US Laws, Codes, Statutes & Cases

Chapter 279C — Public Contracting - Public Improvements and Related Contracts

 

2005 EDITION

 

 

PUBLIC CONTRACTING - PUBLIC IMPROVEMENTS

 

PUBLIC FACILITIES, CONTRACTING & INSURANCE

 

GENERAL PROVISIONS

 

279C.005  Definitions

 

279C.010  Applicability

 

ARCHITECTURAL, ENGINEERING, LAND SURVEYING AND RELATED SERVICES

 

279C.100  Definitions for ORS 279C.100 to 279C.125

 

279C.105  Contracts for architectural, engineering, land surveying and related services; procedures

 

279C.110  Selection procedure for architects, engineers and land surveyors; compensation; applicability

 

279C.115  Direct contracts for services of architects, engineers and land surveyors

 

279C.120  Selection procedure for related services

 

279C.125  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.300  Policy on competition

 

279C.305  Least-cost policy for public improvements; costs estimates in budget process; use of agency forces; record of costs

 

279C.310  Limitation on contracting agency constructing public improvement

 

279C.315  Waiver of damages for unreasonable delay by contracting agency against public policy

 

279C.320  Contracts for construction other than public improvements

 

279C.325  Limitation on contracting agency awarding contract to nonresident education service district

 

(Competitive Bidding; Contract Specifications; Exceptions; Exemptions)

 

279C.330  “Findings” defined

 

279C.335  Competitive bidding; exceptions; exemptions

 

279C.340  Contract negotiations

 

279C.345  Specifications for contracts; exemptions

 

279C.350  Exemption procedure; appeal

 

279C.355  Evaluation of public improvement projects not contracted by competitive bidding

 

(Solicitation; Contract Award; Rejection)

 

279C.360  Requirement for public improvement advertisements

 

279C.365  Requirements for solicitation documents and bids and proposals

 

279C.370  First-tier subcontractor disclosure

 

279C.375  Award of contract; bonds

 

279C.380  Performance bond; payment bond; waiver of bonds in case of emergency

 

279C.385  Return or retention of bid security

 

279C.390  Exemption of contracts from bid security and bonds

 

279C.395  Rejection of bids

 

(Competitive Proposals)

 

279C.400  Competitive proposals; procedure

 

279C.405  Requirements for requests for proposals

 

279C.410  Receipt of proposals; evaluation and award

 

(Temporary provisions relating to competitive quotes are compiled as notes following ORS 279C.410)

 

(Prequalification and Disqualification)

 

279C.430  Prequalification of bidders

 

279C.435  Effect of prequalification by Department of Transportation or Oregon Department of Administrative Services

 

279C.440  Disqualification from consideration for award of contracts

 

279C.445  Appeal of disqualification

 

279C.450  Appeal procedure for prequalification and disqualification decisions; hearing; costs; judicial review

 

(Remedies)

 

279C.460  Suit by or on behalf of adversely affected bidder or proposer; exception for personal services contract

 

279C.465  Action against successful bidder; amount of damages; when action to be commenced; defenses

 

279C.470  Compensation for contractor on contract declared void by court; exceptions; applicability

 

CONSTRUCTION CONTRACTS GENERALLY

 

(Required Contract Conditions)

 

279C.500  “Person” defined

 

279C.505  Conditions concerning payment, contributions, liens, withholding, drug testing

 

279C.510  Demolition contracts to require material salvage; lawn and landscape maintenance contracts to require composting or mulching

 

279C.515  Conditions concerning payment of claims by public officers, payment to persons furnishing labor or materials and complaints

 

279C.520  Condition concerning hours of labor

 

279C.525  Provisions concerning environmental and natural resources laws; remedies

 

279C.530  Condition concerning payment for medical care and providing workers’ compensation

 

279C.535  Condition concerning steel material; rules

 

(Hours of Labor)

 

279C.540  Maximum hours of labor on public contracts; holidays; exceptions; liability to workers; rules

 

279C.545  Time limitation on claim for overtime; posting of circular by contractor

 

(Retainage and Payments)

 

279C.550  “Retainage” defined

 

279C.555  Withholding of retainage

 

279C.560  Form of retainage

 

279C.565  Limitation on retainage requirements

 

279C.570  Prompt payment policy; progress payments; retainage; interest; exception; settlement of compensation disputes

 

(Subcontractors)

 

279C.580  Contractor’s relations with subcontractors

 

279C.585  Authority to substitute undisclosed first-tier subcontractor; circumstances; rules

 

279C.590  Complaint process for substitutions of subcontractors; civil penalties

 

(Action on Payment Bonds and Public Works Bonds)

 

279C.600  Right of action on payment bond or public works bond of contractor or subcontractor; notice of claim

 

279C.605  Notice of claim

 

279C.610  Action on contractor’s public works bond or payment bond; time limitation

 

279C.615  Preference for labor and material liens

 

279C.620  Rights of person providing medical care to employees of contractor

 

279C.625  Joint liability when payment bond not executed

 

(Termination of Contract for Public Interest Reasons)

 

279C.650  “Labor dispute” defined

 

279C.655  Extension and compensation when work suspended

 

279C.660  Compensation when contract terminated due to public interest

 

279C.665  Contractual provisions for compensation when contract terminated due to public interest

 

279C.670  Application of ORS 279C.650 to 279C.670

 

PREVAILING WAGE RATE

 

279C.800  Definitions for ORS 279C.800 to 279C.870

 

279C.805  Policy

 

279C.810  Exemptions; rules

 

279C.815  Determination of prevailing rates of wage; providing information to commissioner

 

279C.820  Advisory committee to assist commissioner

 

279C.825  Fees; rules

 

279C.830  Contractual provisions regarding prevailing rates of wage, fee for administration of law and public works bond

 

279C.835  Notifying commissioner of public works contract

 

279C.836  Public works bond; rules

 

279C.838  Applicability of state and federal rates of wage

 

279C.840  Payment of prevailing rate of wage; posting of rates and fringe benefit plan provisions

 

279C.845  Certified statements regarding payment of prevailing rates of wage; retainage

 

279C.850  Inspection to determine whether prevailing rate of wage being paid; civil action for failure to pay prevailing rate of wage or overtime

 

279C.855  Liability for violations

 

279C.860  Ineligibility for public works contracts for failure to pay or post notice of prevailing rates of wage; certified payroll reports to commissioner

 

279C.865  Civil penalties

 

279C.870  Civil action to enforce payment of prevailing rates of wage

 

GENERAL PROVISIONS

 

      279C.005 Definitions. ORS 279A.010 (1) contains general definitions applicable throughout this chapter. [2003 c.794 §88]

 

      279C.010 Applicability. Except as provided in ORS 279C.320, public contracting under this chapter is subject to ORS chapter 279A, but not ORS chapter 279B. [2003 c.794 §88a; 2005 c.103 §9]

 

ARCHITECTURAL, ENGINEERING, LAND SURVEYING AND RELATED SERVICES

 

      279C.100 Definitions for ORS 279C.100 to 279C.125. As used in ORS 279C.100 to 279C.125:

      (1) “Architect” means a person who is registered and holds a valid certificate in the practice of architecture in the State of Oregon, as provided under ORS 671.010 to 671.220, and includes without limitation the terms “architect,” “licensed architect” and “registered architect.”

      (2) “Architectural, engineering 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 Oregon, as provided under ORS 672.002 to 672.325, and includes all terms listed in ORS 672.002 (2).

      (4) “Land surveyor” means a person who is registered and holds a valid certificate in the practice of land surveying in the State of Oregon, as provided under ORS 672.002 to 672.325, and includes all terms listed in ORS 672.002 (5).

      (5) “Personal services” means the services of a person or persons that are designated by a state contracting agency with procurement authority under ORS 279A.050 or a local 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 owner’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.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 agency’s scope, schedule and budget objectives for a particular project. Adjustments to accommodate a contracting agency’s objectives may include provision for the direct appointment of a consultant if the value of the project does not exceed a threshold amount as determined by the contracting agency. Screening and selection procedures may include a consideration of each candidate’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 staff’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 agency’s scope, schedule and budget objectives for a particular project. Adjustments to accommodate a contracting agency’s objectives may include provision for the direct appointment of a consultant if the value of the project does not exceed a threshold amount as determined by the contracting agency. [2003 c.794 §95]

 

      279C.125 Architectural, engineering 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 Oregon that contracting agencies shall make every effort to construct public improvements at the least cost to the contracting agency.

      (2) Not less than 30 days prior to adoption of the contracting agency’s budget for the subsequent budget period, each contracting agency shall prepare and file with the Commissioner of the Bureau of Labor and Industries a list of every public improvement known to the contracting agency that the contracting agency plans to fund in the budget period, identifying each improvement by name and estimating the total on-site construction costs. The list shall also contain a statement as to whether the contracting agency intends to perform the construction through a private contractor. If the contracting agency intends to perform construction work using the contracting agency’s own equipment and personnel on a project estimated to cost more than $125,000, the contracting agency shall also show that the contracting agency’s decision conforms to the policy stated in subsection (1) of this section. The list is a public record and may be revised periodically by the agency.

      (3) Before a contracting agency constructs a public improvement with its own equipment or personnel:

      (a) If the estimated cost exceeds $125,000, the contracting agency shall prepare adequate plans and specifications and the estimated unit cost of each classification of work. The estimated cost of the work must include a reasonable allowance for the cost, including investment cost, of any equipment used. As used in this paragraph, “adequate” means sufficient to control the performance of the work and to ensure satisfactory quality of construction by the contracting agency personnel.

      (b) The contracting agency shall cause to be kept and preserved a full, true and accurate account of the costs of performing the work, including all engineering and administrative expenses and the cost, including investment costs, of any equipment used. The final account of the costs is a public record.

      (4) Subsections (2) and (3) of this section do not apply to a contracting agency when the public improvement is to be used for the distribution or transmission of electric power.

      (5) For purposes of this section, resurfacing of highways, roads or streets at a depth of two or more inches and at an estimated cost that exceeds $125,000 is a public improvement. [2003 c.794 §98]

 

      279C.310 Limitation on contracting agency constructing public improvement. If a contracting agency fails to adopt and apply a cost accounting system that substantially complies with the model cost accounting guidelines developed by the Oregon Department of Administrative Services pursuant to section 3, chapter 869, Oregon Laws 1979, as determined by an accountant qualified to perform audits required by ORS 297.210 and 297.405 to 297.555 (Municipal Audit Law), the contracting agency may not construct a public improvement with the contracting agency’s own equipment or personnel if the cost exceeds $5,000. [2003 c.794 §99]

 

      279C.315 Waiver of damages for unreasonable delay by contracting agency against public policy. (1) Any clause in a public improvement contract that purports to waive, release or extinguish the rights of a contractor to damages or an equitable adjustment arising out of unreasonable delay in performing the contract, if the delay is caused by acts or omissions of the contracting agency or persons acting therefor, is against public policy and is void and unenforceable.

      (2) Subsection (1) of this section is not intended to render void any contract provision that:

      (a) Requires notice of any delay;

      (b) Provides for arbitration or other procedures for settlement of contract disputes; or

      (c) Provides for reasonable liquidated damages. [2003 c.794 §100]

 

      279C.320 Contracts for construction other than public improvements. (1) Contracting agencies shall enter into contracts for 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. This subsection does not apply to emergency contracts regulated under ORS 279C.335.

      (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]

 

      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 disabled individuals 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, or not to exceed $50,000 in the case of a contract for a highway, bridge or other transportation project, made under procedures for competitive quotes in sections 132 and 133, chapter 794, Oregon Laws 2003.

      (e) Contracts for repair, maintenance, improvement or protection of property obtained by the Department of Veterans’ Affairs under ORS 407.135 and 407.145 (1).

      (f) Energy savings performance contracts entered into in accordance with rules of procedure adopted under ORS 279A.065.

      (g) A public improvement contract awarded under subsection (6) of this section in response to an emergency.

      (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 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; and

      (b) The awarding of public improvement contracts under the exemption will result in substantial cost savings to the contracting agency 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.

      (3) In making findings to support an exemption for a class of public improvement contracts, the contracting agency shall clearly identify the class using the class’s defining characteristics. Those characteristics shall include some combination of project descriptions or locations, time periods, contract values, methods of procurement or other factors that distinguish the limited and related class of public improvement contracts from the contracting agency’s overall construction program. The contracting 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 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 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 contracting agency’s 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, 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 shall offer an opportunity for any interested party to appear and present comment.

      (e) If a contracting agency is required to act promptly due to circumstances beyond the contracting agency’s control that do not constitute an emergency, notification of the public hearing may be published simultaneously with the contracting agency’s solicitation of contractors for the alternative public contracting method, as long as responses to the solicitation are due at least five days after the meeting and approval of the findings.

      (6) After declaring that an emergency exists in accordance with rules adopted under ORS 279A.065, a contracting agency may award a public improvement contract in response to the emergency without using a competitive solicitation.

      (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), (f) or (g) of this section are not subject to the exemption requirements of subsection (2) of this section. [2003 c.794 §103; 2005 c.103 §12; 2005 c.625 §58]

 

      Note 1: The amendments to 279C.335 by section 104, chapter 794, Oregon Laws 2003, become operative July 1, 2009. See section 105, chapter 794, Oregon Laws 2003, as amended by section 19, chapter 103, Oregon Laws 2005. The text that is operative from July 1, 2009, until July 1, 2012, including amendments by section 13, chapter 103, Oregon Laws 2005, and section 59, chapter 625, Oregon Laws 2005, is set forth for the user’s convenience.

      279C.335. (1) All public improvement contracts shall be based upon competitive bids except:

      (a) Contracts made with qualified nonprofit agencies providing employment opportunities for disabled individuals 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) Contracts for repair, maintenance, improvement or protection of property obtained by the Department of Veterans’ Affairs under ORS 407.135 and 407.145 (1).

      (e) Energy savings performance contracts entered into in accordance with rules of procedure adopted under ORS 279A.065.

      (f) A public improvement contract awarded under subsection (6) of this section in response to an emergency.

      (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 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; and

      (b) The awarding of public improvement contracts under the exemption will result in substantial cost savings to the contracting agency 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.

      (3) In making findings to support an exemption for a class of public improvement contracts, the contracting agency shall clearly identify the class using the class’s defining characteristics. Those characteristics shall include some combination of project descriptions or locations, time periods, contract values, methods of procurement or other factors that distinguish the limited and related class of public improvement contracts from the contracting agency’s overall construction program. The contracting 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 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 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 contracting agency’s 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, 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 shall offer an opportunity for any interested party to appear and present comment.

      (e) If a contracting agency is required to act promptly due to circumstances beyond the contracting agency’s control that do not constitute an emergency, notification of the public hearing may be published simultaneously with the contracting agency’s solicitation of contractors for the alternative public contracting method, as long as responses to the solicitation are due at least five days after the meeting and approval of the findings.

      (6) After declaring that an emergency exists in accordance with rules adopted under ORS 279A.065, a contracting agency may award a public improvement contract in response to the emergency without using a competitive solicitation.

      (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.

 

      Note 2: The amendments to 279C.335 by section 105a, chapter 794, Oregon Laws 2003, become operative July 1, 2012. See section 105b, chapter 794, Oregon Laws 2003. The text that is operative on and after July 1, 2012, including amendments by section 14, chapter 103, Oregon Laws 2005, and section 60, chapter 625, Oregon Laws 2005, is set forth for the user’s convenience.

      279C.335. (1) All public improvement contracts shall be based upon competitive bids except:

      (a) Contracts made with qualified nonprofit agencies providing employment opportunities for disabled individuals 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) Contracts for repair, maintenance, improvement or protection of property obtained by the Department of Veterans’ Affairs under ORS 407.135 and 407.145 (1).

      (e) Energy savings performance contracts entered into in accordance with rules of procedure adopted under ORS 279A.065.

      (f) A public improvement contract awarded under subsection (6) of this section in response to an emergency.

      (2) Subject to subsection (4)(b) of this section, the Director of the Oregon Department of Administrative Services or a local contract review board 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 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; and

      (b) The awarding of public improvement contracts under the exemption will result in substantial cost savings to the contracting agency. In making the finding, the director 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.

      (3) In making findings to support an exemption for a class of public improvement contracts, the contracting agency shall clearly identify the class using the class’s defining characteristics. Those characteristics shall include some combination of project descriptions or locations, time periods, contract values, methods of procurement or other factors that distinguish the limited and related class of public improvement contracts from the contracting agency’s overall construction program. The contracting 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 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 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 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 contracting agency’s 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, 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 shall offer an opportunity for any interested party to appear and present comment.

      (e) If a contracting agency is required to act promptly due to circumstances beyond the contracting agency’s control that do not constitute an emergency, notification of the public hearing may be published simultaneously with the contracting agency’s solicitation of contractors for the alternative public contracting method, as long as responses to the solicitation are due at least five days after the meeting and approval of the findings.

      (6) After declaring that an emergency exists in accordance with rules adopted under ORS 279A.065, a contracting agency may award a public improvement contract in response to the emergency without using a competitive solicitation.

      (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.

 

      279C.340 Contract negotiations. If a public improvement contract is competitively bid and all responsive bids from responsible bidders exceed the contracting agency’s cost estimate, the contracting agency, in accordance with rules adopted by the contracting agency, may negotiate with the lowest responsive, responsible bidder, prior to awarding the contract, in order to solicit value engineering and other options to attempt to bring the contract within the contracting agency’s cost estimate. A negotiation with the lowest responsive, responsible bidder under this section may not result in the award of the contract to that bidder if the scope of the project is significantly changed from the original bid proposal. Notwithstanding any other provision of law, the records of a bidder used in contract negotiation under this section are not subject to public inspection until after the negotiated contract has been awarded or the negotiation process has been terminated. [2003 c.794 §106]

 

      279C.345 Specifications for contracts; exemptions. (1) Specifications for public improvement contracts may not expressly or implicitly require any product by any brand name or mark, nor the product of any particular manufacturer or seller unless the product is exempt under subsection (2) of this section.

      (2) The Director of the Oregon Department of Administrative Services or a local contract review board 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]

 

      279C.350 Exemption procedure; appeal. (1) Exemptions granted by the Director of the Oregon Department of Administrative Services under ORS 279C.335 (2) or 279C.345 (2) constitute rulemaking and not contested cases under ORS chapter 183. However, an exemption granted with regard to a specific public improvement contract by the Director of the Oregon Department of Administrative Services, or an exemption granted by the Director of Transportation with regard to a specific public improvement contract or class of public improvement contracts described in ORS 279A.050 (3)(b), shall be granted by order. The order shall set forth findings supporting the decision to grant or deny the request for the exemption. The order is reviewable under ORS 183.484 and does not constitute a contested case order. Jurisdiction for review of the order is with the Circuit Court of Marion County. The court may award costs and attorney fees to the prevailing party.

      (2) Any person except the contracting agency or anyone representing the contracting agency may bring a petition for a declaratory judgment to test the validity of any rule adopted by the Director of the Oregon Department of Administrative Services under ORS 279C.335 or 279C.345 in the manner provided in ORS 183.400.

      (3) Any person except the contracting agency or anyone representing the contracting agency may bring an action for writ of review under ORS chapter 34 to test the validity of an exemption granted under ORS 279C.335 or 279C.345 by a local contract review board. [2003 c.794 §108]

 

      Note: The amendments to 279C.350 by section 109, chapter 794, Oregon Laws 2003, become operative July 1, 2012. See section 110, chapter 794, Oregon Laws 2003. The text that is operative on and after July 1, 2012, is set forth for the user’s convenience.

      279C.350. (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 shall be granted by order of the director. The order shall set forth findings supporting the decision of the director to grant or deny the request for the exemption. The order is reviewable under ORS 183.484 and does not constitute a contested case order. Jurisdiction for review of the order is with the Circuit Court of Marion County. The court may award costs and attorney fees to the prevailing party.

      (2) Any person except the contracting agency or anyone representing the contracting agency may bring a petition for a declaratory judgment to test the validity of any rule adopted by the director 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.

 

      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 described in ORS 279A.050 (3)(b), 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 a class of 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 described in ORS 279A.050 (3)(b). [2003 c.794 §111]

 

      Note: The amendments to 279C.355 by section 112, chapter 794, Oregon Laws 2003, become operative July 1, 2012. See section 113, chapter 794, Oregon Laws 2003. The text that is operative on and after July 1, 2012, is set forth for the user’s convenience.

      279C.355. (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 or the local contract review board an evaluation of the public improvement contract or the class of public improvement contracts.

      (2) The evaluation shall 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.

 

(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. 276a). [2003 c.794 §114; 2005 c.103 §14a]

 

      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 subject to ORS 279C.800 to 279C.870 or the Davis-Bacon Act (40 U.S.C. 276a), no bid will be received or considered by the contracting agency unless the bid contains a statement by the bidder that ORS 279C.840 or 40 U.S.C. 276a 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) 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.

      (3) After having been opened, the bids must be made available for public inspection.

      (4) A surety bond, irrevocable letter of credit issued by an insured institution as defined in ORS 706.008, cashier’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.

      (5) Subsection (4) 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]

 

      279C.370 First-tier subcontractor disclosure. (1)(a) Within two working hours after the date and time of the deadline when bids are due to a contracting agency for a public improvement contract, a bidder shall submit to the contracting agency a disclosure of the first-tier subcontractors that:

      (A) Will be furnishing labor or will be furnishing labor and materials in connection with the public improvement contract; and

      (B) Will have a contract value that is equal to or greater than five percent of the total project bid or $15,000, whichever is greater, or $350,000 regardless of the percentage of the total project bid.

      (b) For each contract to which this subsection applies, the contracting agency shall designate a deadline for submission of bids that has a date on a Tuesday, Wednesday or Thursday and a time between 2 p.m. and 5 p.m., except that this paragraph does not apply to public contracts for maintenance or construction of highways, bridges or other transportation facilities.

      (c) This subsection applies only to public improvement contracts with a value, estimated by the contracting agency, of more than $100,000.

      (d) This subsection does not apply to public improvement contracts that have been exempted from competitive bidding requirements under ORS 279C.335 (2).

      (2) The disclosure of first-tier subcontractors under subsection (1) of this section must include the name of each subcontractor, the category of work that each subcontractor will perform and the dollar value of each subcontract. The information shall be disclosed in substantially the following form:

______________________________________________________________________________

 

FIRST-TIER SUBCONTRACTOR

DISCLOSURE FORM

 

PROJECT NAME: ____________

BID #: _________

BID CLOSING: Date: _____Time: _____

 

This form must be submitted at the location specified in the Invitation to Bid on the advertised bid closing date and within two working hours after the advertised bid closing time.

 

List below the name of each subcontractor that will be furnishing labor or will be furnishing labor and materials and that is required to be disclosed, the category of work that the subcontractor will be performing and the dollar value of the subcontract. Enter “NONE” if there are no subcontractors that need to be disclosed. (ATTACH ADDITIONAL SHEETS IF NEEDED.)

 

 

                                    DOLLAR                   CATEGORY

NAME                                    VALUE                      OF WORK

1) ________                $______                      ________

  _________                  ______                      ________

2) ________                $______                      ________

  _________                  ______                      ________

3) ________                $______                      ________

  _________                  ______                      ________

4) ________                $______                      ________

  _________                 ______                      ________