75th OREGON LEGISLATIVE ASSEMBLY–2009 Regular Session
House Bill 2867
Sponsored by COMMITTEE ON BUSINESS AND LABOR
SUMMARY
The following summary is not prepared by the sponsors of the measure and is not a part of the body thereof subject
to consideration by the Legislative Assembly. It is an editor¢s brief statement of the essential features of the
measure as introduced.
Requires contracting agency to establish measurable standards to assess quality of contractor¢s
performance under public contract and specify consequences for failing to meet standards.
Authorizes Secretary of State and local contracting agency to audit public contracts. Establishes
certain standards for audit.
Prohibits contracting agency from contracting for contract administration, except for consultant
to train contracting agency employees in skills necessary for administration.
Prohibits employee of contracting agency to seek or obtain employment with contractor in certain
circumstances. Requires contractor to offer employment to employee of contracting agency if
public contract displaces employee.
Requires contracting agency to demonstrate with cost analysis or by other means that cost of
providing goods or performing service with contracting agency¢s own personnel or resources is
greater than cost of procuring goods or services from contractor.
Specifies additional criteria for contracting agency to use in determining contractor¢s responsibility
and for prequalifying contractor.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to public contracting; creating new provisions; amending ORS 279B.110, 279B.120, 279B.125,
279B.145, 279C.375 and 279C.430; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. Sections 2, 3, 4, 5 and 6 of this 2009 Act are added to and made a part of
ORS chapter 279A.
SECTION 2. (1) Before entering into a public contract, a contracting agency shall establish
measurable standards for assessing the quality of the goods or services, personal services,
personal property, public improvements or public works, alterations, repairs or
maintenance that a contractor will provide or perform under the contract. The contracting
agency may develop the quality standards applicable to the public contract in cooperation
with or as a result of negotiations with the contractor to which the contracting agency has
awarded the public contract. Unless the contracting agency for good cause specifies otherwise,
the quality standards may not be less than the highest standards prevalent in the industry
or business most closely involved in providing the appropriate goods or services,
personal services, personal property, public improvements, public works, alterations, repairs
or maintenance.
(2) The contracting agency, in the terms and conditions of a public contract into which
the contracting agency enters, shall specify clear consequences for a contractor¢s failure to
meet the established quality standards. The consequences may include, but are not limited
to:
(a) Reducing or withholding payment;
(b) Requiring the contractor to perform, at the contractor¢s expense, additional work
necessary to meet the established quality standards; or
(c) Declaring a default, terminating the public contract and seeking damages or other
relief available under the terms of the public contract or other applicable law.
(3) Before executing a public contract, the contracting agency shall obtain the contractor
¢s agreement to abide by the contract terms specified in this section.
(4) A contracting agency may not make a payment under the public contract until the
contracting agency has established the quality standards described in this section and has
obtained the contractor¢s agreement to abide by the quality standards.
SECTION 3. Except as provided in this chapter or in ORS chapters 279B and 279C and
unless otherwise subject to exemption under a provision of ORS 192.410 to 192.505, a public
contract is a public record.
SECTION 4. (1) The Secretary of State has authority to audit a contractor¢s performance
under a public contract into which a state contracting agency enters. The audit shall use
generally accepted accounting principles and may:
(a) Examine the contractor¢s books, papers, correspondence and other records related to
the public contract;
(b) Assess whether the contractor has met the quality standards set forth in the public
contract under section 2 of this 2009 Act;
(c) Determine whether the contractor has met commercial standards of good faith and
fair dealing in the contractor¢s course of dealing with the contracting agency; and
(d) Examine other issues that the Secretary of State deems germane to assessing the
contractor¢s performance under the public contract.
(2) A state contracting agency may request the Secretary of State to audit a contractor¢s
performance under a public contract for any reason and at any point during which the public
contract is in effect or for a period of six years after the date on which the public contract
terminates.
(3) The terms of a public contract shall require a contractor to keep books, papers and
other records and to document the contractor¢s performance under the terms of the public
contract, with particular reference to the contractor¢s compliance with the quality standards
set forth in the public contract, in as much detail as will enable the Secretary of State to
conduct an audit under this section. The contractor shall keep the records described in this
subsection for a minimum period of six years after the date on which the public contract
terminates.
(4) A local contracting agency shall designate a person that will have the authority to
audit contractor performance under a public contract into which the local contracting
agency enters. The person the local contracting agency authorizes to conduct the audit shall
do so in accordance with the standards prescribed in this section and shall follow as closely
as practicable the procedures employed by the Secretary of State.
(5) The contracting agency and the contractor shall cooperate with the auditing agency
in all respects and shall permit full access to all information that the auditing agency deems
necessary for a true and complete review. Information that the auditing agency obtains or
receives in the course of the audit is subject to the same limitations on public inspection of
records as are provided for the contracting agency or for the contractor under ORS 192.410
to 192.505.
SECTION 5. (1) Except as provided in subsection (2) of this section, a contracting agency
may not enter into a public contract for the purpose of administering, managing or over-
seeing another public contract.
(2) To the extent that administering, managing or overseeing a public contract requires
technical or other expertise the contracting agency does not possess, the contracting agency
may contract with a consultant or other contractor for the purpose of training the contracting
agency¢s personnel in the skills necessary to administer, manage or oversee the
public contract.
SECTION 6. (1) Except as provided in subsection (2) of this section, an employee of a
contracting agency who separates from the contracting agency for any reason except retirement
may not, for a period of one year following the employee¢s separation, seek or gain
employment with a contractor with which the contracting agency entered into a public contract
if:
(a) The employee worked directly on matters related to the public contract or in a field
closely related to the subject of the public contract; or
(b) The employee¢s duties for the contractor would involve work related to the public
contract.
(2) If a contracting agency enters into a public contract for services that an employee
of the contracting agency performs and, as a result of entering into the public contract, the
contracting agency no longer employs the employee, the contracting agency shall require in
the terms of the public contract that the contractor offer to employ the employee to provide
services under the public contract. The contractor shall offer the employee employment
terms similar to the employment terms under which the employee was employed with the
contracting agency.
SECTION 7. Sections 8, 9 and 10 of this 2009 Act are added to and made a part of ORS
chapter 279B.
SECTION 8. (1) Before conducting a procurement for goods or services with an estimated
contract price that exceeds $25,000, a contracting agency shall:
(a) Demonstrate, by means of a written cost analysis in accordance with section 9 of this
2009 Act, that the contracting agency would incur less cost in conducting the procurement
than in providing the goods or performing the services with the contracting agency¢s own
personnel and resources; or
(b) Demonstrate, in accordance with section 10 of this 2009 Act, that providing the goods
or performing the services with the contracting agency¢s own personnel and resources is not
feasible.
(2) If a contracting agency has previously conducted a procurement for goods or services
that the contracting agency intends to provide or perform with the contracting agency¢s own
personnel and resources, the contracting agency shall first conduct a cost analysis in accordance
with section 9 of this 2009 Act and determine that providing the goods or performing
the services with the contracting agency¢s own personnel and resources would cost
the contracting agency less.
SECTION 9. (1) In the cost analysis required under section 8 of this 2009 Act, a contracting
agency shall:
(a) Estimate the contracting agency¢s cost of providing the goods or performing the
services, including:
(A) Salary or wage and benefit costs for contracting agency employees who are directly
involved in providing the goods or performing the services, including employees who inspect,
supervise or monitor the provision of the goods or the performance of the services;
(B) Material costs, including costs for space, energy, transportation, storage, raw and
finished materials, equipment and supplies;
(C) Opportunity costs the contracting agency incurs by using personnel and resources
that the contracting agency might otherwise dedicate to other tasks to provide the goods or
perform the services;
(D) Costs incurred for planning, training, starting up, manufacturing or implementing,
transporting and delivering the goods or services and costs related to stopping and dismantling
a project or operation because the contracting agency intends to procure a limited
quantity of goods or services or procure the goods or services within a defined or limited
period of time; and
(E) Miscellaneous costs related to providing the goods or performing the services.
(b) Estimate the cost a potential contractor would incur in providing the goods or performing
the services, including:
(A) Average salary or wage and benefit costs for contractors and employees who:
(i) Work in the industry or business most closely involved in providing the goods or
performing the services that the contracting agency intends to procure; and
(ii) Would be necessary and directly involved in providing the goods or performing the
services or who would inspect, supervise or monitor the provision of the goods or the performance
of the services;
(B) Material costs, including costs for space, energy, transportation, storage, raw and
finished materials, equipment and supplies;
(C) Costs incurred for planning, training, starting up, manufacturing or implementing,
transporting and delivering specialized goods or services or goods or services required within
a defined or limited period of time;
(D) Costs related to financing, taxes, insurance, bonding legal services and other expenses
required to comply with ORS chapters 279A, 279B and 279C and other applicable provisions
of law; and
(E) Miscellaneous costs related to providing the goods or performing the services, including
reasonably foreseeable fluctuations in the costs for the items identified in this subsection
over the expected duration of the procurement.
(2) After comparing the difference between the costs estimated as provided in subsection
(1)(a) of this section with the costs estimated as provided in subsection (1)(b) of this section,
the contracting agency may proceed with the procurement only if the contracting agency
would incur more cost in providing the goods or performing the services with the contracting
agency¢s own personnel and resources than the contracting agency would incur in procuring
the goods or services from a contractor.
(3) A cost analysis, all supporting documentation and a determination made under this
section are public records.
SECTION 10. (1) Notwithstanding the provisions of section 9 (2) of this 2009 Act, a contracting
agency may proceed with a procurement if the contracting agency reasonably determines
in writing that providing the goods or performing the services that the contracting
agency intends to procure with the contracting agency¢s own personnel or resources is
clearly not feasible. In determining feasibility, a contracting agency may:
(a) Take into account and compare the contracting agency¢s experience or expertise in
the field most closely involved in providing the goods or performing the services with a potential
contractor¢s experience and expertise in the same or a similar field;
(b) Assess how the level of experience or expertise that the contracting agency has or
that a potential contractor could bring would affect the quality, efficiency or utility of the
goods or services or the advantage the goods or services would provide to the contracting
agency;
(c) Assess the degree of technical expertise or specialization necessary to provide the
goods or perform the services and compare the capabilities of the contracting agency¢s personnel
and resources with the capabilities of a potential contractor; or
(d) Find that special circumstances require the contracting agency to procure the goods
or services by contract. Special circumstances may include, but are not limited to, circumstances
in which:
(A) The terms under which the contracting agency receives a grant or other funds for
use in a procurement require the contracting agency to obtain goods or services through an
independent contractor;
(B) Other state or federal law requires the contracting agency to procure goods or services
through an independent contractor;
(C) The procurement is for services that are incidental to a contract for purchasing or
leasing real or personal property, including service and maintenance agreements for equipment
that is leased or rented;
(D) The contracting agency cannot accomplish policy, administrative or legal goals, including
but not limited to avoiding conflicts of interest or ensuring independent or unbiased
findings in cases when using the contracting agency¢s existing personnel or persons the
contracting agency could hire through a regular or ordinary process would not be suitable;
(E) The procurement is for goods or services to which the provisions of ORS 279B.080
apply; or
(F) The procurement is for goods or services, the need for which is so urgent, temporary
or occasional that attempting to provide the goods or perform the services with the contracting
agency¢s own personnel or resources would cause a delay that would frustrate the
purpose for obtaining the goods or services.
(2) An analysis, assessment or finding and all supporting documentation for a determination
made under this section are public records.
SECTION 11. ORS 279B.110 is amended to read:
279B.110. (1) [The] A contracting agency shall prepare a written determination of nonresponsibility
[of] for a bidder or proposer if the bidder or proposer [does not meet the standards of responsibility]
is not responsible.
(2) [In determining whether] A responsible bidder or proposer [has met the standards of responsibility,]
must demonstrate to the contracting agency [shall consider whether a] that the bidder
or proposer [has]:
(a) Has available the appropriate financial, material, equipment, facility and personnel resources
and expertise, or has the ability to obtain the resources and expertise, necessary to [indicate the
capability of the bidder or proposer to] meet all contractual responsibilities[;].
(b) Has a satisfactory record of performance. The contracting agency shall document the bidder
¢s or proposer¢s record of performance [of a bidder or proposer] if the contracting agency finds
under this paragraph that the bidder or proposer [nonresponsible under this paragraph;] is not
responsible.
(c) Has a satisfactory record of integrity. The contracting agency shall document the bidder¢s
or proposer¢s record of integrity [of a bidder or proposer] if the contracting agency finds under this
paragraph that the bidder or proposer [nonresponsible under this paragraph;] is not responsible.
(d) Provides adequate wages and affordable benefits to the bidder¢s or proposer¢s employees
and families.
(e) Is not in litigation, subject to an administrative enforcement action or otherwise in
a legal dispute with another contracting agency or a public agency in another state.
(f) Complies with all applicable state and federal laws related to the subject of the procurement,
including but not limited to labor law and environmental law.
(g) Has a record of completing previous public contracts successfully, without significant
complaints concerning the quality of the bidder¢s work, delays in completing contracts or
cost overruns or, if the bidder has not previously bid for a public contract, has a record of
completing other contracts with similar success.
[(d)] (h) Is legally qualified [legally] to contract with the contracting agency[;].
[(e)] (i) Has supplied all necessary information in connection with the inquiry concerning responsibility.
If a bidder or proposer fails to promptly supply information concerning responsibility
[requested by] that the contracting agency [concerning responsibility] requests, the contracting
agency shall [base the determination of] determine the bidder¢s or proposer¢s responsibility [upon
any] based on available information or may find that the bidder or proposer [nonresponsible; and]
is not responsible.
[(f)] (j) Has not been debarred by the contracting agency under ORS 279B.130.
(3) A contracting agency may refuse to disclose outside of the contracting agency confidential
information furnished by a bidder or proposer under this section when the bidder or proposer has
clearly identified in writing the information the bidder or proposer seeks to have treated as confidential
and the contracting agency has authority under ORS 192.410 to 192.505 to withhold the
identified information from disclosure.
SECTION 12. ORS 279B.120 is amended to read:
279B.120. (1) A contracting agency may prequalify prospective bidders or proposers to submit
bids or proposals for public contracts to provide particular types of goods or services. Unless the
Oregon Department of Administrative Services by rule, or a local contract review board by
resolution, ordinance or other regulation, prescribes otherwise, the contracting agency shall
determine how and with what forms and information a bidder or proposer must apply for
prequalification. [The method of submitting prequalification applications, the information required in
order to be prequalified and the forms to be used for submitting prequalification information shall be
determined by the contracting agency unless otherwise prescribed by rule adopted by the Director of
the Oregon Department of Administrative Services or the local contract review board.]
(2)(a) The contracting agency shall[, in response to the receipt of a] respond to a prequalification
application submitted under subsection (1) of this section[, notify] by:
(A) Notifying the prospective bidder or proposer whether the prospective bidder or proposer is
qualified based on the standards of responsibility listed in ORS 279B.110 [(2),]; and
(B) Identifying the type and nature of contracts [that] for which the prospective bidder or
proposer is qualified to compete [for] and the time period for which the prequalification is valid.
(b) If the contracting agency does not prequalify a prospective bidder or proposer [as to any
contracts covered by] for a contract subject to the prequalification process, the [notice must
specify] contracting agency must notify the bidder or proposer and specify which of the standards
of responsibility listed in ORS 279B.110 (2) the prospective bidder or proposer failed to meet.
Unless the contracting agency specifies the reasons [are specified] why the bidder or proposer
failed to prequalify, the prospective bidder or proposer [shall be deemed to have been] is prequalified
[in accordance with] on the basis of the information that appears in and for the type and
nature of contracts identified in the application.
(3) A contracting agency shall review the bidder¢s or proposer¢s eligibility for prequalification
three years after the contracting agency¢s initial decision to prequalify the bidder
or proposer and at the end of each subsequent three-year period in which the bidder or
proposer continues to submit bids or proposals for public contracts. In the review, the contracting
agency shall verify that the bidder or proposer is responsible as provided in ORS
279B.110.
[(3)] (4) If a contracting agency [subsequently] discovers that a prospective bidder or proposer
that the contracting agency prequalified under subsections (1) and (2) of this section is no longer
[qualified] eligible for prequalification, the agency may revoke the prequalification upon reasonable
notice to the prospective bidder or proposer, except that a revocation is invalid [as to any] for a
contract for which the contracting agency has issued an advertisement for bids or proposals [has
already been issued].
SECTION 13. ORS 279B.125 is amended to read:
279B.125. (1) [When] If a contracting agency by rule, resolution, ordinance or other regulation
permits or requires [prequalification of] bidders or proposers to prequalify, a prospective
bidder or proposer who wishes to prequalify shall submit a prequalification application to the contracting
agency on a form prescribed under ORS 279B.120 (1). Upon [receipt of] receiving a prequalification
application, the contracting agency shall require the applicant to make the
demonstrations required under ORS 279B.110 and shall investigate the prospective bidder or
proposer as necessary to determine whether the prospective bidder or proposer is [qualified] eligible
for prequalification. The contracting agency shall make the determination [shall be made] in less
than 30 days, if practicable, if the prospective bidder or proposer requests an early decision to allow
the prospective bidder or proposer as much time as possible to prepare a bid or proposal for a
contract that has been advertised. In [making its determination] determining whether an applicant
is eligible for prequalification, the contracting agency shall consider only [the applicable standards
of responsibility listed in ORS 279B.110 (2)] whether the applicant is responsible as provided in
ORS 279B.110. The contracting agency shall promptly notify the prospective bidder or proposer
whether the prospective bidder or proposer is [qualified] eligible for prequalification.
(2) If the contracting agency finds that a prospective bidder or proposer is [qualified] eligible
for prequalification, the notice must state the type and nature of contracts [that] for which the
prospective bidder or proposer is qualified to compete [for] and the period of time for which the
prequalification is valid. If the contracting agency [finds that the] does not prequalify a prospective
bidder or proposer [is not qualified as to any contracts] for a contract that is subject to
prequalification under [covered by] the rule, resolution, ordinance or other regulation, the notice
must specify which of the standards of responsibility described in ORS 279B.110 the prospective
bidder or proposer failed to meet [the reasons given under ORS 279B.120 for not prequalifying
the prospective bidder or proposer] and inform the prospective bidder or proposer of the right to a
hearing under ORS 279B.425. To be entitled to a hearing under ORS 279B.425, a prospective bidder
or proposer shall, within three business days after [receipt of] receiving the notice, notify the con-
tracting agency that the prospective bidder or proposer demands a hearing under ORS 279B.425.
(3) If a contracting agency has reasonable cause to believe that [there has been] a substantial
change in [the] conditions [of] has caused a prequalified prospective bidder or proposer [and that
the prospective bidder or proposer is no longer qualified or is] to become less qualified or ineligible
for prequalification, the contracting agency may revoke or may revise and reissue the prequalification
after reasonable notice to the prequalified prospective bidder or proposer. The notice must
specify which of the standards of responsibility described under ORS 279B.110 the prequalified
prospective bidder or proposer no longer meets or the reasons the contracting agency must
revise the prequalified prospective bidder¢s or proposer¢s eligibility for prequalification [specify
the reasons given under ORS 279B.120 for revocation or revision of the prequalification of the prospective
bidder or proposer] and inform the prospective bidder or proposer of the right to a hearing
under ORS 279B.425. To be entitled to a hearing under ORS 279B.425, a prospective bidder or
proposer shall, within three business days after [receipt of] receiving the notice, notify the contracting
agency that the prospective bidder or proposer demands a hearing under ORS 279B.425. A
revocation or revision does not apply to [any] a contract for which the contracting agency advertised
[an advertisement] for bids or proposals [was issued] before the date the prequalified
prospective bidder or proposer received the notice of revocation or revision [was received by the
prequalified prospective bidder or proposer].
SECTION 14. ORS 279B.145 is amended to read:
279B.145. The determinations under ORS 279B.055 (3) and (7), 279B.060 (3) and (10), 279B.075,
279B.080, 279B.085 and 279B.110 (1) and sections 8, 9 and 10 of this 2009 Act are final and conclusive
unless they are clearly erroneous, arbitrary, capricious or contrary to law.
SECTION 15. ORS 279C.375 is amended to read:
279C.375. (1) After a contracting agency has opened bids [are opened and a determination is
made that] and determined that the contracting agency will award a public improvement contract
[is to be awarded], the contracting agency shall award the contract to the lowest responsible
bidder.
(2) At least seven days before [the award of] awarding a public improvement contract, unless
the contracting agency determines that seven days is impractical under rules adopted under ORS
279A.065, the contracting agency shall issue to each bidder or post, electronically or otherwise, a
notice of the contracting agency¢s intent to award a contract. This subsection does not apply to a
contract [excepted or exempted from] to which competitive bidding does not apply under ORS
279C.335 (1)(c) or (d). The notice and [its] the manner [of posting or issuance] in which the notice
is posted or issued must conform to rules adopted under ORS 279A.065.
(3) In determining the lowest responsible bidder, a contracting agency shall do all of the following:
(a) Check the list created by the Construction Contractors Board under ORS 701.227 for bidders
who are not qualified to hold a public improvement contract.
(b) Determine whether the bidder is responsible. A responsible bidder must demonstrate to
the contracting agency that the bidder: [has met the standards of responsibility. In making the
determination, the contracting agency shall consider whether a bidder has:]
(A) Has available the appropriate financial, material, equipment, facility and personnel resources
and expertise, or has the ability to obtain the resources and expertise, necessary to meet
all contractual responsibilities.
(B) Has a satisfactory record of performance. The contracting agency shall document the bid-
der’s record of performance [of a bidder] if the contracting agency finds under this paragraph that
the bidder is not [to be] responsible [under this subparagraph].
(C) Has a satisfactory record of integrity. The contracting agency shall document the bidder¢s
record of integrity [of a bidder] if the contracting agency finds under this paragraph that the
bidder is not [to be] responsible [under this subparagraph].
(D) Is not in litigation, subject to an administrative enforcement action or otherwise in
a legal dispute with another contracting agency or a public agency in another state.
(E) Has not previously been subject to an administrative or other proceeding because the
bidder failed to pay a prevailing rate of wage.
(F) Complies with all applicable state and federal laws related to the subject of the procurement,
including but not limited to labor law and environmental law.
(G) Has a record of completing previous public contracts successfully, without significant
complaints concerning the quality of the bidder¢s work, delays in completing contracts or
cost overruns or, if the bidder has not previously bid for a public contract, has a record of
completing other contracts with similar success.
[(D)] (H) Is legally qualified [legally] to contract with the contracting agency.
[(E)] (I) Has supplied all necessary information in connection with the inquiry concerning responsibility.
If a bidder fails to promptly supply information concerning responsibility that [requested
by] the contracting agency [concerning responsibility] requests, the contracting agency shall
[base the determination of] determine the bidder¢s responsibility [upon any] based on available information,
or may find that the bidder is not [to be] responsible.
(c) Document the contracting agency¢s compliance with the requirements of paragraphs (a) and
(b) of this subsection in substantially the following form:
_______________________________________________________________________________________
RESPONSIBILITY DETERMINATION FORM
Project Name:
Bid Number:
Business Entity Name:
CCB License Number:
Form Submitted By (Contracting Agency):
Form Submitted By (Contracting Agency Representative¢s Name):
Title:
Date:
(The contracting agency must submit this form with attachments, if any, to the Construction
Contractors Board within 30 days after the date of contract award.)
The contracting agency has (check all of the following):
[ ] Checked the list created by the
Construction Contractors Board
under ORS 701.227 for bidders who
are not qualified to hold a public
improvement contract.
[ ] Determined whether the bidder has
met the standards of responsibility.
In so doing, the contracting agency
has [considered whether]
found that the bidder
demonstrated that the bidder:
[ ] Has available the appropriate
financial, material, equipment,
facility and personnel resources
and expertise, or the ability to
obtain the resources and
expertise, necessary to meet
all contractual responsibilities.
[ ] Has a satisfactory record of
performance.
[ ] Has a satisfactory record of
integrity.
[ ] Is not in litigation,
subject to an administrative
enforcement action or otherwise
in a legal dispute with another
contracting agency or a public
agency in another state.
[ ] Has not previously been
subject to an administrative
or other proceeding because
the bidder failed to pay a
prevailing rate of wage.
[ ] Complies with all applicable
state and federal laws related
to the subject of the
procurement.
[ ] Has a record of completing
previous public contracts
successfully, without significant
complaints concerning the
quality of the bidder¢s work,
delays in completing contracts
or cost overruns or, if the
bidder has not previously bid
for a public contract, has a
record of completing other
contracts with similar success.
[ ] Is [qualified] legally qualified to contract
with the contracting agency.
[ ] Has supplied all necessary
information in connection with
the inquiry concerning
responsibility.
[ ] Determined the bidder to be
(check one of the following):
[ ] Responsible under ORS 279C.375
(3)(a) and (b).
[ ] Not responsible under
ORS 279C.375 (3)(a) and (b).
(Attach documentation if the contracting agency finds the bidder not to be responsible.)
_______________________________________________________________________________________
(d) Submit the form described in paragraph (c) of this subsection, with any attachments, to the
Construction Contractors Board within 30 days after the date the contracting agency awards the
contract.
(4) The successful bidder shall:
(a) Promptly execute a formal contract; and
(b) Execute and deliver to the contracting agency a performance bond and a payment bond when
required under ORS 279C.380.
(5) Based on competitive bids, a contracting agency may award a public improvement contract
or may award multiple public improvement contracts when specified in the invitation to bid.
(6) A contracting agency may not exclude a commercial contractor from competing for a public
contract on the basis that the license issued by the Construction Contractors Board is endorsed as
a level 1 or level 2 license. As used in this section, “commercial contractor” has the meaning given
that term in ORS 701.005.
SECTION 16. ORS 279C.430 is amended to read:
279C.430. (1) A contracting agency may adopt a rule, resolution, ordinance or other regulation
[requiring mandatory prequalification for all persons desiring to bid for public improvement contracts
that are to be let by the agency] to require a person to prequalify in order to bid for a contract
the contracting agency intends to let. The rule, resolution, ordinance or other regulation authorized
by this section must [include the time for submitting] specify when a person must submit
an application for prequalification [applications and a general description of] and describe the type
and nature of the contracts [that may be] the contracting agency may let. The prequalification
application must be in writing on a standard form prescribed under the authority of ORS 279A.050.
(2) When a contracting agency permits or requires [prequalification of] bidders to prequalify, a
person who wishes to prequalify shall submit a prequalification application to the contracting
agency on a standard form prescribed under subsection (1) of this section. Within 30 days after [receipt
of] receiving a prequalification application, the contracting agency shall require the applicant
to make the demonstrations required under ORS 279C.375 and investigate the applicant
as necessary to determine if the applicant is [qualified] eligible for prequalification. The contracting
agency shall make the determination [shall be made] in less than 30 days, if practicable,
if the applicant requests an early decision to allow the applicant as much time as possible to prepare
a bid on a contract that has been advertised. In [making its determination,] determining whether
an applicant is eligible for prequalification, the contracting agency shall consider only [the applicable
standards of responsibility listed in ORS 279C.375 (3)(b).] whether the applicant is responsible
as provided in ORS 279C.375. The agency shall promptly notify the applicant whether
or not the applicant is [qualified] eligible for prequalification.
(3) If the contracting agency finds that the applicant is [qualified] eligible for
prequalification, the notice must state the nature and type of contracts [that the person is
qualified] for which the applicant is prequalified to bid [on] and the period of time for which the
[qualification] prequalification is valid under the contracting agency¢s rule, resolution, ordinance
or other regulation. If the contracting agency [finds the applicant is not qualified as to any contracts
covered by] does not prequalify an applicant for a contract that is subject to prequalification
under the rule, resolution, ordinance or other regulation, the notice must specify which of the
standards of responsibility described in ORS 279C.375 the applicant failed to meet [the reasons
found under ORS 279C.375 (3)(b) for not prequalifying the applicant] and inform the applicant of the
right to a hearing under ORS 279C.445 and 279C.450.
(4) A contracting agency shall review a bidder¢s eligibility for prequalification three years
after the contracting agency¢s initial decision to prequalify the bidder and at the end of each
subsequent three-year period in which the bidder continues to submit bids for public contracts.
In the review, the contracting agency shall verify that the bidder is responsible as
provided in ORS 279C.375.
[(4)] (5) If a contracting agency has reasonable cause to believe that [there has been] a substantial
change in [the] conditions has caused [of] a prequalified person [and that the person is no
longer qualified or is] to become less qualified or to become ineligible for prequalification, the
agency may revoke or may revise and reissue the prequalification after reasonable notice to the
prequalified person. The notice [shall state the reasons found under ORS 279C.375 (3)(b) for revocation
or revision] must specify which of the standards of responsibility described under ORS
279C.375 the prequalified person no longer meets or the reasons the contracting agency must
revise the prequalified person¢s eligibility for prequalification [of the prequalification of the person]
and inform the person of the right to a hearing under ORS 279C.445 and 279C.450. A revocation
or revision does not apply to [any] a public improvement contract for which [publication of an advertisement,]
the contracting agency advertised for bids in accordance with ORS 279C.360[, commenced]
before the date on which the prequalified person received the notice of revocation or
revision [was received by the prequalified person].
SECTION 17. Sections 2, 3, 4, 5, 6, 8, 9 and 10 of this 2009 Act and the amendments to
ORS 279B.110, 279B.120, 279B.125, 279B.145, 279C.375 and 279C.430 by sections 11 to 16 of this
2009 Act apply to:
(1) Public contracts first advertised or otherwise solicited or, if not advertised or solicited,
entered into on or after January 1, 2010; and
(2) Public contracts renewed on or after January 1, 2010, irrespective of whether the
contract is renewed with an existing contractor or a new contractor.
SECTION 18. (1) Sections 2, 3, 4, 5, 6, 8, 9 and 10 of this 2009 Act and the amendments
to ORS 279B.110, 279B.120, 279B.125, 279B.145, 279C.375 and 279C.430 by sections 11 to 16 of
this 2009 Act become operative January 1, 2010.
(2) The Secretary of State, the Attorney General, the Director of the Oregon Department
of Administrative Services and a contracting agency that has adopted rules under ORS
279A.065 may adopt rules and take related actions before January 1, 2010, that are necessary
to enable the Secretary of State, the Attorney General, the director and the contracting
agency to exercise, on and after January 1, 2010, all the duties, functions and powers conferred
on the Secretary of State, Attorney General, director and contracting agency by
sections 2, 3, 4, 5, 6, 8, 9 and 10 of this 2009 Act and the amendments to ORS 279B.110,
279B.120, 279B.125, 279B.145, 279C.375 and 279C.430 by sections 11 to 16 of this 2009 Act.
SECTION 19. This 2009 Act being necessary for the immediate preservation of the public
peace, health and safety, an emergency is declared to exist, and this 2009 Act takes effect
on its passage.
© 2011 Portland Oregon Government Accountability: Portland Oregon Watchdog