disagreement between the
contracting agency and the contractor. Whenever a contractor brings formal
administrative or judicial action to collect interest due under this section,
the prevailing party is entitled to costs and reasonable attorney fees.
     (7) A contracting agency may reserve as
retainage from any progress payment on a public improvement contract an amount
not to exceed five percent of the payment. As work progresses, a contracting
agency may reduce the amount of the retainage and the contracting agency may
eliminate retainage on any remaining monthly contract payments after 50 percent
of the work under the contract is completed if, in the contracting agencyÂ’s
opinion, such work is progressing satisfactorily. Elimination or reduction of
retainage shall be allowed only upon written application by the contractor, and
the application shall include written approval of the contractorÂ’s surety.
However, when the contract work is 97.5 percent completed the contracting
agency may, at the contracting agencyÂ’s discretion and without application by
the contractor, reduce the retained amount to 100 percent of the value of the
contract work remaining to be done. Upon receipt of a written application by
the contractor, the contracting agency shall respond in writing within a
reasonable time.
     (8) The retainage held by a contracting
agency shall be included in and paid to the contractor as part of the final
payment of the contract price. The contracting agency shall pay to the
contractor interest at the rate of 1.5 percent per month on the final payment
due the contractor, interest to commence 30 days after the work under the
contract has been completed and accepted and to run until the date when the
final payment is tendered to the contractor. The contractor shall notify the
contracting agency in writing when the contractor considers the work complete
and the contracting agency shall, within 15 days after receiving the written
notice, either accept the work or notify the contractor of work yet to be
performed on the contract. If the contracting agency does not, within the time
allowed, notify the contractor of work yet to be performed to fulfill
contractual obligations, the interest provided by this subsection shall
commence to run 30 days after the end of the 15-day period.
     (9)(a) The contracting agency shall pay,
upon settlement or judgment in favor of the contractor regarding any dispute as
to the compensation due a contractor for work performed under the terms of a
public improvement contract, the amount due plus interest at the rate of two
times the discount rate, but not to exceed 30 percent, on 90-day commercial
paper in effect at the Federal Reserve Bank in the Federal Reserve district
that includes Oregon on the date of the settlement or judgment, and accruing
from the later of:
     (A) The due date of any progress payment
received under the contract for the period in which such work was performed; or
     (B) Thirty days after the date on which
the claim for the payment under dispute was presented to the contracting agency
by the contractor in writing or in accordance with applicable provisions of the
contract.
     (b) Interest shall be added to and not
made a part of the settlement or judgment. [2003 c.794 §150; 2005 c.103 §33]
(Subcontractors)
     279C.580
ContractorÂ’s relations with subcontractors. (1) A contractor may not request payment from the contracting agency
of any amount withheld or retained in accordance with subsection (5) of this
section until such time as the contractor has determined and certified to the
contracting agency that the subcontractor has determined and certified to the
contracting agency that the subcontractor is entitled to the payment of such
amount.
     (2) A dispute between a contractor and
first-tier subcontractor relating to the amount or entitlement of a first-tier
subcontractor to a payment or a late payment interest penalty under a clause
included in the subcontract under subsection (3) or (4) of this section does
not constitute a dispute to which the contracting agency is a party. The
contracting agency may not be included as a party in any administrative or
judicial proceeding involving such a dispute.
     (3) Each public improvement contract
awarded by a contracting agency shall include a clause that requires the
contractor to include in each subcontract for property or services entered into
by the contractor and a first-tier subcontractor, including a material
supplier, for the purpose of performing a construction contract:
     (a) A payment clause that obligates the
contractor to pay the first-tier subcontractor for satisfactory performance
under its subcontract within 10 days out of such amounts as are paid to the
contractor by the contracting agency under the contract; and
     (b) An interest penalty clause that
obligates the contractor, if payment is not made within 30 days after receipt
of payment from the contracting agency, to pay to the first-tier subcontractor
an interest penalty on amounts due in the case of each payment not made in
accordance with the payment clause included in the subcontract under paragraph
(a) of this subsection. A contractor or first-tier subcontractor may not be
obligated to pay an interest penalty if the only reason that the contractor or
first-tier subcontractor did not make payment when payment was due is that the
contractor or first-tier subcontractor did not receive payment from the
contracting agency or contractor when payment was due. The interest penalty shall
be:
     (A) For the period beginning on the day
after the required payment date and ending on the date on which payment of the
amount due is made; and
     (B) Computed at the rate specified in ORS
279C.515 (2).
     (4) The contract awarded by the
contracting agency shall require the contractor to include in each of the
contractorÂ’s subcontracts, for the purpose of performance of such contract
condition, a provision requiring the first-tier subcontractor to include a
payment clause and an interest penalty clause conforming to the standards of
subsection (3) of this section in each of the first-tier subcontractorÂ’s
subcontracts and to require each of the first-tier subcontractorÂ’s
subcontractors to include such clauses in their subcontracts with each
lower-tier subcontractor or supplier.
     (5)(a) The clauses required by subsections
(3) and (4) of this section are not intended to impair the right of a
contractor or a subcontractor at any tier to negotiate, and to include in the
subcontract, provisions that:
     (A) Permit the contractor or a
subcontractor to retain, in the event of a good faith dispute, an amount not to
exceed 150 percent of the amount in dispute from the amount due a subcontractor
under the subcontract without incurring any obligation to pay a late payment
interest penalty, in accordance with terms and conditions agreed to by the
parties to the subcontract, giving such recognition as the parties consider
appropriate to the ability of a subcontractor to furnish a performance bond and
a payment bond;
     (B) Permit the contractor or subcontractor
to make a determination that part or all of the subcontractorÂ’s request for
payment may be withheld in accordance with the subcontract agreement; and
     (C) Permit such withholdings without
incurring any obligation to pay a late payment interest penalty if:
     (i) A notice conforming to the standards
of subsection (8) of this section has been previously furnished to the
subcontractor; and
     (ii) A copy of any notice issued by a
contractor under sub-subparagraph (i) of this subparagraph has been furnished
to the contracting agency.
     (b) As used in this subsection, “good
faith dispute” means a documented dispute concerning:
     (A) Unsatisfactory job progress.
     (B) Defective work not remedied.
     (C) Third-party claims filed or reasonable
evidence that claims will be filed.
     (D) Failure to make timely payments for
labor, equipment and materials.
     (E) Damage to the prime contractor or
subcontractor.
     (F) Reasonable evidence that the
subcontract cannot be completed for the unpaid balance of the subcontract sum.
     (6) If, after making application to a
contracting agency for payment under a contract but before making a payment to
a subcontractor for the subcontractorÂ’s performance covered by such
application, a contractor discovers that all or a portion of the payment
otherwise due the subcontractor is subject to withholding from the
subcontractor in accordance with the subcontract agreement, the contractor
shall:
     (a) Furnish to the subcontractor a notice
conforming to the standards of subsection (8) of this section as soon as
practicable upon ascertaining the cause giving rise to a withholding, but prior
to the due date for subcontractor payment;
     (b) Furnish to the contracting agency, as
soon as practicable, a copy of the notice furnished to the subcontractor under
paragraph (a) of this subsection;
     (c) Reduce the subcontractor’s progress
payment by an amount not to exceed the amount specified in the notice of
withholding furnished under paragraph (a) of this subsection;
     (d) Pay the subcontractor as soon as
practicable after the correction of the identified subcontract performance
deficiency;
     (e) Make such payment within:
     (A) Seven days after correction of the
identified subcontract performance deficiency unless the funds therefor must be
recovered from the contracting agency because of a reduction under paragraph
(f)(A) of this subsection; or
     (B) Seven days after the contractor
recovers such funds from the contracting agency;
     (f) Notify the contracting agency upon:
     (A) Reduction of the amount of any
subsequent certified application for payment; or
     (B) Payment to the subcontractor of any
withheld amounts of a progress payment, specifying:
     (i) The amounts of the progress payments
withheld under paragraph (a) of this subsection; and
     (ii) The dates that such withholding began
and ended; and
     (g) Be obligated to pay to the contracting
agency an amount equal to interest on the withheld payments computed in the
manner provided in ORS 279C.570 from the 11th day after receipt of the withheld
amounts from the contracting agency until:
     (A) The day the identified subcontractor
performance deficiency is corrected; or
     (B) The date that any subsequent payment
is reduced under paragraph (f)(A) of this subsection.
     (7)(a) If a contractor, after making
payment to a first-tier subcontractor, receives from a supplier or
subcontractor of the first-tier subcontractor a written notice asserting a
deficiency in such first-tier subcontractorÂ’s performance under the contract
for which the contractor may be ultimately liable and the contractor determines
that all or a portion of future payments otherwise due such first-tier
subcontractor is subject to withholding in accordance with the subcontract
agreement, the contractor may, without incurring an obligation to pay a late
payment interest penalty under subsection (6)(e) of this section:
     (A) Furnish to the first-tier
subcontractor a notice conforming to the standards of subsection (8) of this
section as soon as practicable upon making such determination; and
     (B) Withhold from the first-tier
subcontractorÂ’s next available progress payment or payments an amount not to
exceed the amount specified in the notice of withholding furnished under
subparagraph (A) of this paragraph.
     (b) As soon as practicable, but not later
than 10 days after receipt of satisfactory written notification that the
identified subcontract performance deficiency has been corrected, the
contractor shall pay the amount withheld under paragraph (a)(B) of this
subsection to such first-tier subcontractor, or shall incur an obligation to
pay a late payment interest penalty to such first-tier subcontractor computed
at the rate specified in ORS 279C.570.
     (8) A written notice of any withholding
shall be issued to a subcontractor, with a copy to the contracting agency of
any such notice issued by a contractor, specifying:
     (a) The amount to be withheld;
     (b) The specified causes for the
withholding under the terms of the subcontract; and
     (c) The remedial actions to be taken by
the subcontractor in order to receive payment of the amounts withheld.
     (9) Except as provided in subsection (2)
of this section, this section does not limit or impair any contractual,
administrative or judicial remedies otherwise available to a contractor or a
subcontractor in the event of a dispute involving late payment or nonpayment by
a contractor or deficient performance or nonperformance by a subcontractor.
     (10) A contractor’s obligation to pay a
late payment interest penalty to a subcontractor under the clause included in a
subcontract under subsection (3) or (4) of this section is not intended to be
an obligation of the contracting agency. A contract modification may not be
made for the purpose of providing reimbursement of such late payment interest
penalty. A cost reimbursement claim may not include any amount for
reimbursement of such late payment interest penalty. [2003 c.794 §151; 2005
c.103 §34]
     279C.585
Authority to substitute undisclosed first-tier subcontractor; circumstances;
rules. A contractor whose
bid is accepted may substitute a first-tier subcontractor that was not
disclosed under ORS 279C.370 by submitting the name of the new subcontractor
and the reason for the substitution in writing to the contracting agency. A
contractor may substitute a first-tier subcontractor under this section in the
following circumstances:
     (1) When the subcontractor disclosed under
ORS 279C.370 fails or refuses to execute a written contract after having had a
reasonable opportunity to do so after the written contract, which must be
reasonably based upon the general terms, conditions, plans and specifications
for the public improvement project or the terms of the subcontractorÂ’s written
bid, is presented to the subcontractor by the contractor.
     (2) When the disclosed subcontractor becomes
bankrupt or insolvent.
     (3) When the disclosed subcontractor fails
or refuses to perform the subcontract.
     (4) When the disclosed subcontractor fails
or refuses to meet the bond requirements of the contractor that had been
identified prior to the bid submittal.
     (5) When the contractor demonstrates to
the contracting agency that the subcontractor was disclosed as the result of an
inadvertent clerical error.
     (6) When the disclosed subcontractor does
not hold a license from the Construction Contractors Board and is required to
be licensed by the board.
     (7) When the contractor determines that
the work performed by the disclosed subcontractor is substantially
unsatisfactory and not in substantial accordance with the plans and
specifications or that the subcontractor is substantially delaying or
disrupting the progress of the work.
     (8) When the disclosed subcontractor is
ineligible to work on a public improvement contract under applicable statutory
provisions.
     (9) When the substitution is for good
cause. The Construction Contractors Board shall define “good cause” by rule. “Good
cause” includes but is not limited to the financial instability of a
subcontractor. The definition of “good cause” must reflect the least-cost
policy for public improvements established in ORS 279C.305.
     (10) When the substitution is reasonably
based on the contract alternates chosen by the contracting agency. [2003 c.794 §152]
     Note: The amendments to 279C.585 by section 45,
chapter 836, Oregon Laws 2007, become operative July 1, 2010. See section 70,
chapter 836, Oregon Laws 2007. The text that is operative on and after July 1,
2010, is set forth for the userÂ’s convenience.
     279C.585. A contractor whose bid is accepted may
substitute a first-tier subcontractor that was not disclosed under ORS 279C.370
by submitting the name of the new subcontractor and the reason for the
substitution in writing to the contracting agency. A contractor may substitute
a first-tier subcontractor under this section in the following circumstances:
     (1) When the subcontractor disclosed under
ORS 279C.370 fails or refuses to execute a written contract after having had a
reasonable opportunity to do so after the written contract, which must be
reasonably based upon the general terms, conditions, plans and specifications
for the public improvement project or the terms of the subcontractorÂ’s written
bid, is presented to the subcontractor by the contractor.
     (2) When the disclosed subcontractor
becomes bankrupt or insolvent.
     (3) When the disclosed subcontractor fails
or refuses to perform the subcontract.
     (4) When the disclosed subcontractor fails
or refuses to meet the bond requirements of the contractor that had been
identified prior to the bid submittal.
     (5) When the contractor demonstrates to
the contracting agency that the subcontractor was disclosed as the result of an
inadvertent clerical error.
     (6) When the disclosed subcontractor does
not hold a license from, or has a license that is not properly endorsed by, the
Construction Contractors Board and is required to be licensed by the board.
     (7) When the contractor determines that
the work performed by the disclosed subcontractor is substantially
unsatisfactory and not in substantial accordance with the plans and
specifications or that the subcontractor is substantially delaying or
disrupting the progress of the work.
     (8) When the disclosed subcontractor is
ineligible to work on a public improvement contract under applicable statutory
provisions.
     (9) When the substitution is for good
cause. The Construction Contractors Board shall define “good cause” by rule. “Good
cause” includes but is not limited to the financial instability of a
subcontractor. The definition of “good cause” must reflect the least-cost
policy for public improvements established in ORS 279C.305.
     (10) When the substitution is reasonably
based on the contract alternates chosen by the contracting agency.
     279C.590
Complaint process for substitutions of subcontractors; civil penalties. (1)(a) A subcontractor disclosed under ORS
279C.370 may file a complaint based on the subcontractor disclosure
requirements under ORS 279C.370 with the Construction Contractors Board about a
contractor if the contractor has substituted another subcontractor for the
complaining subcontractor.
     (b) If more than one subcontractor files a
complaint with the board under paragraph (a) of this subsection relating to a
single subcontractor disclosure, the board shall consolidate the complaints
into one proceeding. If the board imposes a civil penalty under this section
against a contractor, the amount collected by the board shall be divided evenly
among all of the complaining subcontractors.
     (c) Each subcontractor filing a complaint
under paragraph (a) of this subsection shall post a deposit of $500 with the
board upon filing the complaint.
     (d) If the board determines that a
contractorÂ’s substitution was not in compliance with ORS 279C.585, the board
shall return the full amount of the deposit posted under paragraph (c) of this
subsection to the complaining subcontractor.
     (e) If the board determines that a
contractor has not substituted a subcontractor or that the contractorÂ’s
substitution was in compliance with ORS 279C.585, the board shall award the
contractor $250 of the deposit and shall retain the other $250, which may be
expended by the board.
     (2) Upon receipt of a complaint under
subsection (1) of this section, the board shall investigate the complaint. If
the board determines that a contractor has substituted a subcontractor in a
manner not in compliance with ORS 279C.585, the board may impose a civil
penalty against the contractor under subsections (3) to (5) of this section.
Civil penalties under this section shall be imposed in the manner provided
under ORS 183.745.
     (3) If the board imposes a civil penalty
under subsection (2) of this section and it is the first time the board has
imposed a civil penalty under subsection (2) of this section against the
contractor during a three-year period, the board shall:
     (a) Impose a civil penalty on the
contractor of up to 10 percent of the amount of the subcontract bid submitted
by the complaining subcontractor to the contractor or $15,000, whichever is
less. Amounts collected by the board under this paragraph shall be awarded to
the complaining subcontractor or subcontractors; and
     (b) Impose a civil penalty on the
contractor of up to $1,000. Amounts collected by the board under this paragraph
shall be retained by the board and may be expended by the board.
     (4) If the board imposes a civil penalty
under subsection (2) of this section and it is the second time the board has
imposed a civil penalty under subsection (2) of this section against the
contractor during a three-year period, the board may:
     (a) Impose a civil penalty on the
contractor of up to 10 percent of the amount of the subcontract bid submitted
by the complaining subcontractor to the contractor or $15,000, whichever is
less. Amounts collected by the board under this paragraph shall be awarded to
the complaining subcontractor or subcontractors; and
     (b) Impose a civil penalty on the
contractor of up to $1,000 and shall place the contractor on the list
established under ORS 701.227 for up to six months. Amounts collected by the
board under this paragraph shall be retained by the board and may be expended by
the board.
     (5) If the board imposes a civil penalty
under subsection (2) of this section and the board has imposed a civil penalty
under subsection (2) of this section against the contractor three or more times
during a three-year period, the board may:
     (a) Impose a civil penalty on the
contractor of up to 10 percent of the amount of the subcontract bid submitted
by the complaining subcontractor to the contractor or $15,000, whichever is
less. Amounts collected by the board under this paragraph shall be awarded to
the complaining subcontractor or subcontractors; and
     (b) Impose a civil penalty on the
contractor of up to $1,000 and shall place the contractor on the list
established under ORS 701.227 for up to one year. Amounts collected by the
board under this paragraph shall be retained by the board and may be expended
by the board.
     (6) Within 10 working days after receiving
a complaint under subsection (1) of this section, the board shall notify, in
writing, any contracting agency that is a party to the contract for which the
complaint has been filed that the complaint has been filed. [2003 c.794 §153]
(Action on Payment
Bonds and Public Works Bonds)
     279C.600
Right of action on payment bond or public works bond of contractor or subcontractor;
notice of claim. (1) A
person claiming to have supplied labor or materials for the performance of the
work provided for in a public contract, including any person having a direct
contractual relationship with the contractor furnishing the payment bond or a
direct contractual relationship with any subcontractor, or an assignee of such
person, or a person claiming moneys due the State Accident Insurance Fund
Corporation, the Unemployment Compensation Trust Fund or the Department of
Revenue in connection with the performance of the contract, has a right of
action on the contractorÂ’s payment bond as provided for in ORS 279C.380 and
279C.400 only if:
     (a) The person or the assignee of the
person has not been paid in full; and
     (b) The person gives written notice of
claim, as prescribed in ORS 279C.605, to the contractor and the contracting
agency.
     (2) When, upon investigation, the
Commissioner of the Bureau of Labor and Industries has received information
indicating that one or more workers providing labor on a public works have not
been paid in full at the prevailing rate of wage or overtime wages, the
commissioner has a right of action first on the contractorÂ’s public works bond
required under ORS 279C.836 and then, for any amount of a claim not satisfied
by the public works bond, on the contractorÂ’s payment bond, as provided in ORS
279C.380 and 279C.400. When an investigation indicates that a subcontractorÂ’s
workers have not been paid in full at the prevailing rate of wage or overtime
wages, the commissioner has a right of action first on the subcontractorÂ’s
public works bond and then, for any amount of a claim not satisfied by the
subcontractorÂ’s public works bond, on the contractorÂ’s payment bond. The
commissionerÂ’s right of action exists without necessity of an assignment and
extends to workers on the project who are not identified when the written
notice of claim is given, but for whom the commissioner has received
information indicating that the workers have provided labor on the public works
and have not been paid in full. The commissioner shall give written notice of
the claim, as prescribed in ORS 279C.605, to the contracting agency, the
Construction Contractors Board, the contractor and, if applicable, the
subcontractor. The commissioner may not make a claim for the same unpaid wages
against more than one bond under this section. [2003 c.794 §154; 2005 c.360 §3]
     279C.605
Notice of claim. (1) The
notice of claim required by ORS 279C.600 must be sent by registered or
certified mail or hand delivered no later than 120 days after the day the
person last provided labor or furnished materials or 120 days after the worker
listed in the notice of claim by the Commissioner of the Bureau of Labor and
Industries last provided labor. The notice may be sent or delivered to the contractor
or subcontractor at any place the contractor or subcontractor maintains an
office or conducts business or at the residence of the contractor or
subcontractor.
     (2) Notwithstanding subsection (1) of this
section, if the claim is for a required contribution to a fund of any employee
benefit plan, the notice required by ORS 279C.600 must be sent or delivered
within 150 days after the employee last provided labor or materials.
     (3) The notice must be in writing
substantially as follows:
______________________________________________________________________________
     To (here insert the name of the contractor
or subcontractor and the name of the public body):
     Notice hereby is given that the
undersigned (here insert the name of the claimant) has a claim for (here insert
a brief description of the labor or materials performed or furnished and the
person by whom performed or furnished; if the claim is for other than labor or
materials, insert a brief description of the claim) in the sum of (here insert
the amount) dollars against the (here insert public works bond or payment bond,
as applicable) taken from (here insert the name of the principal and, if known,
the surety or sureties upon the public works bond or payment bond) for the work
of (here insert a brief description of the work concerning which the public
works bond or payment bond was taken). Such material or labor was supplied to
(here insert the name of the contractor or subcontractor).
_____________________
 (here to be signed)
______________________________________________________________________________
     (4) When notice of claim is given by the
commissioner and if the claim includes a worker who is then unidentified, the
commissioner shall include in the notice a statement that the claim includes an
unidentified worker for whom the commissioner has received information
indicating that the worker has not been paid in full at the prevailing rate of
wage required by ORS 279C.840 or overtime wages required by ORS 279C.540.
     (5) The person making the claim or giving
the notice shall sign the notice. [2003 c.794 §155; 2005 c.360 §4]
     279C.610
Action on contractorÂ’s public works bond or payment bond; time limitation. (1) The Commissioner of the Bureau of Labor
and Industries or a person who has a right of action on the public works bond
or the payment bond under ORS 279C.600 and, where required, who has filed and
served the notice or notices of claim, as required under ORS 279C.600 and
279C.605, or that personÂ’s assignee, may institute an action on the contractorÂ’s
public works bond or payment bond in a circuit court of this state or the
federal district court of the district.
     (2) The action shall be on the relation of
the commissioner, the claimant, or that personÂ’s assignee, as the case may be,
and shall be in the name of the contracting agency that let the contract or,
when applicable, the public agency or agencies for whose benefit the contract
was let. It may be prosecuted to final judgment and execution for the use and
benefit of the commissioner or the claimant, or that personÂ’s assignee, as the
fact may appear.
     (3) The action shall be instituted no
later than two years after the person last provided labor or materials or two
years after the worker listed in the commissionerÂ’s notice of claim last provided
labor. [2003 c.794 §156; 2005 c.360 §5]
     279C.615
Preference for labor and material liens. All labor and material liens have preference and are superior to all
other liens and claims of any kind or nature created by ORS 279C.500 to
279C.530 and 279C.600 to 279C.625. [2003 c.794 §157]
     279C.620
Rights of person providing medical care to employees of contractor. A person providing medical, surgical or
hospital care services or other needed care and attention, incident to sickness
or injury, to the employees of a contractor or subcontractor on a public
contract is deemed to have performed labor on the public contract for the
purposes of ORS 279C.600 to 279C.625. [2003 c.794 §158]
     279C.625
Joint liability when payment bond not executed. If the public improvement contract is one
for which a payment bond as provided for in ORS 279C.380 and 279C.400 is
required and the contractor fails to pay for labor or materials or to pay
claims due the Industrial Accident Fund, the Unemployment Compensation Trust Fund
or the Department of Revenue and the officers of the public body that
authorized the contract fail or neglect to require the person entering into the
contract to execute the payment bond:
     (1) The State of
     (2) The public body and the officers
authorizing the contract shall be jointly liable for the labor and materials
used in the performance of any work under the contract and for claims due the
Industrial Accident Fund, the Unemployment Compensation Trust Fund and the
Department of Revenue, if the contract was entered into on behalf of a public
body other than the state. [2003 c.794 §159; 2005 c.103 §35]
(Termination or
Suspension of Contract for Public Interest Reasons)
     279C.650
“Labor dispute” defined. As
used in ORS 279C.650 to 279C.670, “labor dispute” has the meaning given that
term in ORS 662.010. [2003 c.794 §160]
     279C.655
Extension and compensation when work suspended. If a public contract is not terminated but work
under the contract is suspended by an order of a contracting agency for any
reason considered to be in the public interest other than a labor dispute or
any third-party judicial proceeding relating to the work other than a suit or
action filed in regards to a labor dispute, the contractor is entitled to a
reasonable extension of the contract time and reasonable compensation for all
costs resulting from the suspension plus a reasonable allowance for overhead
with respect to such costs. [2003 c.794 §161]
     279C.660
Compensation when contract terminated due to public interest. When a public contract is terminated by
mutual agreement, provision shall be made for the payment of compensation to
the contractor. In addition to a reasonable amount of compensation for
preparatory work and for all costs and expenses arising out of termination, the
amount to be paid to the contractor:
     (1) Shall be determined on the basis of
the contract price in the case of any fully completed separate item or portion
of the work for which there is a separate or unit contract price; and
     (2) May, with respect to any other work,
be a percent of the contract price equal to the percentage of the work
completed. [2003 c.794 §162]
     279C.665
Contractual provisions for compensation when contract terminated due to public
interest. A contracting
agency may provide in a public improvement contract detailed provisions under
which the contractor shall be entitled, as a matter of right, to compensation
upon termination of the contract on account of any reason considered to be in
the public interest. [2003 c.794 §163]
     279C.670
Application of ORS 279C.650 to 279C.670. ORS 279C.650 to 279C.670 do not apply to suspension of the work or
termination of the contract that occurs as a result of the contractorÂ’s
violation of federal, state or local statutes, ordinances, rules or regulations
in existence at the time the contract was executed or as a result of violations
of the terms of the contract. [2003 c.794 §164]
PREVAILING WAGE
RATE
     279C.800
Definitions for ORS 279C.800 to 279C.870. As used in ORS 279C.800 to 279C.870, unless the context requires
otherwise:
     (1) “Fringe benefits” means the amount of:
     (a) The rate of contribution irrevocably
made by a contractor or subcontractor to a trustee or to a third person under a
plan, fund or program; and
     (b) The rate of costs to the contractor or
subcontractor that may be reasonably anticipated in providing benefits to
workers pursuant to an enforceable commitment to carry out a financially
responsible plan or program that is committed in writing to the workers
affected, for medical or hospital care, pensions on retirement or death,
compensation for injuries or illness resulting from occupational activity, or
insurance to provide any of the foregoing, for unemployment benefits, life
insurance, disability and sickness insurance or accident insurance, for
vacation and holiday pay, for defraying costs of apprenticeship or other
similar programs or for other bona fide fringe benefits, but only when the
contractor or subcontractor is not required by other federal, state or local
law to provide any of these benefits.
     (2) “Housing” has the meaning given that
term in ORS 456.055.
     (3) “Locality” means the following
district in which the public works, or the major portion thereof, is to be
performed:
     (a) District 1, composed of Clatsop,
     (b) District 2, composed of Clackamas,
Multnomah and Washington Counties;
     (c) District 3, composed of
     (d) District 4, composed of
     (e) District 5, composed of
     (f) District 6, composed of
     (g) District 7, composed of Coos and
     (h) District 8, composed of
     (i) District 9, composed of
     (j) District 10, composed of Crook,
Deschutes and
     (k) District 11, composed of Klamath and
     (L) District 12, composed of Gilliam,
Grant, Morrow, Umatilla and
     (m) District 13, composed of Baker, Union
and
     (n) District 14, composed of Harney and
     (4) “Prevailing rate of wage” means the
rate of hourly wage, including all fringe benefits, paid in the locality to the
majority of workers employed on projects of similar character in the same trade
or occupation, as determined by the Commissioner of the Bureau of Labor and
Industries.
     (5) “Public agency” means the State of
     (6)(a) “Public works” includes, but is not
limited to:
     (A) Roads, highways, buildings, structures
and improvements of all types, the construction, reconstruction, major
renovation or painting of which is carried on or contracted for by any public
agency to serve the public interest;
     (B) A project for the construction,
reconstruction, major renovation or painting of a privately owned road,
highway, building, structure or improvement of any type that uses funds of a
private entity and $750,000 or more of funds of a public agency; or
     (C) A project for the construction of a
privately owned road, highway, building, structure or improvement of any type
that uses funds of a private entity and in which 25 percent or more of the
square footage of the completed project will be occupied or used by a public
agency.
     (b) “Public works” does not include:
     (A) The reconstruction or renovation of
privately owned property that is leased by a public agency; or
     (B) The renovation of publicly owned real
property that is more than 75 years old by a private nonprofit entity if:
     (i) The real property is leased to the private
nonprofit entity for more than 25 years;
     (ii) Funds of a public agency used in the
renovation do not exceed 15 percent of the total cost of the renovation; and
     (iii) Contracts for the renovation were
advertised or, if not advertised, were entered into before July 1, 2003, but
the renovation has not been completed on or before July 13, 2007. [2003 c.794 §165;
2007 c.764 §34]
     279C.805
Policy. The Legislative
Assembly declares that the purposes of the prevailing rate of wage law are:
     (1) To ensure that contractors compete on
the ability to perform work competently and efficiently while maintaining
community-established compensation standards.
     (2) To recognize that local participation
in publicly financed construction and family wage income and benefits are
essential to the protection of community standards.
     (3) To encourage training and education of
workers to industry skills standards.
     (4) To encourage employers to use funds
allocated for employee fringe benefits for the actual purchase of those benefits.
[2003 c.794 §166]
     279C.807
Workforce diversity for public works projects. (1) The Bureau of Labor and Industries shall
develop and adopt a plan to increase diversity statewide among workers employed
on projects subject to ORS 279C.800 to 279C.870. The bureau shall develop the
plan after conducting a statewide public process to solicit proposals to
increase diversity and shall adopt the plan after considering proposals
submitted to the bureau.
     (2) The bureau shall report each year to
the Legislative Assembly or to the appropriate legislative interim committee
concerning progress that results from the plan adopted under this section and
may submit recommendations for legislation or other measures that will improve
diversity among workers employed on projects subject to ORS 279C.800 to
279C.870. The bureau shall submit the first report no later than January 1,
2009. [2007 c.844 §9]
     Note: 279C.807 was enacted into law by the
Legislative Assembly but was not added to or made a part of ORS chapter 279C or
any series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.
     279C.808
Rules. In accordance with
applicable provisions of ORS chapter 183, the Commissioner of the Bureau of
Labor and Industries shall adopt rules necessary to administer ORS 279C.800 to
279C.870. [2007 c.764 §45]
     279C.810
Exemptions; rules. (1) As
used in this section:
     (a) “Funds of a public agency” does not
include:
     (A) Funds provided in the form of a
government grant to a nonprofit organization, unless the government grant is
issued for the purpose of construction, reconstruction, major renovation or
painting;
     (B) Building and development permit fees
paid or waived by the public agency;
     (C) Tax credits or tax abatements;
     (D) Land that a public agency sells to a
private entity at fair market value;
     (E) The difference between:
     (i) The value of land that a public agency
sells to a private entity as determined at the time of the sale after taking
into account any plan, requirement, covenant, condition, restriction or other
limitation, exclusive of zoning or land use regulations, that the public agency
imposes on the development or use of the land; and
     (ii) The fair market value of the land if
the land is not subject to the limitations described in subparagraph (i) of
this paragraph;
     (F) Staff resources of the public agency
used to manage a project or to provide a principal source of supervision,
coordination or oversight of a project;
     (G) Staff resources of the public agency
used to design or inspect one or more components of a project;
     (H) Moneys derived from the sale of bonds
that are loaned by a state agency to a private entity, unless the moneys will
be used for a public improvement;
     (I) Value added to land as a consequence
of a public agencyÂ’s site preparation, demolition of real property or
remediation or removal of environmental contamination, except for value added
in excess of the expenses the public agency incurred in the site preparation,
demolition or remediation or removal when the land is sold for use in a project
otherwise subject to ORS 279C.800 to 279C.870; or
     (J) Bonds, or loans from the proceeds of
bonds, issued in accordance with ORS chapter 289 or ORS 441.525 to 441.595,
unless the bonds or loans will be used for a public improvement.
     (b) “Nonprofit organization” means an
organization or group of organizations described in section 501(c)(3) of the
Internal Revenue Code that is exempt from income tax under section 501(a) of
the Internal Revenue Code.
     (2) ORS 279C.800 to 279C.870 do not apply
to:
     (a) Projects for which the contract price
does not exceed $50,000. In determining the price of a project, a public
agency:
     (A) May not include the value of donated
materials or work performed on the project by individuals volunteering to the
public agency without pay; and
     (B) Shall include the value of work
performed by every person paid by a contractor or subcontractor in any manner
for the personÂ’s work on the project.
     (b) Projects for which no funds of a
public agency are directly or indirectly used. In accordance with ORS chapter
183, the Commissioner of the Bureau of Labor and Industries shall adopt rules
to carry out the provisions of this paragraph.
     (c) Projects:
     (A) That are privately owned;
     (B) That use funds of a private entity;
     (C) In which less than 25 percent of the
square footage of a completed project will be occupied or used by a public
agency; and
     (D) For which less than $750,000 of funds
of a public agency are used.
     (d) Projects for residential construction
that are privately owned and that predominantly provide affordable housing. As
used in this paragraph:
     (A) “Affordable housing” means housing
that serves occupants whose incomes are no greater than 60 percent of the area
median income or, if the occupants are owners, whose incomes are no greater
than 80 percent of the area median income.
     (B) “Predominantly” means 60 percent or
more.
     (C) “Privately owned” includes:
     (i) Affordable housing provided on real
property owned by a public agency if the real property and related structures
are leased to a private entity for 50 or more years; and
     (ii) Affordable housing owned by a
partnership, nonprofit corporation or limited liability company in which a
housing authority, as defined in ORS 456.005, is a general partner, director or
managing member and the housing authority is not a majority owner in the
partnership, nonprofit corporation or limited liability company.
     (D) “Residential construction” includes
the construction, reconstruction, major renovation or painting of single-family
houses or apartment buildings not more than four stories in height and all
incidental items, such as site work, parking areas, utilities, streets and
sidewalks, pursuant to the United States Department of Labor’s “All Agency Memorandum
No. 130: Application of the Standard of Comparison “Projects of a Character
Similar” Under Davis-Bacon and Related Acts,” dated March 17, 1978. However,
the commissioner may consider different definitions of residential construction
in determining whether a project is a residential construction project for
purposes of this paragraph, including definitions that:
     (i) Exist in local ordinances or codes; or
     (ii) Differ, in the prevailing practice of
a particular trade or occupation, from the United States Department of LaborÂ’s
description of residential construction. [2003 c.794 §172; 2005 c.153 §1; 2005
c.360 §8; 2007 c.764 §35]
     279C.815
Determination of prevailing wage; sources of information; comparison of state
and federal prevailing wage; other powers of commissioner. (1) As used in this section, “person”
includes any employer, labor organization or any official representative of an
employee or employer association.
     (2)(a) The Commissioner of the Bureau of
Labor and Industries shall determine the prevailing rate of wage for workers in
each trade or occupation in each locality described in ORS 279C.800 at least
once each year by means of an independent wage survey and make this information
available at least twice each year. The commissioner may amend the rate at any
time.
     (b) If it appears to the commissioner that
the data derived only from the survey described in paragraph (a) of this
subsection are insufficient to determine the prevailing rate of wage, the
commissioner also shall consider additional information such as collective
bargaining agreements, other independent wage surveys and the prevailing rates
of wage determined by appropriate federal agencies or agencies of adjoining
states. If there is not a majority in the same trade or occupation paid at the
same rate, the average rate of hourly wage, including all fringe benefits, paid
in the locality to workers in the same trade or occupation shall be the
prevailing rate. If the wage paid by any contractor or subcontractor to workers
on any public works is based on some period of time other than an hour, the
hourly wage shall be mathematically determined by the number of hours worked in
that period of time.
     (c) The commissioner shall compare the
prevailing rate of wage determined under paragraph (a) of this subsection with
the federal prevailing rate of wage required under the Davis-Bacon Act (40
U.S.C. 3141 et seq.) and determine which rate is higher for workers in each
trade or occupation in each locality. The commissioner shall make this information,
showing which prevailing rate of wage is higher for workers in each trade or
occupation in each locality, available at the same time as the commissioner
makes information available under paragraph (a) of this subsection.
     (3) A person shall make such reports and
returns to the Bureau of Labor and Industries as the commissioner may require
to determine the prevailing rates of wage. The reports and returns shall be
made upon forms furnished by the bureau and within the time prescribed by the
commissioner. The person or an authorized representative of the person shall
certify to the accuracy of the reports and returns.
     (4) Notwithstanding ORS 192.410 to
192.505, all reports and returns or other information provided to the
commissioner under this section are confidential and not available for
inspection by the public.
     (5) In order to assist the commissioner in
making determinations of the prevailing rates of wage, the commissioner may
enter into contracts with public or private parties to obtain relevant data and
information. Any such contract may include provisions for the manner and extent
of the market review of affected trades and occupations and such other
requirements regarding timelines of reports, accuracy of data and information
and supervision and review as the commissioner may prescribe. [2003 c.794 §173;
2005 c.360 §9; 2007 c.764 §36; 2007 c.844 §3]
     279C.817
Determination of applicability of prevailing wage rate; time limitation;
hearing; rules. (1) The
Commissioner of the Bureau of Labor and Industries shall, upon the request of a
public agency or other interested person, make a determination about whether a
project or proposed project is or would be a public works on which payment of
the prevailing rate of wage is or would be required under ORS 279C.840.
     (2) The requester shall provide the
commissioner with information necessary to enable the commissioner to make the
determination.
     (3) The commissioner shall make the
determination within 60 days after receiving the request or 60 days after the
requester has provided the commissioner with the information necessary to
enable the commissioner to make the determination, whichever is later. The
commissioner may take additional time to make the determination if the
commissioner and the requester mutually agree that the commissioner may do so.
     (4) The commissioner shall afford the
requester or a person adversely affected or aggrieved by the commissionerÂ’s
determination a hearing in accordance with ORS 183.413 to 183.470. An order the
commissioner issues under ORS 183.413 to 183.470 is subject to judicial review
as provided in ORS 183.482.
     (5) The commissioner shall adopt rules
establishing the process for requesting and making the determinations described
in this section. [2007 c.764 §43]
     279C.820
Advisory committee to assist commissioner. (1) The Commissioner of the Bureau of Labor and Industries shall
appoint an advisory committee to assist the commissioner in the administration
of ORS 279C.800 to 279C.870.
     (2) The advisory committee must include
equal representation of members from management and labor in the building and
construction industry who perform work on public works contracts and such other
interested parties as the commissioner shall appoint. [2003 c.794 §179]
     279C.825
Fees; rules. (1)(a) The
Commissioner of the Bureau of Labor and Industries, by rule, shall establish a
fee to be paid by the public agency that awards a public works contract subject
to ORS 279C.800 to 279C.870. The fee shall be used to pay the costs of:
     (A) Surveys to determine the prevailing
rates of wage;
     (B) Administering and providing
investigations under and enforcement of ORS 279C.800 to 279C.870; and
     (C) Providing educational programs on
public contracting law under the Public Contracting Code.
     (b) The fee shall be 0.1 percent of the
contract price. However, in no event may a fee be charged and collected that is
more than $5,000 or less than $100.
     (2) The commissioner shall pay moneys
received under this section into the State Treasury. The moneys shall be
credited to the Prevailing Wage Education and Enforcement Account created by
ORS 651.185.
     (3) The public agency shall pay the fee at
the time the public agency enters into the public works contract. [2003 c.794 §178;
2007 c.844 §7]
     Note: Section 8, chapter 844, Oregon Laws 2007,
provides:
     Sec.
8. Notwithstanding the
maximum and minimum fee amounts set forth in ORS 279C.825 (1)(b), for public
works contracts entered into on or after the effective date of this 2007 Act
[January 1, 2008] and before January 1, 2011, the fee charged and collected may
not be more than $7,500 or less than $250. [2007 c.844 §8]
     279C.827
Division of public works project; applicability of prevailing wage rate to divided
projects. (1)(a) A public
agency may not divide a public works project into more than one contract for
the purpose of avoiding compliance with ORS 279C.800 to 279C.870.
     (b) When the Commissioner of the Bureau of
Labor and Industries determines that a public agency has divided a public works
project into more than one contract for the purpose of avoiding compliance with
ORS 279C.800 to 279C.870, the commissioner shall issue an order compelling
compliance.
     (c) In making determinations under this
subsection, the commissioner shall consider:
     (A) The physical separation of the project
structures;
     (B) The timing of the work on project
phases or structures;
     (C) The continuity of project contractors
and subcontractors working on project parts or phases;
     (D) The manner in which the public agency
and the contractors administer and implement the project;
     (E) Whether a single public works project
includes several types of improvements or structures; and
     (F) Whether the combined improvements or
structures have an overall purpose or function.
     (2) If a project is a public works of the
type described in ORS 279C.800 (6)(a)(B) or (C), the commissioner shall divide
the project, if appropriate, after applying the considerations set forth in
subsection (1)(c) of this section to separate the parts of the project that
include funds of a public agency or that will be occupied or used by a public
agency from the parts of the project that do not include funds of a public
agency and that will not be occupied or used by a public agency. If the
commissioner divides the project, any part of the project that does not include
funds of a public agency and that will not be occupied or used by a public
agency is not subject to ORS 279C.800 to 279C.870.
     (3) If a project includes parts that are
owned by a public agency and parts that are owned by a private entity, the
commissioner shall divide the project, if appropriate, after applying the
considerations set forth in subsections (1)(c) and (2) of this section to
separate the parts of the project that are public works from the parts of the project
that are not public works. If the commissioner divides the project, parts of
the project that are not public works are not subject to ORS 279C.800 to
279C.870. [2007 c.764 §44]
     279C.830
Provisions concerning prevailing rate of wage in specifications, contracts and
subcontracts; applicability of prevailing wage; fee; bond. (1)(a) Except as provided in paragraph (d)
of this subsection, the specifications for every contract for public works
shall contain a provision stating the existing state prevailing rate of wage
and, if applicable, the federal prevailing rate of wage required under the
Davis-Bacon Act (40 U.S.C. 3141 et seq.) that may be paid to workers in each
trade or occupation required for the public works employed in the performance
of the contract either by the contractor or subcontractor or other person doing
or contracting to do the whole or any part of the work contemplated by the
contract. When the prevailing rates of wage are available electronically or are
accessible on the Internet, the rates may be incorporated into the
specifications by referring to the electronically accessible or
Internet-accessible rates and by providing adequate information about how to
access the rates.
     (b) If a public agency is required under
paragraph (a) of this subsection to include the state and federal prevailing
rates of wage in the specifications, the public agency also shall include in
the specifications information showing which prevailing rate of wage is higher
for workers in each trade or occupation in each locality, as determined by the
Commissioner of the Bureau of Labor and Industries under ORS 279C.815 (2)(c).
     (c) Every contract and subcontract shall
contain a provision that the workers shall be paid not less than the specified
minimum hourly rate of wage in accordance with ORS 279C.838 and 279C.840.
     (d) A public works project described in
ORS 279C.800 (6)(a)(B) or (C) is subject to the existing state prevailing rate
of wage or, if applicable, the federal prevailing rate of wage required under
the Davis-Bacon Act that is in effect at the time a public agency enters into
an agreement with a private entity for the project. After that time, the
specifications for any contract for the public works shall include the
applicable prevailing rate of wage.
     (2) The specifications for every contract
for public works between a public agency and a contractor shall contain a
provision stating that a fee is required to be paid to the Commissioner of the
Bureau of Labor and Industries as provided in ORS 279C.825 (1). The contract
shall contain a provision that the fee shall be paid to the commissioner under
the administrative rule of the commissioner.
     (3) The specifications for every contract
for public works shall contain a provision stating that the contractor and
every subcontractor must have a public works bond filed with the Construction
Contractors Board before starting work on the project, unless exempt under ORS
279C.836 (4), (7), (8) or (9). Every contract awarded by a contracting agency
shall contain a provision requiring the contractor:
     (a) To have a public works bond filed with
the Construction Contractors Board before starting work on the project, unless
exempt under ORS 279C.836 (4), (7), (8) or (9).
     (b) To include in every subcontract a
provision requiring the subcontractor to have a public works bond filed with
the Construction Contractors Board before starting work on the project, unless
exempt under ORS 279C.836 (4), (7), (8) or (9). [2003 c.794 §168; 2005 c.360 §10;
2007 c.415 §2; 2007 c.764 §37; 2007 c.844 §4]
     279C.835
Notifying commissioner of public works contract. Public agencies shall notify the
Commissioner of the Bureau of Labor and Industries in writing, on a form
prescribed by the commissioner, whenever a contract subject to the provisions
of ORS 279C.800 to 279C.870 has been awarded. The notification shall be made
within 30 days of the date that the contract is awarded. The notification shall
include a copy of the disclosure of first-tier subcontractors that was
submitted under ORS 279C.370. [2003 c.794 §175]
     279C.836
Public works bond; rules.
(1) Except as provided in subsection (4), (7), (8) or (9) of this section,
before starting work on a contract or subcontract for a public works project, a
contractor or subcontractor shall file with the Construction Contractors Board
a public works bond with a corporate surety authorized to do business in this
state in the amount of $30,000. The bond must provide that the contractor or
subcontractor will pay claims ordered by the Bureau of Labor and Industries to
workers performing labor upon public works projects. The bond must be a
continuing obligation, and the suretyÂ’s liability for the aggregate of claims
that may be payable from the bond may not exceed the penal sum of the bond. The
bond must remain in effect continuously until depleted by claims paid under
this section, unless the surety sooner cancels the bond. The surety may cancel
the bond by giving 30 daysÂ’ written notice to the contractor or subcontractor,
to the board and to the Bureau of Labor and Industries. When the bond is
canceled, the surety is relieved of further liability for work performed on
contracts entered into after the cancellation. The cancellation does not limit
the suretyÂ’s liability for work performed on contracts entered into before the
cancellation.
     (2) Before permitting a subcontractor to
start work on a public works project, the contractor shall verify that the
subcontractor has filed a public works bond as required under this section, has
elected not to file a public works bond under subsection (7) or (8) of this
section or is exempt under subsection (4) or (9) of this section.
     (3) A contractor or subcontractor is not
required under this section to file a separate public works bond for each
public works project for which the contractor or subcontractor has a contract.
     (4) A person that is not required under
ORS 279C.800 to 279C.870 to pay prevailing rates of wage on a public works
project is not required to file a public works bond under this section.
     (5) A public works bond required by this
section is in addition to any other bond the contractor or subcontractor is
required to obtain.
     (6) The board may, by rule, require a
contractor or subcontractor to obtain a new public works bond if a surety pays
a claim out of an existing public works bond. The new bond must be in the
amount of $30,000. The board may allow a contractor or subcontractor to obtain,
instead of a new bond, a certification that the surety remains liable for the
full penal sum of the existing bond, notwithstanding payment by the surety on
the claim.
     (7)(a) A disadvantaged, minority, women or
emerging small business enterprise certified under ORS 200.055 may, for up to
four years after certification, elect not to file a public works bond as
required under subsection (1) this section. If a business enterprise elects not
to file a public works bond, the business enterprise shall give the board
written verification of the certification and written notice that the business
enterprise elects not to file the bond.
     (b) A business enterprise that elects not
to file a public works bond under this subsection shall notify the public
agency for whose benefit the contract was awarded or, if the business
enterprise is a subcontractor, the contractor of the election before starting
work on a public works project. When a business enterprise elects not to file a
public works bond under this subsection, a claim for unpaid wages may be made
against the payment bond of the business enterprise or, if the business
enterprise is a subcontractor, the payment bond of the contractor.
     (c) An election not to file a public works
bond expires four years after the date the business enterprise is certified.
After an election has expired and before starting or continuing work on a contract
or subcontract for a public works project, the business enterprise shall file a
public works bond with the board as required under subsection (1) of this
section.
     (8) A contractor or subcontractor may
elect not to file a public works bond as required under subsection (1) of this
section for any public works project for which the contract price does not
exceed $100,000.
     (9) In cases of emergency, or when the
interest or property of the public agency for whose benefit the contract was
awarded probably would suffer material injury by delay or other cause, the
requirement for filing a public works bond may be excused, if a declaration of
the emergency is made in accordance with rules adopted under ORS 279A.065.
     (10) The board shall make available on a
searchable public website information concerning public works bonds filed with
the board, claims made on those bonds, elections made by certified business
enterprises not to file those bonds and the expiration date of each election.
The board may adopt rules necessary to perform the duties required of the board
by this section.
     (11) The Commissioner of the Bureau of
Labor and Industries, with approval of the board, shall adopt rules that
establish language for public works bonds. [2005 c.360 §2; 2007 c.415 §1; 2007
c.764 §38]
     279C.838
Applicability of state and federal rates of wage; determination of site of
project; determination of applicability of wage to transportation workers;
waiver. When a public works
project is subject to the
     (1) If the state prevailing rate of wage
is higher than the federal prevailing rate of wage, the contractor and every
subcontractor on the project shall pay at least the state prevailing rate of
wage as determined under ORS 279C.815;
     (2) The Commissioner of the Bureau of
Labor and Industries shall determine the site of the project in a manner
consistent with the term “site of the work” as that term is used in federal law
and in regulations adopted or guidelines issued in accordance with the
Davis-Bacon Act;
     (3) The commissioner shall determine in a
manner that is consistent with federal law and regulations adopted or
guidelines issued in accordance with the Davis-Bacon Act whether workers
transporting materials and supplies to and from the site of the project are
subject to the Davis-Bacon Act and are entitled to be paid the prevailing rate
of wage;
     (4) Except as provided in subsection (1)
of this section, the commissioner, in consultation with the advisory committee
appointed under ORS 279C.820, may administer and enforce ORS 279C.800 to
279C.870 in a manner that is consistent with federal law and regulations
adopted or guidelines issued in accordance with the Davis-Bacon Act. The
commissioner may provide a waiver from a requirement set forth in ORS 279C.800
to 279C.870 if necessary to achieve consistency with the Davis-Bacon Act and to
further the purposes of ORS 279C.805; and
     (5) ORS 279C.800 to 279C.870 do not apply
to workers enrolled in skill training programs that are certified by the United
States Secretary of Transportation under the Federal-Aid Highway Act (23 U.S.C.
113(c)). [2005 c.360 §7; 2007 c.844 §5]
     279C.840
Payment of prevailing rate of wage; posting of rates and fringe benefit plan
provisions. (1) The hourly
rate of wage to be paid by any contractor or subcontractor to workers upon all
public works shall be not less than the prevailing rate of wage for an hourÂ’s
work in the same trade or occupation in the locality where the labor is
performed. The obligation of a contractor or subcontractor to pay the
prevailing rate of wage may be discharged by making the payments in cash, by
the making of contributions of a type referred to in ORS 279C.800 (1)(a), or by
the assumption of an enforceable commitment to bear the costs of a plan or
program of a type referred to in ORS 279C.800 (1)(b), or any combination
thereof, where the aggregate of any such payments, contributions and costs is
not less than the prevailing rate of wage.
     (2) After a contract for public works is
executed with any contractor or work is commenced upon any public works, the
amount of the prevailing rate of wage is not subject to attack in any legal
proceeding by any contractor or subcontractor in connection with that contract.
     (3) It is not a defense in any legal
proceeding that the prevailing rate of wage is less than the amount required to
be in the specifications of a contract for public works, or that there was an
agreement between the employee and the employer to work at less than the wage
rates required to be paid under this section.
     (4) Every contractor or subcontractor
engaged on a project for which there is a contract for a public works shall
keep the prevailing rates of wage for that project posted in a conspicuous and
accessible place in or about the project. The Commissioner of the Bureau of
Labor and Industries shall furnish without charge copies of the prevailing
rates of wage to contractors and subcontractors.
     (5) Every contractor or subcontractor
engaged on a project for which there is a contract for a public works to which
the prevailing wage requirements apply that also provides or contributes to a
health and welfare plan or a pension plan, or both, for the contractor or
subcontractorÂ’s employees on the project shall post a notice describing the
plan in a conspicuous and accessible place in or about the project. The notice
preferably shall be posted in the same place as the notice required under
subsection (4) of this section. In addition to the description of the plan, the
notice shall contain information on how and where to make claims and where to
obtain further information.
     (6)(a) Except as provided in paragraph (c)
of this subsection, no person other than the contractor or subcontractor may
pay or contribute any portion of the prevailing rate of wage paid by the
contractor or subcontractor to workers employed in the performance of a public
works contract.
     (b) For the purpose of this subsection,
the prevailing rate of wage is the prevailing rate of wage specified in the
contract.
     (c) This subsection is not intended to
prohibit payments to a worker who is enrolled in any government-subsidized
training or retraining program.
     (7) A person may not take any action that
circumvents the payment of the prevailing rate of wage to workers employed on a
public works contract, including, but not limited to, reducing an employeeÂ’s
regular rate of pay on any project not subject to ORS 279C.800 to 279C.870 in a
manner that has the effect of offsetting the prevailing rate of wage on a
public works project. [2003 c.794 §167]
     279C.845
Certified statements regarding payment of prevailing rates of wage; retainage. (1) The contractor or the contractorÂ’s
surety and every subcontractor or the subcontractorÂ’s surety shall file
certified statements with the public agency in writing, on a form prescribed by
the Commissioner of the Bureau of Labor and Industries, certifying:
     (a) The hourly rate of wage paid each
worker whom the contractor or the subcontractor has employed upon the public
works; and
     (b) That no worker employed upon the
public works has been paid less than the prevailing rate of wage or less than
the minimum hourly rate of wage specified in the contract.
     (2) The certified statement shall be
verified by the oath of the contractor or the contractorÂ’s surety or
subcontractor or the subcontractorÂ’s surety that the contractor or
subcontractor has read the certified statement and knows the contents thereof
and that the same is true to the contractor or subcontractorÂ’s knowledge.
     (3) The certified statements shall set out
accurately and completely the payroll records for the prior week, including the
name and address of each worker, the workerÂ’s correct classification, rate of
pay, daily and weekly number of hours worked, deductions made and actual wages
paid.
     (4) The contractor or subcontractor shall
deliver or mail each certified statement required by subsection (1) of this
section to the public agency. Certified statements for each week during which
the contractor or subcontractor employs a worker upon the public works shall be
submitted once a month, by the fifth business day of the following month.
Information submitted on certified statements may be used only to ensure
compliance with the provisions of ORS 279C.800 to 279C.870.
     (5) Each contractor or subcontractor shall
preserve the certified statements for a period of three years from the date of
completion of the contract.
     (6) Certified statements received by a
public agency are public records subject to the provisions of ORS 192.410 to
192.505.
     (7) Notwithstanding ORS 279C.555 or
279C.570 (7), if a contractor is required to file certified statements under
this section, the public agency shall retain 25 percent of any amount earned by
the contractor on the public works until the contractor has filed with the
public agency certified statements as required by this section. The public
agency shall pay the contractor the amount retained under this subsection
within 14 days after the contractor files the certified statements as required
by this section, regardless of whether a subcontractor has failed to file
certified statements as required by this section. The public agency is not
required to verify the truth of the contents of certified statements filed by
the contractor under this section.
     (8) Notwithstanding ORS 279C.555, the
contractor shall retain 25 percent of any amount earned by a first-tier
subcontractor on a public works until the subcontractor has filed with the
public agency certified statements as required by this section. The contractor
shall verify that the first-tier subcontractor has filed the certified
statements before the contractor may pay the subcontractor any amount retained
under this subsection. The contractor shall pay the first-tier subcontractor
the amount retained under this subsection within 14 days after the
subcontractor files the certified statements as required by this section.
Neither the public agency nor the contractor is required to verify the truth of
the contents of certified statements filed by a first-tier subcontractor under
this section. [2003 c.794 §169; 2005 c.360 §11]
     279C.850
Inspection to determine whether prevailing rate of wage being paid; civil
action for failure to pay prevailing rate of wage or overtime. (1) At any reasonable time the Commissioner
of the Bureau of Labor and Industries may enter the office or business
establishment of any contractor or subcontractor performing public works and
gather facts and information necessary to determine whether the prevailing rate
of wage is actually being paid by such contractor or subcontractor to workers
upon public works.
     (2) Upon request by the commissioner,
every contractor or subcontractor performing work on public works shall make
available to the commissioner for inspection during normal business hours any
payroll or other records in the possession or under the control of the
contractor or subcontractor that are deemed necessary by the commissioner to
determine whether the prevailing rate of wage is actually being paid by such
contractor or subcontractor to workers upon public works. The commissionerÂ’s
request must be made a reasonable time in advance of the inspection.
     (3) Notwithstanding ORS 192.410 to
192.505, any record obtained or made by the commissioner under this section is
not open to inspection by the public.
     (4) The commissioner may, without
necessity of an assignment, initiate legal proceedings against employers to
enjoin future failures to pay required prevailing rates of wage or overtime pay
and to require the payment of prevailing rates of wage or overtime pay due
employees. The commissioner is entitled to recover, in addition to other costs,
such sum as the court or judge may determine reasonable as attorney fees. If
the commissioner does not prevail in the action, the commissioner shall pay all
costs and disbursements from the Bureau of Labor and Industries Account. [2003
c.794 §170]
     279C.855
Liability for violations.
(1) Any contractor or subcontractor or contractorÂ’s or subcontractorÂ’s surety
that violates the provisions of ORS 279C.840 is liable to the workers affected
in the amount of their unpaid minimum wages, including all fringe benefits, and
in an additional amount equal to the unpaid wages as liquidated damages.
     (2) Actions to enforce liability to
workers under subsection (1) of this section may be brought as actions on
contractorsÂ’ bonds as provided for in ORS 279C.610.
     (3) If a public agency fails to include a
provision that the contractor and any subcontractor shall comply with ORS
279C.840 in the advertisement for bids, the request for bids, the contract
specifications, the accepted bid or elsewhere in the contract documents, the
liability of the public agency for unpaid minimum wages, as described in
subsection (1) of this section, is joint and several with any contractor or
subcontractor that had notice of the requirement to comply with ORS 279C.840.
     (4) When a public works project is subject
to the Davis-Bacon Act (40 U.S.C. 3141 et seq.) and a public agency fails to
include the state and federal prevailing rates of wage in the specifications
for the contract for public works as required under ORS 279C.830 (1)(a), or
fails to include in the specifications information showing which prevailing
rate of wage is higher for workers in each trade or occupation in each locality
as required under ORS 279C.830 (1)(b), the public agency is liable to each
affected worker for:
     (a) The worker’s unpaid minimum wages,
including fringe benefits, in an amount that equals, for each hour worked, the
difference between the applicable higher rate of wage and the lower rate of
wage; and
     (b) An additional amount, equal to the
amount of unpaid minimum wages due under paragraph (a) of this subsection, as
liquidated damages.
     (5) The Commissioner of the Bureau of
Labor and Industries may enforce the provisions of subsections (3) and (4) of
this section by a civil action under ORS 279C.850 (4), by a civil action on an
assigned wage claim under ORS 652.330, or by an administrative proceeding on an
assigned wage claim under ORS 652.332. [2003 c.794 §171; 2007 c.844 §6]
     279C.860
Ineligibility for public works contracts for failure to pay or post notice of
prevailing rates of wage; certified payroll reports to commissioner. (1) When the Commissioner of the Bureau of
Labor and Industries, in accordance with the provisions of ORS chapter 183,
determines that a contractor or subcontractor has intentionally failed or
refused to pay the prevailing rate of wage to workers employed upon public
works, a subcontractor has failed to pay to its employees amounts required by
ORS 279C.840 and the contractor has paid those amounts on the subcontractorÂ’s
behalf, or a contractor or subcontractor has intentionally failed or refused to
post the prevailing rates of wage as required by ORS 279C.840 (4), the
contractor, subcontractor or any firm, corporation, partnership or association
in which the contractor or subcontractor has a financial interest shall be
ineligible, for a period not to exceed three years from the date of publication
of the name of the contractor or subcontractor on the ineligible list as
provided in this section, to receive any contract or subcontract for public
works. The commissioner shall maintain a written list of the names of those
contractors and subcontractors determined to be ineligible under this section
and the period of time for which they are ineligible. A copy of the list shall
be published, furnished upon request and made available to contracting
agencies.
     (2) When the contractor or subcontractor
is a corporation, the provisions of subsection (1) of this section apply to any
corporate officer or corporate agent who is responsible for the failure or
refusal to pay or post the prevailing rate of wage or the failure to pay to a
subcontractorÂ’s employees amounts required by ORS 279C.840 that are paid by the
contractor on the subcontractorÂ’s behalf.
     (3) For good cause shown, the commissioner
may direct the removal of the name of a contractor or subcontractor from the
ineligible list.
     (4) To assist the commissioner in
determining whether the contractor or subcontractor is paying the prevailing
rate of wage, when a prevailing rate of wage claim is filed, or evidence
indicating a violation has occurred, a contractor or subcontractor required to
pay the prevailing rate of wage to workers employed upon public works under ORS
279C.800 to 279C.870 shall send a certified copy of the payroll for those
workers when the commissioner requests the certified copy. [2003 c.794 §174]
     279C.865
Civil penalties. (1) In
addition to any other penalty provided by law, the Commissioner of the Bureau
of Labor and Industries may assess a civil penalty not to exceed $5,000 for
each violation of any provision of ORS 279C.800 to 279C.870 or any rule of the
commissioner adopted thereunder.
     (2) Civil penalties under this section
shall be imposed as provided in ORS 183.745.
     (3) All moneys collected as penalties
under this section shall be first applied toward reimbursement of costs
incurred in determining violations, conducting hearings and assessing and
collecting the penalties. The remainder, if any, of moneys collected as
penalties under this section shall be paid into the State Treasury and credited
to the General Fund and are available for general governmental expenses. [2003
c.794 §177]
     279C.870
Civil action to enforce payment of prevailing rates of wage. (1) The Commissioner of the Bureau of Labor
and Industries or any other person may bring a civil action in any court of
competent jurisdiction to require a public agency under a public contract with
a contractor to withhold twice the wages in dispute if it is shown that the
contractor or subcontractor on the contract has intentionally failed or refused
to pay the prevailing rate of wage to workers employed on that contract and to
require the contractor to pay the prevailing rate of wage and any deficiencies
that can be shown to exist because of improper wage payments already made. In
addition to other relief, the court may also enjoin the contractor or
subcontractor from committing future violations. The contractor or subcontractor
involved shall be named as a party in all civil actions brought under this
section. In addition to other costs, the court may award the prevailing party
reasonable attorney fees at the trial and on appeal. However, attorney fees may
not be awarded against the commissioner under this section.
     (2) The court shall require any party,
other than the commissioner, that brings a civil action under this section to
post a bond sufficient to cover the estimated attorney fees and costs to the
public agency and to the contractor or subcontractor of any temporary
restraining order, preliminary injunction or permanent injunction awarded in
the action, in the event that the party bringing the action does not ultimately
prevail.
     (3) In addition to any other relief, the
court in a civil action brought under this section may enjoin the public agency
from contracting with the contractor or subcontractor if the court finds that
the commissioner would be entitled to place the contractor or subcontractor on
the ineligible list established under ORS 279C.860 (1). If the court issues
such an injunction, the commissioner shall place the contractor or
subcontractor on the list for a period of three years, subject to the provision
of ORS 279C.860 (2). [2003 c.794 §176; 2007 c.764 §39]
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