2007 Oregon Code - Chapter 200 :: Chapter 200 - Disadvantaged - Minority - Women and Emerging Small Business Enterprises
Chapter 200 —
Disadvantaged, Minority, Women and Emerging
Small
Business Enterprises
2007 EDITION
CERTAIN DISADVANTAGED BUSINESS ENTERPRISES
MISCELLANEOUS MATTERS
GENERAL PROVISIONS
200.005Â Â Â Â Definitions
for ORS 200.005 to 200.075, 200.160 to 200.200 and 279A.105
200.015Â Â Â Â Legislative
findings
200.025Â Â Â Â Advocate
for Minority, Women and Emerging Small Business; office; duties
200.035Â Â Â Â When
state agency to notify advocate of solicitations and contract awards
200.045Â Â Â Â Standards
for good faith efforts to meet contract requirements; standards for
establishing bidderÂ’s responsibility
CERTIFICATION
200.055Â Â Â Â Certification
of disadvantaged, minority, women or emerging small business enterprises; fee;
rules; appeal
200.057Â Â Â Â Designation
of certified business as tier one or tier two firm
200.065Â Â Â Â Fraudulent
conduct prohibited; sanctions
200.075Â Â Â Â Prohibited
conduct; suspension of certification or right to participate in public
contracts
RESPONSIBILITY OF PUBLIC AGENCIES
200.090Â Â Â Â Public
agencies to pursue policy of providing opportunities
200.100Â Â Â Â Definitions
for ORS 200.100 to 200.120
200.110Â Â Â Â Mentor
program; guidelines; eligibility
200.120Â Â Â Â Standards
for program participation
EMERGING SMALL BUSINESS ASSISTANCE PROGRAM
200.160Â Â Â Â Transportation
Commission duties; report
200.170Â Â Â Â Eligibility
for participation
200.180Â Â Â Â Emerging
Small Business Account; uses
200.190Â Â Â Â Deposit
of one percent of highway construction contract amount
200.200Â Â Â Â Security
for performance by emerging small business
GENERAL PROVISIONS
     200.005
Definitions for ORS 200.005 to 200.075, 200.160 to 200.200 and 279A.105. As used in ORS 200.005 to 200.075, 200.160
to 200.200 and 279A.105:
     (1) “Disadvantaged business enterprise”
means a small business concern:
     (a) That is at least 51 percent owned by
one or more socially and economically disadvantaged individuals; or
     (b) For which, in the case of a
corporation, at least 51 percent of the stock is owned by one or more socially
and economically disadvantaged individuals, and of which the management and
daily business operations are controlled by one or more of the socially and
economically disadvantaged individuals who own it.
     (2) “Economically disadvantaged individual”
means a socially disadvantaged individual whose ability to compete in the free
enterprise system has been impaired due to diminished capital and credit
opportunities as compared to other individuals in the same business area who
are not socially disadvantaged individuals.
     (3) “Emerging small business” means an
independent business:
     (a) With its principal place of business
located in this state;
     (b) That qualifies as a tier one firm or a
tier two firm;
     (c) That is properly licensed and legally
registered in this state; and
     (d) That is not a subsidiary or parent
company belonging to a group of firms that are owned or controlled by the same
individuals if, in the aggregate, the group of firms does not qualify as a tier
one firm or a tier two firm.
     (4) “Minority individual” means a person
who is a citizen or lawful permanent resident of the
     (a) Black, having origins in any of the
black racial groups of
     (b) Hispanic, having Mexican, Puerto
Rican, Cuban, Central or South American or other Spanish culture or origin,
regardless of race;
     (c) Asian American, having origins in any
of the original peoples of the Far East, Southeast Asia, the Indian
subcontinent or the
     (d) Portuguese, having Portuguese,
Brazilian or other Portuguese culture or origin, regardless of race;
     (e) American Indian or Alaskan Native,
having origins in any of the original peoples of
     (f) A member of another group, or another
individual who is socially and economically disadvantaged as determined by the
Advocate for Minority, Women and Emerging Small Business.
     (5) “Minority or women business enterprise”
means a small business concern:
     (a) That is at least 51 percent owned by
one or more minority individuals or women; or
     (b) For which, in the case of a
corporation, at least 51 percent of the stock is owned by one or more
individuals who are minority individuals or women, and of which the management
and daily business operations are controlled by one or more of the minority
individuals or women who own it.
     (6) “Responsible bidder” means a bidder who,
as determined by the Advocate for Minority, Women and Emerging Small Business,
has undertaken both a policy and practice of actively pursuing participation by
minority or women business enterprises in all bids, both public and private,
submitted by the bidder.
     (7) “Small business concern” means a small
business as defined by the United States Small Business Administration in 13
C.F.R. part 121 and in effect on January 1, 2006.
     (8) “Socially disadvantaged individual”
means an individual who has been subjected to racial or ethnic prejudice or
cultural bias, without regard to individual qualities, because of the
individualÂ’s identity as a member of a group.
     (9) “Tier one firm” means a business that
employs fewer than 20 full-time equivalent employees and has average annual
gross receipts for the last three years that do not exceed $1.5 million for a
business performing construction, as defined in ORS 446.310, or $600,000 for a
business not performing construction.
     (10) “Tier two firm” means a business that
employs fewer than 30 full-time equivalent employees and has average annual
gross receipts for the last three years that do not exceed $3 million for a
business performing construction, as defined in ORS 446.310, or $1 million for
a business not performing construction.
     (11) “Woman” means a person of the female
sex who is a citizen or lawful permanent resident of the
     200.015
Legislative findings. (1)
The Legislative Assembly supports the aspirations of minorities, women and
emerging small businesses to enter the mainstream of
     (2) The Legislative Assembly finds:
     (a) The opportunity for full participation
in our free enterprise system by minorities, women and emerging small
businesses is essential;
     (b) Greater economic opportunity for
minorities, women and emerging small businesses is essential;
     (c) Review of public programs to remedy
historical patterns of exclusion of and discrimination against racial or ethnic
groups and women is needed;
     (d) Public policies and programs to
eliminate the effects of long-term, open and pervasive exclusion of and
discrimination against minorities and women from the business sector, including
increased opportunities to integrate minorities and women into the full
economic life of the community should be reviewed; and
     (e) In cooperation with the private
sector, the affected populations, interested groups and appropriate
governmental entities, a program of review should be established to recommend
remedies for the unfortunate effects of social, political and economic inequity
that still exist.
     (3) Women and minorities are rebuttably
presumed to be:
     (a) Economically disadvantaged.
     (b) Socially disadvantaged. [1987 c.893 §3;
1989 c.1043 §2]
     200.025
Advocate for Minority, Women and Emerging Small Business; office; duties. (1) There is created in the Office of the
Governor, the Advocate for Minority, Women and Emerging Small Business who
shall be appointed by the Governor.
     (2) There is created in the Department of
Consumer and Business Services the Office for Minority, Women and Emerging
Small Business, the employees of which shall be appointed by the Director of
the Department of Consumer and Business Services.
     (3) The Advocate for Minority, Women and
Emerging Small Business shall:
     (a) Advise the Governor and the director
on activities and initiatives that may promote the economic integration of minorities,
women and emerging small businesses into the business sector;
     (b) Prepare an annual report to the
Governor, director and Legislative Assembly on the status of minorities and
women in the marketplace, accomplishments and resolutions of issues of concern
to minority and womenÂ’s enterprises and recommendations for executive and
legislative actions; and
     (c) Carry out other duties that may be
assigned by the Governor.
     (4) The Office for Minority, Women and
Emerging Small Business shall:
     (a) Provide information to minority, women
and emerging small businesses;
     (b) Assist in the development and
implementation of an aggressive strategy for this state, based on research and
monitoring, that encourages participation of minorities, women and emerging small
businesses in the stateÂ’s economy;
     (c) Make recommendations to the director
on the research, development and implementation of the plan for the involvement
of disadvantaged and minority groups and emerging small businesses in all state
programs;
     (d) Maintain an Oregon Opportunity
Register and Clearinghouse for information on public agency and other contract
solicitations for professional services, supplies and services and other bid
opportunities, in consultation with the State Board of Higher Education, the
Department of Transportation and other entities;
     (e) Monitor the certification and
compliance program for disadvantaged, minority, women and emerging small
businesses under ORS 200.055;
     (f) Investigate complaints and possible
abuses of the certification program; and
     (g) Assist in the promotion and
coordination of plans, programs and operations of state government that
strengthen minority and women participation in the economic life of this state.
[1987 c.893 §4; 1989 c.1043 §3; 1993 c.500 §7; 1993 c.744 §§189,189a; 2003
c.794 §214; 2005 c.683 §§6,7]
     200.035
When state agency to notify advocate of solicitations and contract awards. (1) For a public contract with a value of
$5,000 or more, a state agency shall provide timely notice and information to
the Advocate for Minority, Women and Emerging Small Business regarding:
     (a) Bid or proposal solicitations; and
     (b) Contract awards.
     (2) Each state agency shall, in
consultation with the advocate, establish a process and timeline for providing
the notice and information required by subsection (1) of this section to the
advocate. [1987 c.893 §5; 1997 c.145 §1; 1997 c.802 §10; 2005 c.351 §1]
     200.045
Standards for good faith efforts to meet contract requirements; standards for
establishing bidderÂ’s responsibility. (1) To determine whether a bidder that has failed to meet emerging
small business enterprise contract requirements may be awarded the contract,
the public contracting agency must decide whether the bidderÂ’s efforts to
obtain participation by emerging small business enterprises were good faith
efforts to meet the requirements.
     (2) Performing all of the following
actions by a bidder constitutes a rebuttable presumption that the bidder has
made a good faith effort to satisfy the subcontracting requirement for emerging
small businesses. It shall be a rebuttable presumption that the bidder has not
made a good faith effort if the bidder has not acted consistently with such
actions. Efforts that are merely superficial are not good faith efforts:
     (a) The bidder attended any
presolicitation or prebid meetings that were scheduled by the contracting
agency to inform emerging small business enterprises of contracting and
subcontracting or material supply opportunities available on the project;
     (b) The bidder identified and selected
specific economically feasible units of the project to be performed by emerging
small business enterprises in order to increase the likelihood of participation
by such enterprises;
     (c) The bidder advertised in general
circulation, trade association, minority and trade oriented, women-focus
publications, if any, concerning the subcontracting or material supply
opportunities;
     (d) The bidder provided written notice to
a reasonable number of specific emerging small business enterprises, identified
from a list of certified emerging small business enterprises provided or
maintained by the Department of Consumer and Business Services for the selected
subcontracting or material supply work, in sufficient time to allow the
enterprises to participate effectively;
     (e) The bidder followed up initial
solicitations of interest by contacting the enterprises to determine with
certainty whether the enterprises were interested;
     (f) The bidder provided interested
emerging small business enterprises with adequate information about the plans,
specifications and requirements for the selected subcontracting or material
supply work;
     (g) The bidder negotiated in good faith
with the enterprises, and did not without justifiable reason reject as unsatisfactory
bids prepared by any emerging small business enterprises;
     (h) Where applicable, the bidder advised
and made efforts to assist interested emerging small business enterprises in
obtaining bonding, lines of credit or insurance required by the contracting
agency or contractor;
     (i) The bidder’s efforts to obtain
emerging small business enterprise participation were reasonably expected to
produce a level of participation sufficient to meet the goals or requirement of
the public contracting agency; and
     (j) The bidder used the services of
minority community organizations, minority contractor groups, local, state and
federal minority business assistance offices and other organizations identified
by the Advocate for Minority, Women and Emerging Small Business that provide
assistance in the recruitment and placement of emerging small business
enterprises.
     (3) To determine whether a bidder is a
responsible bidder, the performance of all the following actions constitutes a
rebuttable presumption that the bidder is responsible. It shall be a rebuttable
presumption that the bidder is not responsible if the bidder has not acted
consistently with the actions described in this subsection. Efforts that are
merely superficial are not good faith efforts.
     (a) The bidder attended any
presolicitation or prebid meetings that were scheduled by the contracting
agency to inform minority or women business enterprises of contracting and
subcontracting or material supply opportunities available on the project;
     (b) The bidder identified and selected
specific economically feasible units of the project to be performed by minority
or women business enterprises in order to increase the likelihood of
participation by such enterprises;
     (c) The bidder advertised in general
circulation, trade association, minority and trade oriented, women-focus
publications, if any, concerning the subcontracting or material supply
opportunities;
     (d) The bidder provided written notice to
a reasonable number of specific minority or women business enterprises,
identified from a list of certified minority or women business enterprises
provided or maintained by the Department of Consumer and Business Services for
the selected subcontracting or material supply work, in sufficient time to
allow the enterprises to participate effectively;
     (e) The bidder followed up initial
solicitations of interest by contacting the enterprises to determine with
certainty whether the enterprises were interested;
     (f) The bidder provided interested
minority or women business enterprises with adequate information about the
plans, specifications and requirements for the selected subcontracting or
material supply work;
     (g) The bidder negotiated in good faith
with interested, capable and competitive minority or women business enterprises
submitting bids;
     (h) Where applicable, the bidder advised
and made efforts to assist interested minority or women business enterprises in
obtaining bonding, lines of credit or insurance required by the contracting
agency or contractor;
     (i) The bidder’s efforts to obtain
minority or women business enterprise participation were reasonably expected to
produce a level of participation sufficient to meet the goals of the public
contracting agency; and
     (j) The bidder used the services of
minority community organizations, minority contractor groups, local, state and
federal minority business assistance offices and other organizations identified
by the Advocate for Minority, Women and Emerging Small Business that provide
assistance in the recruitment and placement of disadvantaged, minority or women
business enterprises. [1987 c.893 §7; 1989 c.1043 §8; 1997 c.145 §2; 2003 c.794
§215]
CERTIFICATION
     200.055
Certification of disadvantaged, minority, women or emerging small business
enterprises; fee; rules; appeal. (1) Any disadvantaged, minority, women or emerging small business
enterprise is entitled to be certified as such upon application to the
Department of Consumer and Business Services. If the application is approved by
the department, the department shall certify the applicant as a disadvantaged,
minority, women or emerging small business enterprise. The enterprise shall be
considered so certified by any public contracting agency.
     (2) In consultation with the State Board
of Higher Education and the Department of Transportation, and with the approval
of the Advocate for Minority, Women and Emerging Small Business, the Department
of Consumer and Business Services by rule shall adopt a uniform standard form
and procedure designed to provide complete documentation that a business
enterprise is certified as a disadvantaged, minority, women or emerging small
business enterprise. The Department of Consumer and Business Services shall
compile and make available upon request a list of certified disadvantaged, minority,
women or emerging small business enterprises.
     (3) Any business enterprise that is
refused certification as a disadvantaged business enterprise or denied
recertification as such or whose certification is revoked may appeal directly
to the United States Department of Transportation.
     (4) Any business enterprise that is
refused certification as a minority, women or emerging small business
enterprise or has its certification revoked may request a contested case
hearing as provided in ORS chapter 183.
     (5) The Department of Consumer and
Business Services shall be the sole agency authorized to certify enterprises as
disadvantaged, minority, women or emerging small business enterprises eligible
to perform on public contracts in this state.
     (6) The Department of Consumer and
Business Services by rule may establish a fee not to exceed $100 for a copy of
the list of certified disadvantaged, minority, women and emerging small
business enterprises and may assess state agencies for services under ORS
200.005 to 200.075.
     (7) The Department of Transportation may
collect a fee, not to exceed $200, from a bidder upon bidder prequalifications
to cover the costs of the Department of Consumer and Business Services in
administering ORS 200.005 to 200.075. The Department of Transportation shall
transfer such fees to the credit of the account established under subsection
(8) of this section.
     (8) The Department of Consumer and
Business Services shall establish a special account in which to deposit fees
and assessments. The special account is continuously appropriated to the
Department of Consumer and Business Services to meet its expenses in
administering ORS 200.005 to 200.075. [1987 c.893 §8; 1989 c.1043 §4; 1993
c.500 §8; 1997 c.145 §3; 2003 c.794 §216]
     200.057
Designation of certified business as tier one or tier two firm. (1) A business may be certified as an
emerging small business by the Department of Consumer and Business Services for
up to 12 years and may be:
     (a) Designated a tier one firm for up to
six years unless the business no longer qualifies as a tier one firm.
     (b) Designated a tier two firm for up to
six years unless the business no longer qualifies as a tier two firm.
     (2) The department shall adjust annually
the amount of the average annual gross receipts required to qualify as a tier
one firm or a tier two firm using the most recent three-year average of the
Portland-Salem Consumer Price Index for All Urban Consumers for All Items, as
reported by the United States Bureau of Labor Statistics.
     (3) Notwithstanding the time limits
established by subsection (1) of this section, if a tier one firm provides
compelling information showing, in the judgment of the Department of Consumer
and Business Services, that the firm has not been afforded an opportunity to bid
on emerging small business projects during a year of eligibility, the
department shall extend the tier one designation of the firm for one year. A
tier one firm may receive the extension described in this subsection only once.
[2005 c.683 §2]
     Note: 200.057 was added to and made a part of
200.005 to 200.075 by legislative action but was not added to any other series.
See Preface to Oregon Revised Statutes for further explanation.
     200.065
Fraudulent conduct prohibited; sanctions. (1) It shall be unlawful for any person fraudulently to obtain or
retain or attempt to obtain or retain or to aid another person fraudulently to
obtain or retain or attempt to obtain or retain certification as a
disadvantaged, minority, women or emerging small business enterprise.
     (2) It shall be unlawful knowingly to make
a false claim that any person is qualified for certification or is certified
under ORS 200.055 for the purpose of gaining a contract or subcontract or other
benefit.
     (3) The public contracting agency may withhold
payment, suspend or terminate the contract and may impose on any person a civil
penalty not to exceed 10 percent of the contract or subcontract price or
$5,000, whichever is less, for each violation of subsection (1) or (2) of this
section. The penalty shall be paid to the Office for Minority, Women and
Emerging Small Business.
     (4) The Department of Consumer and
Business Services or an affected public contracting agency shall investigate
any complaint that a person has violated subsection (1) or (2) of this section.
In investigating such a complaint, the department or an affected public
contracting agency may require any additional information, administer oaths,
take depositions and issue subpoenas to compel the attendance of witnesses and
the production of books, papers, records, memoranda or other information
necessary to carry out its duties. If any person fails to comply with any
subpoena issued under this subsection or refuses to testify on any matter on
which a person may lawfully be interrogated, the procedure provided in ORS
183.440 shall be followed to compel compliance.
     (5) An affected public contracting agency
or the Department of Consumer and Business Services may disqualify any person
found to have violated subsection (1) or (2) of this section or who admits to
such violation under oath during the course of an investigation from bidding or
participating in any public contract for a period of time specified by the
agency or department, not to exceed three years. Any contracting agency that has
notice of the finding of the fraudulent certification may also disqualify the
person from bidding on or participating in any public contract. [1987 c.893 §9;
1989 c.1043 §5; 1997 c.145 §4]
     200.075
Prohibited conduct; suspension of certification or right to participate in
public contracts. (1) Any
bidder or contractor or subcontractor on a public contract that knowingly
commits any of the acts listed in paragraphs (a) to (c) of this subsection
shall have its right to bid on or participate in any public contract suspended.
The suspension shall occur only after notice and opportunity for hearing in
such manner as the affected public contracting agency, by rule, shall provide.
The suspension shall be for up to 90 days for a first violation, up to one year
for a second violation and up to five years for a third violation. Each
violation shall remain on record for five years. After five years the violation
shall no longer be considered in reviewing future violations. The following
acts are prohibited:
     (a) Entering into any agreement
representing that a disadvantaged, minority, women or emerging small business
enterprise certified pursuant to ORS 200.055 will be performing work or
supplying materials under the public improvement contract without the knowledge
and consent of the disadvantaged, minority, women or emerging small business
enterprise.
     (b) Exercising management and decision
making control over the internal operations of any certified disadvantaged,
minority, women or emerging small business enterprise. As used in this
paragraph, “internal operations” does not include normal scheduling,
coordination, execution or performance as a subcontractor on a public contract.
     (c) Using a disadvantaged, minority, women
or emerging small business enterprise to perform a subcontract or supply
material under a public improvement contract to meet an established goal or
requirement when the disadvantaged, minority, women or emerging small business
enterprise does not perform a commercially useful function in carrying out its
responsibilities and obligations under the contract.
     (2) Any disadvantaged, minority, women or
emerging small business enterprise certified under ORS 200.055 that allows or
commits any of the acts listed in paragraphs (a) to (c) of this subsection
shall have its certification suspended for up to 90 days for the first
violation, up to one year for a second violation and up to five years for a
third violation. Each violation shall remain on record for five years. After
five years the violation shall no longer be considered in reviewing future
violations. The following acts are prohibited:
     (a) Use of the firm’s name to meet a
disadvantaged, minority, women or emerging small business enterprise goal or
requirement on a public contract when the firm does not in fact intend to or
does not actually perform the work under the subcontract or purchase and supply
material to the project under a material supply contract.
     (b) Use of any personnel of an uncertified
business to operate, manage or otherwise control the disadvantaged, minority,
women or emerging small business enterprise.
     (c) Failure to perform a commercially
useful function in carrying out its functions under a subcontract or a material
supply contract entered into with a contractor or subcontractor on a public
contract when represented as a certified business to meet an established goal
or requirement.
     (3) For the purpose of this section “commercially
useful function” means the actual performance of a function or service by the
business for which there is a demand in the marketplace, and for which the
business receives payment not disproportionate to the work performed or in
conformance with industry standards. Acting as a broker to provide for the
performance of work by others does not constitute a “commercially useful
function.” [1987 c.893 §11; 1989 c.1043 §6; 1991 c.91 §1; 1995 c.452 §21]
     200.085 [1987 c.893 §1; repealed by 1989 c.1043 §14]
RESPONSIBILITY
OF PUBLIC AGENCIES
     200.090
Public agencies to pursue policy of providing opportunities. Public agencies shall aggressively pursue a
policy of providing opportunities for available contracts to emerging small
businesses and shall cooperate with the Advocate for Minority, Women and
Emerging Small Business to determine the best means by which to make such
opportunities available. [1989 c.1043 §10]
     200.100
Definitions for ORS 200.100 to 200.120. As used in ORS 200.100 to 200.120:
     (1) “Contractor” means a person who
contracts on predetermined terms to be responsible for the performance of all
or part of a job of preparation or construction in accordance with established
specifications or plans, retaining control of means, method and manner of
accomplishing the desired result, and who provides:
     (a) Labor at the site; or
     (b) Materials, supplies and labor at the
site.
     (2) “Disadvantaged business enterprise”
means a small business concern that is at least 51 percent owned by one or more
socially and economically disadvantaged individuals, or, in the case of any
corporation, at least 51 percent of the stock of which is owned by one or more
socially and economically disadvantaged individuals and whose management and
daily business operations are controlled by one or more of the socially and
economically disadvantaged individuals who own it.
     (3) “Minority or women business enterprise”
means a small business concern which is at least 51 percent owned by one or
more minorities or women, or in the case of a corporation, at least 51 percent
of the stock of which is owned by one or more minorities or women, and whose
management and daily business operations are controlled by one or more of such
individuals.
     (4) “Minority individual” means a person
who is a citizen or lawful permanent resident of the
     (a) Black, a person having origins in any
of the black racial groups of
     (b) Hispanic, a person of Mexican, Puerto
Rican, Cuban, Central or South American or other Spanish culture or origin,
regardless of race;
     (c) Asian American, a person having
origins in any of the original peoples of the Far East, Southeast Asia, the
Indian subcontinent or the Pacific Islands;
     (d) Portuguese, a person of Portuguese,
Brazilian or other Portuguese culture or origin, regardless of race;
     (e) American Indian or Alaskan Native, a
person having origins in any of the original peoples of
     (f) A member of another group or another
individual that is socially and economically disadvantaged as determined by the
Advocate for Minority, Women and Emerging Small Business.
     (5) “Subcontractor” means a contractor who
has no direct contractual relationship with the owner. [1991 c.559 §1; 2005
c.22 §152]
     200.110
Mentor program; guidelines; eligibility. (1) The Economic and Community Development Department may recognize
the mentor relationship between contractors and minority business enterprises
or women business enterprises certified under this chapter. The mentor
relationship shall offer the opportunity to foster and encourage minority and
women business enterprises, to expand the capacity of presently existing
minority and women businesses and to offer the opportunity for less experienced
minority and women businesses to gain training and assistance.
     (2) Guidelines for eligibility for the
mentor relationship include, but are not limited to:
     (a) Minority and women business
enterprises that meet the certification requirements of the U.S. Department of
Transportation are eligible for participation in a mentor program. Other
minority and women business enterprises are also eligible if they meet the
certification requirements of this chapter. An agency may grant approval of an
enterprise application for certification concurrent with approval of a mentor
arrangement.
     (b) The minority or women business
enterprise must be an independent organization, and the ownership by the
individuals must be real. Other employment and business interests by the
individuals are not precluded, if such employment or business interests do not
conflict with the power of the minority or women owners to direct the
management and policies of the minority or women enterprise to make day-to-day
as well as major decisions on matters of management, policy and operations.
     (c) The mentor program is intended to
provide minority and women business enterprises with advice, assistance and
training. The enterprise shall be responsible for management and operations of
the business. The mentor shall not be responsible for the management of the
firm. The mentor and the enterprise shall remain separate and independent business
entities with the exception that facilities may be provided to the enterprise
by the mentor if a separate lease agreement is maintained by the parties.
     (d) Part ownership in a minority or women
business enterprise by a nondisadvantaged party, including a mentor, is
permitted if in compliance with 49 C.F.R. 23. Any property, equipment, supplies
or other services which are sold, rented or donated to the enterprise and any
investment made by nondisadvantaged individuals must be reported to the agency
involved in the mentor program. Documentation shall be provided by bills of
sale, lease agreements or similar documents.
     (e) The mentor relationship may include an
arrangement with an independent third party, such as a bank or accountant, to
act as an agent. Third parties may receive progress payments for work
accomplished by the minority or women business enterprise, made out jointly to
the agent and the enterprise, and make payments, on behalf of the enterprise,
to material suppliers or for federal and state payroll taxes.
     (3) Types of assistance a mentor may
provide to the minority or women business enterprise include:
     (a) Financial assistance;
     (b) Technical and management assistance;
     (c) Equipment rental and use of personnel;
and
     (d) Bonding assistance. [1991 c.559 §2]
     200.120
Standards for program participation. (1)
     (a) Clearly set forth the objectives of
the parties and their respective roles;
     (b) Be for a specified length of time;
     (c) Determine measurable goals to be
reached by the minority or women business enterprise; and
     (d) Provide that if resources of the
mentor are utilized by the minority or women business enterprise in the
performance of contracts or subcontracts for the mentor or for another
contractor, the resources shall be separately identified, accounted for and
compensated directly by the minority or women business enterprise to the
mentor. If the plan provides for extensive use of the mentorÂ’s resources by the
minority or women business enterprise, the arrangement may be closely
monitored.
     (2) The development plan may also include
training to be provided by the mentor to the minority or women business
enterprise. Training may include:
     (a) Business planning;
     (b) Record keeping;
     (c) Technical training;
     (d) Capital formation;
     (e) Loan packaging;
     (f) Financial counseling;
     (g) Bonding; and
     (h) Equipment utilization.
     (3) The development plan may be reviewed
annually by the Economic and Community Development Department and the Oregon
Association of Minority Entrepreneurs to review the progress of the mentor
program.
     (4) The development plan shall contain a
provision that the mentor relationship may be terminated by mutual consent or
upon determination that:
     (a) The mentor firm no longer meets the
eligibility standards for certification as a minority or women business
enterprise;
     (b) Either party has failed or is unable
to meet its obligations under the development plan;
     (c) The minority or women business
enterprise is not progressing or is not likely to progress in accordance with
the development plan;
     (d) The minority or women business
enterprise has reached a satisfactory level of self-sufficiency to compete
without resorting to special treatment provided in the development plan; or
     (e) The plan or provisions thereof are
contrary to the requirements of federal, state, or local law or regulation, or
otherwise contrary to public policy.
     (5) Copies of the development plan shall
be retained by all parties to it, and by the Economic and Community Development
Department and the Oregon Association of Minority Entrepreneurs.
     (6) The development plan may include a
provision that the arrangement shall be dissolved by either party for reason by
notifying the Economic and Community Development Department and the Oregon
Association of Minority Entrepreneurs. [1991 c.559 §3]
EMERGING
SMALL BUSINESS ASSISTANCE PROGRAM
     200.150 [1991 c.517 §1; repealed by 2005 c.683 §13]
     200.160
Transportation Commission duties; report. The Oregon Transportation Commission shall appoint a committee to
recommend plans whereby the Department of Transportation may assist emerging
small businesses in overcoming barriers to participation in state public
improvement and maintenance projects. The committee shall report biennially its
recommendation to the commission and to the appropriate legislative committee. [1991
c.517 §2; 2005 c.683 §8]
     200.170
Eligibility for participation.
(1) Subject to subsection (2) of this section, to participate in the emerging
small business program under ORS 200.160 to 200.200, an applicant must:
     (a) Be certified by the Department of
Consumer and Business Services under ORS 200.005 to 200.075 as an emerging
small business;
     (b) Show that the applicant’s place of
business and the work in which the applicant seeks to participate are located
in this state; and
     (c) Show that the applicant is in
compliance with applicable licensing and registration requirements.
     (2) The Department of Transportation may
limit eligibility for participation on a specific project or contract to
emerging small businesses that are located in or draw a part of their workforce
from economically distressed areas or enterprise zones in this state, as
designated by the Economic and Community Development Department in consultation
with the Employment Department.
     (3) An applicant who participates under
ORS 200.160 to 200.200 must perform at least 51 percent of the labor provided
by the applicant on a public improvement or maintenance project using the
applicant’s own workforce. [1991 c.517 §§3,6; 2005 c.103 §1; 2005 c.683 §9]
     200.180
Emerging Small Business Account; uses. The Emerging Small Business Account is established within the State
Highway Fund. The Emerging Small Business Account is an investment fund for
purposes of ORS 293.701 to 293.820. Moneys in the account are continuously
appropriated to the Department of Transportation for the purpose of assisting
emerging small businesses under the plans recommended under ORS 200.160.
Interest earnings on moneys in the account are credited to the account. [1991
c.517 §4; 1993 c.744 §189b; 2005 c.683 §10]
     200.190
Deposit of one percent of highway construction contract amount. The Department of Transportation, when
undertaking a public improvement highway construction contract, shall deposit
with the State Treasurer an amount equal to not more than one percent of the
contract award amount. The State Treasurer shall credit the amount reserved to
the Emerging Small Business Account established in the State Highway Fund. The
deposit must be made within 30 days of the date on which the contract award is
made. [1991 c.517 §5; 1993 c.744 §189c; 2005 c.683 §11]
     200.200
Security for performance by emerging small business. (1) When any requirement exists under ORS
279.835 to 279.855 or ORS chapter 279A, 279B or 279C to provide a surety bond
or other security for the faithful performance of a public contract, an
emerging small business may provide:
     (a) A surety bond issued by a corporate
surety qualified by law to issue surety insurance as defined in ORS 731.186;
     (b) A stipulation or undertaking with one
or more individual sureties; or
     (c) Any other form of security specified
in the statute requiring the security.
     (2) When the security for the faithful
performance of a public contract is in the form of a stipulation or undertaking
with one or more individual sureties, the individual sureties must be residents
of this state. The total net worth of all the individual sureties on the
stipulation or undertaking must be at least twice the sum specified in the
stipulation or undertaking. The public agency requiring the security shall
determine if the sureties possess the qualifications prescribed by this
subsection. [1991 c.517 §8; 2003 c.794 §217]
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