ORS Chapter 200
Chapter200 — Disadvantaged, Minority, Women and Emerging Small Business Enterprises
2009 EDITION
CERTAINDISADVANTAGED BUSINESS ENTERPRISES
MISCELLANEOUSMATTERS
GENERALPROVISIONS
200.005 Definitionsfor ORS 200.005 to 200.075, 200.160 to 200.200 and 279A.105
200.015 Legislativefindings
200.025 Advocatefor Minority, Women and Emerging Small Business; office; officers andemployees; duties
200.035 Whenstate agency to notify advocate of solicitations and contract awards
200.045 Standardsfor good faith efforts to meet contract requirements; standards forestablishing bidder’s responsibility
CERTIFICATION
200.055 Certificationof disadvantaged, minority, women or emerging small business enterprises; fee;rules; appeal
200.057 Designationof certified business as tier one or tier two firm
200.065 Fraudulentconduct prohibited; sanctions
200.075 Prohibitedconduct; suspension of certification or right to participate in publiccontracts
RESPONSIBILITYOF PUBLIC AGENCIES
200.090 Publicagencies to pursue policy of providing opportunities
MENTORPROGRAM
200.100 Definitionsfor ORS 200.100 to 200.120
200.110 Mentorprogram; guidelines; eligibility
200.120 Standardsfor program participation
EMERGINGSMALL BUSINESS ASSISTANCE PROGRAM
200.160 TransportationCommission duties; report
200.170 Eligibilityfor participation
200.180 EmergingSmall Business Account; uses
200.190 Depositof one percent of highway construction contract amount
200.200 Securityfor performance by emerging small business
GENERALPROVISIONS
200.005Definitions for ORS 200.005 to 200.075, 200.160 to 200.200 and 279A.105. As used in ORS200.005 to 200.075, 200.160 to 200.200 and 279A.105:
(1)“Disadvantaged business enterprise” means a small business concern:
(a)That is at least 51 percent owned by one or more socially and economicallydisadvantaged individuals; or
(b)For which, in the case of a corporation, at least 51 percent of the stock isowned by one or more socially and economically disadvantaged individuals, andof which the management and daily business operations are controlled by one ormore of the socially and economically disadvantaged individuals who own it.
(2)“Economically disadvantaged individual” means a socially disadvantagedindividual whose ability to compete in the free enterprise system has beenimpaired due to diminished capital and credit opportunities as compared toother individuals in the same business area who are not socially disadvantagedindividuals.
(3)“Emerging small business” means an independent business:
(a)With its principal place of business located in this state;
(b)That qualifies as a tier one firm or a tier two firm;
(c)That is properly licensed and legally registered in this state; and
(d)That is not a subsidiary or parent company belonging to a group of firms thatare owned or controlled by the same individuals if, in the aggregate, the groupof firms does not qualify as a tier one firm or a tier two firm.
(4)“Minority individual” means a person who is a citizen or lawful permanentresident of the United States, who is:
(a)Black, having origins in any of the black racial groups of Africa;
(b)Hispanic, having Mexican, Puerto Rican, Cuban, Central or South American orother Spanish culture or origin, regardless of race;
(c)Asian American, having origins in any of the original peoples of the Far East,Southeast Asia, the Indian subcontinent or the Pacific Islands;
(d)Portuguese, having Portuguese, Brazilian or other Portuguese culture or origin,regardless of race;
(e)American Indian or Alaskan Native, having origins in any of the originalpeoples of North America; or
(f)A member of another group, or another individual who is socially andeconomically disadvantaged as determined by the Advocate for Minority, Womenand Emerging Small Business.
(5)“Minority or women business enterprise” means a small business concern:
(a)That is at least 51 percent owned by one or more minority individuals or women;or
(b)For which, in the case of a corporation, at least 51 percent of the stock isowned by one or more individuals who are minority individuals or women, and ofwhich the management and daily business operations are controlled by one ormore of the minority individuals or women who own it.
(6)“Responsible bidder” means a bidder who, as determined by the Advocate forMinority, Women and Emerging Small Business, has undertaken both a policy andpractice of actively pursuing participation by minority or women businessenterprises in all bids, both public and private, submitted by the bidder.
(7)“Small business concern” means a small business as defined by the United StatesSmall Business Administration in 13 C.F.R. part 121 and in effect on January 1,2006.
(8)“Socially disadvantaged individual” means an individual who has been subjectedto racial or ethnic prejudice or cultural bias, without regard to individualqualities, because of the individual’s identity as a member of a group.
(9)“Tier one firm” means a business that employs fewer than 20 full-time equivalentemployees and has average annual gross receipts for the last three years thatdo not exceed $1.5 million for a business performing construction, as definedin ORS 446.310, or $600,000 for a business not performing construction.
(10)“Tier two firm” means a business that employs fewer than 30 full-timeequivalent employees and has average annual gross receipts for the last threeyears that do not exceed $3 million for a business performing construction, asdefined in ORS 446.310, or $1 million for a business not performingconstruction.
(11)“Woman” means a person of the female sex who is a citizen or lawful permanentresident of the United States. [1987 c.893 §2; 1989 c.1043 §1; 1991 c.517 §9;2001 c.104 §71; 2003 c.794 §213; 2005 c.22 §§150,151; 2005 c.683 §§4,5]
200.015Legislative findings.(1) The Legislative Assembly supports the aspirations of minorities, women andemerging small businesses to enter the mainstream of Oregon social, politicaland economic life.
(2)The Legislative Assembly finds:
(a)The opportunity for full participation in our free enterprise system byminorities, women and emerging small businesses is essential;
(b)Greater economic opportunity for minorities, women and emerging smallbusinesses is essential;
(c)Review of public programs to remedy historical patterns of exclusion of anddiscrimination against racial or ethnic groups and women is needed;
(d)Public policies and programs to eliminate the effects of long-term, open andpervasive exclusion of and discrimination against minorities and women from thebusiness sector, including increased opportunities to integrate minorities andwomen into the full economic life of the community should be reviewed; and
(e)In cooperation with the private sector, the affected populations, interestedgroups and appropriate governmental entities, a program of review should beestablished to recommend remedies for the unfortunate effects of social,political and economic inequity that still exist.
(3)Women and minorities are rebuttably presumed to be:
(a)Economically disadvantaged.
(b)Socially disadvantaged. [1987 c.893 §3; 1989 c.1043 §2]
200.025Advocate for Minority, Women and Emerging Small Business; office; officers andemployees; duties.(1) There is created, in the Office of the Governor, the Advocate for Minority,Women and Emerging Small Business who shall be appointed by the Governor.
(2)There is created in the Oregon Business Development Department the Office forMinority, Women and Emerging Small Business, the employees of which shall beappointed by the Director of the Oregon Business Development Department.
(3)(a)The director may prescribe the duties and assignments of all officers andemployees of the Office for Minority, Women and Emerging Small Business. Thedirector shall establish the compensation of all officers and employees of theoffice.
(b)The officers and employees of the office shall be allowed reimbursement forreasonable and necessary travel and other expenses incurred in the performanceof their duties.
(4)The Advocate for Minority, Women and Emerging Small Business shall:
(a)Advise the Governor and the director on activities and initiatives that maypromote the economic integration of minorities, women and emerging smallbusinesses into the business sector;
(b)Prepare an annual report to the Governor, director and Legislative Assembly onthe status of minorities and women in the marketplace, accomplishments andresolutions of issues of concern to minority and women’s enterprises and recommendationsfor executive and legislative actions; and
(c)Carry out other duties that may be assigned by the Governor.
(5)The Office for Minority, Women and Emerging Small Business shall:
(a)Provide information to minority, women and emerging small businesses;
(b)Assist in the development and implementation of an aggressive strategy for thisstate, based on research and monitoring, that encourages participation ofminorities, women and emerging small businesses in the state’s economy;
(c)Make recommendations to the director on the research, development andimplementation of the plan for the involvement of disadvantaged and minoritygroups and emerging small businesses in all state programs;
(d)Maintain an Oregon Opportunity Register and Clearinghouse for information onpublic agency and other contract solicitations for professional services,supplies and services and other bid opportunities, in consultation with theState Board of Higher Education, the Department of Transportation and other entities;
(e)Monitor the certification and compliance program for disadvantaged, minority,women and emerging small businesses under ORS 200.055;
(f)Investigate complaints and possible abuses of the certification program; and
(g)Assist in the promotion and coordination of plans, programs and operations ofstate government that strengthen minority and women participation in theeconomic life of this state. [1987 c.893 §4; 1989 c.1043 §3; 1993 c.500 §7;1993 c.744 §§189,189a; 2003 c.794 §214; 2005 c.683 §§6,7; 2009 c.830 §135]
200.035When state agency to notify advocate of solicitations and contract awards. (1) For apublic contract with a value of $5,000 or more, a state agency shall providetimely notice and information to the Advocate for Minority, Women and EmergingSmall Business regarding:
(a)Bid or proposal solicitations; and
(b)Contract awards.
(2)Each state agency shall, in consultation with the advocate, establish a processand timeline for providing the notice and information required by subsection(1) of this section to the advocate. [1987 c.893 §5; 1997 c.145 §1; 1997 c.802 §10;2005 c.351 §1]
200.045Standards for good faith efforts to meet contract requirements; standards forestablishing bidder’s responsibility. (1) To determine whether a bidder thathas failed to meet emerging small business enterprise contract requirements maybe awarded the contract, the public contracting agency must decide whether thebidder’s efforts to obtain participation by emerging small business enterpriseswere good faith efforts to meet the requirements.
(2)Performing all of the following actions by a bidder constitutes a rebuttablepresumption that the bidder has made a good faith effort to satisfy thesubcontracting requirement for emerging small businesses. It shall be arebuttable presumption that the bidder has not made a good faith effort if thebidder has not acted consistently with such actions. Efforts that are merelysuperficial are not good faith efforts:
(a)The bidder attended any presolicitation or prebid meetings that were scheduledby the contracting agency to inform emerging small business enterprises ofcontracting and subcontracting or material supply opportunities available onthe project;
(b)The bidder identified and selected specific economically feasible units of theproject to be performed by emerging small business enterprises in order toincrease the likelihood of participation by such enterprises;
(c)The bidder advertised in general circulation, trade association, minority andtrade oriented, women-focus publications, if any, concerning the subcontractingor material supply opportunities;
(d)The bidder provided written notice to a reasonable number of specific emergingsmall business enterprises, identified from a list of certified emerging smallbusiness enterprises provided or maintained by the Oregon Business DevelopmentDepartment for the selected subcontracting or material supply work, insufficient time to allow the enterprises to participate effectively;
(e)The bidder followed up initial solicitations of interest by contacting theenterprises to determine with certainty whether the enterprises wereinterested;
(f)The bidder provided interested emerging small business enterprises withadequate information about the plans, specifications and requirements for theselected subcontracting or material supply work;
(g)The bidder negotiated in good faith with the enterprises, and did not withoutjustifiable reason reject as unsatisfactory bids prepared by any emerging smallbusiness enterprises;
(h)Where applicable, the bidder advised and made efforts to assist interestedemerging small business enterprises in obtaining bonding, lines of credit orinsurance required by the contracting agency or contractor;
(i)The bidder’s efforts to obtain emerging small business enterprise participationwere reasonably expected to produce a level of participation sufficient to meetthe goals or requirement of the public contracting agency; and
(j)The bidder used the services of minority community organizations, minoritycontractor groups, local, state and federal minority business assistanceoffices and other organizations identified by the Advocate for Minority, Womenand Emerging Small Business that provide assistance in the recruitment andplacement of emerging small business enterprises.
(3)To determine whether a bidder is a responsible bidder, the performance of allthe following actions constitutes a rebuttable presumption that the bidder isresponsible. It shall be a rebuttable presumption that the bidder is notresponsible if the bidder has not acted consistently with the actions describedin this subsection. Efforts that are merely superficial are not good faithefforts.
(a)The bidder attended any presolicitation or prebid meetings that were scheduledby the contracting agency to inform minority or women business enterprises ofcontracting and subcontracting or material supply opportunities available onthe project;
(b)The bidder identified and selected specific economically feasible units of theproject to be performed by minority or women business enterprises in order toincrease the likelihood of participation by such enterprises;
(c)The bidder advertised in general circulation, trade association, minority andtrade oriented, women-focus publications, if any, concerning the subcontractingor material supply opportunities;
(d)The bidder provided written notice to a reasonable number of specific minorityor women business enterprises, identified from a list of certified minority orwomen business enterprises provided or maintained by the Oregon BusinessDevelopment Department for the selected subcontracting or material supply work,in sufficient time to allow the enterprises to participate effectively;
(e)The bidder followed up initial solicitations of interest by contacting theenterprises to determine with certainty whether the enterprises wereinterested;
(f)The bidder provided interested minority or women business enterprises withadequate information about the plans, specifications and requirements for theselected subcontracting or material supply work;
(g)The bidder negotiated in good faith with interested, capable and competitiveminority or women business enterprises submitting bids;
(h)Where applicable, the bidder advised and made efforts to assist interestedminority or women business enterprises in obtaining bonding, lines of credit orinsurance required by the contracting agency or contractor;
(i)The bidder’s efforts to obtain minority or women business enterpriseparticipation were reasonably expected to produce a level of participationsufficient to meet the goals of the public contracting agency; and
(j)The bidder used the services of minority community organizations, minoritycontractor groups, local, state and federal minority business assistanceoffices and other organizations identified by the Advocate for Minority, Womenand Emerging Small Business that provide assistance in the recruitment andplacement of disadvantaged, minority or women business enterprises. [1987 c.893§7; 1989 c.1043 §8; 1997 c.145 §2; 2003 c.794 §215; 2009 c.830 §136]
CERTIFICATION
200.055Certification of disadvantaged, minority, women or emerging small businessenterprises; fee; rules; appeal. (1) Any disadvantaged, minority, womenor emerging small business enterprise is entitled to be certified as such uponapplication to the Oregon Business Development Department. If the applicationis approved by the department, the department shall certify the applicant as adisadvantaged, minority, women or emerging small business enterprise. Theenterprise shall be considered so certified by any public contracting agency.
(2)In consultation with the State Board of Higher Education and the Department ofTransportation, and with the approval of the Advocate for Minority, Women andEmerging Small Business, the Oregon Business Development Department by ruleshall adopt a uniform standard form and procedure designed to provide completedocumentation that a business enterprise is certified as a disadvantaged,minority, women or emerging small business enterprise. The department shallcompile and make available upon request a list of certified disadvantaged,minority, women or emerging small business enterprises.
(3)Any business enterprise that is refused certification as a disadvantagedbusiness enterprise or denied recertification as such or whose certification isrevoked may appeal directly to the United States Department of Transportation.
(4)Any business enterprise that is refused certification as a minority, women oremerging small business enterprise or has its certification revoked may requesta contested case hearing as provided in ORS chapter 183.
(5)The Oregon Business Development Department shall be the sole agency authorizedto certify enterprises as disadvantaged, minority, women or emerging smallbusiness enterprises eligible to perform on public contracts in this state.
(6)The Oregon Business Development Department by rule may establish a fee not toexceed $100 for a copy of the list of certified disadvantaged, minority, womenand emerging small business enterprises and may assess state agencies forservices under ORS 200.005 to 200.075.
(7)The Department of Transportation may collect a fee, not to exceed $200, from abidder upon bidder prequalifications to cover the costs of the Oregon BusinessDevelopment Department in administering ORS 200.005 to 200.075. The Departmentof Transportation shall transfer such fees to the credit of the accountestablished under subsection (8) of this section.
(8)The Oregon Business Development Department shall establish a special account inwhich to deposit fees and assessments. The special account is continuouslyappropriated to the department to meet its expenses in administering ORS200.005 to 200.075. [1987 c.893 §8; 1989 c.1043 §4; 1993 c.500 §8; 1997 c.145 §3;2003 c.794 §216; 2009 c.830 §137]
200.057Designation of certified business as tier one or tier two firm. (1) A businessmay be certified as an emerging small business by the Oregon BusinessDevelopment Department for up to 12 years and may be:
(a)Designated a tier one firm for up to six years unless the business no longerqualifies as a tier one firm.
(b)Designated a tier two firm for up to six years unless the business no longerqualifies as a tier two firm.
(2)The department shall adjust annually the amount of the average annual grossreceipts required to qualify as a tier one firm or a tier two firm using themost recent three-year average of the Portland-Salem Consumer Price Index forAll Urban Consumers for All Items, as reported by the United States Bureau ofLabor Statistics.
(3)Notwithstanding the time limits established by subsection (1) of this section,if a tier one firm provides compelling information showing, in the judgment ofthe department, that the firm has not been afforded an opportunity to bid onemerging small business projects during a year of eligibility, the departmentshall extend the tier one designation of the firm for one year. A tier one firmmay receive the extension described in this subsection only once. [2005 c.683 §2;2009 c.830 §138]
Note: 200.057 wasadded to and made a part of 200.005 to 200.075 by legislative action but wasnot added to any other series. See Preface to Oregon Revised Statutes forfurther explanation.
200.065Fraudulent conduct prohibited; sanctions. (1) It shall be unlawful for anyperson fraudulently to obtain or retain or attempt to obtain or retain or toaid another person fraudulently to obtain or retain or attempt to obtain orretain certification as a disadvantaged, minority, women or emerging smallbusiness enterprise.
(2)It shall be unlawful knowingly to make a false claim that any person isqualified for certification or is certified under ORS 200.055 for the purposeof gaining a contract or subcontract or other benefit.
(3)The public contracting agency may withhold payment, suspend or terminate thecontract and may impose on any person a civil penalty not to exceed 10 percentof the contract or subcontract price or $5,000, whichever is less, for eachviolation of subsection (1) or (2) of this section. The penalty shall be paidto the Office for Minority, Women and Emerging Small Business.
(4)The Oregon Business Development Department or an affected public contractingagency shall investigate any complaint that a person has violated subsection(1) or (2) of this section. In investigating such a complaint, the departmentor an affected public contracting agency may require any additional information,administer oaths, take depositions and issue subpoenas to compel the attendanceof witnesses and the production of books, papers, records, memoranda or otherinformation necessary to carry out its duties. If any person fails to complywith any subpoena issued under this subsection or refuses to testify on anymatter on which a person may lawfully be interrogated, the procedure providedin ORS 183.440 shall be followed to compel compliance.
(5)An affected public contracting agency or the department disqualify any personfound to have violated subsection (1) or (2) of this section or who admits tosuch violation under oath during the course of an investigation from bidding orparticipating in any public contract for a period of time specified by the agencyor department, not to exceed three years. Any contracting agency that hasnotice of the finding of the fraudulent certification may also disqualify theperson from bidding on or participating in any public contract. [1987 c.893 §9;1989 c.1043 §5; 1997 c.145 §4; 2009 c.830 §139]
200.075Prohibited conduct; suspension of certification or right to participate inpublic contracts.(1) Any bidder or contractor or subcontractor on a public contract thatknowingly commits any of the acts listed in paragraphs (a) to (c) of thissubsection shall have its righ