2007 Oregon Code - Chapter 279a :: Chapter 279A - Public Contracting - General Provisions
Chapter 279A
— Public Contracting - General Provisions
2007 EDITION
PUBLIC CONTRACTING - GENERAL PROVISIONS
PUBLIC FACILITIES, CONTRACTING &
INSURANCE
GENERAL PROVISIONS
279A.005Â Short
title
279A.010Â Definitions
for Public Contracting Code
279A.015Â Policy
279A.020Â Organization
of Public Contracting Code
279A.025Â Application
of Public Contracting Code
279A.030Â Federal
law prevails in case of conflict
AUTHORITY
279A.050Â Procurement
authority
279A.055Â Personal
services contracts
279A.060Â Local
contract review boards
279A.065Â Model
rules generally; applicability to contracting agencies
279A.070Â Rules
279A.075Â Delegation
MINORITIES, WOMEN AND EMERGING SMALL
BUSINESSES
279A.100Â Affirmative
action; limited competition permitted
279A.105Â Subcontracting
to emerging small businesses
279A.110Â Discrimination
in subcontracting prohibited; remedies
CONTRACT PREFERENCES
279A.120Â Preference
for
279A.125Â Preference
for recycled materials
STATE PROCUREMENT
279A.140Â State
procurement of goods and services; rules
279A.142Â Limitation
of competition
279A.145Â Recycled
product purchasing information
279A.150Â Procurement
of goods containing recycled polyethylene material
279A.155Â State
procurement of paper
INTERGOVERNMENTAL RELATIONS
(Generally)
279A.180Â Purchases
through federal programs
279A.185Â Local
contracting agency arrangements for use or disposition of personal property
authorized
279A.190Â Transfers
of fire protection equipment between fire departments
(Cooperative Procurement)
279A.200Â Definitions
for ORS 279A.200 to 279A.225
279A.205Â Cooperative
procurements authorized
279A.210Â Joint
cooperative procurements
279A.215Â Permissive
cooperative procurements
279A.220Â Interstate
cooperative procurements
279A.225Â Protests
and disputes
STATE SURPLUS PROPERTY
279A.250Â Definitions
for ORS 279A.250 to 279A.290
279A.255Â Inspection,
appraisal and inventory of state property; reports by state agencies
279A.260Â Powers
and duties of department; acquisitions by qualified donees; rules
279A.265Â Use
of Oregon Department of Administrative Services Operating Fund; cash dividends
279A.270Â Contracts
with federal government for accepting gifts and acquiring surplus property;
bids not required
279A.275Â Leasing
of state property
279A.280Â Disposal
of surplus property; costs of disposal
279A.285Â Disposition
of moneys received as payment for repair or replacement of damaged, destroyed,
lost or stolen property
279A.290Â Miscellaneous
receipts accounts
PENALTIES
279A.990Â Penalties
GENERAL PROVISIONS
     279A.005
Short title. ORS chapters
279A, 279B and 279C may be cited as the Public Contracting Code. [2003 c.794 §1]
     279A.010
Definitions for Public Contracting Code. (1) As used in the Public Contracting Code, unless the context or a
specifically applicable definition requires otherwise:
     (a) “Bidder” means a person that submits a
bid in response to an invitation to bid.
     (b) “Contracting agency” means a public
body authorized by law to conduct a procurement. “Contracting agency” includes,
but is not limited to, the Director of the Oregon Department of Administrative
Services and any person authorized by a contracting agency to conduct a
procurement on the contracting agency’s behalf. “Contracting agency” does not include
the judicial department or the legislative department.
     (c) “Days” means calendar days.
     (d) “Department” means the Oregon
Department of Administrative Services.
     (e) “Director” means the Director of the
Oregon Department of Administrative Services or a person designated by the
director to carry out the authority of the director under the Public
Contracting Code.
     (f) “Emergency” means circumstances that:
     (A) Could not have been reasonably
foreseen;
     (B) Create a substantial risk of loss,
damage or interruption of services or a substantial threat to property, public
health, welfare or safety; and
     (C) Require prompt execution of a contract
to remedy the condition.
     (g) “Energy savings performance contract”
means a public contract between a contracting agency and a qualified energy
service company for the identification, evaluation, recommendation, design and
construction of energy conservation measures, including a design-build
contract, that guarantee energy savings or performance.
     (h) “Executive department” has the meaning
given that term in ORS 174.112.
     (i) “Goods” includes supplies, equipment,
materials, personal property, including any tangible, intangible and
intellectual property and rights and licenses in relation thereto, and
combinations of any of the items identified in this paragraph.
     (j) “Goods and services” or “goods or
services” includes combinations of any of the items identified in the
definitions of “goods” and “services.”
     (k)(A) “Grant” means:
     (i) An agreement under which a contracting
agency receives moneys, property or other assistance, including but not limited
to federal assistance that is characterized as a grant by federal law or
regulations, loans, loan guarantees, credit enhancements, gifts, bequests,
commodities or other assets, from a grantor for the purpose of supporting or
stimulating a program or activity of the contracting agency and in which no
substantial involvement by the grantor is anticipated in the program or
activity other than involvement associated with monitoring compliance with the
grant conditions; or
     (ii) An agreement under which a
contracting agency provides moneys, property or other assistance, including but
not limited to federal assistance that is characterized as a grant by federal
law or regulations, loans, loan guarantees, credit enhancements, gifts,
bequests, commodities or other assets, to a recipient for the purpose of
supporting or stimulating a program or activity of the recipient and in which
no substantial involvement by the contracting agency is anticipated in the
program or activity other than involvement associated with monitoring
compliance with the grant conditions.
     (B) “Grant” does not include a public
contract for a public improvement, for public works, as defined in ORS
279C.800, or for emergency work, minor alterations or ordinary repair or
maintenance necessary to preserve a public improvement, when under the public
contract a contracting agency pays, in consideration for contract performance
intended to realize or to support the realization of the purposes for which
grant funds were provided to the contracting agency, moneys that the
contracting agency has received under a grant.
     (L) “Industrial oil” means any compressor,
turbine or bearing oil, hydraulic oil, metal-working oil or refrigeration oil.
     (m) “Judicial department” has the meaning
given that term in ORS 174.113.
     (n) “Legislative department” has the
meaning given that term in ORS 174.114.
     (o) “Local contract review board” means a
local contract review board described in ORS 279A.060.
     (p) “Local contracting agency” means a
local government or special government body authorized by law to conduct a
procurement. “Local contracting agency” includes any person authorized by a
local contracting agency to conduct a procurement on behalf of the local
contracting agency.
     (q) “Local government” has the meaning
given that term in ORS 174.116.
     (r) “Lowest responsible bidder” means the
lowest bidder who:
     (A) Has substantially complied with all
prescribed public contracting procedures and requirements;
     (B) Has met the standards of
responsibility set forth in ORS 279B.110 or 279C.375;
     (C) Has not been debarred or disqualified
by the contracting agency under ORS 279B.130 or 279C.440; and
     (D) If the advertised contract is a public
improvement contract, is not on the list created by the Construction
Contractors Board under ORS 701.227.
     (s) “Lubricating oil” means any oil
intended for use in an internal combustion crankcase, transmission, gearbox or
differential or an automobile, bus, truck, vessel, plane, train, heavy
equipment or machinery powered by an internal combustion engine.
     (t) “Person” means a natural person
capable of being legally bound, a sole proprietorship, a corporation, a
partnership, a limited liability company or partnership, a limited partnership,
a for-profit or nonprofit unincorporated association, a business trust, two or
more persons having a joint or common economic interest, any other person with
legal capacity to contract or a public body.
     (u) “Post-consumer waste” means a finished
material that would normally be disposed of as solid waste, having completed
its life cycle as a consumer item. “Post-consumer waste” does not include
manufacturing waste.
     (v) “Price agreement” means a public
contract for the procurement of goods or services at a set price with:
     (A) No guarantee of a minimum or maximum
purchase; or
     (B) An initial order or minimum purchase
combined with a continuing contractor obligation to provide goods or services
in which the contracting agency does not guarantee a minimum or maximum
additional purchase.
     (w) “Procurement” means the act of
purchasing, leasing, renting or otherwise acquiring goods or services. “Procurement”
includes each function and procedure undertaken or required to be undertaken by
a contracting agency to enter into a public contract, administer a public
contract and obtain the performance of a public contract under the Public
Contracting Code.
     (x) “Proposer” means a person that submits
a proposal in response to a request for proposals.
     (y) “Public body” has the meaning given
that term in ORS 174.109.
     (z) “Public contract” means a sale or
other disposal, or a purchase, lease, rental or other acquisition, by a
contracting agency of personal property, services, including personal services,
public improvements, public works, minor alterations, or ordinary repair or
maintenance necessary to preserve a public improvement. “Public contract” does
not include grants.
     (aa) “Public contracting” means
procurement activities described in the Public Contracting Code relating to
obtaining, modifying or administering public contracts or price agreements.
     (bb) “Public Contracting Code” or “code”
means ORS chapters 279A, 279B and 279C.
     (cc) “Public improvement” means a project
for construction, reconstruction or major renovation on real property by or for
a contracting agency. “Public improvement” does not include:
     (A) Projects for which no funds of a
contracting agency are directly or indirectly used, except for participation
that is incidental or related primarily to project design or inspection; or
     (B) Emergency work, minor alteration,
ordinary repair or maintenance necessary to preserve a public improvement.
     (dd) “Public improvement contract” means a
public contract for a public improvement. “Public improvement contract” does
not include a public contract for emergency work, minor alterations, or
ordinary repair or maintenance necessary to preserve a public improvement.
     (ee) “Recycled material” means any
material that would otherwise be a useless, unwanted or discarded material
except for the fact that the material still has useful physical or chemical
properties after serving a specific purpose and can, therefore, be reused or
recycled.
     (ff) “Recycled oil” means used oil that
has been prepared for reuse as a petroleum product by refining, rerefining,
reclaiming, reprocessing or other means, provided that the preparation or use
is operationally safe, environmentally sound and complies with all laws and
regulations.
     (gg) “Recycled paper” means a paper
product with not less than:
     (A) Fifty percent of its fiber weight
consisting of secondary waste materials; or
     (B) Twenty-five percent of its fiber
weight consisting of post-consumer waste.
     (hh) “Recycled PETE” means post-consumer
polyethylene terephthalate material.
     (ii) “Recycled product” means all
materials, goods and supplies, not less than 50 percent of the total weight of
which consists of secondary and post-consumer waste with not less than 10
percent of its total weight consisting of post-consumer waste. “Recycled
product” includes any product that could have been disposed of as solid waste,
having completed its life cycle as a consumer item, but otherwise is
refurbished for reuse without substantial alteration of the productÂ’s form.
     (jj) “Secondary waste materials” means
fragments of products or finished products of a manufacturing process that has
converted a virgin resource into a commodity of real economic value. “Secondary
waste materials” includes post-consumer waste. “Secondary waste materials” does
not include excess virgin resources of the manufacturing process. For paper, “secondary
waste materials” does not include fibrous waste generated during the
manufacturing process such as fibers recovered from waste water or trimmings of
paper machine rolls, mill broke, wood slabs, chips, sawdust or other wood
residue from a manufacturing process.
     (kk) “Services” mean services other than
personal services designated under ORS 279A.055, except that, for state
contracting agencies with procurement authority under ORS 279A.050 or 279A.140,
“services” includes personal services as designated by the state contracting
agencies.
     (LL) “Special government body” has the
meaning given that term in ORS 174.117.
     (mm) “State agency” means the executive
department, except the Secretary of State and the State Treasurer in the
performance of the duties of their constitutional offices.
     (nn) “State contracting agency” means an
executive department entity authorized by law to conduct a procurement.
     (oo) “State government” has the meaning
given that term in ORS 174.111.
     (pp) “Used oil” has the meaning given that
term in ORS 459A.555.
     (qq) “Virgin oil” means oil that has been
refined from crude oil and that has not been used or contaminated with impurities.
     (2) Other definitions appearing in the
Public Contracting Code and the sections in which they appear are:
     (a)         “Adequate”........................ ORS
279C.305
     (b)         “Administering contracting
                  agency”............................... ORS
279A.200
     (c)         “Affirmative action”.......... ORS
279A.100
     (d)        “Architect”......................... ORS
279C.100
     (e)         “Architectural, engineering
                  and land surveying
                  services”............................. ORS
279C.100
     (f)         “Bid documents”................ ORS
279C.400
     (g)         “Bidder”............................. ORS
279B.415
     (h)         “Bids”................................. ORS
279C.400
     (i)          “Brand name”..................... ORS
279B.405
     (j)          “Brand name or equal
                  specification”...................... ORS
279B.200
     (k)         “Brand name
                  specification”...................... ORS
279B.200
     (L)        “Class special
                  procurement”...................... ORS
279B.085
     (m)        “Consultant”....................... ORS
279C.115
     (n)         “Contract-specific
                  special procurement”.......... ORS
279B.085
     (o)         “Cooperative
                  procurement”...................... ORS
279A.200
     (p)         “Cooperative procurement
                  group”................................. ORS
279A.200
     (q)         “Donee”.............................. ORS
279A.250
     (r)         “Engineer”.......................... ORS
279C.100
     (s)         “Findings”.......................... ORS
279C.330
     (t)         “Fire protection
                  equipment”......................... ORS
279A.190
     (u)         “Fringe benefits”................ ORS
279C.800
     (v)         “Funds of a public
                  agency”............................... ORS
279C.810
     (w)        “Good cause”..................... ORS
279C.585
     (x)         “Good faith dispute”.......... ORS
279C.580
     (y)         “Goods”............................. ORS
279B.115
     (z)         “Housing”........................... ORS
279C.800
     (aa)       “Interstate cooperative
                  procurement”...................... ORS
279A.200
     (bb)       “Invitation to bid”.............. ORS
279B.005
                  and 279C.400
     (cc)       “Joint cooperative
                  procurement”...................... ORS
279A.200
     (dd)      “Labor dispute”.................. ORS
279C.650
     (ee)       “Land surveyor”................. ORS
279C.100
     (ff)        “Legally flawed”................ ORS
279B.405
     (gg)       “Locality”........................... ORS
279C.800
     (hh)       “Nonprofit
                  organization”...................... ORS
279C.810
     (ii)         “Nonresident bidder”......... ORS
279A.120
     (jj)         “Not-for-profit
                  organization”...................... ORS
279A.250
     (kk)       “Original contract”............. ORS
279A.200
     (LL)      “Permissive cooperative
                  procurement”...................... ORS
279A.200
     (mm)     “Person”............................. ORS
279C.500
                  and 279C.815
     (nn)       “Personal services”............. ORS
279C.100
     (oo)       “Prevailing rate of
                  wage”................................. ORS
279C.800
     (pp)       “Procurement
                  description”........................ ORS
279B.005
     (qq)       “Property”.......................... ORS
279A.250
     (rr)        “Public agency”.................. ORS
279C.800
     (ss)        “Public contract”................ ORS
279A.190
     (tt)        “Public works”................... ORS
279C.800
     (uu)       “Purchasing contracting
                  agency”............................... ORS
279A.200
     (vv)       “Regularly organized fire
                  department”........................ ORS
279A.190
     (ww)     “Related services”.............. ORS
279C.100
     (xx)       “Request for proposals”..... ORS
279B.005
     (yy)       “Resident bidder”.............. ORS
279A.120
     (zz)       “Responsible bidder”......... ORS
279A.105
                  and 279B.005
     (aaa)     “Responsible proposer”...... ORS
279B.005
     (bbb)     “Responsive bid”................ ORS
279B.005
     (ccc)     “Responsive proposal”....... ORS
279B.005
     (ddd)    “Retainage”........................ ORS
279C.550
     (eee)     “Special procurement”........ ORS
279B.085
     (fff)      “Specification”................... ORS
279B.200
     (ggg)     “State agency”.................... ORS
279A.250
     (hhh)     “Substantial
                  completion”........................ ORS
279C.465
     (iii)        “Surplus property”.............. ORS
279A.250
     (jjj)        “Unnecessarily
                  restrictive”.......................... ORS
279B.405
[2003 c.794 §2; 2003 c.794 §2a; 2005 c.22 §199; 2005 c.103 §1a; 2005
c.153 §2; 2005 c.360 §13; 2007 c.764 §1]
     279A.015
Policy. It is the policy of
the State of
     (1) Simplify, clarify and modernize
procurement practices so that they reflect the marketplace and industry
standards.
     (2) Instill public confidence through
ethical and fair dealing, honesty and good faith on the part of government
officials and those who do business with the government.
     (3) Promote efficient use of state and
local government resources, maximizing the economic investment in public
contracting within this state.
     (4) Clearly identify rules and policies
that implement each of the legislatively mandated socioeconomic programs that
overlay public contracting and accompany the expenditure of public funds.
     (5) Allow impartial and open competition,
protecting both the integrity of the public contracting process and the
competitive nature of public procurement. In public procurement, as set out in
ORS chapter 279B, meaningful competition may be obtained by evaluation of
performance factors and other aspects of service and product quality, as well
as pricing, in arriving at best value.
     (6) Provide a public contracting structure
that can take full advantage of evolving procurement methods as they emerge
within various industries, while preserving competitive bidding as the standard
for public improvement contracts unless otherwise exempted. [2003 c.794 §3]
     279A.020
Organization of Public Contracting Code. (1) Except as otherwise provided in the Public Contracting Code, all
public contracting by a contracting agency is subject to this chapter.
     (2) Except as provided in ORS 279C.320,
public contracting involving public improvements and other construction
services is subject to this chapter and ORS chapter 279C, but not ORS chapter
279B.
     (3) Public contracting involving
architects, engineers, land surveyors and related services is subject to this
chapter and ORS chapter 279C, but not ORS chapter 279B.
     (4) Except as provided in ORS 279C.320,
all other public contracting is subject to this chapter and ORS 279B, but not
ORS chapter 279C. [2003 c.794 §4; 2005 c.103 §2]
     279A.025
Application of Public Contracting Code. (1) Except as provided in subsections (2) to (4) of this section, the
Public Contracting Code applies to all public contracting.
     (2) The Public Contracting Code does not
apply to:
     (a) Contracts between a contracting agency
and:
     (A) Another contracting agency;
     (B) The
     (C) The Oregon State Bar;
     (D) A governmental body of another state;
     (E) The federal government;
     (F) An American Indian tribe or an agency
of an American Indian tribe;
     (G) A nation, or a governmental body in a
nation, other than the
     (H) An intergovernmental entity formed
between or among:
     (i) Governmental bodies of this or another
state;
     (ii) The federal government;
     (iii) An American Indian tribe or an
agency of an American Indian tribe;
     (iv) A nation other than the
     (v) A governmental body in a nation other
than the
     (b) Agreements authorized by ORS chapter
190 or by a statute, charter provision, ordinance or other authority for
establishing agreements between or among governmental bodies or agencies or
tribal governing bodies or agencies;
     (c) Insurance and service contracts as
provided for under ORS 414.115, 414.125, 414.135 and 414.145 for purposes of
source selection;
     (d) Grants;
     (e) Contracts for professional or expert
witnesses or consultants to provide services or testimony relating to existing
or potential litigation or legal matters in which a public body is or may
become interested;
     (f) Acquisitions or disposals of real
property or interest in real property;
     (g) Sole-source expenditures when rates
are set by law or ordinance for purposes of source selection;
     (h) Contracts for the procurement or
distribution of textbooks;
     (i) Procurements by a contracting agency
from an Oregon Corrections Enterprises program;
     (j) The procurement, transportation or
distribution of distilled liquor, as defined in ORS 471.001, or the appointment
of agents under ORS 471.750 by the Oregon Liquor Control Commission;
     (k) Contracts entered into under ORS
chapter 180 between the Attorney General and private counsel or special legal
assistants;
     (L) Contracts for the sale of timber from
lands owned or managed by the State Board of Forestry and the State Forestry
Department;
     (m) Contracts for forest protection or
forest related activities, as described in ORS 477.406, by the State Forester
or the State Board of Forestry;
     (n) Sponsorship agreements entered into by
the State Parks and Recreation Director in accordance with ORS 565.080 (4);
     (o) Contracts entered into by the Housing
and Community Services Department in exercising the departmentÂ’s duties
prescribed in ORS chapters 456 and 458, except that the departmentÂ’s public
contracting for goods and services is subject to ORS chapter 279B;
     (p) Contracts entered into by the State
Treasurer in exercising the powers of that office prescribed in ORS chapters
178, 286A, 287A, 289, 293, 294 and 295, including but not limited to investment
contracts and agreements, banking services, clearing house services and
collateralization agreements, bond documents, certificates of participation and
other debt repayment agreements, and any associated contracts, agreements and
documents, regardless of whether the obligations that the contracts, agreements
or documents establish are general, special or limited, except that the State
TreasurerÂ’s public contracting for goods and services is subject to ORS chapter
279B;
     (q) Contracts, agreements or other
documents entered into, issued or established in connection with:
     (A) The issuance of obligations, as
defined in ORS 286A.100 and 287A.310, of a public body;
     (B) The making of program loans and
similar extensions or advances of funds, aid or assistance by a public body to
a public or private body for the purpose of carrying out, promoting or
sustaining activities or programs authorized by law; or
     (C) The investment of funds by a public
body as authorized by law, and other financial transactions of a public body
that by their character cannot practically be established under the competitive
contractor selection procedures of ORS 279B.050 to 279B.085;
     (r) Contracts for employee benefit plans
as provided in ORS 243.105 (1), 243.125 (4), 243.221, 243.275, 243.291, 243.303
and 243.565;
     (s) Contracts for employee benefit plans
as provided in ORS 243.860 to 243.886; or
     (t) Any other public contracting of a
public body specifically exempted from the code by another provision of law.
     (3) The Public Contracting Code does not
apply to the contracting activities of:
     (a) The
     (b) The Oregon University System and
member institutions, except as provided in ORS 351.086;
     (c) The legislative department;
     (d) The judicial department;
     (e) Semi-independent state agencies listed
in ORS 182.454, except as provided in ORS 279.835 to 279.855 and 279A.250 to
279A.290;
     (f)
     (g) The
     (h) The Travel Information Council, except
as provided in ORS 279A.250 to 279A.290;
     (i) The
     (j) The
     (k) The
     (L) Any other public body specifically
exempted from the code by another provision of law.
     (4) ORS 279A.200 to 279A.225 and 279B.050
to 279B.085 do not apply to contracts made with qualified nonprofit agencies
providing employment opportunities for individuals with disabilities under ORS
279.835 to 279.855. [2003 c.794 §5; 2003 c.794 §5a; 2005 c.22 §200; 2005 c.103 §3;
2005 c.109 §3; 2005 c.297 §3; 2005 c.748 §12; 2005 c.777 §15; 2007 c.7 §19;
2007 c.70 §67; 2007 c.71 §81; 2007 c.764 §2; 2007 c.783 §91]
     279A.030
Federal law prevails in case of conflict. Except as otherwise expressly provided in ORS 279C.800 to 279C.870,
and notwithstanding ORS 279C.005 to 279C.670 and this chapter and ORS chapter
279B, applicable federal statutes and regulations govern when federal funds are
involved and the federal statutes or regulations conflict with any provision of
ORS 279C.005 to 279C.670 or this chapter or ORS chapter 279B, or require additional
conditions in public contracts not authorized by ORS 279C.005 to 279C.670 or
this chapter or ORS chapter 279B. [2003 c.794 §6]
AUTHORITY
     279A.050
Procurement authority.
(1)(a) Except as otherwise provided in the Public Contracting Code, a contracting
agency shall exercise all procurement authority in accordance with the
provisions of the Public Contracting Code.
     (b) When a contracting agency has
authority under this section to carry out functions described in this section,
or has authority to make procurements under a provision of law other than the
Public Contracting Code, the contracting agency is not required to exercise
that authority in accordance with the provisions of the code if, under ORS
279A.025, the code does not apply to the contract or contracting authority.
     (2) Except as otherwise provided in the
Public Contracting Code, for state agencies the Director of the Oregon
Department of Administrative Services has all the authority to carry out the
provisions of the Public Contracting Code.
     (3) Except as otherwise provided in the
Public Contracting Code, the Director of Transportation has all the authority
to:
     (a) Procure or supervise the procurement
of all services and personal services to construct, acquire, plan, design,
maintain and operate passenger terminal facilities and motor vehicle parking
facilities in connection with any public transportation system in accordance
with ORS 184.689 (5);
     (b) Procure or supervise the procurement
of all goods, services, public improvements and personal services relating to
the operation, maintenance or construction of highways, bridges and other
transportation facilities that are subject to the authority of the Department
of Transportation; and
     (c) Establish standards for, prescribe
forms for and conduct the prequalification of prospective bidders on public
improvement contracts related to the operation, maintenance or construction of
highways, bridges and other transportation facilities that are subject to the
authority of the Department of Transportation.
     (4) Except as otherwise provided in the
Public Contracting Code, the Secretary of State has all the authority to
procure or supervise the procurement of goods, services and personal services
related to programs under the authority of the Secretary of State.
     (5) Except as otherwise provided in the
Public Contracting Code, the State Treasurer has all the authority to procure
or supervise the procurement of goods, services and personal services related
to programs under the authority of the State Treasurer.
     (6) The state agencies listed in this
subsection have all the authority to do the following in accordance with the
Public Contracting Code:
     (a) The Department of Human Services to
procure or supervise the procurement of goods, services and personal services
for the construction, demolition, exchange, maintenance, operation and
equipping of housing:
     (A) For persons with chronic mental
illness, subject to applicable provisions of ORS 426.504; and
     (B) For the purpose of providing care to
individuals with mental retardation or other developmental disabilities,
subject to applicable provisions of ORS 427.335;
     (b) The State Department of Fish and
Wildlife to procure or supervise the procurement of construction materials,
equipment, supplies, services and personal services for public improvements,
public works or ordinary construction described in ORS 279C.320 that is subject
to the authority of the State Department of Fish and Wildlife;
     (c) The State Parks and Recreation
Department to procure or supervise the procurement of all goods, services,
public improvements and personal services relating to state parks;
     (d) The Oregon Department of Aviation to
procure or supervise the procurement of construction materials, equipment,
supplies, services and personal services for public improvements, public works
or ordinary construction described in ORS 279C.320 that is subject to the
authority of the Oregon Department of Aviation;
     (e) The Economic and Community Development
Department to procure or supervise the procurement of all goods, services,
personal services and public improvements related to its foreign trade offices
operating outside the state;
     (f) The Housing and Community Services
Department to procure or supervise the procurement of goods, services and
personal services as provided in ORS 279A.025 (2)(o);
     (g) The Department of Corrections to
procure or supervise the procurement of construction materials, equipment,
supplies, services and personal services for public improvements, public works
or ordinary construction described in ORS 279C.320 that is subject to the
authority of the Department of Corrections;
     (h) The Department of Corrections, subject
to any applicable provisions of ORS 279A.120, 279A.125, 279A.145 and 283.110 to
283.395, to procure or supervise the procurement of goods for its institutions;
     (i) The Department of Veterans’ Affairs to
procure or supervise the procurement of real estate broker and principal real
estate broker services related to programs under the departmentÂ’s authority;
     (j) The Oregon Military Department to
procure or supervise the procurement of construction materials, equipment,
supplies, services and personal services for public improvements, public works
or ordinary construction described in ORS 279C.320 that is subject to the
authority of the Oregon Military Department;
     (k) The Department of Education, subject
to any applicable provisions of ORS 329.075, 329.085 and 329.485 and the
federal No Child Left Behind Act of 2001 (P.L. 107-110, 115 Stat. 1425), to procure
or supervise the procurement of goods, services, personal services and
information technology relating to student assessment; and
     (L) Any state agency to conduct a
procurement when the agency is specifically authorized by any provision of law
other than the Public Contracting Code to enter into a contract.
     (7) Notwithstanding this section and ORS
279A.140 (1), the Director of the Oregon Department of Administrative Services
has exclusive authority to procure or supervise the procurement of all state agency
information technology contracts and all price agreements on behalf of the
state agencies identified in subsection (6)(a) to (j) of this section under
which more than one state agency may order goods, services or personal services
unless the director delegates this authority. This subsection does not apply to
contracts under which the contractor delivers to the state agency information
technology products or services incidental to the performance of personal
services contracts described in ORS chapter 279C or construction contracts
described in ORS chapter 279C. A state agency identified in subsection (3) or
(6)(a) to (j) of this section may not establish a price agreement or enter into
a contract for goods, services or personal services without the approval of the
director if the director has established a price agreement for the goods,
services or personal services. [2003 c.794 §7; 2005 c.625 §61; 2007 c.70 §68;
2007 c.197 §1; 2007 c.764 §3]
     279A.055
Personal services contracts.
(1) Except as provided in ORS 279A.140, a contracting agency may enter into
personal services contracts. The provisions of this section do not relieve a
contracting agency of the duty to comply with ORS 279A.140, any other law
applicable to state agencies or applicable city or county charter provisions.
     (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 service contracts or classes of service contracts as personal services
contracts. [2003 c.794 §8; 2005 c.103 §4]
     279A.060
Local contract review boards.
If the governing body of a local contracting agency takes no action to provide
otherwise, the governing body is the local contract review board of that local
contracting agency. However, the governing body of a local contracting agency
may, by charter, ordinance or other local legislation, authorize a body, board
or commission other than the governing body to serve as the local contract
review board of the local contracting agency. The governing body of a local
contracting agency also may enter into intergovernmental agreements under ORS
chapter 190 to permit the local contract review board of another local
contracting agency or the Director of the Oregon Department of Administrative
Services to exercise authority under ORS 279B.085. [2003 c.794 §9]
     279A.065
Model rules generally; applicability to contracting agencies. (1) The Attorney General shall prepare and
maintain model rules of procedure appropriate for use by all contracting
agencies governing public contracting under the Public Contracting Code and may
devise and publish forms for use therewith. The Attorney General shall adopt
the model rules in the manner provided by ORS chapter 183. Before adopting or
amending a model rule, the Attorney General shall consult with the Director of
the Oregon Department of Administrative Services, the Director of
Transportation, representatives of county governments, representatives of city
governments, representatives of school boards and other knowledgeable persons.
     (2) The Attorney General shall adopt model
rules appropriate for use by all contracting agencies to govern the procedures
for entering into energy savings performance contracts. Before adopting or
amending a rule under this subsection, the Attorney General shall consult with
the Oregon Department of Administrative Services, the State Department of
Energy, the Oregon University System, local contracting agencies and other
knowledgeable persons. The Attorney General may develop standard contract forms
for use with energy savings performance contracts.
     (3) After each legislative session, the
Attorney General shall review all laws passed by the Legislative Assembly that
affect public contracting to determine if the model rules prepared under this
section should be modified by the adoption of a new rule or by the amendment or
repeal of an existing rule. If the Attorney General determines that a
modification of the model rules is necessary, the Attorney General shall
prepare the modification within such time as to allow the modification to take
effect no later than 120 days after the effective date of the legislation that
caused the rule to be modified. However, the Attorney General may prepare a
modification to take effect 121 or more days after the effective date of the
legislation if the Attorney General provides notice designating the time period
within which the modification will take effect to the state agencies and
persons listed in subsection (1) of this section.
     (4) A contracting agency that has not
adopted its own rules of procedure in accordance with subsection (5) of this
section is subject to the model rules adopted by the Attorney General under
this section, including all modifications to the model rules that the Attorney
General may adopt. This subsection does not apply to personal services
contracts of local contracting agencies except for contracts for architectural,
engineering and land surveying services and related services.
     (5)(a) A contracting agency may adopt its
own rules of procedure for public contracts that:
     (A) Specifically state that the model
rules adopted by the Attorney General under this section do not apply to the
contracting agency; and
     (B) Prescribe the rules of procedure that
the contracting agency will use for public contracts, which may include
portions of the model rules adopted by the Attorney General.
     (b) A contracting agency that adopts rules
under this section shall review the rules each time the Attorney General
modifies the model rules under this section to determine whether the
contracting agency should modify its rules to ensure compliance with statutory
changes. [2003 c.794 §10; 2003 c.794 §10a]
     279A.070
Rules. In addition to rules
adopted under ORS 279A.065 (5), a contracting agency may, in the exercise of
authority granted under ORS 279A.050, adopt rules necessary to carry out the
provisions of the Public Contracting Code, including but not limited to rules
for the procurement, management, disposal and control of goods, services,
personal services and public improvements under the Public Contracting Code.
Each contracting agency authorized to enter into personal services contracts
shall create procedures for the screening and selection of persons to perform
personal services. [2003 c.794 §11; 2003 c.794 §11a]
     279A.075
Delegation. (1) Unless
otherwise provided in the Public Contracting Code, the exercise of all
authorities in the code may be delegated and subdelegated in whole or in part.
Notwithstanding delegations of authority under this section, a personÂ’s or
agencyÂ’s exercise of the delegated authority is governed by the code and rules
adopted under the code.
     (2) The Secretary of State, State
Treasurer, Director of the Oregon Department of Administrative Services and
Director of Transportation and other heads of state agencies with specific
limited authority identified in ORS 279A.050 (6) may delegate their authority
to contract for and manage public contracts for their offices or agencies. [2003
c.794 §12]
MINORITIES, WOMEN
AND EMERGING SMALL BUSINESSES
     279A.100
Affirmative action; limited competition permitted. (1) As used in this section, “affirmative
action” means a program designed to ensure equal opportunity in employment and
business for persons otherwise disadvantaged by reason of race, color,
religion, sex, national origin, age or physical or mental disability.
     (2) The provisions of the Public
Contracting Code may not be construed to prohibit a contracting agency from
engaging in public contracting practices designed to promote affirmative action
goals, policies or programs for disadvantaged or minority groups.
     (3) In carrying out the policy of
affirmative action, by appropriate ordinance, resolution or rule, a contracting
agency may limit competition for a public contract for goods and services, or
for any other public contract estimated to cost $50,000 or less, to contracting
entities owned or controlled by persons described in subsection (1) of this
section. [2003 c.794 §13]
     279A.105
Subcontracting to emerging small businesses. (1) A contracting agency may require a contractor to subcontract some
part of a contract to, or to obtain materials to be used in performing the
contract from, a business enterprise that is certified under ORS 200.055 as an
emerging small business.
     (2) A contracting agency may require a
contractor to subcontract some part of a contract to, or to obtain materials to
be used in performing the contract from, a business enterprise that is
certified under ORS 200.055 as an emerging small business and that, as
identified by the contracting agency, is located in or draws its workforce from
economically distressed areas, as designated by the Economic and Community
Development Department.
     (3) A contracting agency may require that
a public contract be awarded to a responsible bidder, as defined in ORS
200.005, who the contracting agency determines has made good faith efforts as
prescribed in ORS 200.045 (3). For purposes of this subsection, “responsible
bidder” includes a responsible proposer that has made good faith efforts as
prescribed in ORS 200.045 (3). [2003 c.794 §14; 2005 c.103 §5]
     279A.110
Discrimination in subcontracting prohibited; remedies. (1) A bidder or proposer who competes for or
is awarded a public contract may not discriminate against a subcontractor in
the awarding of a subcontract because the subcontractor is a minority, women or
emerging small business enterprise certified under ORS 200.055.
     (2) A contracting agency may debar or
disqualify, under ORS 279B.130 or 279C.440, as appropriate, a bidder or
proposer if the contracting agency finds that the bidder or proposer has
violated subsection (1) of this section in the awarding of a subcontract in
connection with a contract advertised by the contracting agency or a contract
between the contracting agency and the bidder or proposer. A debarred or
disqualified bidder or proposer may appeal the debarment or disqualification
under ORS 279B.425 or ORS 279C.445 and 279C.450, as appropriate.
     (3) A contracting agency may not allege an
occurrence of discrimination in subcontracting as a basis for debarring or
disqualifying a bidder or proposer under subsection (2) of this section more
than three years after the alleged discriminatory conduct occurred or more than
three years after the contracting agency, in the exercise of reasonable
diligence, should have discovered the conduct, whichever is later.
     (4) A bidder or proposer shall certify in
the documents accompanying the bidderÂ’s or proposerÂ’s offer to enter into a
public contract that the bidder or proposer has not discriminated and will not
discriminate, in violation of subsection (1) of this section, against any
minority, women or emerging small business enterprise in obtaining any required
subcontract.
     (5) After a contractor is awarded a public
contract, if the contractor violates the certification made under subsection
(4) of this section, the contracting agency may regard the violation as a
breach of contract that permits:
     (a) Termination of the contract; or
     (b) The contracting agency to exercise any
remedies for breach of contract that are reserved in the contract. [2003 c.794 §15]
CONTRACT
PREFERENCES
     279A.120
Preference for
     (a) “Nonresident bidder” means a bidder
who is not a resident bidder.
     (b) “Resident bidder” means a bidder that
has paid unemployment taxes or income taxes in this state during the 12
calendar months immediately preceding submission of the bid, has a business
address in this state and has stated in the bid whether the bidder is a “resident
bidder” under this paragraph.
     (2) For the purposes of awarding a public
contract, a contracting agency shall:
     (a) Give preference to goods or services
that have been manufactured or produced in this state if price, fitness,
availability and quality are otherwise equal; and
     (b) Add a percent increase to the bid of a
nonresident bidder equal to the percent, if any, of the preference given to the
bidder in the state in which the bidder resides.
     (3) When a public contract is awarded to a
nonresident bidder and the contract price exceeds $10,000, the bidder shall
promptly report to the Department of Revenue on forms to be provided by the
department the total contract price, terms of payment, length of contract and
such other information as the department may require before the bidder may
receive final payment on the public contract. The contracting agency shall
satisfy itself that the requirement of this subsection has been complied with
before the contracting agency issues a final payment on a public contract.
     (4) The
     279A.125
Preference for recycled materials. (1) Notwithstanding provisions of law requiring a contracting agency
to award a contract to the lowest responsible bidder or best proposer or
provider of a quotation and subject to subsection (2) of this section, a contracting
agency charged with the procurement of goods for any public use shall give
preference to the procurement of goods manufactured from recycled materials.
     (2) A contracting agency shall give
preference to goods that are certified to be made from recycled materials if:
     (a) The recycled product is available;
     (b) The recycled product meets applicable
standards;
     (c) The recycled product can be
substituted for a comparable nonrecycled product; and
     (d) The recycled product’s costs do not
exceed the costs of nonrecycled products by more than five percent, or a higher
percentage if a written determination is made by the contracting agency. [2003
c.794 §17]
STATE PROCUREMENT
    Â
     (2) The following requirements and
procedures apply to all contracts of state agencies:
     (a) A personal services contract is not
valid or effective without the written approval of the department unless:
     (A) The contract is authorized under ORS
279A.050; or
     (B) The department has delegated authority
to the contracting agency under ORS 279A.075 to make the personal services
contract.
     (b) Neither the department nor a state
agency may approve a contract before the contract has been reviewed for legal
sufficiency and approved by the Attorney General, if the review and approval
are required under ORS 291.047 or 291.049.
     (c) Unless otherwise provided by law, the
department or a state agency may enter into a public contract for any period of
time, provided that the term of the contract and conditions of renewal or
extension are included in the solicitation. Contracting agencies may stipulate
in contracts for goods or services that any payment and performance obligations
for succeeding fiscal periods are subject to the availability and appropriation
of funds for the obligations. A contract for goods or services subject to this
section may not be construed as violating any applicable debt limitation or
limitation on a contracting agencyÂ’s expenditure authority.
     (d) When funds are not appropriated or
otherwise made available to support continuation of the departmentÂ’s or a state
agencyÂ’s performance of a contract in a subsequent fiscal period, the
department or state agency may cancel the contract and reimburse the contractor
for the reasonable value of any nonrecurring costs incurred but not amortized
in the price of the goods or services delivered under the contract. The
department or state agency may pay the reimbursement only from any
appropriations or funds then lawfully available for such purposes.
     (e) Except as otherwise provided in this
chapter, a contract of a state agency will be deemed by the department to have
been executed only when all requisite approvals have been obtained.
     (f) Any procurement or contract by the
department for a state agency must, when required by rules adopted by the
department under ORS 279A.070, be made on the basis of a requisition by the
state agency.
     (g) The department may use moneys from the
Oregon Department of Administrative Services Operating Fund to procure goods,
services and personal services for the purpose of supplying requirements of
state agencies, the cost of which shall be reimbursed to the fund from charges
paid by state agencies on the basis of actual usage. Administrative costs
incurred in the operation of the fund may be paid from the fund and the amount
of such costs shall be added to the cost of the goods, services and personal
services as charged to the state agencies.
     (h) The department shall adopt rules
necessary to implement the provisions of this subsection, including but not
limited to rules establishing:
     (A) A reporting system for personal
service contracts, including architectural, engineering and land surveying
services contracts and related services contracts, that includes the following:
     (i) A state agency shall submit to the
department personal services contract information as directed by the
department. A state agency shall file with the department a copy of each
personal services contract entered into by the state agency, including
appropriate documentation as required by the department. Whenever a state
agency pays more in a calendar year under a personal services contract for
services historically performed by state employees than the agency would have
paid to the agencyÂ’s employees performing the same work, the agency shall so
report to the department and include in the report a statement of justification
for the greater costs.
     (ii) The department shall keep the copy of
the contract and the departmentÂ’s documentation on file for three years, after
which the department may destroy the file. The department shall maintain a
system for filing copies of personal services contracts and documentation
submitted to the department under this paragraph. The department shall submit a
biennial report to the Legislative Assembly concerning the use of personal
services contracts by state agencies. The report must specify the name of each
state agency, the amount paid under each personal services contract entered into
by the agency, the name of the contractor, the duration of the contract and the
contractÂ’s basic purpose. The report must also include the total dollar figure
of all personal services contracts for each year of the preceding biennium.
     (B) Procedures for the evaluation and
award of personal services contracts when the department authorizes a state
agency to contract directly for personal services, including architectural,
engineering and land surveying services and related services, in accordance
with ORS 279B.050 or 279C.100 to 279C.125.
     (3) The department shall notify all state
agencies of the requirements of this section. [2003 c.794 §18]
     279A.142
Limitation of competition. A
contracting agency may, by appropriate ordinance, resolution or rule, limit competition
for a public contract to emerging small business enterprises certified under
ORS 200.055 if the contract is estimated to cost $100,000 or less and is funded
by the Emerging Small Business Account established under ORS 200.180. [2007
c.344 §2]
     279A.145
Recycled product purchasing information. The Oregon Department of Administrative Services shall include
recycled product purchasing information within publications and training
programs provided to local governments requesting state government purchasing
assistance. [2003 c.794 §19]
     279A.150
Procurement of goods containing recycled polyethylene material. (1) The Oregon Department of Administrative
Services shall provide guidelines to state agencies and contractors on the
availability of necessary goods that contain recycled PETE, as well as other
recycled plastic resin supplies and materials.
     (2) The department shall identify
suppliers able to provide necessary goods containing recycled PETE, as well as
other recycled plastic resin supplies and materials. [2003 c.794 §20]
    Â
INTERGOVERNMENTAL
RELATIONS
(Generally)
     279A.180
Purchases through federal programs. Notwithstanding any other provision of the Public Contracting Code, a
procurement may be made without competitive sealed bidding, competitive sealed
proposals or other competition required under ORS 279B.050 to 279B.085 provided
that:
     (1) The procurement is made in accordance
with rules adopted by the contracting agency for procurements under this
section; and
     (2) The procurement is made under 10
U.S.C. 381, the Electronic Government Act of 2002 (P.L. 107-347) or other
federal law that is, as determined by the Director of the Oregon Department of
Administrative Services or a local contract review board, similar to 10 U.S.C.
381 or section 211 of the Electronic Government Act of 2002 in effectuating or
promoting transfers of property to contracting agencies. [2003 c.794 §22]
     279A.185
Local contracting agency arrangements for use or disposition of personal
property authorized. (1)
Notwithstanding the competitive procurement requirements of ORS chapters 279B
and 279C, a local contracting agency may sell, transfer or dispose of personal
property in accordance with rules adopted under ORS 279A.070.
     (2) Notwithstanding the competitive
procurement requirements of ORS chapters 279B and 279C, a local contracting
agency may negotiate with one or more private or public entities to establish
contracts, agreements and other cooperative arrangements for the use,
operation, maintenance or ultimate lawful disposition of personal property
owned by or under the control of the local contracting agency, including
property acquired under ORS 279A.260. Before approving such a contract,
agreement or arrangement, the governing body of the local contracting agency
must make a finding that the contract, agreement or arrangement will promote
the economic development of the local contracting agency, of the geographical
area in which the local contracting agency is situated or of other public
bodies that perform similar functions. [2003 c.794 §23]
     279A.190
Transfers of fire protection equipment between fire departments. (1) As used in this section:
     (a) “Fire protection equipment” has the
meaning given that term in ORS 476.005.
     (b) “Public contract” includes a sale at
no cost.
     (c) “Regularly organized fire department”
has the meaning given that term in ORS 652.050.
     (2) Notwithstanding any other provision of
the Public Contracting Code, transfers of fire protection equipment under
public contracts between regularly organized fire departments may be made
without competitive sealed bidding, competitive sealed proposals or other
competition required in ORS 279B.050 to 279B.085, provided:
     (a) The recipient regularly organized fire
department makes a written request for the fire protection equipment to the
transferor regularly organized fire department;
     (b) The fire protection equipment is
surplus to or unusable by the transferor;
     (c) The total fair market value of fire
protection equipment received by the recipient does not exceed $50,000 per
calendar year; and
     (d) The transferor holds a public hearing,
with hearing notice published in at least one trade newspaper of general
statewide circulation a minimum of 14 days before the hearing, and finds that
the public contract is in the public’s interest. [2003 c.794 §24]
(Cooperative
Procurement)
     279A.200
Definitions for ORS 279A.200 to 279A.225. (1) As used in ORS 279A.200 to 279A.225:
     (a) “Administering contracting agency”
means a governmental body in this state or in another jurisdiction that
solicits and establishes the original contract for the procurement of goods,
services or public improvements in a cooperative procurement.
     (b) “Cooperative procurement” means a
procurement conducted on behalf of more than one governmental body. “Cooperative
procurement” includes but is not limited to multiagency contracts and price
agreements. “Cooperative procurement” does not include an agreement formed
among only governmental bodies under ORS chapter 190 or by a statute, charter
provision, ordinance or other authority for establishing agreements between or
among governmental bodies or agencies or tribal governing bodies or agencies.
     (c) “Cooperative procurement group” means
a group of governmental bodies joined through an intergovernmental agreement
for the purpose of facilitating cooperative procurements.
     (d) “Interstate cooperative procurement”
means a permissive cooperative procurement in which the administering
contracting agency is a governmental body, domestic or foreign, that is
authorized under the governmental bodyÂ’s laws, rules or regulations to enter
into public contracts and in which one or more of the participating
governmental bodies are located outside this state.
     (e) “Joint cooperative procurement” means
a cooperative procurement in which the participating governmental bodies or the
cooperative procurement group and the bodiesÂ’ or groupÂ’s contract requirements
or estimated contract requirements for price agreements are identified.
     (f) “Original contract” means the initial
contract or price agreement solicited and awarded during a cooperative
procurement by an administering contracting agency.
     (g) “Permissive cooperative procurement”
means a cooperative procurement in which the purchasing contracting agencies
are not identified.
     (h) “Purchasing contracting agency” means
a governmental body that procures goods, services or public improvements from a
contractor based on the original contract established by an administering
contracting agency.
     (2) As used in ORS 279A.210 (1)(a),
279A.215 (1)(a) and 279A.220 (1)(a), an administering contracting agencyÂ’s
solicitation and award process uses source selection methods “substantially
equivalent” to those identified in ORS 279B.055, 279B.060 or 279B.085 if the
solicitation and award process:
     (a) Calls for award of a contract on the
basis of a lowest responsible bidder or a lowest and best bidder determination
in the case of competitive bids, or on the basis of a determination of the
proposer whose proposal is most advantageous based on evaluation factors set
forth in the request for proposals in the case of competitive proposals;
     (b) Does not permit the application of any
geographic preference that is more favorable to bidders or proposers who reside
in the jurisdiction or locality favored by the preference than the preferences
provided in ORS 279A.120 (2); and
     (c) Uses reasonably clear and precise
specifications that promote suitability for the purposes intended and that
reasonably encourage competition. [2003 c.794 §25; 2007 c.764 §4]
     279A.205
Cooperative procurements authorized. (1) A contracting agency may participate in, sponsor, conduct or
administer a joint cooperative procurement for the procurement of any goods,
services or public improvements.
     (2) A contracting agency may participate
in, sponsor, conduct or administer a permissive or interstate cooperative
procurement for the procurement of any goods or services, but not public
improvements. [2003 c.794 §26; 2005 c.103 §6]
     279A.210
Joint cooperative procurements.
(1) A joint cooperative procurement is valid only if:
     (a) The administering contracting agency’s
solicitation and award process for the original contract is an open and
impartial competitive process and uses source selection methods substantially
equivalent to those specified in ORS 279B.055, 279B.060 or 279B.085 or uses a
competitive bidding process substantially equivalent to the competitive bidding
process in ORS chapter 279C;
     (b) The administering contracting agency’s
solicitation and the original contract or price agreement identifies the
cooperative procurement group or each participating purchasing contracting
agency and specifies the estimated contract requirements; and
     (c) No material change is made in the
terms, conditions or prices of the contract between the contractor and the
purchasing contracting agency from the terms, conditions and prices of the
original contract between the contractor and the administering contracting
agency.
     (2) A joint cooperative procurement may
not be a permissive cooperative procurement. [2003 c.794 §27]
     279A.215
Permissive cooperative procurements. (1) A contracting agency may establish a contract or price agreement
through a permissive cooperative procurement only if:
     (a) The administering contracting agency’s
solicitation and award process for the original contract is an open and
impartial competitive process and uses source selection methods substantially
equivalent to those specified in ORS 279B.055 or 279B.060;
     (b) The administering contracting agency’s
solicitation and the original contract allow other contracting agencies to
establish contracts or price agreements under the terms, conditions and prices
of the original contract;
     (c) The contractor agrees to extend the
terms, conditions and prices of the original contract to the purchasing
contracting agency; and
     (d) No material change is made in the
terms, conditions or prices of the contract or price agreement between the
contractor and the purchasing contracting agency from the terms, conditions and
prices of the original contract between the contractor and the administering
contracting agency.
     (2)(a) A purchasing contracting agency
shall provide public notice of intent to establish a contract or price
agreement through a permissive cooperative procurement if the estimated amount
of the procurement exceeds $250,000.
     (b) The notice of intent must include:
     (A) A description of the procurement;
     (B) An estimated amount of the
procurement;
     (C) The name of the administering
contracting agency; and
     (D) A time, place and date by which
comments must be submitted to the purchasing contracting agency regarding the
intent to establish a contract or price agreement through a permissive
cooperative procurement.
     (c) Public notice of the intent to
establish a contract or price agreement through a permissive cooperative
procurement must be given in the same manner as provided in ORS 279B.055 (4)(b)
and (c).
     (d) Unless otherwise specified in rules
adopted under ORS 279A.070, the purchasing contracting agency shall give public
notice at least seven days before the deadline for submission of comments
regarding the intent to establish a contract or price agreement through a
permissive cooperative procurement.
     (3) If a purchasing contracting agency is
required to provide notice of intent to establish a contract or price agreement
through a permissive cooperative procurement under subsection (2) of this
section:
     (a) The purchasing contracting agency
shall provide vendors who would otherwise be prospective bidders or proposers
on the contract or price agreement, if the procurement were competitively
procured under ORS chapter 279B, an opportunity to comment on the intent to
establish a contract or price agreement through a permissive cooperative
procurement.
     (b) Vendors must submit comments within
seven days after the notice of intent is published.
     (c) And if the purchasing contracting
agency receives comments on the intent to establish a contract or price
agreement through a permissive cooperative procurement, before the purchasing
contracting agency may establish a contract or price agreement through the
permissive cooperative procurement, the purchasing contracting agency shall
make a written determination that establishing a contract or price agreement
through a permissive cooperative procurement is in the best interest of the
purchasing contracting agency. The purchasing contracting agency shall provide
a copy of the written determination to any vendor that submitted comments. [2003
c.794 §28]
     279A.220
Interstate cooperative procurements. (1) A contracting agency may establish a contract or price agreement
through an interstate cooperative procurement only if:
     (a) The administering contracting agency’s
solicitation and award process for the original contract is an open and
impartial competitive process and uses source selection methods substantially
equivalent to those specified in ORS 279B.055 or 279B.060;
     (b) The administering contracting agency’s
solicitation and the original contract allows other governmental bodies to
establish contracts or price agreements under the terms, conditions and prices
of the original contract; and
     (c) The administering contracting agency
permits the contractor to extend the use of the terms, conditions and prices of
the original contract to the purchasing contracting agency.
     (2) In addition to the requirements in
subsection (1) of this section:
     (a) The purchasing contracting agency, or
the cooperative procurement group of which the purchasing contracting agency is
a member, must be listed in the solicitation of the administering contracting
agency as a party that may establish contracts or price agreements under the
terms, conditions and prices of the original contract, and the solicitation
must be advertised in Oregon; or
     (b)(A) The purchasing contracting agency,
or the cooperative procurement group of which the purchasing contracting agency
is a member, shall advertise a notice of intent to establish a contract or
price agreement through an interstate cooperative procurement.
     (B) The notice of intent must include:
     (i) A description of the procurement;
     (ii) An estimated amount of the
procurement;
     (iii) The name of the administering
contracting agency; and
     (iv) A time, place and date by which
comments must be submitted to the purchasing contracting agency regarding the
intent to establish a contract or price agreement through an interstate
cooperative procurement.
     (C) Public notice of the intent to
establish a contract or price agreement through an interstate cooperative
procurement must be given in the same manner as provided in ORS 279B.055 (4)(b)
and (c).
     (D) Unless otherwise specified in rules
adopted under ORS 279A.070, the purchasing contracting agency shall give public
notice at least seven days before the deadline for submission of comments
regarding the intent to establish a contract or price agreement through an interstate
cooperative procurement.
     (3) If a purchasing contracting agency is
required to provide notice of intent to establish a contract or price agreement
through an interstate cooperative procurement under subsection (2) of this
section:
     (a) The purchasing contracting agency
shall provide vendors who would otherwise be prospective bidders or proposers
on the contract or price agreement, if the procurement were competitively
procured under ORS chapter 279B, an opportunity to comment on the intent to establish
a contract or price agreement through an interstate cooperative procurement.
     (b) Vendors must submit comments within
seven days after the notice of intent is published.
     (c) And if the purchasing contracting
agency receives comments on the intent to establish a contract or price
agreement through an interstate cooperative procurement, before the purchasing
contracting agency may establish a contract or price agreement through the
interstate cooperative procurement, the purchasing contracting agency shall
make a written determination that establishing a contract or price agreement
through an interstate cooperative procurement is in the best interest of the
purchasing contracting agency. The purchasing contracting agency shall provide
a copy of the written determination to any vendor that submitted comments.
     (4) For purposes of this section, an
administering contracting agency may be any governmental body, domestic or
foreign, authorized under its laws, rules or regulations to enter into
contracts for the procurement of goods and services for use by a governmental
body. [2003 c.794 §29]
     279A.225
Protests and disputes. (1) A
protest regarding the procurement process, the contents of solicitation
documents or the award or proposed award of an original contract may be
directed only to the administering contracting agency. The protest must be in
accordance with the provisions of ORS 279B.400 to 279B.425.
     (2) A protest regarding the use of a
cooperative procurement by a purchasing contracting agency after the execution
of an original contract may be directed only to the purchasing contracting
agency. The protest must be in accordance with the provisions of ORS 279B.400
to 279B.425 and is limited in scope to the purchasing contracting agencyÂ’s
authority to enter into a cooperative procurement contract.
     (3) The decision of a local contracting
agency to use a cooperative procurement is reviewable in the circuit court of
the county where the principal offices of the local contracting agency are
located. The decision of a state contracting agency to use a cooperative
procurement shall be reviewable by the Circuit Court for
     (4) Disputes regarding contract
performance between a purchasing contracting agency and a contractor may be
resolved solely by the purchasing contracting agency and the contractor. [2003
c.794 §30]
STATE SURPLUS
PROPERTY
     279A.250
Definitions for ORS 279A.250 to 279A.290. As used in ORS 279A.250 to 279A.290, unless the context requires
otherwise:
     (1) “Donee” means an entity eligible to
acquire federal donation property based upon federal regulations or eligible to
acquire surplus property in accordance with rules adopted by the Oregon
Department of Administrative Services. Entities eligible to acquire federal
donation property may also acquire surplus property other than federal donation
property.
     (2) “Not-for-profit organization” means a
nonprofit corporation as defined in ORS 307.130.
     (3) “Property” means personal property.
     (4) “State agency” means every state
officer, board, commission, department, institution, branch or agency of state
government whose costs are paid wholly or in part from funds held in the State
Treasury, and includes the Legislative Assembly and the courts, including the
officers and committees of both, and the Secretary of State and the State
Treasurer in the performance of the duties of their constitutional offices.
     (5) “Surplus property” means property
received by the Oregon Department of Administrative Services or a state agency
as surplus from federal government units, state agencies, local governments,
special government bodies, not-for-profit organizations, other states and
private entities. [2003 c.794 §36]
     279A.255
Inspection, appraisal and inventory of state property; reports by state
agencies. The Oregon
Department of Administrative Services may:
     (1) Provide for the periodic inspection
and appraisal of state property;
     (2) Provide for the maintenance of current
and perpetual inventories of state property; and
     (3) Require any state agency to make
reports of the property in the agencyÂ’s custody at such intervals and in such
form as the department deems necessary. [2003 c.794 §37]
     279A.260
Powers and duties of department; acquisitions by qualified donees; rules. (1) Subject to the power of the Governor to
terminate the functions listed in this section, the Oregon Department of
Administrative Services may:
     (a) Accept surplus property;
     (b) Distribute surplus property to donees;
     (c) Provide suitable facilities for the
storage and distribution of surplus property;
     (d) Enter into reciprocal agreements and
contracts with federal government units, state agencies, local governments,
special government bodies, not-for-profit organizations, other states and
private entities, with respect to the utilization and exchange of property,
facilities, personnel and services, for the administration of the provisions of
this section in accordance with federal and state laws governing the
acquisition, distribution, utilization, disposal or sale of surplus property;
     (e) Expend funds in connection with the
provisions of this section;
     (f) Adopt rules for the acquisition,
distribution, utilization, disposal or sale of surplus property in accordance
with federal and state laws;
     (g) Set charges, subject to federal and
state laws, necessary to recover all direct and indirect costs associated with
acquiring, purchasing, shipping, handling, warehousing, storing and distributing
surplus property;
     (h) Cooperate with donees in locating,
obtaining or warehousing surplus property; and
     (i) Obtain surplus property on behalf of
donees.
     (2) The department shall deposit all fees
or charges collected or received under this section in the Oregon Department of
Administrative Services Operating Fund.
     (3) The governing board or the executive
head of a donee may, by order or resolution, confer upon any officer or
employee thereof authority to secure the acquisition of surplus property
through the department in accordance with federal and state laws governing the
acquisition, distribution, utilization, disposal or sale of surplus property. [2003
c.794 §38]
     279A.265
Use of
     (2) The Director of the Oregon Department
of Administrative Services may distribute in the form of cash dividends
accumulated surpluses in the fund that arise because the charges collected from
donees are in excess of the amount necessary to keep the activities under this
section and ORS 279A.260 on a self-sustaining basis. The director shall pay the
cash dividends to the donees referred to in ORS 279A.260 (1). Any dividend paid
under this subsection shall be based on the ratio of the charges collected from
each donee during the preceding fiscal year to the total charges collected from
all donees for the fiscal year immediately preceding the fiscal year in which
the dividend is authorized to be paid.
     (3) Upon termination by the Governor of
the functions of the department under ORS 279A.260, any balance remaining in
the fund that is attributable to the activities under this section and ORS
279A.260 shall be refunded pro rata to the donees referred to in ORS 279A.260
(1) upon the basis of the total charges collected from each donee during the
preceding fiscal year, unless the director determines that the cost of making
the refund is excessive, in which case the unrefunded moneys shall be paid to
the Treasurer of the United States. [2003 c.794 §39]
     279A.270
Contracts with federal government for accepting gifts and acquiring surplus property;
bids not required. The
Oregon Department of Administrative Services may enter into contracts with any
federal government unit for the purpose of accepting gifts and for the
acquisition of surplus property upon such terms and conditions as may be agreed
upon, without regard to the provisions of law requiring the posting of notices
or public advertising for bids or the soliciting or receiving of competitive
bids. [2003 c.794 §40]
     279A.275
Leasing of state property.
The Oregon Department of Administrative Services may lease any state property
not needed for public use, provided the law does not prohibit the leasing and
the authority to lease is not vested in any other state agency. [2003 c.794 §41]
     279A.280
Disposal of surplus property; costs of disposal. (1)(a) Without requiring competitive
bidding:
     (A) The Oregon Department of
Administrative Services may sell or transfer surplus property to or transfer
surplus property between donees. Donees may be given preference to acquire
surplus property. Property acquired shall be used for public purpose or benefit
and not for resale to a private purchaser.
     (B) The department, or a public or private
person or entity designated by the department, may transfer computers and
related hardware that are surplus, obsolete or unused to a common or union high
school district or education service district. The department, or its designee,
may not charge the school district a fee for the transfer.
     (C) The department, or a public or private
person or entity designated by the department, may recycle or otherwise dispose
of property when the department determines the value and condition of the
property does not warrant the cost of a sale.
     (b) Authorized transfers under this
subsection include those made with or without consideration.
     (2) In accordance with ORS 279B.055 or
279B.060, the department may sell surplus property.
     (3) All proceeds derived from the disposal
of property under this section, except proceeds that may not under federal laws
or regulations be deposited in the manner provided by this section, shall be
deposited in the State Treasury to the credit of the Oregon Department of
Administrative Services Operating Fund.
     (4) In addition to the other purposes for
which the fund may be used, the fund is appropriated continuously for and may
be used for paying the administrative costs incurred in the transfer or
disposal of property under subsections (1) and (2) of this section, and for
paying the amount due to the state agency whose property has been sold. The total
amount payable to the agency whose property has been sold shall be the amount
derived from the disposal of the property less the amount of the administrative
costs incurred in disposing of the property. Such total amount may be deposited
in the State Treasury to the credit of the miscellaneous receipts account
established under ORS 279A.290 for the agency whose property has been sold.
     (5) The cost of services for disposal of
property under this section that is not recoverable from the proceeds of a sale
of the property shall be charged to the state agency served and paid to the
department in the same manner as other claims against the agency are paid. [2003
c.794 §42]
     279A.285
Disposition of moneys received as payment for repair or replacement of damaged,
destroyed, lost or stolen property. All moneys received from insurers and other sources as payment for the
cost and expense of repair and replacement of property of state agencies that
has been damaged, destroyed, lost or stolen, except the particular moneys as
may not under federal law or regulations be deposited in the manner provided by
this section, may be deposited in the State Treasury to the credit of the
miscellaneous receipts account established under ORS 279A.290 for the state
agency whose property has been damaged, destroyed, lost or stolen. [2003 c.794 §43]
     279A.290
Miscellaneous receipts accounts. (1) The State Treasurer may establish a miscellaneous receipts account
for any state agency and shall credit to the account any amounts paid into the
State Treasury under ORS 190.240 (1), 279A.280, 279A.285, 283.110 or 357.885
for the state agency for which the account was established. The moneys credited
to the miscellaneous receipts account of a state agency established under this
section are appropriated continuously for the payment of the expenses of the
state agency, subject to the allotment system provided by ORS 291.234 to
291.260.
     (2) Laws enacted by the Legislative
Assembly limiting expenditures do not limit expenditures from miscellaneous receipts
accounts established under this section except when the law limiting
expenditures of a state agency specifically establishes a limit for
expenditures from the miscellaneous receipts account of the agency. [2003 c.794
§44; 2003 c.794 §44a]
PENALTIES
     279A.990
Penalties. (1) The
provisions of ORS 291.990 apply to ORS 279A.140, 279A.280 and 279B.270. Any
violation of ORS 279A.140, 279A.280 or 279B.270 shall be punished as described
in ORS 291.990.
     (2) Any contractor, subcontractor, agent
or person in authority or in charge who violates any provision of ORS 279C.520
or 279C.540 as to hours of labor shall be fined not less than $50 nor more than
$1,000 or imprisoned in the county jail for not less than five days nor more
than one year, or both.
     (3) Any contractor or subcontractor
subject to ORS 279C.840 who fails to pay the prevailing rate of wage as
required by ORS 279C.840 shall be punished by a fine of not more than $1,000 or
by imprisonment in the county jail for not more than six months, or both. [2003
c.794 §46]
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