2021 Oregon Revised Statutes
Volume : 07 - Public Facilities and Finance
Chapter 279C - Public Contracting - Public Improvements and Related Contracts
Section 279C.307 - Limitations in procurement of personal services; exceptions; procedure for obtaining exception from appropriate authority; basis for approving exception.
(1) Except as provided in subsections (2) and (3) of this section, a contracting agency that procures personal services for the purpose of administering, managing, monitoring, inspecting, evaluating compliance with or otherwise overseeing a public contract that is subject to this chapter may not:
(a) Procure the personal services from a contractor or an affiliate of a contractor who is a party to the public contract that is subject to administration, management, monitoring, inspection, evaluation or oversight by means of the personal services; or
(b) Procure the personal services through the public contract that is subject to administration, management, monitoring, inspection, evaluation or oversight by means of the personal services.
(2) Subsection (1) of this section does not apply to a combination of preconstruction services and construction services in a procurement for construction manager/general contractor services or to a combination of design services and construction services in a design-build procurement, as defined in rules the Attorney General or a contracting agency adopts under ORS 279A.065.
(3)(a) If a contracting agency anticipates that the contracting agency must procure personal services of the type described in subsection (1) of this section and the contracting agency intends to accept a bid or proposal from a contractor that would be subject to the prohibition set forth in subsection (1) of this section, the contracting agency shall apply to an appropriate authority for an exception to the prohibition before awarding a public contract for the personal services or amending an existing public contract to include the personal services.
(b) For a state contracting agency, the appropriate authority is the Director of the Oregon Department of Administrative Services. For a local contracting agency, the appropriate authority is the local contracting agency’s local contract review board. For the Department of Transportation, with respect to a procurement described in ORS 279A.050 (3)(b), the appropriate authority is the Director of Transportation.
(c) In preparing an application under paragraph (a) of this subsection, a contracting agency shall consult with legal counsel to ensure compliance with the provisions of this section and this chapter. The requirements of this paragraph are in addition to any requirements for legal sufficiency approval under ORS 291.047.
(d) An application under paragraph (a) of this subsection must include findings and justifications, along with sufficient facts to support the findings and justifications, that enable the authority to make an independent judgment as to whether:
(A) The contracting agency requires the personal services described in subsection (1) of this section;
(B) Accepting a bid or proposal from a contractor that would be subject to the prohibition described in subsection (1) of this section is in the best interest of the contracting agency; and
(C) Approving an exception:
(i) Is unlikely to encourage favoritism in awarding public contracts or to substantially diminish competition for public contracts; and
(ii)(I) Is reasonably expected to result in substantial cost savings to the contracting agency or the public; or
(II) Otherwise substantially promotes the public interest in a manner that could not be practicably realized by complying with the prohibition described in subsection (1) of this section.
(e)(A) If the appropriate authority approves the contracting agency’s application under paragraph (a) of this subsection, the appropriate authority shall prepare written findings and justifications for the approval. The contracting agency’s findings, justifications and facts and the appropriate authority’s findings, justifications and approval are public records that are subject to disclosure as provided in ORS 192.311 to 192.478.
(B) If the appropriate authority disapproves the contracting agency’s application, the appropriate authority shall state the reasons for the disapproval in a written notice to the contracting agency and shall indicate whether the disapproval extends only to the contracting agency’s acceptance of a bid or proposal from a contractor that would be subject to the prohibition described in subsection (1) of this section or whether the appropriate authority also disagrees with the contracting agency’s stated need for the personal services.
(C) The appropriate authority’s approval or disapproval is final.
(f) In approving an exception under this subsection, the appropriate authority may direct a contracting agency to consult with legal counsel to ensure compliance with applicable law in conducting a procurement for personal services of the type described in subsection (1) of this section. [2009 c.880 §11; 2013 c.522 §6; 2021 c.630 §48]
Note: 279C.307 was added to and made a part of ORS chapter 279C by legislative action but was not added to any smaller series therein. See Preface to Oregon Revised Statutes for further explanation.
